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The Delhi High Court by mutual consent of both the parties, allowed the Petitioner/Plaintiff to submit an affidavit of witnesses as part of Examination in chief, post order given by Trial court denying the same.

Title- Vijay Kumar v. C.S Valsala Kumaran Nair

Decided on: 06.10.2023

+ CM(M) 1392/2018

Introduction

The present petition is filed under Article 227 of the Indian Constitution (Power of Superintendence over all the courts by the High Court). The Delhi HC by mutual consent of both the parties, allowed the Petitioner/Plaintiff to submit an affidavit of new witnesses as part of Examination in Chief, post order given by the Trial court denying the same.

Facts of the Case

This Petition disputes the truth, validity, or honesty of the order given on 13th of August, 2018 and 17th of September, 2018 which was passed by the Hon’ble Additional District Judge-02, West, Delhi in a Civil Suit with bearing no. 116/27/15 (New No. 609668/2016).

The said suit was titled “Vijay Kumar v. C.S. Valsala Kumaran Nair”. The Petitioner in the present case was the original Plaintiff and the Respondent was the original Defendant in the aforementioned civil suit.

The petitioner had requested the trial court to reconsider their decision made on 13th of August 2018 however the request was also declined by the court vide its order dated, 17th of September, 2018.

The previous decision given in August had closed the plaintiff’s right to submit an affidavit of witnesses as part of their Examination in chief.

The civil suit bearing no. 116/27/15 was filed by Petitioner/Plaintiff Vijay Kumar against Respondent/Defendant C.S. Valsala Kumaran Nair for recovery of a total amount of Rs. 48,482,95/- under Order XXXVII of C.P.C [Summary Suit].

Court Judgement and Analysis

Delhi High Court in this matter set aside the Judgement dated 13th of August, 2018 and 17th of September, 2018 through mutual consent of both the parties agreeing to some mutual terms-

The plaintiff agreed that concerning the list of the witnesses filed as annexure P-7 to this petition, he does not propose to examine the witness listed at serial No. 3, 12, 13, 14, and 15 and would only be examining the rest.

He also stated that no other witness is proposed to be examined, and he agreed to duly cooperate with the trial court in recording of the evidence and not seek adjournments. The counsel for the defendant also agreed with the terms proposed by the plaintiff.

Hence, the court allowed the plaintiff to file an affidavit of proposed witnesses within four weeks. And the court held that both the parties are bound down to the statements made before the Judges.

Interim orders were laid vacated, pending applications were disposed of and the parties were directed to appear before the Trial court on the given date, the Trial court was requested to fix the matter by recording the evidence of the plaintiff on the said date.

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Written by- Aditi

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Delhi High Court directed Indo-Tibetan Border Police to review the Cadre-Exercise and Conduct personal hearing of their Senior Most Assistant Commandant and Petitioners within 4 weeks.

Title: Kailash Chand Saini & Ors. vs Union of India & Anr.

Decided on: 03.10.2023

+ W.P.(C) 11488/2018

Introduction

The court in the present writ petition for reviewing Cadre-Exercise, relied on the ratio decidendi given in gave direction to Indo Tibetan Border police to conduct personal hearings of Senior Most Assistant Commandant (Pioneer) and Petitioners within 4 weeks and also asked them to make any necessary changes if needed.

Facts of the Case

The Petitioners filed the present Writ Petition for requesting the Courts to give directions to the Indian Government for reviewing the Cadre-Exercise being undertaken by Indo-Tibettan Border Police.

Court Judgement and Analysis

The Counsel for petitioners, Kailash Chand Saini & Anr., relied on the Judgement given in an identical writ petition WP (C) No. 5968/2020 titled Lokesh Kumar Arya and Ors. Vs Union of India, dated 4th of June, 2020 wherein a Co-ordinate bench of the Hon’ble HC had directed the ITBP to review the Cadre Exercise.

