Author: zensciences

Calcutta High Court in its recent judgment in the case of Eastern Coalfields Limited V. RREPL-KIPL (JV) observed that there has to be an agreement in writing between the parties to refer the disputes to arbitration and conduct of the parties will not substitute the statutory requirement of an agreement in writing.

The apex court in the Phool Singh case recently held that acquittal in a criminal case was not a ground for setting aside the penalty which was imposed in the course of the disciplinary enquiry. Hence, reinstatement of employment only on the ground of acquittal in criminal proceedings was not warranted.

The High Court of Gujarat, in the recent judgment in CMD, Union Bank of India vs. Jaykant R. Gohil, observed that UBI forfeiting gratuity of the employee was an “afterthought” as only after the employee demanded the gratuity. The Court ordered payment of all retiral dues to the employee with reduced interest.

On assessment of whether liquidated damages (LD) were payable by a contractor for delays in completion of work, the Delhi High Court (HC) in North Delhi Municipal Corporation v. IJM Corporation Berhad, held that once a request for extension is received and granted, and the contractor completes the work in the contractual and extended periods, LD is not payable. The HC also held that a competent authority cannot, after the extended period, turn around and re-evaluate the extension granted, to the detriment of the contractor.

The High Court of Karnataka, in the case of Prachi Sen v. Ministry of Defence, held that the work-from-home benefit may be granted to an employee who has exhausted their maternity benefit, only if the nature of work assigned, permits working from home.

The Supreme Court considered the Union of India’s contentions seeking transfer of writ petitions that challenged constitutional validity of Payment of Bonus (Amendment) Act, 2015 filed before various High Courts to the Supreme Court in the Union of India and Ors. vs. The United Planters Association of Southern India and Ors. It however declined the transfer of the cases from the High Court with a direction to the courts to proceed on the matters expeditiously and on priority.

Supreme Court in Experion Developers case held that consumer forums created under the Consumer Protection Act, 1986 have the power to direct builders to refund and pay compensation for failure to deliver possession of residential apartment as stipulated in their agreement.

Supreme Court, in the Fertilizer Corporation case, held that ad hoc payment made as per interim orders does not form part of ‘wage’ under Payment of Gratuity Act. This Connect highlights the facts and reasoning of the Court.

The Madras High Court in the case of Rajasthani Marble and Another. v. K. Kumar and Others, held that when an arbitration agreement is between contracting parties in the form of a clause or covenant in a contract, the termination of the contract does not terminate the arbitration agreement.

The Delhi High Court in two Union Bank of India cases observed in March 2022 that an employer has the right to forfeit gratuity of its employee sunder Section 4(6)(a) of the Payment of Gratuity Act, 1972 to the extent of loss or damaged caused by the employee. However, the damage must be quantified, opportunity afforded to employees to present their case and be heard before forfeiture.

Supreme Court, in the case of Allahabad Bank and Others vs. Avtar Bhushan Bhartiya, clarified the legal position on proof of gainful employment while claiming reinstatement with back wages. It held that in the first instance, there is an obligation on the part of an employee to plead that he is not gainfully employed. It is only then that the burden would shift upon the employer to make an assertion and establish that the employee was gainfully employed. This Connect highlights the changed views of the apex court and its reasoning in this case.

In the recent case of Shiwang Tripathi vs. Union of India, the Delhi High Court dismissed the demand of apprentices for regularisation of employment and upheld the right of the employer, National Insurance Co. to exercise discretion under Section 22 of the Apprentices Act, 1961.

Supreme Court in Swarnalatha case held that in the matter of appreciating the genuineness of execution of a will, there is no place for court to see whether the distribution made by the testator was fair and equitable to all of his children and the court must not apply Article 14 to dispositions under a will.

Executive Summary: Supreme Court, while interpreting the commissioning date of an electricity project in Bangalore Electricity Supply Company Limited Vs. E.S. Solar Power Pvt. Ltd. and Ors, reiterated the established principle of interpretation of contracts that there is no scope for adopting either a liberal or a narrow approach, whatever that may mean. The exercise which must be undertaken is to determine what the words used in the contract mean.

