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21 Jun

Kerala High Court uphold employee’s safety rights on WhatsApp group

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Kerala High Court uphold employee’s safety rights on WhatsApp group

BACKGROUND

Fertilisers and Chemicals Travancore Ltd. employed the petitioner-technician (FACT).
On July 31, 2019, he was suspended on two counts of disseminating false information through the WhatsApp group and entering a restricted place without authorization after sharing the controversial texts. The petitioner’s acts, according to the corporation, broke safety regulations and damaged the company’s reputation. The corporation acknowledged the petitioner’s apology and expressed regret. He eventually found out, though, that the company’s punishment was a formal warning. He filed a case against his suspension and the warning order with the Kerala High Court, arguing that it should not have been placed in his service records and could have a negative impact on his career. The petitioner contended that the disciplinary action against him was not preceded by a formal investigation. The employer, FACT, retorted that the employee’s posts in the WhatsApp group implied that the job was dangerous. It further stated that the petitioner’s punishment was insignificant and that such statements would motivate other employees to rebel against the corporation. The Court observed that although the petitioner had apologised and admitted to having sent the WhatsApp posts, it did not mean he had admitted to the charge that the messages were “objectionable.”

VERDICT

The court ruled that, there is nothing wrong about an employee discussing safety issues at his employer in private chats on WhatsApp. It was emphasized that violating the employee’s right to free speech and expression under Article 19(1)(a) of the Constitution would result in disciplinary action from the employer. While dismissing one of two disciplinary allegations brought against a technician employed by a government-run fertilizer plant, the Court made this statement. The technician had uploaded a few posts regarding ammonia handling safety problems at a company unit. These were exchanged in a closed WhatsApp group.

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Written by- Shreyasi Ghatak

20 Jun

Supreme court decides on Moratorium’s scope: Individuals are held liable along with Director

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Supreme court decides on Moratorium’s scope: Individuals are held liable along with Director

CASE TITLE- Ansal Crown Heights Flat Buyers Association (Regd.) Vs M/S. Ansal Crown Infrabuild Pvt. Ltd. & Ors.

CASE NUMBER- Civil Appeal No(S). 4247 Of 2023

DATED ON- 17.01.2024

QUORUM- Honourable Justice Abhay S. Oka and Honourable Justice Ujjal Bhuyan

FACTS OF THE CASE

A complaint was filed by the homebuyers before the National Consumer Disputes Redressal Commission against the Developer and NCDR directed the developer to complete the project in all respects and handover the possession of the allotted flats/apartments to the members of the Association of the homebuyers within the time specified. A direction was issued giving an option to the homebuyers, that if they are not interested to wait any more for taking possession of the allotted Apartment and they want refund of their deposited amount with interest @9% p.a. The appellants sought to execute the directions of the National Commission not only against the company but also against the several individuals. By the impugned orders, the National Commission held that the decree cannot be executed against the company due to the operation of the moratorium under Section 14 of the IBC. Thereafter, the National Commission observed that in view of moratorium against the company, it would not be appropriate to proceed in the same execution against the opposite party Nos. 2 to 9. The other opposite parties were not parties in the main complaint. Therefore, the present appeal was sought.

ISSUE RAISED

Whether opposite party Nos. 2 to 9 (the respondent Nos. 2 to 9) to the execution are otherwise liable?

LEGAL PROVISIONS

Section 9 of the Insolvency and Bankruptcy Code, 2016

Section 14 of the Insolvency and Bankruptcy Code, 2016

CONTENTIONS OF THE APPELLANT

The learned counsel for the appellant contented that under the provisions of the IBC, there is no prohibition on proceeding against the directors/officers of the company, which is the subject-matter of moratorium under Section 14 of the IBC. A reliance is placed by the appellant on the second proviso to sub-Section (1) of Section 32A of the IBC and a decision of this Court in the case of P. Mohanraj vs. Shah Bros. Ispat (P) Ltd and Anjali Rathi and others vs. Today Homes and Infrastructure Pvt. Ltd. And Others. Therefore, the view taken by the National Commission is erroneous.

CONTENTIONS OF THE RESPONDENT

The learned counsel for the respondent contented that there is no liability fastened on the opposite party Nos. 2 to 9. It is submitted that the National Commission has held that the opposite parties were not parties to the main complaint. Referring to the case of Anjali Rathi, the Court permitted the appellants to proceed against the promoters of the company, which was subject to moratorium only because there was a settlement arrived at between them before this Court. He further submitted that these opponents cannot be held liable. National Commission has not made any adjudication on the question whether the opposite parties in the execution application were under an obligation to abide by the directions issued against the company. There is no finding recorded by the National Commission that moratorium will apply to the directors/officers of the company.

