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Madras High Court directs govt to regularize the services of the lecturer and to grant the benefit of pension.

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TITLE: Jeya Rajendran Vs. The State of Tamil Nadu and Ors.

Decided On: July 14, 2023

W.P.No.13418 of 2023 and W.M.P.No.13094 of 2023.

CORAM: Hon’ble Mr. Justice M.S. Ramesh.

Introduction: 

Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records relating to the 2nd respondent’s proceedings made in O.Mu.No.7522/Oo.1/2022, dated 24.03.2023, to quash the same and to consequently direct the respondents to regularize the services of the petitioner w.e.f.01.12.1999 and to grant the benefit of pension and pensionary benefits by bringing her under the GPF Scheme and to extend all benefits arising thereto.

Facts:

The third respondent College is a Minority Aided College. The petitioner had joined the third respondent College in a leave vacancy on 01.07.1997 as Lecturer in the Department of Chemistry. Between 01.12.1999 – 11.04.2000, 23.06.2000 – 23.12.2000 and 22.06.2001 – 26.02.2002, she served as a leave substitute in the approved post. Thereafter, she was permanently absorbed on 19.06.2006 as an Assistant Professor. At the time of initial appointment, she was assigned with the GPF number by the third respondent college. However, she was mistakenly brought under CPS by the Department of Collegiate Education in the year 2012, as if her appointment was made with effect from 2006. When the College has sought for rectification of mistake by producing service certificate of the petitioner, the second respondent herein, through the proceedings dated 11.03.2020 had allowed the rectification sought for and issued a memorandum of service and leave, approving the appointment of the petitioner for the period between 01.12.1999 – 11.04.2000, 23.06.2000 – 23.12.2000 and 22.06.2001 – 26.02.2002. In this background, when the petitioner had sought for inclusion of her services for the period between 01.07.1997 and 20.10.2006 for the purpose of grant of pension and other pensionary benefits, the same was rejected through the impugned order dated 24.03.2023, by stating that her services were regularised with effect from 19.06.2006 and therefore, the services from 1997 to 2006 cannot be considered. Challenging the same, the present Writ Petition has been filed.

Legal Analysis and Decision:

It is not the case of the respondents that there is no provision for counting of past services in leave vacancies arising in a sanctioned post. The only reason assigned by the second respondent in the impugned order is that the petitioner’s service was regularised only from 19.06.2006 and therefore, the past service cannot be taken into account. When the second respondent himself has approved the services of the petitioner for the period between 01.12.1999 – 11.04.2000, 23.06.2000 – 23.12.2000 and 22.06.2001 – 26.02.2002, and thereafter her services was regularised with effect from 19.06.2006, I am unable to comprehend as to how such past services can be ignored. The respondents have failed to take into account that while the Government had sanctioned 600 posts of Assistant Professors to the Aided Colleges, the petitioner was one among the 28 posts sanctioned to the third respondent College. It is not in dispute that the petitioner had been serving the third respondent College from 01.07.1997 onwards without any break, during which period, she had also served in the leave vacancies of the sanctioned post. This aspect having been recognized by the second respondent themselves in their proceedings dated 11.03.2020, cannot now ignore or disregard such recognition. Thus, the impugned order refusing the counting of the past services of the petitioner in this regard cannot be sustained. Accordingly, the impugned order dated 24.03.2023 on the file of the second respondent is quashed. Consequently, there shall be a direction to the respondents 1 and 2 herein to pass appropriate orders by including the petitioner’s services for a period of 1 year six months and 17 days between 01.12.1999 – 11.04.2000, 23.06.2000 – 23.12.2000 and 22.06.2001 – 26.02.2002 and thereby extend all the services and monetary benefits for the said period. Such an order shall also include the pensionary benefits. This order shall be passed at least within a period of four (4) weeks from the date of receipt of a copy of this order.

Conclusion:

The impugned order dated 24.03.2023 on the file of the second respondent is quashed. Respondents 1 and 2 Shall pass appropriate orders by including the petitioner’s services for a period of 1 year six months and 17 days and thereby extend all the services and monetary benefits for the said period. Such an order shall also include the pensionary benefits. The impugned order refusing the counting of the past services of the petitioner in this regard cannot be sustained.

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 JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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The court has jurisdiction in letters patent since the suit is filed in the original side of the Court: Madras High Court.

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TITLE: ITC Limited Vs. Britannia Industries Ltd.

Decided On: July 14, 2023.

A.No.3314 of 2023 in C.S.(Comm Div).No.153 of 2023.

CORAM:  Hon’ble Ms. Justice P.T. Asha.

