97. Jurisdiction of Civil Court in labor matters - when not barred.

Jurisdiction of a civil court in an industrial dispute is not barred in case the dispute relates to violation of fundamental rights of a workman or the violation of general law of contract is involved. Jurisdiction of civil court is rule, exclusion is exception. This verdict has been given by the Indian Apex Court in Civil Appeal No. 328 0f 2005 Rajsthan SRTC v. Bal Mukund Bairwa, decided on 12/02/09.

The Supreme Court held that even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or Tribunal acts without jurisdiction.

The question as to whether in a case where violation is alleged as regards compliance of principles of natural justice either on common law principles or in terms of the statutory Regulations framed by the Corporation, which is a fundamental right in terms of Article 14 of the Constitution of India, a civil suit will be maintainable or not, had not been taken into consideration in any of the decisions of Supreme court.

A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the Regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil court.

If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. The Supreme Court held that “it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan State Road Transport Corporation & ors. vs. Mohar Singh [(2008) 5 SCC 542]. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the fact of each case.”
If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction.

Thus in the court’s view, "In the event it is found that the action on the part of State is violative of the constitutional provisions or the mandatory requirements of a statute or statutory rules, the civil court would have the jurisdiction to direct reinstatement with full back wages."
In a case where no enquiry has been conducted, there would be violation of the statutory Regulation as also the right of equality as contained in Article 14 of the Constitution of India. In such situation, a civil suit will be maintainable for the purpose of declaration that the termination of service and the consequences flowing there from was illegal . Thus this verdict of the Supreme Court of India removes all doubts regarding jurisdiction of Civil court with regard to disputes relating to employment and it has far reaching effect as principles laid down in this decision will not be limited to labor Laws only, but will be applicable to all branches of employment Laws. Now Lawyers and litigants should not hesitate in filing a civil suit where the grievances are covered by the above judgement.

96. Insurer is not liable if DL expired

Recently the supreme court has held that only in the event an application for renewal of licence is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to Sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured." - Ram Babu Tiwari v. United India Insurance Co. Ltd. & Ors. (2008) 8 SCC 165.

95. Writ of mandamus - some guide lines

A writ of mandamus is issued against a person who has legal duty to perform but fails in doing so. it is issued in favour of a person who establishes a legal right to be enforced. some of the key points to be kept in mind while seeking a mandamus are:

• the person against whom mandamus is sought must be under statutory obligation to perfom that duty
• the petitioner must have legal right to be enforced
• in cases of inaction or slow action mandamus can be issued
• normally a mandamuss can not be issued against a private individual
• administrative instructions/Departmental orders can not be enforced by writ of mandamus
• mandamus can not be issued to Government to enforce cabinet decision
• mere recomendation of an authority can not be enforced by madamus
• mandamus can be issued to comply with the orders of superior tribunal
• mandamus can not be issued in contradiction with statutory provisions
• mandamus can not be issued to legislature or government to make laws or rules
• mandamus can be issued to take decision on an application/representation if it is pending since long
• mandamus can not be issued to enforce contractual obligations

94. Dissolution of unregistered firm

0n 20/02/2009 the apex court has held that a suit for dissolution of can be filed by a partener of unregistered firm. the supreme court declared maharastra amendment made in 1984 in partenership Act is unconstitutional. Sub-section 2A which was introduced by the Maharashtra

Amendment 1984 states as follows :

"(2A) No suit to enforce any right for the dissolution of a firm or for accounts of a dissolved firm or any right or power to realize the property of a dissolved firm shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or have been a partner in the firm, unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm Provided that the requirement of registration of firm under this sub-section shall not apply to the suits or proceedings instituted by the heirs or legal representatives of the deceased partner of a firm for accounts of a dissolved firm or to realize the property of a dissolved firm."

The supreme court held that "a partnership firm, whether registered or unregistered, is not a distinct legal entity, and hence the property of the firm really belongs to the partners of the firm. Sub-section 2A virtually deprives a partner in an unregistered firm from recovery of his share in the property of the firm or from seeking dissolution of the firm."