COURT’S ANALYSIS AND JUDGEMENT

The court analyzed that, only because there is a moratorium under Section 14 of the IBC against the company, it cannot be said that no proceedings can be initiated against the opposite party Nos. 2 to 9 for execution, they are also liable to abide by and comply with the order, which is passed against the company. The protection of the moratorium will not be available to the directors/officers of the company. The appeal was partly allowed and the court set aside the impugned judgments and orders and remit the execution application to the National Commission.

Judgement Reviewed By- Shreyasi Ghatak

Click here to read the Judgement

19 Jun

Delhi High Court has ordered Google and Microsoft to Improve their techniques for dealing with non-consensual intimate images (NCII)

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Delhi High Court has ordered Google and Microsoft to Improve their techniques for dealing with non-consensual intimate images (NCII)

Background

Delhi High Court in its 2023 judgement held that, according to the IT Rules, 2021, search engines must remove NCII within 24 hours, or else they risk losing their safe harbour protections under Section 79 of the IT Act, 2000. It told search engines to provide a special token when NCII was first taken down. The search engine would have to employ its built-in technology to deactivate the material if the token reappeared. This was done with the intention of addressing the problem that victims would otherwise have to remember to follow certain URLs each time this content resurfaced and constantly approach authorities with them. The Court suggested employing hash-matching technology in addition to the existing methods employed by platforms (such as the defendant Microsoft) to eliminate content related to child sexual abuse. It also pointed out that the way reports are now handled contradicts the goal of the IT Rules, 2021, which is remove all illegal content. They also recommended that search engines and the IT Ministry create a “trusted third-party encrypted platform” that victims may register the NCII URL or content under. This will lessen the victim’s burden of “scouring” the Internet for NCII by placing the responsibility for finding and removing the reappeared content on the platform. They stated that because sensitive data is involved, the platform should be “subject to [the] greatest of transparency and accountability.

Matter of concern

Seeking an order to block certain Intermediaries like- Google, Microsoft which were exhibiting non-consensual intimate images.

Court’s direction

On May 9, the Delhi High Court directed Google and Microsoft to submit a review petition asking for the recall of an earlier ruling that mandated search engines to immediately block access to non-consensual intimate photographs (NCII) without continuously asking the victim for particular URLs. According to Bar and Bench, Microsoft and Google claimed in their appeal to the courts today that it is not feasible for search engines to recognise and remove NCII photos on a proactive basis due to technological limitations. They contended that these photos could not be identified by even the most sophisticated Artificial Intelligence technologies. Senior Advocate Jayant Mehta, speaking on behalf of Microsoft, stated, “Technology is evolving but we have not reached that stage yet.” with reference to the removal of NCII photos without URLs. It is not possible to state that search engine must comply with this requirement by today or else your immunity will be lost. It’s still a work in progress. In the past, Google claimed that automated technologies were unable to identify “the factor of consent,” which is necessary for classifying NCII.

Consensually posted sexual content may be removed as a result of these technologies.
Microsoft has expressed worries that this proactive monitoring could result in “privatized censorship” and undermine free expression, in addition to technical difficulties.

Conclusion

At this time, AI systems are unable to recognize and remove non-consensual intimate photos on their own. Both companies suggested that human participation is still necessary to effectively and ethically handle the removal of such photos from their platforms, acknowledging the limitations of artificial intelligence in managing such complex and sensitive information.

Written By- Shreyasi Ghatak

19 Jun

Supreme Court ruled that in recovery cases, the burden of proof lies on custodian to hold debtors liable to pay alleged dues

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Supreme Court ruled that in recovery cases, the burden of proof lies on custodian to hold debtors liable to pay alleged dues

CASE TITLE- Suman L. Shah Vs The Custodian & Ors

CASE NUMBER- Civil Appeal No(S).4583 Of 2011

DATED ON- 05.03.2024

QUORUM- Hon’ble Justice Pamidighantam Sri Narasimha and Hon’ble Justice Sandeep Mehta