The SC in the case of A.R. Madana Gopal held that specific performance cannot be denied on sole grounds of delay caused by court process and escalation of prices.

In the case of Shankar Bhimrao Kadam and Ors. vs. Tata Motors Limited, the High Court of Bombay held the Employer accountable for ‘unfair labour practices’ and directed it to compensate the petitioners who were former employees hired on temporary basis.

In a key ruling decided on May 2, 2022, the Supreme Court, in Jacob Puliyel v. Union of India and Others, stated that no one can be forced to take the Covid-19 vaccine, and that bodily integrity is protected under Article 21 of the Constitution. However, where cases are rising, state governments’ vaccine mandates cannot be construed as disproportionate, as they may impose reasonable restrictions on individual rights for the wider interest of public health and safety.

The Madras High Court, while deciding an appeal relating to specific performance under a sale agreement, held that unregistered sale agreement may be received as evidence in a suit for specific performance. This Connect summarises the order and reasoning of the High Court.

Supreme Court, in the Welspun Specialty Solutions Limited and Ors. v. Oil and Natural Gas Corporation Ltd. and Ors. case, where a claim for liquidated damages (“LD”) was made post waiver of such claim, held that on waiver of LD, a subsequent claim cannot be made unless the other party expressly accepts the imposition.

The Supreme Court, in the case of Universal Petro-Chemicals Ltd. v. B. P. Plc. and Others, rejected a claim for damages raised in lieu of specific performance of a contract, and held that compensation must not be decreed unless it has been specifically sought in the plaint.

The High Court of Madras, in Kandagiri Spinning Mills Ltd. v. The Regional Director, ESI Corporation held that a company is not liable to pay ESI contributions on apprentices it has engaged if done so under the Standing Orders. This Connect highlights the ratio of judgement of the High Court.

Delhi High Court, in Bhopal Dal Udyog v. Food Corporation of India case, in a claim of liquidated damages when actual damages were proven and ascertained, held that liquidated damages cannot be paid over and above ascertained actual damages

The Delhi High Court, in the case of Dr. Baba Saheb Ambedkar Hospital vs Dr. Karti Mehrotra, where claim of maternity benefit was made by a contractual employee employed on ad-hoc basis, held that the employee is entitled to maternity benefits beyond the term of contract if conception of pregnancy takes place during the period of contract of employment and where other eligibility conditions were met.

Of late, many employers have received notices from the Employees Provident Fund Organization alleging shortfall in PF contributions. This Connect highlights the impact of the demands by the field formations and resulting coercive recovery actions against the employers.

Supreme Court, in Shripati Lakhu Mane v. The Member Secretary, Maharashtra Water Supply And Sewerage Board case, laid down the principles on the law of contract relating to ‘abandonment’ and differentiated between abandonment as a right vs. abandonment as a liability or obligation.

The High Court of Gujarat in Rajendrabhai Chandubhai Gondaliya case held that an employee is entitled to retrenchment benefits under the Industrial Disputes Act, 1947 only if his separation falls within the definition of retrenchment under the Act.

The Supreme Court in National Gandhi Museum v. Sudhir Sharma, held that when evaluating whether an employee has discharged their burden to prove they are not gainfully employed, it is to be decided on the facts and circumstances of each case. The SC further prescribed that reinstatement of an employee after he has lost confidence of the management is not justified. This Connect analyses this judgment.

The High Court of Kerala in the Mangala case held that an employee working from home cannot approach the court having local jurisdiction in a dispute between the employee and the employer. The jurisdiction in such cases lies with the court in whose local limits the employer’s headquarters is located in.

The Supreme Court, while deciding the G.T.Girish vs. Y. Subba Raju case, clarified that rules passed by authorities which derive their power from the legislature constitute ‘law’ and any declaration of illegality of a consideration or object under the Rules will declare a contract void.

