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Justice Served: Bombay High Court Upholds Detention Order Under MPDA Act

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Title: Mohsin Anwar Khan @ Shaikh v. Commissioner of Police, Pune & Ors.

Decided on: 30th AUGUST, 2023

CRIMINAL WRIT PETITION(STAMP) NO. 7365 OF 2023

CORAM: REVATI MOHITE DERE & GAURI GODSE, JJ.

Facts:

This case involves a petition filed to challenge a detention order issued against the petitioner. The order, dated February 24, 2023, was passed by the Commissioner of Police, Pune, under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers, and Persons engaged in Black-marketing Essential Commodities Act, 1981 (MPDA Act). The order was based on allegations from a Criminal Case (CR) registered on November 4, 2022, against the petitioner for offenses under various sections of the Indian Penal Code, Maharashtra Police Act, and Arms Act. The petitioner was accused of threatening and assaulting individuals with weapons. The detaining authority also relied on in-camera statements from witnesses regarding incidents in October 2022.

Issues:

  1. Whether there was a delay in issuing the detention order, rendering it invalid?
  2. Whether the in-camera statements were valid due to the time gap between incidents and the date of the order?

Contentions:

The petitioner claimed that the order was delayed as the incidents and in-camera statements were several months before the detention order. However, the government’s response detailed the steps taken to verify the statements and scrutinize the proposal. The court found that the order was issued within a reasonable timeframe, considering the events and verification process. The petitioner argued that the allegations were individual and not a threat to public order. The detaining authority asserted that the petitioner’s actions caused fear and terror among the public, justifying the detention. The court analyzed the incidents mentioned and concluded that they created a public order issue due to the petitioner’s intimidating and threatening actions. The state opposes this, arguing that the petitioner’s actions, including assaults, extortion, and threats, created fear and a sense of terror within the community, thus posing a risk to public order.

The petitioner also argues that the witnesses against them in the CR have a history of animosity, undermining the credibility of their statements. The state, on the other hand, stands by the witnesses’ testimonies, stating that they provide a valid basis for the detention.

The petitioner questioned the authenticity of in-camera statements. The government explained the procedural steps taken to verify the statements’ genuineness. The court acknowledged that the statements were recorded while the petitioner was in custody and found the process satisfactory in establishing the validity of the statements.

Decision:

The court dismissed the petitioner’s claims, ruling that there was no undue delay in issuing the detention order. The court also held that the allegations against the petitioner were of public order concern due to the intimidating and threatening nature of the incidents. The court upheld the reliability of the in-camera statements, finding the verification process sufficient. Consequently, the petition was rejected, and the detention order remained in effect.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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Bombay HC dismissed an appeal for reinstatement due to failure to prove seniority over other teachers

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Title: Janabai Nivrutti Saune v. Dharmveer Shambhuraje and Ors.

Decided on: 25.08.2023

+ WRIT PETITION NO. 11554 OF 2022

CORAM: SANDEEP V. MARNE, J.

Facts of the Case:

The petitioner was aggrieved by the judgment and order issued on January 6, 2022, by the School Tribunal in Pune. The petitioner had appealed against her termination from service, which was effective from February 6, 2020. The tribunal allowed the appeal, stating that her termination was against the law, but instead of reinstating her, it directed the management to pay her six months’ salary as compensation. The petitioner was dissatisfied with the denial of reinstatement relief and filed a petition.

The petitioner held educational qualifications of H.S.C. and D.Ed. She was appointed as an Assistant Teacher on January 1, 2013. Subsequently, her services were terminated on August 8, 2017, and she challenged the termination through an appeal. The tribunal partially allowed the appeal, setting aside the termination and directing her reinstatement.

Issues:

The main issues were whether the petitioner’s termination was justified, whether the principle of seniority was violated, and whether her termination contradicted the reservation provisions for Backward Class employees.

Contentions:

The petitioner’s counsel argued that the management had not followed the “last come first go” principle in her termination and that her seniority was higher than that of certain other teachers. The petitioner’s seniority claim was based on a communication dated July 14, 2014, which the court found unsuitable for determining seniority. The petitioner also relied on Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Services) Rules, 1981, claiming that seniority should be observed when effecting retrenchment.

The respondent’s counsel contended that the petitioner was the junior-most Undergraduate Teacher and thus justly terminated. The other teachers were Graduate Teachers in a higher pay scale. They also argued that the petitioner’s appointment was against a reserved post for the Special Backward Class (S.B.C.) category, but since no posts were reserved for S.B.C. in the reservation roster, her termination was valid.

