#bombayhc Archives - Page 5 of 10

29 Dec

Drug which is manufactured through heavy processing of trees are not forest produce under the Forest Act, 1927 : Bombay HC

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TITLE : Fresenisu Kabi Oncology Ltd. V The State of Maharashtra

CORAM : Hon’ble Justice A.S Gadkari and Hon’ble Justice Shyam C. Chandak

DATE : 22^nd December, 2023

CITATION : CrWP. No 667 of 2010

FACTS

The petitions are filed under Article 226 of the Constitution along with Section 482 of CrPC to set aside the criminal accusations on the petitioner. The accusations is related to theft of forest produce by the petitioners. The tree involved is Narkya found in the western Ghats and the theft complaint was lodged against 490 offenders for the offences punishable under the Wildlife Protection Act, 1972, The Indian Forest Act, 1927 and the Bombay Forest Rules, 1942. The main offenders were caught making chips of the tree of 1110 Kgs and Camptothecin which is used in the manufacturing of anti-cancer drugs by the petitioners unit. The seized Camptothecin was worth 44 Lakhs for 22 kgs.

It was argued that Camptothecin being the final product does not come under the ambit of “forest produce” as per the Forest Act. The respondents argued that the Camptothecin in question was made through illegal means and was stolen from the forest areas.

LAWS INVOLVED

Forest Produce as per the Forest Act, 1927 is defined as :

Section 2(4) “Forest-produce” includes—

(a) the following whether found in, or brought from, a forest or not, that is to say— timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds, 3 [kuth] and myrabolams, and

(b) the following when found in, or brought from a forest, that is to say—

(i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees,

(ii) plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants,

(iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other parts or produce of animals, and

(iv) peat, surface soil, rock and minerals (including lime-stone, laterite, mineral oils, and all products of mines or quarries

ISSUES

Whether Camptothecin manufactured using stolen Narkya trees come under the ambit of forest produce as per the Forest Act, 1927

JUDGEMENT

The court analysed the factual procedure for manufacturing Camptothecin and stated that it is produce through various chemical process and during that process the chemical nature of the tree is permanently changed.

The court held that since the composition of camptothecin is completely changed and is not identifiable by the tree, it is not a forest produce. Further, it was held that There is no material against the Petitioners showing that before purchasing and till receiving said Camptothecin, they knew that it was derived/extracted from the chips of the stolen Narkya trees.

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Written by- Sanjana Ravichandran

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29 Dec

Investigating authority needs to seek permission with the magistrate to investigate non cognizable offences under Section 155(2) of CrPC : Bombay HC

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TITLE : Nitin Shivdas Satpute V The State of Maharashtra

CORAM : Hon’ble Justice Anil L Pansare

DATE : 22nd December, 2023

CITATION : CrWP. No 660 of 2022

FACTS

The petitioner is a librarian in a college and the 2nd respondent is the principal of the college. The allegation of the petitioner is that the respondent is a habitual user of abusive and filthy language against the staff of the college. The petitioner along with other staff had complained regarding the same to the vice chancellor. Being annoyed at such complaint, the respondent had called the petitioners to his chambers and abused him verbally and threatened him to murder the petitioner and passing derogatory comments against his wife. He then lodged a complaint against the respondent under Section 504 and 506 of IPC.

The petitioner before the magistrate pleaded that the offence in hand was put under the category of non-cognizable offence when the nature of the offence attracted cognizable offence under Section 200 of CrPC. The magistrate issued process against the respondent for offences under Section 294, 504 and 506 of IPC. The sessions judge set aside the order.

LAWS INVOLVED

Section 294 of IPC :

“294. Obscene acts and songs. – Whoever, to the annoyance of others –

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place,

shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both

Section 155(2) of the Code of Criminal Procedure :

No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial

ISSUES

Whether the sessions judge erred in claiming principal’s office is not a public place?
Whether there is sufficient jurisdiction to seek for magistrate’s permission to investigate the offence.