The Bombay High Court upheld the jurisdiction of the Industrial Court of Mumbai as the Appellate Authority on the recommendations of the Internal Committee (IC), constituted under the Sexual Harassment of Women at Workplace (Prohibition, Prevention and Redressal) Act, 2013, while investigating POSH complaints.

The Ministry of Law and Justice introduced the Mediation Bill, 2021, in the Rajya Sabha on December 20, 2021. This Bill seeks to establish a uniform code on mediation; making India one of the few countries to have legislation primarily dedicated to resolving disputes through commercial and civil mediation. Key features of this Bill are discussed in this Connect.

Supreme Court in Atlanta Limited v. Union of India held that an arbitral award cannot be challenged on grounds that an arbitrator has drawn their own conclusion or has failed to appreciate the facts.

The Haryana Government has brought into force the Haryana State Employment of Local Candidates Act and Rules to provide for 75% reservation for local candidates in Haryana. This Connect provides a broad overview of the law, as well the update on its stay by the High Court.

In the case of Kandhari Beverages Limited, the Supreme Court, on the 10th January, upheld that an arbitral award can be set aside only if it is against the public policy of India etc. This Connect explains the ratio of the judgment.

Supreme Court in UHL Power Company Ltd case on January 07, 2022, reiterated that arbitrator can grant post-award interest on the interest awarded by the Arbitrator in the Arbitral Proceedings. It also held that the Arbitral Tribunal must decide in accordance with the terms of the contract. If a term is construed in a reasonable manner, then the award ought not to be set aside merely on the ground that another view could have been taken by the tribunal.

The Delhi High Court in Hamdard National Foundation vs. Sadar Laboratories reiterated that the standard to examine the infringement of a well-known mark by a similar mark, must always be from the minds of a common consumer and there can be no proprietary claims made over common term/word. This Connect summarises the judgment and ratio of the Court.

Supreme Court in ESIC v. Texmo Industries held that conveyance allowance paid to an employee shall not be included while calculating ‘wages’ under the ESI Act. This Connect highlights the reasoning given by the court, which has been accepted by the ESIC.

The Bombay High Court, in Deepak Kumar Radheshyam Khurana and Ors. vs. Mumbai Port Trust and Ors. case upheld a circular issued by Mumbai Port Trust. It held that RT-PCR tests for unvaccinated employees is a reasonable restriction on their fundamental rights.

The Supreme Court in the recent case of G.B. Pant University of Agriculture and Technology, held that an employee who exercises an option provided under the University’s statute to extend their retirement age would not be deprived of their entitlement to gratuity unless there is an express exemption under the Payment of Gratuity Act, 1972.

Supreme Court, in V. Anantha Raju v. T.M. Narasimhan, held that when parties put their agreement into writing, it is presumed to be full and final statement of intention. Written instruments are entitled to much higher degree of credit than parol (or oral) evidence.

The Allahabad High Court in Bipin v. Union of India reiterated that when a workman is employed on casual basis for a particular project, his/her can end when the project was over and, he cannot seek permanency. This Connect highlights the reasoning given by the court

Supreme Court, in Padia Timber Company (P) Ltd. v. Board of Trustees of Visakhapatnam Port Trust upheld here that acceptance of an offer is the cardinal principle of law of contract. If the acceptance is conditional, the offer may be withdrawn at any time till the absolute acceptance of the offer. This Connect summarises the judgment and its ratio.

The Supreme Court, in the case the Capro Engineering India, opined that notice of change under Section 9A of the Industrial Disputes Act, 1947 must be issued preceding the transfer of workmen if it results in change in working conditions. This Connect explains the rationale of the judgment.

The Supreme Court, on 4th October 2021, upheld the validity of Exception 1 to Section 28 of the Indian Contract Act, 1872 in Garg Builders vs. BHEL case by stating that parties can contract out of receiving interest on monies due under the said contract.

The Bombay High Court, in a fact-centric judgment, evaluates the post-contractual obligations of confidentiality, non-compete and non-solicitation in contracts. Although these clauses are common in commercial arrangements, the party seeking to enforce them must demonstrate that they are permissible under applicable legislation.

