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12 May

EVERY ENTRY IN ACR OF A PUBLIC SERVANT MUST BE COMMUNICATED TO HIM WITHIN A REASONABLE PERIOD IS LEGALLY SOUND AND HELPS IN ACHIEVING THREEFOLD OBJECTIVES: TELANGANA HIGH COURT

The High Court of Telangana passed a judgment on 24.04.2023 stating that every entry in ACR of a public servant must be communicated to him within a reasonable period is legally sound and helps in achieving threefold objectives .It was stated in the case of Y.Lakshmana Rao v. The Union of India (WRIT PETITION No.15979 of 2019 ) which was passed by the single judge bench comprising of HONOURABLE JUSTICE N. TUKARAMJI

FACTS OF THE CASE:

Petitioner joined Indian Space Research Organization (ISRO) as Technical Assistant-B in 1988. In the course of his service, he was promoted to the rank of Scientist/Engineer SD in the year 2004. He was due to be promoted as Scientist/Engineer SE in the year 2008 but was not considered by the Screening Committee/Departmental Promotion Committee (DPC, for short) till the year 2014. On 01.07.2014, petitioner was promoted as Scientist/Engineer SE. Petitioner made several representations seeking his promotion with effect from 01.07.2008. As his request was not considered, he had filed the original application before CAT. 4 4.1. Respondents had filed objection by contending that petitioner was accommodated at Advanced Data Processing Research Institute (ADRIN), Secunderabad in 1996 on request transfer from Bangalore. In the course of his service career, he was given due promotion. He was due for promotion from Scientist/Engineer SD to Scientist/Engineer SE in the year 2008 after completing residency period of four years as Scientist/Engineer SD. At the time of his consideration, his service details were placed before the Screening Committee as to whether case of the petitioner should be recommended for consideration by DPC. As the petitioner could not measure up to the requirement standards, he could not clear Screening Committee till 2011. Though he could clear Screening Committee in 2011 and 2012, he did not fare well in DPC. Hence, he was not promoted. Ultimately, he was screened by the selection committee and on recommendation to DPC he was cleared by the DPC in the year 2014, whereafter he was promoted to the rank of Scientist/Engineer SE with 5 effect from 01.07.2014. Stand taken was that according to the scheme of ISRO, once an employee completes the residency period, he would be considered for promotion based on Annual Performance Appraisal Report (APAR) and other performance parameters. It was only when the petitioner was found fit for promotion that he was selected by DPC and ultimately promoted with effect from 01.07.2014.

JUDGEMENT OF THE CASE

In consideration of the case of the petitioner by the Screening Committee and DPC stood vitiated on account of acting on the uncommunicated remarks in the ACRs/APARs of the petitioner for the relevant period. Case of the petitioner for promotion to the post of Scientist/Engineer SE from an anterior date is therefore required to be reconsidered by the DPC either by ignoring the uncommunicated remarks in the ACRs for the related residency period or by giving an opportunity to the petitioner to represent against such ACR gradings. If the petitioner represents against such ACR gradings, the same may be considered and based on such consideration or in the event of ignoring the uncommunicated remarks, case of the petitioner may be placed again before the DPC to reconsider promotion to the post of Scientist/Engineer SE with effect from 01.07.2008. Ordered accordingly. Let the entire exercise be completed within a period of six months from the date of receipt of a copy of this order. Since the petitioner has already superannuated from service, the benefits accruable to the petitioner, in the event of successful reconsideration, would be notionally fixed only for the purpose of retirement benefits. Consequently, order dated 26.04.2019 of CAT is set aside. 27. Writ petition is accordingly allowed to the extent indicated above.

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JUDGEMENT REVIEWED BY ROSHNI SABU, KERALA LAW ACADEMY LAW COLLEGE.