Decision:

The court found that the petitioner failed to prove her seniority over other teachers and that the communication she relied upon was not indicative of seniority. It also noted that the respondent’s claim that the petitioner was the junior-most Undergraduate Teacher was correct. The court determined that Rule 26 did not apply as there was no departure from the principle of seniority. It concluded that the petitioner’s reliance on Rule 27(e) was unfounded due to the absence of reserved posts for the S.B.C. category. Lastly, the court rejected the petitioner’s claim of non-payment of salary since 2013, as it wasn’t raised as an independent issue earlier.

In conclusion, the court found no grounds for interfering with the tribunal’s order and dismissed the petition, stating that the tribunal’s decision was correct and legally sound.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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Bombay High Court granted a summary judgment in favour of the plaintiff due to the defendant’s non-appearance and non-response in a case under S.138 of NI Act

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Title: Gini Tex Private Limited v. Soham Fashion & Ors.

Decided on: 29TH AUGUST, 2023.

COMMERCIAL SUMMARY SUIT NO. 1383 OF 2019

CORAM: KAMAL KHATA, J.

Facts:

The plaintiff initiated legal proceedings in the Commercial Division under Order XXXVII of the Code of Civil Procedure 1908 (“CPC”), seeking a summary judgment against the defendants. The plaintiff’s claim amounted to Rs. 45,18,600/-, along with an interest rate of 24% per annum from March 31, 2019, until the complete realization of the claim. The basis of the claim was the sale and delivery of goods, against which cheques were issued.

Issues:

The central issues in the case were:

  1. Whether the defendants were liable to pay the claimed amount to the plaintiff for the goods supplied?
  2. Whether the plaintiff was entitled to a summary judgment under Order XXXVII of the CPC?

Contentions:

The plaintiff, represented by Ms. Puthran, argued that they were a manufacturer/supplier of fabrics, and the defendants regularly procured goods from them. An agreed credit period was established, and delayed payments incurred interest charges. The defendants accepted the goods and issued cheques, but these cheques were dishonoured, leading to payment demands and the issuance of notices under Section 138.

The plaintiff highlighted that the defendants had admitted outstanding amounts in a letter and had even proposed a payment schedule. However, the defendants failed to honour their commitments.

The defendants failed to respond to the legal proceedings despite being served with a writ of summons, leading to the plaintiff’s assertion that they were entitled to a summary judgment under Order XXXVII Rule 2 (3) of the CPC.

Decision:

The suit was decreed in favour of the plaintiff for the sum of Rs. 45,18,600/- along with the specified interest. The defendants were required to pay the plaintiff’s legal costs, amounting to Rs. 50,000/-, in addition to any shortfall resulting from the refund of court fees. The plaintiff was entitled to a refund of court fees as per the High Court Rules. The awarded costs would not accrue any interest. The court directed that the decree be drawn up promptly. The plaintiff was granted the liberty to execute the decree without waiting for its official sealing. The summary suit was concluded with the aforementioned terms.

In conclusion, the court granted a summary judgment in favour of the plaintiff due to the defendant’s non-appearance and non-response. This judgment entailed the payment of the claimed amount along with interest, legal costs, and other financial considerations, as outlined in the court’s decision.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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Bombay HC: The State is ideally a quintessence of justice and a model litigant

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Title: State of Maharashtra and Anr. v. Ajay Rajendra Pawar.

Decided on: 23.08.2023

+ REVIEW PETITION (ST) NO. 29872 OF 2019

CORAM: SUNIL B. SHUKRE & MANISH PITALE, JJ

Facts of the Case:

The court is addressing two review petitions arising from an earlier common order issued on November 28, 2017, related to three writ petitions filed in 2016. The original petitions sought the enforcement of an order from September 9, 2014, in which the Minister of State for Revenue directed the state authorities to refund amounts deposited by the petitioners for leasing sand ghats. The petitioners argued that due to intervening circumstances beyond their control, they were unable to fully excavate the sand ghats, and therefore, the proportionate amounts they deposited should be refunded.

Issues:

The main issues revolve around the review of the 2014 order by another Minister of State for Revenue in a subsequent order dated July 2, 2019, and the subsequent actions of the state authorities. Additionally, the court examines the discriminatory treatment by the state authorities in implementing the orders for different petitioners.

Contentions:

The original petitioners argued that the subsequent order of July 2, 2019, was passed without jurisdiction, as it reviewed an already final order and was made subject to the result of pending writ petitions, even though no such petitions were pending at the time. They contended that the state authorities complied with the original order despite the subsequent order. The petitioners pointed out that the actions of the state authorities were discriminatory, as they complied with the 2017 order for one petitioner but filed review petitions for the other two.