Introduction: 

The plaintiff has approached this Court with a case that the defendant who was all along wrapping a particular brand of biscuits in a different colour and get up, has now imitated the trade dress of the plaintiff’s brand of biscuits.

Facts:

The plaintiff who has approached this Court contemplating the grant of an urgent interim relief has been checkmated by the defendant, a giant in the consumer market; on a supposed plea that the suit filed requires to be rejected. The Court could apply its mind to the urgency in the application or the need for interim relief, the defendant had sought two adjournments for filing its counter and has then come forward with the application. If the defendant were keen on a settlement, they could have, on the very first hearing, expressed their desire to have the matter sent to the State Legal Services Authority for mediating the dispute. Infact, nowhere in the application has the defendant expressed their desire for settlement. On the contrary, the attempt is to try to have the plaintiff’s case dismissed at the threshold.

Legal Analysis and Decision:

The Defendant ITC Limited, appears to be engaged in marketing of the Impugned Product. The Defendant No. 1 has its office at Virginia House, 37 Jawaharlal Nehru Road Kolkata, West Bengal – 700071 and its office at Number 69, Muthuramalinga Thevar Rd, Austin Nagar, Nandanam, Chennai, Tamil Nadu. The impugned products of the Defendant are available for sale in Chennai, within the jurisdiction of this Hon’ble Court. Copies of the invoice indicating the sale of the infringing products are filed herewith in the present proceedings. The impugned products of the Defendant are also advertised on YouTube, extracts of which are filed herewith in the present proceedings. This Hon’ble Court has the necessary territorial jurisdiction to entertain and try the present action by virtue of Section 134(2) of the Trademarks Act, 1999 and Section 62(2) of the Copyright Act, as the suit is inter alia for infringement of registered trademark, trade dress and Copyright of the Plaintiff, being the registered proprietor of the trademark and as well as its copyright on the artistic work; the plaintiff’s is carrying on business within the jurisdiction of this Hon’ble Court. The Defendant is situated in Chennai and the infringing products are available for sale within the jurisdiction of this Hon’ble Court.

The argument of the defendant that since the suit is not filed under Clause 12 of the Letters Patent, this Court has no jurisdiction has to be repelled on the ground that the original side rules of this Court has been formulated only on the basis of the Letters Patent which has conferred jurisdiction on this High Court. Clause 11 confers the local limits of the ordinary original jurisdiction of the High Court and Clause 12 confers the Court with original jurisdiction as to the suits. The suit is filed under Order IV Rule 1 of the Original Side Rules which emanates from the Letters Pattent.

The below are the grounds on which the suit is challenged.

  • Failure to comply the pre-mediation settlement contemplated under Section 12 A of the Act.
  • Suit not instituted by a competent person.
  • Lack of Jurisdiction.

It is crystal clear that the defendant’s are carrying on business within the jurisdiction of this Court. This coupled with the averments contained in the paragraphs of the plaint extracted supra clearly brings out the plaintiff has pleaded that the defendant is carrying on business within the Jurisdiction of this Court. Therefore, taking note of the fact that the suit is one filed in the original side of this Chartered High Court, which has been conferred with the power under Letters Patent, the argument of the defendant that the suit is not maintainable as it has not been filed invoking the provisions of Clause 12 is not maintainable and has to necessarily be rejected.

Conclusion:

Since the plaintiff has pleaded that the defendant is carrying on business within the Jurisdiction of the court. Therefore, taking note of the fact that the suit is one filed in the original side of this Chartered High Court, which has been conferred with the power under Letters Patent, So the argument of the defendant that the suit is not maintainable as it has not been filed invoking the provisions of Clause 12 is not maintainable and it is rejected.

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 JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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Person Forwarding Social Media Message Liable For Its Contents: Madras High Court.

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TITLE: S. Ve. Shekher Vs. Al. Gopalsamy and Ors.

Decided On: July 14, 2023

Crl.O.P.(MD) Nos.11494 & 12163 of 2018, Crl.O.P.Nos.5099 of 2019 & 6211 of 2021 &all connected pending Crl.M.Ps.

CORAM:  Hon’ble Mr. Justice N. Anand Venkatesh.

Introduction: 

The Madras High Court has recently refused to quash batch of criminal proceedings initiated against actor and BJP politician S.Ve Sheker for his derogatory remarks against women journalists. The cases were registered after Sheker had forwarded an abusive, derogatory and vulgar comment on his Facebook account in April 2018. Though Shekher claimed that he had merely forwarded the message received from one Mr Thirumalai Sa without reading its contents, and had later removed the derogatory post on the same day and offered apologies, the court noted that these acts would not help Shekher from facing consequences for forwarding a derogatory message. Justice Anand Venkatesh noted that Shekher was a person of high stature with many followers and he ought to have exercised more caution while forwarding messages.