The Supreme Court in Dayle De’Souza case held that in matters of offences by companies, the onus of proof shifts to the accused officer of the Company only when the prosecution has discharged its burden of proving that the officer was in-charge and responsible. This Connect highlights the reasoning in order of the court.

The Delhi High Court held that the secretary of an academy, who is the alleged perpetrator, fell within the meaning of the term ‘employer’ and therefore the Local Committee (and not the Internal Committee) will have jurisdiction to handle the complaint under POSH Act.

The Supreme Court in Milkhi Ram v. Himachal Pradesh State Electricity Board held that Civil Courts do not have jurisdiction to hear matters relating to the Industrial Disputes Act and such matters must be referred to the Industrial Tribunal. This Connect highlights the reasoning and order given by the Court.

The Bombay High Court has issued guidelines for handling and hearing cases relating to prevention of sexual harassment of women at workplace (POSH). The guidelines mandate anonymity of parties, non-disclosure of proceedings and filing and handling such cases. This Connect summarizes the guidelines which will also be useful for POSH Internal Committees

The Labeling and Display Regulations, 2020 of the, Food Safety and Standards Authority of India (“FSSAI”) will be coming into force from November 2021 and January 2022. This Connect briefly explains the changes that can have a favourable impact on the consumers of packaged foods.

The Supreme Court in the recent case of New Victoria Mills rejected an employee’s argument on right to withdraw resignation and observed that mere delay in relieving an employee from his duties does not impact the acceptance of his resignation.

The Supreme Court of India held that courts can deviate from the rule of automatic reinstatement in case of wrongful termination. This Connect analyses the judgement and comments on the paradigm shift in the apex court’s views that where compensation will meet ends of justice, reinstatement and back wages may not be awarded.

The Supreme Court held that employers have the element of latitude or choice in determining who they recruit. Although the judgement largely explores this in the context of public service, this principle can also be applied to employers in private establishments.

The Supreme Court, in the case of Krishna Gopal Tiwary, has observed that 2010 amendment of Payment of Gratuity Act 1972, which raised the upper limit of gratuity payable under Section 4 of the Act to Rupees 10 lakh, cannot have retrospective effect.

The Limited Liability Partnership (Amendment) Act, 2021, which is yet to be brought into force, amends the LLP Act, 2008 to bring in significant improvements. This Connect highlights the key features of the Amendment Act, such as creation of special courts to adjudicate matters related to LLP, recognition of small LLP, and change in nature of penalty based on its gravity

The Chief Commissioner of Bangalore’s municipal corporation, Bruhat Bengaluru Mahanagara Palike, has issued a circular instructing employers of commercial establishments, industries, offices, etc., to mandate their staff/employees to be vaccinated against Covid-19. The Circular prescribes other similar directions as a measure to contain the transmission of the virus.

Bombay High Court, relying on several rulings of the Supreme Court, has clarified that arbitral tribunal can rule upon its own jurisdiction, including on any objections with respect aspects of non-arbitrability and validity of arbitration agreement. With constant legislative changes and judicial pronouncements, interference of courts has reduced in arbitration matters. Role of the courts is minimal in arbitral process and court should nominate/appoint an arbitrator without loss of time and leaving all contentious issues to be urged and agitated before the arbitral tribunal.

Supreme Court, in the case of South Eastern Coalfield Ltd. & Ors. versus S. Kumar Associates AKM (JV), clarified that a ‘Letter of Intent (LoI) merely indicates a party’s intention to enter into a contract with the other party in future. Whether a contract has been concluded between the parties through an LoI, can be concluded by determining the terms and conditions of the LoI and the conduct of the parties.

The Covid-19 pandemic raises unique legal challenges in India on mandating the Covid-19 vaccinations. As it is a novel conundrum, there is minimal judicial and executive guidance to rely on. Nevertheless, there has been some traction in this area recently. This Connect focuses on the current position of law on mandating the vaccine for employees at workplaces.