The court criticized the state authorities for their discriminatory attitude and arbitrary actions, highlighting that the third beneficiary of the 2017 order had been treated differently. The court emphasized that the state, as a model litigant, should not perpetuate inequality and arbitrariness.

Decision:

The court rejected the request for additional time to obtain instructions from the Advocate General, considering the peculiar circumstances of the case and the injustice that would be done to the original petitioners. The court dismissed the review petitions filed by the state, stating that they should have realized their mistake and implemented the original order dated September 9, 2014, for all petitioners, just as they did for the third petitioner.

The court directed the state authorities to disregard the subsequent order of July 2, 2019, and implement the original order of September 9, 2014, for the two original petitioners. It ordered the state to pay the due amounts to the petitioners within three weeks from the date of the order, and in case of failure, imposed a simple interest rate of 7.0% per annum on the amounts due from November 28, 2017, until the release of the amounts. Additionally, the state was ordered to pay costs of Rs. 5 lakhs to each of the petitioners, which could be recovered from the concerned officers at the state’s discretion.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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Bombay High Court: Petitioners not entitled to claim wages as per the Memorandum of Settlement on the ground of M/s. Shipping Services being a sister concern of M/s. Damani Shipping Pvt. Ltd. without proving integrality of them.

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Title: Dattu Shankar Dhumal & Ors. v. The Director, M/s. Damani Shipping Pvt & Anr.

Decided on: 25 August 2023

WRIT PETITION NO. 11047 OF 2022

CORAM: CORAM: SANDEEP V. MARNE, J.

Facts:

The case revolves around a petition challenging an award issued on August 28, 2019, by the Central Government Industrial Tribunal-II (Tribunal). The award in question rejected a reference made by the petitioners, who were seeking an enhancement of wages to be on par with the wages revised as per the Memorandum of Settlement (MoS) dated April 29, 2008, signed between the Bombay Customs House Agents Association and Transport & Dock Workers Union. The petitioners were members of Bhartiya Kamgar Karmachari Mahasangh. Respondent No.1, M/s. Damani Shipping Pvt. Ltd., was a partnership firm engaged in freight brokerage and manpower services. Respondent No.2, Shipping Services, dealt with Clearing and Shipping Agent, Transport Contractor, and Supervision and Administration work. Both these companies were sister concerns.

Issues:

  1. Whether the petitioners were entitled to the enhanced wages as per the MoS, even though they were employed by Shipping Services?
  2. Who was the actual employer of the petitioners?

Contentions:

The petitioners contended that they were employed by M/s. Damani Shipping Pvt. Ltd. but were treated as employees of Shipping Services. They alleged that this arrangement was designed to avoid paying them higher wages as per the MoS. They argued that they had produced appointment orders from M/s. Damani Shipping Pvt. Ltd., which proved their initial employment by the latter. The petitioners also claimed that they were directed to work for various sister companies within the Damani family.

In their Statement of Claims, the petitioners further asserted that there could not be different conditions of service for workers under one roof. They maintained that despite being appointed by M/s. Damani Shipping Pvt. Ltd., they were listed as employees of Shipping Services with mala fide intentions. They sought remand of the proceedings to address this issue.

The respondents argued that the petitioners were indeed employees of Shipping Services, which was not a member of the Customs House Agents Association and therefore not bound by the MoS. They pointed out that the petitioners had admitted receiving salary and benefits from Shipping Services. The respondents contended that the petitioners’ claim was not sustainable due to the lack of evidence supporting the functional integrality between the two companies.

The respondents further argued that the tribunal had properly considered all documents and evidence, including the petitioners’ appointment letters and other documents produced. They stressed that the petitioners had failed to establish that their services were utilized by M/s. Damani Shipping Pvt. Ltd. while being treated as employees of Shipping Services.

Decision:

The court considered the conflicting contentions presented by both parties. It acknowledged that there was a contradiction between the petitioners’ claims in their Statement of Claims and their subsequent arguments in the present petition. The court pointed out that the petitioners admitted in the present petition that they were employed by Shipping Services.

Given this admission, the court found that the petitioners’ reliance on an appointment letter from M/s. Damani Shipping Pvt. Ltd. was misplaced. The court noted that the evidence showed one of the petitioners had resigned from Shipping Services and his final settlement dues were also paid by Shipping Services, further confirming their employment there.

The court concluded that the petitioners failed to prove that they were employed by M/s. Damani Shipping Pvt. Ltd. or that there was functional integrality between the two companies. Therefore, the tribunal’s decision to reject the reference and deny the enhanced wages was upheld. The court dismissed the petition, emphasizing the contradictions in the petitioners’ claims and their failure to provide sufficient evidence to support their case.

“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- Aparna Gupta, University Law College & Dept. of Studies in Law

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