Facts:

The petitioner in all these petitions is a past Member of the Legislative Assembly representing Mylapore Constituency during the years 2006-2011. The petitioner is said to have published/circulated an abusive, derogatory and vulgar comment in his facebook account on 19.4.2018. Pursuant to that, a complaint came to be given before the Commissioner of Police, Chennai to take action against the petitioner for having posted such a derogatory comment in his facebook account. Accordingly, a first information report was registered in Cr.No.148 of 2018 for offences under Sections 504, 505(1)(c) and 509 of the Indian Penal Code (hereinafter called the IPC) and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002 on the file of theInspector of Police, Cyber Crime Cell, Central Crime Branch, Chennai, who is none other than  first respondent in Crl.O.P.No.6211 of 2021. The first information report was investigated by the concerned Inspector of Police and on completion of the investigation, a final report came to be filed before the Assistant Sessions Court, Additional Special Court for Trial of Cases relating to MPs and MLAs, Singaravelar Maligai, Chennai-1 (for short, the Special Court) in C.C.No.62 of 2019 and it has been put to challenge by the petitioner in Crl.O.P.No.6211 of  2021. For the same cause of action, private complaints were filedagainst the petitioner in various parts of Tamil Nadu. The complaint filed before the Judicial Magistrate No.2, Karur, which was taken on file in C.C.No.223 of 2018, has been put to challenge in Crl.O.P.(MD) No.12163 of 2018. The complaint filed before the Judicial Magistrate No.1, Tirunelveli, which was taken on file in C.C.No.154 of 2018, has been challenged in Crl.O.P.(MD) No.11494 of 2018. Similarly, The complaint filed before the Judicial Magistrate, Ambattur, which was taken on file in S.T.C.No.276 of 2018, has been put to challenge in Crl.O.P.No.5099 of 2019

Legal Analysis and Decision:

The court noted that in the present case, the message forwarded by Shekher caused an insult to journalists, and more particularly to women journalists which also resulted in a demonstration in front of his house and violence. Thus, the court noted that all the ingredient necessary to satisfy the offence of S.504 IPC (intentional insult with intent to provoke breach of peace) existed and the offence was made out. The court added that the message forwarded by Shekher induced commission of an offence against public tranquility since there was a hue and cry across the State immediately after the incident. Thus the court noted that the offence under S.505(1)(c) IPC was also made out. Since the message posted by Shekher virtually outrages the modesty of woman and since it also contained indecent and vitriolic attack on a particular woman and other women Press reporters, the offences under S. 509 IPC and S.4 of the Tamil Nadu Prohibition of Harassment of Women Act 2002 were also attracted. The court added that a person forwarding a message must be construed to acknowledge the contents of the message. The court said that when a person got a dopamine high by looking at the likes for the forwarded message, he should be equally prepared to face the consequence, if that message had derogatory content. The court also noted that since a large body was affected due to the act of the petitioner, he could not be let away just because he tendered an apology. The court added that of such a route was allowed, any person could make such statements and subsequently apologise and get away.

“However, in the instant case, it is not a dispute between two individuals and the act of the petitioner has virtually painted the entire Press and more particularly the women Reporters with vulgar comments and when such a large body is affected due to the act of the petitioner, he cannot be let away just because he tendered an apology. if such an easy route is adopted, anyone can make such statements, cause damage, subsequently apologize for his act and get away from the action taken against him,” the court noted.

Conclusion:

The court observed that Shekher’s apology could not be acted upon and the criminal proceedings against him could not be quashed on that ground alone. So, the court refused to quash the proceedings against Shekher and dismissed the petition. However, noting that Shekher could not be made to move from one court to another to face proceedings vasted on the very same cause of action, the court transferred all the criminal proceedings to the Special Court, Singaravelar Maligai.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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Mental Cruelty can never be a ground to initiate proceedings for Vindication of rights: Madras High Court.

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TITLE: Chandra Vs. Selvaraj. 

Decided On: July 12, 2023

C.M.S.A(MD)No.15 of 2011
CORAM:  Hon’ble Mr. Justice R.Vijayakumar.

Introduction:

The respondent herein had filed HMOP.No.35 of 2007 on the file of the Additional Subordinate Court, Karur seeking divorce on the ground of cruelty and desertion. The said petition was dismissed by the Trial Court. Challenging the same, the respondent herein had filed CMA(MD).No.2 of 2010 before the District Court, Karur. The First Appellate Judge after re-appreciation of oral and documentary evidence, has allowed the appeal and granted a decree for divorce. Challenging the same, the present Civil Miscellaneous Second Appeal has been filed by the appellant/wife. The appellant herein had got married to the respondent on 14.09.1987. Out of the said wedlock, a son was born to them who is now a major.