FACTS OF THE CASE

Fairgrowth Financial Services Limited was notified under Section 3(2) (person found involved in offence relating to transactions in securities) of the Trial of Offences relating to transactions in Securities Act and all its properties stood attached. The Custodian filed application in the Special Court for the recovery of various sums of money belonging to FFSL from respondent No. 2. The appellant-Suman L. Shah had borrowed a sum of Rs.50 lakhs from respondent 4 and No. 6 and a sum of Rs. 25 lakhs from respondent No. 7 whereas appellant Laxmichand Shah had borrowed Rs.45 lakhs from respondent No. 8. These respondents were the benami companies of respondent No. 2 who had illegally parked the tainted money received from FFSL, the notified company in these benami companies created by himself. All the assets and properties of respondent no. 2 got vested in the Official Assignee. The Special Court directed Suman L. Shah and Laxmichand Shah to pay a sum of Rs. 50 lakhs and Rs. 25 lakhs to the Custodian with interest @ 12% per annum respectively due to respondent no. 2 till realisation of the amount. Aggrieved by the judgments both of them instituted Civil Appeal. The IAs seeking restoration of these Civil Appeals were accepted subject to deposit of a total sum to the tune of Rs. 2.20 crores by the appellants with the Officer on Special Duty, Special Court. The amount has been deposited and accordingly the appeals were taken on board.

LEGAL PROVISIONS

Section 3(2) of the Trial of Offences relating to transactions in Securities Act, 1992.

Section 101 of Evidence Act.

CONTENTIONS OF THE APPELLANT

It was contented that the Special Court committed error in holding that the appellants were the garnishees of Pallav Sheth. No documentary proof relating to the questionable transactions between the appellants and respondent was provided by the Custodian, the statement of appellants that the entire amounts of loan taken from respondent Nos. 6, 7 and 8 were repaid ought not to have been brushed aside. The appellants had taken the loans long before Pallav Sheth came to be notified under Section 3(2) and thus, the burden of proof regarding the existence of liability could not have been shifted on to the appellants and the onus lay upon the Custodian to prove that these amounts had not been repaid and were still recoverable Learned counsel urged that the since the Custodian failed to bring the letter of the Income Tax Department on record, either by summoning the income tax officials or by producing any other admissible evidence, the Special Court committed a grave error on placing implicit reliance on such communication. it could not be said with any degree of certainty thaSuman L. Shah Vs The Custodian & Orst the amounts borrowed remained unpaid.

CONTENTIONS OF THE RESPONDENT

learned counsel for the respondents submitted that the bald statements of the appellants that the amount borrowed from the benami companies had been returned by way of adjustment towards material supplied was rightly discarded by the Special Court because such statements were not supported by any tangible proof, either oral or documentary. He implored the Court to affirm the impugned judgments and dismiss the instant appeals.

COURT’S ANALYSIS AND JUDGEMENT

The miscellaneous applications were filed by the Custodian for recovery of amount due. The respondent Nos.6, 7 and 8 are alleged to be the benami companies of the Pallav Sheth. There could not have existed any justifiable reason for the appellants to have entertained a belief that these were the benami companies of respondent No. 2-Pallav Sheth or that there was any breach of the provisions of the Act of 1992 by Pallav Sheth. Even if it is assumed the foundation behind the assertion made by the Custodian based entirely on a communication purportedly issued by the Income Tax Department. No reference was annexed with the affidavit, no witness from the Income Tax Department was examined in evidence before the Special Court in miscellaneous applications for recovery. The appellants had returned the amounts borrowed from the respondents but the books of accounts were not available because of lapse of time. It was not expected from the appellants to retain the books of accounts after more than a decade of the alleged suspicious transactions. Therefore, the appeal was allowed and the impugned judgments are hereby quashed and set aside.

Judgement Reviewed By- Shreyasi Ghatak

Click here to read the Judgement

21 Nov

No Relief Can Be Granted When There Is No Intervention Of Law Needed: Patna High Court

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Title: Bhanu Kumar v The Union of India through the Secretary Ministry of Home, Government of India.

Citation: CWJC No.11574 of 2021

Coram: Honourable Mr. Justice Mohit Kumar Shah

Decided On: 03-11-2023

Introduction:

The present writ petition has been filed seeking the following relief:-

That this is an application for issuance of a writ of mandamus commanding the respondents to appoint the petitioner as constable (G.D.) in Central Para Military forces from due date and award cost of these proceedings.

Facts:

The learned counsel for the Staff Selection Commission, New Delhi has submitted by referring to paragraph no.6 of the counter affidavit, filed in the present case that the name of the petitioner could not find place in the list of finally recommended candidates on account of him having obtained less marks, i.e. 78.58 marks, than the marks obtained by the last selected candidates i.e. 80.29 marks (cut off marks) in the Unreserved (UR) category, a fact which has not been disputed by the learned counsel appearing for the petitioner.

Court’s Analysis and Judgement:

Since the fact is undisputed that the petitioner could not find place in the list of finally recommended candidates on account of him having obtained less marks, than the marks obtained by the last selected candidates. And since the petitioner has obtained less marks than the cut off marks, no relief can be granted to him. Hence the writ petition was dismissed.

Written by- Sushant Kumar SharmaClick here to view judgement

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