Court, in the case of SBI v. V. Ramakrishnan & Ors.,clarified in 2018 that the NCLT will be the adjudicating authority for insolvency resolution of a personal guarantor. Creditors had earlier to approach DRT since guarantees for loans of corporates was issued by its promoters in the form of personal guarantees. Therefore, now parallel proceedings against borrower and guarantor are maintainable before the NCLT.

The Federal Court of Canada permanently restrained a company ‘Amul Canada’ from infringing and using the trademark and copyright of Kaira District Co-operative Milk Producers’ Union Limited and Gujarat Co-operative Milk Marketing Federation Limited, owners of the trademark ‘Amul.’ This Connect highlights the judgment and reasoning of the Court.

The liberalized telecom Guidelines for Other Service Providers (OSP) released on November 5, 2020 (Nov. 2020 Guidelines), were further simplified, and revised by the Department of Telecommunication’s order released on June 23, 2021 (Jun. 2021 Guidelines). The Nov. 2020 Guidelines sought to overhaul the OSP framework, by removing procedural obligations, reducing compliance burdens, and improving operational flexibility between OSP centres. Although a comprehensive overhaul, some doubts persisted regarding definitions and the extent of permission granted to data interconnectivity between OSP centres. The Jun. 2021 Guidelines clarify these ambiguities.

Supreme Court has upheld the amendments made to personal guarantors of corporate debtors by clarifying the position of law which is constantly evolving under the Insolvency and Bankruptcy Code,2016 and has confirmed that NCLT is the adjudicating authority, with DRT being the appropriate forum prior to this amendment. This Connect gives highlights and importance on this judgment.

Delhi High Court in Monica Khanna & Ors v. Mohit Khanna & Anr allowed the petition to preserve the integrity of arbitration and ordered appointment of an independent arbitrator with direction to ensure the compliance of Section 12 of the Arbitration and Conciliation Act, 1996.

Kerala High Court, in the case of Zacharia Maramkandathil held that the Director Identification Number (DIN) of a director cannot be deactivated if the director is disqualified under Section 164 of the Companies Act. This Connect highlights the order and reasoning of the Court.

The Union Ministry of Labour and Employment has notified the draft Code on Social Security (Employee’s Compensation) (Central) Rules, 2021 and invited comments from stakeholders. The Code on Social Security, 2020, grants powers to the Central Government, under which the Draft Rules are made to bring into operation Chapter VII (Employee’s Compensation). Importantly, these Draft Rules are proposed in supersession of rules under the Employee’s Compensation Act, 1923, that will stand repealed by Section 164 of the Code, as and when it is brought into force.

The Delhi High Court granted an interim injunction in the case of Singh & Singh Law Firm LLP v. Singh + Singh Lawyers retraining the respondent from using the plaintiff’s trademark, logo, service name or any other identical or deceptively similar marks.

The Delhi High Court in the case of Red Bull AG v. Bakewell Biscuits Private Limited passed an ex-parte interim injunction restraining Bakewell from using Red Bull’s registered and well-known Trademarks.

The Union Ministry of Labour and Employment has invited comments on the Industrial Relations (Central) Recognition of Negotiating Union or Negotiating Council and Adjudication of Disputes of Trade Unions Rules, 2021 (“Draft Rules”). The Draft Rules seek to provide mechanisms to recognise Trade Unions and verify their membership under the new labour law regime. Interestingly, there is potential for these rules to bring about consistency in negotiating practices and perhaps foster ease of business. However, they have invited some opposition from labour organisations.

In the first order of its kind, the Delhi High Court in InterDigital Technology v. Xiaomi Corp has granted interim relief to plaintiff InterDigital Technology Corporation, in a patent infringement matter against defendant Xiaomi Corp, holding that a foreign court cannot injunct a party and restrain the enforcement of its cause before an Indian court, when Indian jurisdiction is the only forum competent to hear said claim.