Facts:

In the present case, the respondent Husband had filed a petition seeking for divorce from his wife on the grounds of cruelty and desertion before the Additional Subordinate Count Karur. He had alleged that she was leading an adulterous life and even after several requests, had refused to abandon the illicit activities. He said he had purchased an immovable property in the name of his wife out of love and affection and constructed a building after obtaining a loan. He submitted that she, claiming rights over the property, filed a suit for injunction and as a counter blast, he filed a suit for declaration of title and permanent injunction. Though his suit was dismissed, on appeal, it was partly allowed. He also submitted that she had initiated proceedings seeking guardianship of their minor son. He further informed the court that though she had also lodged a complaint alleging that he had claimed dowry, the same was dismissed.

On the other hand, the wife had argued that the immovable property was purchased out of her earnings and the building was also put up using a loan obtained by her and thus her husband had no right over the property. She further contended that the allegations of adultery were completely false. She also claimed that her husband had contracted a second marriage and had been having an adulterous life since 2001 and had deserted her and their minor son without providing any maintenance.

The trial court held that there was no desertion and that filing a criminal case against the husband could not be seen as an incident of cruelty. The court thus dismissed the petition. When the husband filed an appeal, the First appellant court reiterated that the husband had not established his allegation of adultery. However, the court also observed that the attitude of the wife was to harass the husband by filing petitions one after the other. Ruling that though there was no specific cruelty, the court said the husband had suffered mental cruelty due to the complaints lodged against him.

Legal Analysis and Decision:

The high court noted that even after initiation of civil and criminal court proceedings, the wife never left the matrimonial home and it was in fact the husband who had left the matrimonial home and contracted a second marriage. The court also noted that there was no reason established to the effect that he was forced to leave the matrimonial home due to mental cruelty. The court said that the bone of contention between the parties was the property in which he and their son were residing. The court noted that when the appellant court partially decreed the suit to the effect that land belonged to him and building belonged to her, the wife challenged the decree but he had not challenged the same. Thus, the court observed that the husband had conceded the title of wife over the building which would mean that the initial injunction suit by the wife was not without any basis and only for causing mental cruelty.

The court also noted that though an initial criminal proceeding initiated by the wife for bigamy had ended in acquittal, the husband had not disputed the allegation anywhere in the counter or during cross examination. The court added that mere acquittal from the criminal proceedings, could not be taken to mean that the wife had committed mental cruelty, when she had otherwise made out a prima facie case. “Just because he was acquitted from the said criminal proceedings, the proceedings initiated by the wife cannot be branded as a mental cruelty especially when she had made out a prima facie case of the husband contracting a second marriage,” the court said. The court added that the First Appellant Court had erred by blaming the wife for not taking any measures for restitution of conjugal rights when the husband had left the matrimonial home and contracted second marriage. “When the husband had left the matrimonial home and he is residing away and there is an allegation of second marriage on the husband, the wife cannot be blamed for not taking steps to restore the conjugal rights: The First Appellate Court was not right in placing the blame upon the wife for not filing any application for restitution of conjugal rights after amiving at a finding that the husband has miserably failed to prove the allegation of adultery” the court observed.

Conclusion:

This Court is of the considered opinion that the divorce petition lacks pleadings with regard to the mental cruelty, desertion and the deposition of the husband relating to the said allegation do not support the case of the husband. The litigation initiated by the wife is only to protect her property rights and her custody of her son. When the Initiation of such proceedings is for the vindication of her rights, the said proceedings can never be considered to be a ground for mental cruelty. The court observed that the findings of the First Appellate Court that the attitude of the wife was to harass her husband by filing petitions, was not legally sustainable and without any basis. The court thus set aside the same and restored the judgment and decree of the trial court.

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Even on the same cause of action, the plaintiff with leave can file a separate suit Says Madras High Court.

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TITLE: Dynamic Associates Vs. Mr. Singaracharlu and Ors. 

Decided On: July 13, 2023 

Original Side Appeal No. 431 of 2018 and C.M.P. No. 19640 of 2018.
CORAM:  Hon’ble Mr.Justice R.Mahadevan and Mohammed Shaffiq

Introduction:

This intra-court appeal is filed by the appellant / 4th defendant, aggrieved by the order dated 04.07.2018 passed by the learned Judge, dismissing the Application No. 365 of 2010 in Tr. C.S. No. 282 of 2011 filed to revoke the leave granted to institute the suit on 04.03.2008 in Application No. 1134 of 2008 filed by the plaintiff.