JUDGEMENT

The court held that the principal’s chamber is a public place since it is situated in the campus building where the students, teachers and staff and other persons relating to the college have access to the building. Secondly, the derogatory remarks pertaining to the petitioners wife is regarded to be obscene in nature. The statement shames the dignity and modesty of the petitioner’s wife.

The court held that the sessions judge has erred in holding the position that no other person was present in the chambers when the incident occurred.

As far as the jurisdictional issue is concerned, the petitioner has two options to ensure an investigation is done under either Section 155(2) of CrPC or Section 200 of CrPC as the offence is non-cognizable nature. The court further held that in certain circumstances it is necessary to seek permission of the magistrate in investiagating non-cognizable offences under Section 155(2) of the code.

Written by- Sanjana Ravichandran

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27 Dec

Past records of an employee is irrelevant if the misconduct is grave in nature to award compensation : Bombay HC

Prime Legal

Blog #bombayhc, #dismissal, #labourlaw, #law, #legalnews

TITLE : Wheels India Ltd. V Ganesh Bajirao Vishwasrao

CORAM : Hon’ble Justice Sandeep V Marne

DATE : 22^nd December, 2023

CITATION : WP No. 992 of 2022

FACTS

Petitioners wheels India has filed a petition challenging Part – II of the award of the Industrial Tribunal directing them to reinstate the respondent from continuing service and pay 50% backwages for the period of march 2014 to December 2015. The tribunal held the punishment of dismissal was disproportionate. The backdrop is that the Wheels India Workers Union demanded for issuance of shares of the company’s permanent employees. Such demand was not met and the work was stopped by the union members through a notice. The respondent was suspended along with other 5 employees for threatening trainees and contract employees to not return to work the following day.

The enquiry officer found the respondent guilty of the charges against him and he was subsequently dismissed from service. The industrial tribunal upon challenging the order by the respondent held that the dismissal proceedings were fair and proper. The second part of the industrial tribunal award was that the dismissal was disproportionate to the charges.

LAWS INVOLVED

Section 2(A)(2) of the Industrial Disputes Act, 1947 talks about the dismissal of employees and provides for the grievance mechanism to approach the conciliation officer after the expiry of 45 days of such application.

“(2) Notwithstanding anything contained in section l0, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.”

ISSUES

Whether the Industrial Tribunal erred in holding that the dismissal was disproportionate?

JUDGEMENT

The respondent in a recent writ petition wanted to challenge the Part 1 of the award as well along with the current petition. The court held that there was a 5 year difference between the challenges and such is unacceptable to be heard. Furthermore, the court held that there is no valid reason to set aside the part 1 of the award as well.

The court held that the misconduct of threatening other employees with a view to ensure non performance of work by them cannot be considered as a minor or insignificant misconduct. The serious and grave misconduct was also proved by the enquiry officer and the past record is irrelevant in such cases.

Therefore the review of the respondent’s past conduct for awarding a compensation and holding the dismissal disproportionate is erred and unreasonable. The court then set aside the 2^nd part of the award given by the industrial tribunal.

Written by- Sanjana Ravichandran

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27 Dec

Transfer of professors within branches of same institutions should be of equivalent posts : Bombay HC on the transfer of Assistant professors to schools.

Prime Legal

Blog #bombayhc, #education, #law, #legalnews, #transfer

TITLE : Dhananjay Bhagwandas Devi V State of Maharashtra

CORAM : Hon’ble Justice A.S Chandurkar and Justice Firdosh P. Pooniwala

DATE : 22^nd December, 2023

CITATION : WP No. 4920 of 2023

FACTS

The petitioners were appointed as Associate professors at the college of engineering and polytechnic in a society. The petitioners were transferred from Karnaveer Bhaurao Patil college of engineering to Karmaveer Bhaurao Patil Polythenic varye. The petitioners are aggrieved on the said transfer as they were assistant professors in the first institution which was affiliated to All India Council of Technical Education whereas the second institution is recognized as a school under Section 2(24) of the Maharashtra Employees of Private School Regulation Act,1977. During the pendency of the trial, both the petitioners were suspended and the same is being challenged along with the deduction of post. It was argued by the petitioners that there was no alternative remedy to file for grievances and no grievance committee was constituted as required by section 86 of the Dr, Babasahed Ambedkar Technological University Act, 2014 as the engineering college is affiliated with the same institute.