The Counsel from the Respondent’s side also conceded with the counsel for Petitioners and acknowledged that the Cited Judgement “Lokesh Kumar Arya vs Union of India” is relevant to the current case’s facts.

The Counsel for Respondents also proposed that the present petition should be resolved according to the instructions given in the cited case.

Hon’ble High Court in the present petition, relying on the ratio decidendi given in the Lokesh Case, directed the Indo-Tibetan Border police to review their Cadre Exercise within 4 weeks.

The ITBP was also directed to treat the present writ petition like a representation from the petitioner’s side and asked them to conduct a personal hearing of their Senior Most Assistant Commandant and the petitioners.

The Hon’ble court also emphasized that during the said hearing both the parties would have the right to present any additional information, if relevant.

After the personal hearing, if the ITBP finds the case in merit, they would have to make all the necessary modifications or corrections and if no merit is found in the petitioner’s claims then they are free to issue an order with reasons for rejecting all the claims made by the petitioner.

The Court also clarified that the cadre exercise must be in adherence to the guidelines set by the previous court judgments on cadre review, as per the directions given in office memorandums (OMs) and the Monograph of the Department of Personnel and Training (DoPT).

By further clarifying that the review, if required, so ordered, would not suspend or come in the way of the operation of the cadre review already done/undertaken, the Hon’ble Delhi HC disposed of the petition.

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Written by- Aditi

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When a proceeding of Winding up has reached an advanced stage and immovable properties have already been handed over to Official Liquidator, the winding up petition can’t be transferred to NCLT- Delhi HC

Title- Deutsche Trustee Company Ltd v. Tulip Telecom Ltd.

Decided on: 3rd October, 2023

+ CO.PET. 329/2013 and CO.APPL. 973/2018, 322/2019, 1104/2019

Introduction

The present case is a clubbed hearing of several appeals against the Respondents.

The Delhi High Court by relying on the Judgement given in, upheld that when a proceeding of Winding up has reached an advanced stage and immovable properties have already been handed over to the Official Liquidator, the winding up petition can’t be transferred to NCLT.

Facts of the case

CO. APPL. 1104/2019 is filed on behalf of STCI Finance Limited, seeking Relief to give directions to the Official Liquidator to remove the goods of Tulip. Telecom Ltd. Lying at 5, Paschimi Marg, Vasant Vihar, New Delhi- 11057.

Earlier the court had ordered the OL to sell those movable assets after the valuation report had been received by circulating handbills. And ordered Ex- Directors to be present when the goods would be sold.

Copy of the handbills had to be given to the applicant, SICI Finance Ltd as well as Ex-Directors of Tulip Telecom Ltd, and this process had to be completed within 15 days and a report of the same had to be filed in the court by the next hearing.

Then after application bearing no. Co. Appl. 349/2020 was filed, seeking the same prayer.

Another appeal, CO. APPL. 322/2019 is an application filed by Punjab National Bank, Requesting the Court to transfer Petition to NCLT under Section 434(1)(c) of the Companies Act, 1956, which talks about, ‘Company when deemed unable to pay Debt”

They also relied on the judgment given in Forech India Ltd. Vs Edelweiss Asset Reconstruction Co. Ltd [ Civil Appeal No. 818 of 2018, Judgement dated 22nd January 2019].

No one appeared for Punjab National Bank and Counsel for Tulip Telecom Ltd. Contended that the petition should not be transferred to NCLT.

Earlier in this petition, an Official Liquidator was appointed, and final winding-up order was already passed.

Court Judgement and Analysis

Court in CO. APPL. 1104/2019 and Co. Appl. 349/2020 observed that the OL is stated to have removed the said goods in January 2022, under orders passed. Accordingly, the said application had become infructuous and they disposed of it.