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12 May

GOVERNMENT OF INDIA IS ENCOURAGING MEDIATION TO RESOLVE DISPUTERS AND IS KEEN TO MAKE RESORT TO MEDIATION AS MANDATORY: TELANGANA HIGH COURT

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The High Court of Telangana passed a judgment on 21 April 2023, stating that Government of India is encouraging mediation to resolve disputers and is keen to make resort to mediation as mandatory. It was stated in the case of TATA CONSUMER PRODUCTS LIMITED v. ITC Ltd. (CIVIL MISCELLANEOUS APPEAL NO.69 OF 2023) which was passed by the division bench comprising of HONOURABLE JUSTICE P.NAVEEN RAO AND HON’BLE SRI JUSTICE NAGESH BHEEMAPAKA

FACTS OF THE CASE:

Plaintiff and the respondent are the Companies registered under the Companies Act, 2013. According to plaintiff, it is a century old business house engaged in business of marketing and/or manufacturing of diverse goods and services including packaged Foods and Beverages etc. It claims to be one of India’s foremost Private Sector Company having total income of about 62,336 crores in the financial year 2021-22 with market capitalization of about 3,08,882 crores as on 31.03.2022. It is rated amongst India’s 50 biggest Non-financial companies and ranked amongst the top 5 of India’s Most valuable companies for the years 2014 to 2019 by Business Today. It is also adjudged to be one of the world’s top 250 most regarded companies of 2019 by Forbes Magazine. It claims to enjoy enviable market position in foods business driven by renowned brads including ‘AASHIRVAAD salt’. Defendant is also involved in various consumer products under the brand name ‘TATA’. Defendant is also involved in manufacturing and selling of salt with the brand name ‘Shuddh by TATA salt’. 4According to the plaintiff, plaintiff is aggrieved against the defendant about its adoption, use and launch in December, 2022 of a trade dress which is a colourable and slavish imitation of ‘AASHIRVAAD salt’ trade dress of the plaintiff. The adoption and use by the defendant of the new ‘TATA SHUDDH salt’ trade dress for sale of salt is dishonest and motivated to trade upon the goodwill and reputation associated with plaintiff’s ‘AASHIRVAAD salt’. Plaintiff alleges that there is a deliberate attempt to not only copy the overall colour combination, but also the overall get-up and arrangement of features. The plaintiff alleges that impugned packaging/trade dress by the defendant can have no possible justification for adoption of several features in combination from the plaintiff’s ‘AASHIRVAAD salt’ packaging and get-up. Plaintiff alleges that the ‘Shuddh TATA Salt’ packaging trade dress is imitation of ‘AASHIRVAAD salt trade dress’ of plaintiff.

JUDGEMENT OF THE CASE

The Court has to satisfy that plaintiff has made out a case to dispense with availing mediation process, that he requires urgent orders and that not permitting him to institute the suit immediately without seeking recourse to mediation would cause irreparable injury and hardship. There was no consideration on urgency to file suit and seek urgent interlocutory orders. Dispensing from availing the mediation to resolve the dispute before instituting a suit is not a matter of course. The trial Court has not even looked into the mandatory nature of availing mediation as per Section 12-A. It has not applied its mind on whether the plaintiff has made out a case to dispense with taking recourse to mediation. It amounts to error of jurisdiction. Having regard to statutory mandate, we set aside the order under challenge and remit the matter to the Commercial Court to consider the maintainability of suit without availing the mediation as required by Section 12-A of the Act. 30. The Appeal is accordingly, allowed

JUDGEMENT REVIEWED BY ROSHNI SABU, KERALA LAW ACADEMY LAW COLLEGE.

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11 May

Calcutta High Court Invokes Power Under Article 133(1)(A) R/W Article 134A Of The Constitution

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The bench of Justice Shekhar B Saraf of the High Court of Calcutta in the case of State of West Bengal v. Rajpath Contractors and Engineers Limited (AP 737 of 2022) has invoked its powers under Article 133(1)(a) r/w Article 134A of the Constitution to allow the aggrieved party to directly appeal against its judgment to the Supreme Court on the ground that the case involves a substantial question of law of general importance.

Facts of the Case:

On November 12, 1996, the parties reached an agreement. The project work was finished in 2006, but, in the year 2009, the respondent used the arbitration provision for sending numerous of its claims to arbitrator. As a result, the arbitrator was appointed, and the award was issued on June 30, 2022, in favour of the respondent. On October 31, 2022, the petitioner filed a challenge under Section 34 of the A&C Act. The respondents objected to the petition’s maintainability, claiming that it is barred by limitation because it was filed after the statute of limitations had expired.