LAWS INVOLVED

Section 86 of the the Dr, Babasahed Ambedkar Technological University Act, 2014

Other committees.– Every authority of the University shall have the power to appoint committees including grievance committee for dealing with any matter within its purview, and such committees may include person, other than members of the authority itself, not connected with the University :

Provided that, the Board of Studies and other authorities shall not appoint persons to such committees who are not members of the authority appointing the committee, except with the previous approval of the Vice- Chancellor.

ISSUES

Whether the petitioners had alternative remedy?
Whether the transfer of posts valid?
Whether the suspension order in accordance with law?

JUDGEMENT

The court observed that a grievance cell was constituted under a notification passed. The court further observed that a grievance cell is not equivalent to grievance committee under Section 86 of the Act of 2014. The court found sufficient reason to believe that the petitioners have no other alternate remedy available.

The polytechnic college is not affiliated with the act of 2014 but instead the Act of 1977 under the category of school, whereas on the other hand the engineering college is affiliated with the 2014 Act and is a recognized university. The court observed that the polytechnic college did not have the post of assistant professor since it is still technically a school. Therefore the court held that the transfer was not in accordance with law as there was no equivalent transfer of posts.

On the issue of the suspension order, the court held that a suspension on the basis of disciplinary grounds should not be more than 3 months. The suspension was done on May 2023. Since more than 5 months have passed out, the court held that the suspension on the ground for enquiry basis was right but the mere fact of holding suspension for an indefinite period is unwarranted.

Written by- Sanjana Ravichandran

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26 Dec

No limitation would be applied in the cases where there is misrepresentation involved in acquiring land : Bombay HC

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Blog #bombayhc, #landacquisition, #law, #legalnews, #propertylaw

TITLE : Shri Hanumant Baburao Neharkar v State of Maharashtra

CORAM : Hon’ble Justice Sandeep V. Marne

DATE : 22^nd December, 2023

CITATION : WP No 11287 of 2018

FACTS

The petitioner challenge the order passed by the Revenue minister in Revision Application filed by the respondent. The revenue minister has set aside the order passed by the Additional Commissioner and additional collector. The land which was allotted to the Respondent 5 was allotted jointly to him and to the petitioners together. The respondent filed appeal before the additional commissioner which was rejected. The revenue minister set aside the orders passed by additional collector and held that the land is solely allocated to respondent 5 alone and the petitioners have no right title and interest in the property.

The alternate property was initially allocated to Baban who had two sons. The property should have been allotted to the sons in natural course since on the day of allocation, Baban has passed away. However, the occupancy price was paid by the respondent 5, who is a son of Baban and the land was subsequently allocated to him. The heirs of the property were aggrieved by the said decision.

LAWS INVOLVED

Misrepresentation :

Misrepresentation is an untrue statement of a fact made by one party to another which changes the course of decision. It is defined under Section 18 of the Indian Contract Act,1872.

“a misrepresentation is a form of a statement made preceding to the contract being completed. There are two varieties of statement that can be performed before a contract is formed, these will either:

Form part of the contract.

Not form part of the contract, therefore it becomes a representation

ISSUES

Whether the sole allotment of land to Respondent 5 by the Revenue minister is valid?

JUDGEMENT

It was submitted by the counsel appearing for the respondent that the application filed by the petitioners is barred by limitation as it was filed 25 years later the allotment. Since this was an alternate property, the statutory provisions of the Rehabilitation Act,1986 was interpreted. According to the Act, the entire family will be granted one alternate land in a beneficial zone. The court held that since the alternate land allotted in the name of Respondent 5 was obviously meant for the entire family and only for the respondent 5. The court also held that the sole allotment of Respondent 5 was an act of misinterpretation and no limitation would apply. The respondent took advantage of his father’s death and did not communicate the same to the other son about the application of allotment. The court held that the Respondent 5 acted through misrepresentation in getting the land.

Written by- Sanjana Ravichandran

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