For CO. APPL. 322/2019, the court relied on the Judgement given in Action Ispat and Power Limited v. Shyam Metalics and Energy Limited (2021) 2 SCC 641, that as long as there have been no actual sales of the assets (immovable or movable), there is no irreversible action taken that would compel the Company Court to stop a transfer application made by a creditor or any party involved. Only when the winding-up proceedings have advanced to a point where reversing the process is no longer feasible, should the Company Court proceed with the winding-up, rather than transferring the proceedings to the NCLT for resolution under the provisions of the IB. The Hon’ble court analyzed that in the present case, it was recorded that the company was not in a position to repay its debts, as no scheme was forthcoming from the Ex-management. Therefore, the Court earlier directed the Provisional Liquidator to take over the charge of the books of account and the assets of the company. It was also taken into consideration that vide OLR 30 of 2020, OL has already taken possession of certain immovable assets and properties of the company in liquidation.

Therefore, looking at the present stage of proceedings in the petition, Court upheld that the proceedings have reached an advanced stage and hence the present petition does not deserve to be transferred to the NCLT.

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Written by- Aditi

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Haven’t cleared LDCE, Cannot Claim Promotion as a matter of Right- DELHI HC

Title- M.T.N.L v Mahindra Singh

Decided on: 04th October, 2023

+ W.P.(C) 12942/2006

Introduction

The present petition was filed for setting aside/quashing of the order given in O.A. NO. 3169/2003 on 10th of December 2004 and another order given in the Review petition bearing no. 99/2005 on 23rd of May, 2006 by Principal Bench of Central Administrative Tribunal, New Delhi, Under the Scope of Articles 226 and 227 of the Indian Constitution. The Court set aside both the orders upholding Telecom Engineering Service (Group ‘B’) Recruitment Rules 1981, that Respondent had not cleared the LDCE, he cannot claim promotion as a matter of right.

Facts of the case

In the year 1977, Respondent, Mahindra Singh was appointed to the position of JTO under the Telecommunication Department, Government of India. Later after two years, he was suspended on the 27th of April, 1979 following an order for his termination from the services on the 26th of September 1979, passed as per CCS (Temporary Services) Rules of 1965, Rule 5(1).

He filed a representation opposing the aforesaid order and then got re-employed on the 2nd of April, 1983.

A criminal complaint was also filed against him under section 409, 204, and 12 [Forgery and Misappropriation] Under IPC, an FIR was filed against him, and on 26th of June, 2001 he was acquitted of all the charges. Respondent then, in 2001, filed Original Application 3220/2001 in front of the Central Administrative Tribunal for Reinstatement following his date of Termination.

For the said suit order was passed in favor of Mahindra Singh, who condoned interruption of services b/w two of the appointments i.e. 22nd of June 1979 and 2nd of April allowing all consequential benefits.

In between there was an event where an application was called for the promotion from the post of Junior Engineer to Telecom Engineering, GRADE 1.

Mahindra Singh was also interested and hence applied for the same, but his application was rejected on 12th of December 1985 stating that he was not eligible for the same, Respondent again applied for the “Limited Departmental Competitive examination” in the years 1989, 1990 and also in 1991, but his application always got rejected on the ground that criminal case was pending against him.

Later in 2000, finally he was given a promotion.

However Respondent No. 1 complained that since he was reinstated effective in 1977, he was eligible for promotion in 1986, but his juniors were promoted after passing the LDCE, and he had been unfairly denied the chance to take the LDCEs each time, for which he could not be punished. Consequently, he prayed for the grant of promotion with effect from 1986 to O.A. No. 3169/2003.

His prayer was allowed by CAT through an order dated 10th of December 2004, and the Tribunal held that,

On careful consideration of the rival contentions, we are of the view that once the interruption between two appointments has been condoned and the applicant has been accorded all consequential benefits this period should be reckoned towards qualifying service as the applicant has subsequently qualified for the examination as earlier, he had been prevented by an illegal action of the respondents to participate in the selection process. However, on his acquittal from the criminal case he has a right to be considered for promotion from the date he acquired eligibility.”