This Connect discusses on the Notification of the Ministry of Labour and Employment the effective date of Section 142 of the Code on Social Security on applicability of Aadhaar. Also, it explains the position in the context of the Puttaswamy judgment of the Supreme Court.

This Connect discusses the legality of the order passed by the Government of Karnataka ordering all employers to provide paid leave to their workers when they are under Covid-19 quarantine.

The Supreme Court of India in Inox Renewables Ltd v. Jayesh Electricals Ltd., has held that the moment the seat of arbitration is chosen by parties, it is akin to an exclusive jurisdiction clause. It confers the courts at this place with exclusive jurisdiction to proceed with the arbitration. This Connect highlights the reasoning given by the court.

Bombay High Court observed that restraining Serum Institute from using Covishield name would disrupt the Covid-19 vaccination programme in the case of Cutis Biotech v. Serum Institute of India. This Connect highlights the reasoning given by the court in holding that it is not a case of ‘passing off’.

The Karnataka High Court in Dinesh Kumar v. Shweta Khandelwal case observed that Trademarks and Trade names are not the same and trial courts must keep in mind while deciding a case relating to ‘deceptively similar trademarks’ as the common man is man is neither blessed with the wisdom of Solomon nor the trained eyes of Sherlock Holmes. This Connect highlights the reasoning given by the court.

The Government of Karnataka has amended the Karnataka Shops and Commercial Establishments Act, 1961 and enhanced the carry forward of Earned Leave from the earlier 30 days to 45 days. This Connect explains in brief the implications of this amendment.

This Connect provides a quick summary of the order of the Karnataka High Court in the case of Varma Industrial where it ordered that gratuity of retiring employee is payable by the employer even without the employee applying for it.

The Supreme Court in Vidya Drolia’s case ruled that landlord-tenant disputes are arbitrable. This Counselence Connect highlights the brief facts of the case, decision rendered, and the reasoning given by the Supreme Court.

This Connect provides a quick summary of the provisions of the Code on Wages, 2019 that relate to the Central Advisory Board that have been brought into effect from 18th December 2020.

The Karnataka High Court held, in Snapdeal case, that an Intermediary or its directors/officers would not be liable for any action or inaction on part of a vendor/seller making use of the facilities provided by the intermediary in terms of a website or a marketplace. This Counselence Connect highlights the case, the decision rendered, and the reasoning given by the High Court.

The Labour Ministry published a draft Model Standing Orders on 31st December, 2020 addressing situations of work from home (“WFH”) and inviting comments from relevant stakeholders. The trend of WFH became essential due to Covid-19 pandemic and now is becoming popular too. Hence the Ministry has incorporated provisions relating to WFH in the draft Model Standing Orders. This Connect explains the provisions.

This Connect provides a quick summary of the judgement passed by the Karnataka High Court in the case of K.T. Thimmaiah, an ex-employee of KPTCL.

This Connect provides a quick summary of the Code on Social Security, 2020 that was notified in the Gazette of India on 29th September 2020. This Code replaces nine existing labour legislations relating to social security of workers and employees including on provident fund, gratuity, ESI, maternity benefit.

The Kerala High Court, in the case of Dr. Prasad Pannian, observed that mere discrimination against women at workplace, based on gender, will not constitute an offence of ‘Sexual Harassment’ under the POSH Act.

The Delhi High Court in the case of RB Health v. Dabur India when dealing with suit for infringement of design rights, has laid down conditions to be satisfied to grant an injunction in a suit for infringement under the Designs Act 2002. This Connect highlights the case with the reasoning given by the court.

The Supreme Court in Trustees of H.C. Dhanda Trust case observed that maximum penalty for deficit of stamp duty on documents cannot be mechanically imposed. This Counselence Connect highlights the brief facts of the case, decision rendered, and the reasoning given by the Supreme Court.

The Supreme Court, taking into account the present situation caused by the Covid-19 pandemic, has considered it appropriate to direct delivery of legal documents by electronic means. This Counselence Connect provides brief overview of the order passed and further directions issued by the Supreme Court in this regard.