Judgment Review:

The Court noted that the award was issued on June 30, 2022, and it was legally delivered on the same date, therefore the statute of limitations began to run on July 1, 2022. First, the Court considered when the term of limitation expired, for which the Court considered the meaning accorded to the words ‘three months’ under Section 34(3) of the A&C Act. The Court stated that the wording “three months” in Section 34(3) of the A&C Act cannot be interpreted as “90 days.” Accordingly, they held that the original period of limitation expired on 30.09.2022. However, taking cognizance of the peculiar situation wherein the entire extended period of 30 days coincided with the Court’s holidays, the Court stayed the operation of its judgment for 60 days and invoked its powers under Article 133(1(a) r/w Article 134A to allow the petitioners to directly appeal to the Supreme Court. The Court observed that the case involves a substantial question of general importance and the that the law has a lacuna that the legislature could not comprehend and allowed the certificate to the petitioner. The Court also observed that the certificate to appeal would be in addition to the remedies already available to the petitioner.

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“Prime Legal is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into the category of the best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer”

JUDGMENT REVIEWED BY DIVYA SHREE GN

11 May

‘The Petitioners May Hold Their Demonstration At Sahid Minar For 12 Days.’ : Calcutta HC

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The bench of Justice Rajashekhar Mantha of the Calcutta High Court in the case of Paschim Banga Khet Mazdoor Samity v. The State of West Bengal (WPA 11363 of 2023) allowed MGNREGA workers to hold a sit-in demonstration for twelve days at Sahid Minar Grounds in Kolkata over non-payment of their wages and non-commissioning of their work.

Facts of the Case:

The petitioners wanted to hold a sit-in demonstration for twelve days at Haque Road at the crossing of Aminia Hotel next to the Kolkata Municipal Corporation Building. The petitioners expected about 100 people to participate.

Order Review:

“This Court is of the view that the petitioners may hold their demonstration at Sahid Minar Grounds from 10:00 A.M. to 7:00 P.M. on a day for 12 days. There shall be no more than fifteen persons staying overnight. There shall be no cooking and littering and the demonstration shall be conducted in a peaceful and hygienic way. Only available public toilets shall be used by the petitioners and the demonstration shall be wound up strictly within twelve days. Each and every condition that shall be imposed by the police shall strictly be complied with by the petitioners.” The Court also said that the demonstration would be subject to the permission of the Army, who is the owner of the property in question and in the event of any violation of any of the conditions of the police or the conditions as indicated hereinabove, the Deputy Commissioner of Police, Kolkata Police shall be authorized to evict the petitioners from the said land. With the aforesaid directions, the writ petition was disposed of.

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JUDGMENT REVIEWED BY DIVYA SHREE GN

11 May

Inability To Pay A Portion Of The Price Of Goods Purchased By Him Cannot Give Rise To A Criminal Prosecution

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On Monday, the single judge bench consisting of Justice Ajoy Kumar Mukherjee of the Calcutta High Court in the case of Girish Lahoti v. Firdous Alam (CRR 279 of 2022) quashed criminal proceedings under Sections 484, 406 and 34 of the IPC against a businessman who allegedly refused to pay a portion of the price of goods purchased by him, on the grounds that the accused did not have any fraudulent or dishonest intent from the start of the transaction.

Facts of the Case:

The opposing party had filed a complaint with the ACJM, Dinhata, saying that the petitioner owed him Rs. 9,25,000/- but had only given him Rs. 5,000. When the opposing party wanted the remaining sum, the petitioner refused to pay it, according to the court.The petitioner filed an application before the High Court under Section 482 of the CrPC, praying for the quashing of proceedings pending before the Judicial Magistrate in Cooch Behar under Sections 484 (Counterfeiting a mark used by a public servant), 406 (Punishment for criminal breach of trust), and 34 (Acts done by several persons in furtherance of a common intention).

Judgment Review:

“The legislature intended to criminalize only those breaches which are accompanied by fraudulent, dishonest or deceptive inducements,” the court said. The Court said that continuation of the criminal proceedings pending against the present petitioners will be sheer abuse of the process of court in view of the fact that there is remote chance of convicting present petitioners either under section 420 or under section 406 of IPC, on the basis of the materials available in the record Accordingly, the court quashed the proceedings under Sections 420, 406 and 34 IPC against the petitioners.

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JUDGMENT REVIEWED BY DIVYA SHREE GN

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