Aggrieved by this order, the Respondents who are petitioners in this case, The Secretary of the Ministry of Communications and The Executive Director of MTNL, filed a Review Petition bearing No. 99/2005 but that also got dismissed on 23rd June 2006.

Courts Judgement and Analysis

The court observed that Respondent No. 1 was appointed in the year 1977 as JTO and his services were terminated in the year 1979. In the year 1983, he was re-employed as a fresh recruit vide Letter dated 02.04.1983 with all consequential benefits along with past service w.e.f. 02.04.1983. Vide O.A. No. 3220/2001, interruption between two appointments i.e., 2.06.1979 and 02.04.1983 was condoned with all consequential benefits. Thereafter, respondent No. 1 applied for appearing in LDCE, but he was not allowed against which, no representation or legal remedy was taken by respondent No. 1.

Court observed that respondent no. 1 was denied participate in LDCE for the first time in 1985 as he was freshly employed in 1983 and hadn’t fulfilled the requirement of continuous 5-year service for being eligible to give LDCE as per Telecom Engineering Service (Group ‘B’) Recruitment Rules 1981 and because he had a pending criminal case against him.

They highlighted that in early decisions CAT observed that since respondent No. 1 had subsequently qualified for the examination and was earlier prevented due to the illegal action of respondent No. 1 to participate in the selection process, he be considered for promotion w.e.f. 20.08.1986. However, respondent No. 1 herein has admittedly never taken the LDCE and, therefore, did not ever meet the criteria for his promotion in the 33-1/3 percent quota as per Telecom Engineering Service (Group ‘B’) Recruitment Rules 1981. Once, he has not cleared the LDCE, he cannot claim promotion as a matter of right. However, he became due for promotion w.e.f. 26.04.2000 as per the Rules and has been rightly granted his promotion. They upheld that CAT fell in error observing that respondent No. 1 had qualified for the requisite LDCE, in fact, he never qualified for this exam and quashed the previous orders given in O.A. No. 3169/2003 and Review W.P.(C) 12942/2006 Page 10 of 10 Petition bearing No. 99/2005 by observing that the respondent No. 1 has been granted the promotion correctly w.e.f. 26.04.2000.

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Written by- Aditi

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Data theft laws in India and its implication

Introduction

In the contemporary era dominated by information, where data holds immense power and serves as a form of currency, the unauthorized acquisition and exploitation of this valuable resource have emerged as a widespread and intricate challenge. This issue carries significant consequences for individuals, organizations, and even entire nations. Recently, a case unfolded, described as potentially the most extensive data leak in the country, involving the exposure of personal details from over 81.5 crore Indians, purportedly sourced from the Indian Council of Medical Research (ICMR). This incident is just one among numerous instances of data breaches, highlighting the urgent necessity for a robust and comprehensive data protection framework.

Data theft, encompassing unauthorized access, acquisition, or retrieval of confidential information, has become a pervasive concern for individuals and enterprises alike. In India, the legal landscape governing data theft has primarily been shaped by the Information Technology Act, 2000, and subsequent amendments. This legislation, coupled with provisions from the Indian Penal Code, has been instrumental in addressing offenses related to unauthorized access and data breaches. 

Data theft laws in India

Data theft, also referred to as data breach or intrusion, entails the unauthorized acquisition, replication, or retrieval of confidential or sensitive information from individuals or enterprises without their knowledge or consent. This may involve the illicit acquisition or hacking of passwords, banking details, personal information, client particulars, or corporate data like trade secrets, software, source codes, and proprietary information. In the Indian context, the regulation of data theft primarily falls under the purview of the Information Technology Act, 2000.

Provisions within the IT Act extend penalties to actions related to the disclosure of information in violation of lawful contracts (Section 72A) and breaches of confidentiality and privacy (Section 72). Section 43 addresses unauthorized access to computer systems, networks, or electronic devices, imposing penalties for unauthorized copying, extraction, or downloading of data. Section 66 of the IT Act specifically targets computer-related offenses, including data theft, punishing unauthorized access to computer systems with the intent to commit or facilitate data theft.