The court said that :

"The effect of the Amendment is that a partnership firm is allowed to come into existence and function without registration but it cannot go out of existence (with certain exceptions). This can result into a situation where in case of disputes amongst the partners the relationship of partnership cannot be put an end to by approaching a court of law. A dishonest partner, if in control of the business, or if simply stronger, can successfully deprive the other partner of his dues from the partnership. It could result in extreme hardship and injustice. Might wouldbe right. An aggrieved partner is left without any remedy whatsoever. He can neither file a suit to compel the mischievous partner to cooperate for registration, as such a suit is not maintainable, nor can he resort to arbitration if any, because the arbitration proceedings would be hit by Section 69(1) of the Act (Jagdish Chandra Gupta vs. Kajaria Traders (India) Ltd. AIR 1964 SC 1882)."

The court said that:

"The primary object of registration of a firm is protection of third parties who were subjected to hardship and difficulties in the matter of proving as to who were the partners. Under the earlier law, a third party obtaining a decree was often put to expenses and delay in proving that a particular person was a partner of that firm. The registration of a firm provides protection to the third parties against false denials of partnership and the evasion of liability. Once a firm is registered under the Act the statements recorded in the Register regarding the constitution of the firm are conclusive proof of the fact contained therein as against the partner. A partner whose name appears on the Register cannot deny that he is a partner except under the circumstances provided. Even then registration of a partnership firm is not made compulsory under the Act. A partnership firm can come into existence and function without being registered. However, the Maharashtra Amendment effects such stringent disabilities on a firm as in our opinion are crippling in nature. It lays down that an unregistered firm cannot enforce its claims against third parties ...."

thus the court held that : the restrictions placed by sub-section 2A of Section 69 introduced by the Maharshtra Amendment Act, for the reasons given above, are arbitrary and of excessive nature and go beyond what is in the public interest. Hence the restrictions cannot be regarded as reasonable."

"Since sub-section 2A of Section 69 as introduced by the Maharashtra Legislature clearly violates Articles 14, 19(1)(g) and 300A of the Constitution, it is in our opinion ultra vires and is hence declared unconstitutional."

Thus the Supreme Court's decision gives a great relief to business comunity trading through an unregistered firm.

Congratulations to business comunity.

93. Right to water

on 28th April 2009 a bench of the supreme court speaking through M Katzu,J. directed the central govt. to form a committee to solve the water crisis in the country. the court observed that :

"Despite having immense reservoirs of water in the form of the Himalayas in the North and the Arabian sea, Indian Ocean and the Bay of Bengal in the West, South and East of India, there are water shortages everywhere often leading to riots, road blocks and other disturbances and disputes for getting water"...............................

"In our opinion it is science alone which can solve this problem ( as well as the other gigantic problems facing the country)........................

" India has a strong heritage of science. With the aid of science we had built mighty civilizations thousands years ago when most people in Europe (except in Greece and Rome) were living in forests. We had made outstanding scientific discoveries and inventions in the past (see Will Durants' `The Story of Civilization : Our Oriental Heritage). However, we subsequently took to the unscientific path of superstitions and empty rituals, which has led us to disaster. The way out therefore for our nation is to once again turn to the scientific path shown by our ancestors - the path of Aryabhatta and Brahmagupta, Sushrut and Charak, Ramanujan and Raman.".............

" It is indeed sad that a country like India which scientifically solved the problem of town planning 6000 years ago in the Indus Valley Civilization and which discovered the decimal system in Mathematics and Plastic Surgery in Medicine in ancient times, and is largely managing Silicon Valley in U.S.A. today has been unable to solve the problem of water shortage till now. In our opinion there is no dearth of eminent scientists in the field who can solve this problem, but they have not been organized and brought together and not been requested by the Central and State Governments to do their patriotic and sacred duty to solve this problem, nor given the facilities for this."

"In our opinion the right to get water is a part of the right to life guaranteed by Article 21 of the Constitution"..