Facts:

The plaintiff is the owner of the plaint schedule property which devolved on him by means of a settlement deed dated 15.07.1953 registered as document No. 1628 of 1953 executed by his father Late. P. Anandhapadmanabhacharlu. The first defendant/second respondent herein is the sister of the plaintiff. According to the plaintiff, his sister / first defendant and Ms. Vyjayanthi, another sister, were also the owners of the properties, which lies adjacent to the plaint schedule property owned by him. As the plaintiff was in United States of America, he could not look after the property and therefore, in good faith, he had executed a General Power of Attorney deed dated 10.07.2000 in favour of his sister / first defendant authorising her to deal with the plaint schedule property. Based on the General Power of Attorney deed, the first defendant entered into a Joint Development Agreement dated 05.06.2000 with M/s. Mahaveer Finance and Buildings Pvt Ltd., in respect of the property owned by the plaintiff as also the property owned by her and another sister Vyjayanthi. However, the terms and conditions of the Joint Development Agreement were not disclosed to the plaintiff. On the basis of the Joint Development Agreement, the superstructure of the plaint schedule property was demolished, tenants were vacated and a new superstructure was put up thereon. The first defendant also received huge amount from M/s. Mahaveer Finance and Buildings Pvt Ltd., but it was not passed on to the plaintiff. The Plaintiff came to know that due to violation of certain terms and conditions, the first defendant cancelled the Joint Development Agreement dated 05.06.2000 with the builder.

Legal Analysis and Decision:

The court is always within its right to pass any orders even if the caveat has been launched. The failure of the plaintiff to put on notice the caveator would render the order irregular, but not a nullity. However, this proposition cannot be universal. As a matter of right, the caveator is entitled to notice of hearing. The effect of failure to service notice dependents upon the facts of the each case, the prejudice that is alleged to be caused together with the reason for not serving notice on the caveator. In the present case, the plaintiff has accepted and contended that the notice was not served on the caveator due to oversight. The plaintiff has also stated that the leave was sought and the subsequent suit was filed only as an abundant caution and after the appellant has been contesting it all along, this application to revoke has been filed after a long delay. Now, coming to the question of prejudice, considering the facts of the case, we have already concurred with the Learned judge and held that both the cases arise out of different cause of action. Hence, there cannot be any real prejudice to the appellant as opposed to the prejudice that will be caused when an interim order of injunction is granted, the test of which lies on the three principles of prima facie case, balance of convenience and irreparable loss. On the contrary, It is well settled that granting leave to sue on the same cause of action under Order II Rule 2 of CPC is a discretion vested with the Court. The Court can grant leave by taking note of the overall facts and circumstances of the case. While granting leave, the Court may or may not issue notice to the respondents inasmuch as the order to be passed in such an application is based on the exercise of discretion by the Court. Unless the discretion exercised by the learned Judge is found to be arbitrary or based on irrelevant material, this Court cannot interfere with the same. The consideration of grant of leave is essentially on the basis of the application filed by the applicant and the averments made therein. If the Court is satisfied that grant of leave would meet the ends of justice, then, leave to sue can be granted. In the present case, by grant of leave in favour of the plaintiff to file a separate suit, even if, on the same cause of action to assail the sale deed dated 14.06.2007, no prejudice will be caused to the appellant. Thus, there is no bar for the plaintiff to invoke the provisions contained under Order II Rule 2 (3) of CPC and seek leave to file a separate suit with the presumption of same cause of action, even if the cause of action for instituting the suits is distinct and separate. In any event, even based on the assumption that cause of action is same, the plaintiff / first respondent has also filed a separate suit which is also contested by the fourth defendant or appellant by filing written statement. The court expressed that as per law, even on the same cause of action, the plaintiff with leave can file a separate suit. Even in cases, where some prejudice is caused, unless the prejudice goes to the root of the matter, so as to deny the caveator of an indefeasible right to contest on the merits of the case or when his position at the time of filing the suit is not altered, interference is not to be called for, that too after this length of time. In such view of the matter, The Court found no reason to interfere with the discretion exercised by the learned Judge and the order in dismissing the application filed by the appellant to revoke the leave.

Conclusion:

The Court expressed that as per law, even on the same cause of action, the plaintiff with leave can file a separate suit. Even in cases, where some prejudice is caused, unless the prejudice goes to the root of the matter, so as to deny the caveator of an indefeasible right to contest on the merits of the case or when his position at the time of filing the suit is not altered.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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