While the introduction of the Personal Data Protection Bill in 2019 aimed to bolster data protection and privacy in India, its status as law was pending as of the last update. The bill outlined regulations for the collection, storage, processing, and transfer of personal data.

In instances of data breaches, certain sections of the Indian Penal Code (IPC) can also come into play. For example, Section 403 deals with the criminal penalty for dishonest misappropriation or conversion of movable property for personal use. Section 378, originally addressing theft of immovable property, could be invoked if data stored in hardware devices like floppy disks or pen drives is stolen.

Moreover, Section 63B of the Indian Copyright Act stipulates punishment for individuals knowingly using a computer or infringing copy of a computer program.

A notable legal precedent was established by the Supreme Court in the case of Jagjeet Singh v. State of Punjab & Anr. (Special Leave Petition (Criminal) No. 3583 of 2021). The judgment emphasized that instances of hacking and data theft could be considered offenses under the IPC, highlighting that the IT Act does not exclude the applicability of the IPC in matters related to hacking and data theft.

Digital Personal Data Protection Act, 2023:

The newly passed DPDP Act extensively tackles the concern of data theft and imposes substantial responsibilities on data fiduciaries. These fiduciaries, acting as guardians of personal data, hold the principal duty to protect this information from theft, breaches, and unauthorized access. The legislation mandates the implementation of rigorous protocols, encryption methods, and access controls by data fiduciaries to secure the data they gather and handle.

In contrast to the 2019 version of the bill, the 2023 DPDP Act is more restrained, featuring diminished obligations for businesses and fewer protections for consumers. On the one hand, the regulatory structure is simpler, but on the other, it vests the central government with unguided discretionary powers in some cases. The DPDP Act is applicable to both Indian residents and businesses that collect the data of Indian residents. Notably, it extends its reach to non-citizens residing in India, whose data processing is linked to activities related to the offering of goods or services outside India.

Introducing a pioneering data privacy law in 2023, the act mandates obtaining consent before processing personal data and outlines specific exceptions clearly defined in the legislation. This marks the establishment of India’s first statutory framework for data protection, fostering the gradual development of minimal standards of behavior and compliance for businesses engaged in data collection.

The act excludes non-automated personal data, offline personal data, and personal data in existence for at least 100 years. Notably, the maximum penalty limit of INR 500 crore has been eliminated. As of now, the act does not incorporate provisions for grievance redressal review. The timeline of 72 hours within which a data breach is to be reported to authorities is excluded

Apart from the uncertainties surrounding the implementation, there are reservations about certain aspects of the law and how they might compromise the protections seemingly provided by it.

Conclusion

The rapid evolution of information technology presents new legal challenges that transcend traditional categories such as Criminal Law, Intellectual Property Law, Contract, and Tort. One such formidable challenge is the escalating threat of Data Theft, where information in the form of data is illicitly copied or taken from a business or individual without their knowledge or consent.

Recognizing data as a valuable asset, it becomes evident that despite being one of the largest countries globally in terms of internet users, India lacks a robust legal framework to safeguard its citizens’ data. The existing IT laws in India are a decade old and prove insufficient in addressing the contemporary challenges faced by the current generation. Moreover, these laws suffer from inadequate implementation by both the executive and legislative branches. The appointment of adjudicating officers, intended to resolve conflicts, remains unfulfilled in many states. Additionally, there is a lack of standardized guidelines or penalty formats mandated by the legislature for adjudicating officers to follow. This lack of uniformity creates chaos, with different officers employing disparate procedures and judgments based on their individual discretion.

The urgent need is apparent for a robust technical law that can establish a formidable data protection mechanism for the citizens of the country. Laws should not only address present challenges but also anticipate and mitigate potential future issues, providing a comprehensive and adaptive legal framework.

“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 fall into a category of 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.”

Written by- Amrita Rout

 

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