92. Age in view of amendments in Juvenile Justice Act

In Hari Ram vs State of Rajasthan and Another the SUPREME COURT on 05 th May 2009 evaluated the Juvenile Justice (Care and Protection of Children) Act, 2000, ss.2(k), 2(l), 7A, 15, 20, 49 and 64 (Provisions as stood amended vide amendment Act, 2006) - Juvenile Justice Rules, 2007, rr. 12 and 98 . the question was: could a person who was not a juvenile within the meaning of the 1986 Act when the offence was committed, but had not completed 18 years, be governed by the provisions of the JJ Act, 2000, and be declared as a juvenile in relation to the offence alleged to have been committed by him? The Supreme Court answered in positive on conjoint reading of ss. 2(k), 2(l), 7A, 20 and 49 r/w rr. 12 and 98 of Rules, 2007 .The court held that Scheme is rehabilitatory in nature and not adversarial. the court imphasised upon requirement of complete change of mind set for implementing the said law. It was held that two main questions on the subject on which controversy at hand depends, is at rest now; first question was settled in 'Pratap Singh vs. State of Jharkhand & Another [(2005) 3 SCC 551]' after which amendment was brought in 2006 in JJ Act 2000, second question was also settled therein but is now overruled vide such amendment; firstly, juvenility of a person in conflict with law has to be reckoned from the date of the incident and not from the date on which cognizance was taken by the Magistrate, secondly, provisions of JJ Act, 2000 were also made applicable to juveniles who had not completed eighteen years of age on the date of commission of offence. Thus all persons who were below the age of 18 years on the date of commission of the offence even prior to 1st April, 2001(commencement date of JJ Act, 2000), would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted. such position stands re-emphasised by virtue of amendments introduced in s. 20, by inserting proviso and explanation.

91. s. 138,N.I.Act - when drower says cheque was lost

Whether return of a cheque by the bank on the ground that it was reported lost by the drawer would attract the penal provisions contained in Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act")?

In Raj Kumar Khurana v. State ( NCT) of Delhi decided by apex court on 05/05/09 the appellant kept two blank cheques in his office along with some stamp papers. They were said to have been stolen from his office. Information as regards missing of the said cheques was given to the bank and he lodged a First Information Report with regard thereto.

The blank cheques were allegedly filled up on 24.06.2001. They were presented before the bank but the same were returned dishonoured with the remarks "said cheque reported lost by the drawer".

After complaint being filed appellant filed an application under Section 482 of the Code in the High Court of Delhi praying for quashing of the proceedings under s. 138 0f N.I.Act on the premise that the same was not maintainable. The High Court dismissed the application u/s 482.

On appeal the supreme court held that a bare perusal of s. 138 would clearly go to show that by reason thereof a legal fiction has been created. A legal fiction, as is well known, although is required to be given full effect, has its own limitations. It cannot be taken recourse to for any purpose other than the one mentioned in the statute itself .A penal provision created by reason of a legal fiction must receive strict construction. Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such non-payment may either be: (i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.

The supreme court held that the parameters for invoking the provisions of Section 138 of the Act, thus, being limited, refusal on the part of the bank to honour the cheque would not bring the matter within the mischief of the provisions of Section 138 of the Act.

In this case a contention was also raised that the appellant did not have sufficient funds in his bank account. But Such an allegation had not been made in the complaint petition.The supreme court said that in any event, it was for the bank only to say so, as the complainant is not supposed to have knowledge in regard to the amount available in the account of the appellant.

90. 'Post' and 'vacancy'

The expression "posts" and "vacancies," often used in the executive instructions providing for reservations, are rather problematical. The word "Post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As consequence the percentage of reservation has to be worked out in relation to the number of post which form the cadre-strength. The concept of 'vacancy has no relevance in operating the percentage of reservation. - R.K. Sabharwal and others, Petitioners v. State of Punjab AIR1995 SC1371

89. Sentencing - Provocation, a relevant consideration

In Tan Rui Leen Russell v Public Prosecutor
[2009] SGHC 102 , decided on 27th april 2009, the singapore high court held that "Where an offence is committed as a result of a loss of self-control brought about by provocation, the culpability of the offender is reduced because, given that he committed the offence concerned while deprived of his self-control, he might not (vis-à-vis an offence which results in injury to the victim) have intended to cause the extent of the injuries which he in fact caused to the victim. Loss of self-control may be regarded as a form of temporary and transient impairment of the offender’s cognitive judgment. Where provocation has substantially or fully deprived the offender of his self-control, a deterrent sentence, whether in the form of a long term of imprisonment or caning, is pointless. The objective of a deterrent sentence will only be met if the sentence imposed can temper the offender’s propensity to lose his self-control. But, human beings are not angels. Parliament has recognised this by stipulating that grave and sudden provocation is sufficient to reduce the offence of murder to that of culpable homicide not amounting to murder (see Exception 1 to s 300 of PC 1985). For the same reason, the s 335 offence (viz, causing grievous hurt on provocation) is only punishable with imprisonment of up to four years and/or a fine of up to $2,000, as opposed to the s 326 offence (the punishment for which is imprisonment for life or for a term which may extend to ten years and, if the court deems it appropriate, either a fine or caning)."

Is retribution an applicable sentencing consideration in india also ?

88. Family law self help center

On the lines of alaska court system, we can also establish family law self help centers. In Alaska the center helps in following manner:
What is the Family Law Self-Help Center?

The Family Law Self-Help Center is a statewide service provided by the Alaska Court System to help people represent themselves in family law cases. The Center explains court procedures and which forms are options in different situations. This information helps people to resolve their family law disputes in court and move their cases along faster.

The Center currently provides information about Divorce, Dissolution, Custody, Paternity, Child Support, Domestic Violence, and referral information about Adoption, Annulment, Change of Name, Emancipation, Grandparent Rights, Legal Separation, Powers of Attorney & Health Care Directives, and Guardianship/Conservatorship.

Who can use the Family Law Self-Help Center?

All people seeking information about Alaska family law who are NOT represented by a lawyer.

An Important Caution The Self-Help Center does not provide legal advice or represent you in court. You are responsible for your own case. The Center is staffed by skilled neutral people who provide valuable legal information and educational materials as a public service. There is no attorney-client relationship between you and the staff. The Center does not take the place of an attorney, and cannot advise you on strategy or tell you what to say in court. You are strongly encouraged to seek the services of a private attorney for legal advice and strategy. Your communications with the staff are not confidential and the staff is available to help both parties. The Center personnel are not acting on behalf of the court or any judge. The judge in your case may require you to change a form or to submit a different one. The judge is not required to grant your request.

How can you get help from the Family Law Self-Help Center?

The Center provides services in 2 ways:

1. this website which includes detailed information and forms for each stage of the case
2. a statewide toll-free telephone Helpline which is staffed by highly trained court employees who can speak to you about your case. The Helpline is very busy. We encourage you to read the information on this website before calling - the answer to your question may be easier to find than you think. If you decide to call for help with filling out a form, be sure to print it out and have all of your other paperwork handy.

What happens when you call?

When you call, staff will describe what we can and cannot do. Then, we will ask you some basic questions to better understand what is going on in your case. This will help us give you appropriate information about forms and procedures to help you handle your case. The staff will also give you referral information to other legal and non-legal resources that might be helpful. Staff will provide follow-up assistance as appropriate.

87. Precedents- some guidelines

• Stare decisis is not a dogmatic rule allergic to logic and reason – it does not prohibit a fresh look in changed facts and circumstances - AIR 2006 SUPREME COURT 212 "State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat"
• -Binding force attaches only to ratio decidendi of a judgment - every observation found in a judgment is not binding. AIR 2006 SC25
• -Decision in election petition - Cannot be treated as judicial precedent. AIR 2006 SC 543
• -Foreign case Law - When Law in India is clear and settled, no occasion arises to rely upon foreign case Law laying down a wider proposition. AIR 2006 SC1148
• A decision is available as a precedent only if it decides a question of law. AIR 2004 SC 2890 "Mehboob Dawood Shaikh v. State of Maharashtra"
• when court based its decision on basis of concession, the decision not a binding precedent AIR 2001 SUPREME COURT 1273 "Kulwant Kaur v. Gurdial Singh Mann"
  

86. Important points regarding s.138, NI Act

To constitute an offence under s. 138 of NI Act, following ingredients must be fulfilled :

1. cheque should have been issued to discharge any debt or liability
2. cheque should have been presented within 6 months or its validity whichever is earlier
3. the payee should have issued a notice in writing to the drawer within 30 days of dishonor of cheque
4. after receipt of the said notice the drawer has failed to pay the cheque amount within 15 days of receipt of notice. offence is not committed if payment is made within 15 days but even if payment is made on 16^th day one can not escape from rigors of s. 138.
5. commission of offence is governed by s. 138 and prosecution is governed by s. 142. under criminal law commission of offence is one thing and prosecution is other
6. notice is not necessary when drawer can not after due search be found
7. limitation for filing a complaint before magistrate is 30 days from the date of expiry of 15 days after receipt of notice by drawer.

Compounding: the offence under the NI Act is compoundable.

Trial: trial for this offence will be conducted in summary manner.

Law commission’s recommendation: the law commission has recommend