Legal Reference Library

Award passed by Labour Court or Industrial Tribunal: Award passed by Labour Court/Industrial Tribunal is binding till it is substituted by another award/court order/court compromise indicating such substitution, or is replaced by another settlement, or terminated by either party under S. 19(6). Settlement/compromise/scheme in question arrived at before court after passing of awards concerned, did not amount to substitution of the awards in absence of any specific indication as to such substitution given in order passed by court pursuant to compromise. [T.N. Terminated Full Time Temporary LIC Employees Assn. v. LIC, (2015) 9 SCC 62]

When the order of Single Judge of High Court is not in exercise of ordinary original jurisdiction, but in exercise of writ jurisdiction, the principal question to be decided is whether the order of Single Judge is in substance one under Art. 226 of Constitution and not under Art. 227 of Constitution. If order of Single Judge is in substance one under Art. 226 of Constitution, regardless of nomenclature used by parties in the writ petition or by Single Judge in his order, then LPA to Division Bench is maintainable. What is important is to ascertain the true nature of order passed by the Single Judge. If order of Single Judge in substance is not under Art. 226, or cannot be one under Art. 226, but is one under Art. 227 of Constitution, again regardless of nomenclature, LPA to Division Bench is not maintainable. When order of Single Judge is under both Art. 226 and Art. 227 of Constitution, again regardless of nomenclature, LPA to Division Bench is maintainable. LPA not maintain

Case Reported in 2015 SCC Vol. 3 March 7, 2015 Part 1 None of the grounds contained in S. 34(2)(a) deal with the merits of the decision rendered by an arbitral award, it is only when arbitral award is in conflict with public policy of India as per S. 34(2)(b)(ii), that merits of an arbitral award are to be looked into under certain specified circumstances. Said circumstances include when the award is in conflict with fundamental policy of Indian law, interest of India, justice or morality and patent illegality. When any of the heads/sub-heads of test of “public policy” is applied to an arbitral award, court does not act as court of appeal. Interference is permissible only when findings of arbitrator are arbitrary, capricious or perverse, or when conscience of court is shocked, or when illegality is not trivial but goes to root of the matter, not when merely another view is possible. Furthermore, arbitrator being ultimate master of quantity and quality of evidence while drawing arbitra

2015 SCC VOL. 2 FEBRUARY 28, 2015 PART 4 When a higher court has rendered a particular decision, said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set aside. If litigants or lawyers are permitted to argue that something that was correct, but was not argued earlier before a higher court, and on that ground if courts below are permitted to take a different view in a matter, possibly the entire law in relation to precedents and ratio decidendi will have to be rewritten and there would be total chaos. Moreover, by not following law laid down by Supreme Court, High Court or subordinate courts would also be violating provisions of Art. 141.

Government Contracts/Tenders — Enlistment/Blacklisting of Contractors : Blacklisting has to be preceded by a show-cause notice. Such an order is stigmatic in nature and debars such a person from participating in government tenders which means precluding him from the award of government contracts. Hence, there is necessity of giving an opportunity to such a person by serving a proper show-cause notice thereby giving him opportunity to meet the allegations which were in the mind of the authority contemplating blacklisting of such a person. However, once the showcause notice is given and opportunity to reply to the show-cause notice is afforded, it is not necessary to give an oral hearing. Garkha Security Services v. Govt. (NCT of Delhi) (2014) 9 SCC 105

Limitation Act, 1963 — Art. 61 — Usufructuary mortgage : There is no fixed time-limit for usufructuary mortgagor to seek redemption and recovery of possession of immovable property mortgaged. Right to seek redemption, would accrue not from date of creation of mortgage but from date of payment of mortgage money out of usufructs or partly out of usufructs and partly on payment or deposit by mortgagor as provided under S. 62 of TP Act. Until then, limitation would not start under Art. 61 and as such, mere expiry of period prescribed thereunder would not extinguish mortgagor’s right of redemption and entitle mortgagee to seek declaration of title and ownership over mortgaged property. Singh Ram v. Sheo Ram, (2014) 9 SCC 185

Cases Reported in 2014 SCC Vol. 7 August 28, 2014 Part 4 For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640

Income Tax — Tax at Source/TDS — Refund - Cases Reported in  2014 SCC Vol. 6 July 14, 2014 Part 3 - When collection is illegal, Revenue is obliged to refund such amount with interest as money so deposited is retained and enjoyed by it. Hence, resident/deductor who had deducted tax at source and deposited the same before remitting amounts payable to non-resident/foreign company is entitled to interest on such refund on par with assessee. No discrimination can be shown between assessee and resident/deductor in payment of interest on refund of tax. Further, such refund attracts interest from date of payment/deposit of the tax since it falls under “in any other case” in S. 244-A(1)(b) of IT Act, 1961. Money received and retained without right, carries with it right to interest. Whenever money received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course and the State is not exempted from payment of interest. Union of India

Arbitration and Conciliation Act, 1996 — Pt. I or Pt. II — Doctrine of severability - Cases Reported in 2014 SCC Vol. 7 August 28, 2014 Part 4 - Law of substantive contract does not determine law of arbitration agreement/lex arbitri. Parties are entitled to agree that law of one country would govern substantive contract and laws of another country would apply to arbitration agreement. Parties can also agree that conduct of reference to arbitration would be governed by laws of yet a third country. As in this case, parties had by agreement provided that substantive contract (PSC) will be governed by laws of India, arbitration agreement by laws of England and appointment of arbitrators by Permanent Court of Arbitration at The Hague in case of failure of parties to appoint arbitrator(s), and the arbitration proceedings will be conducted in accordance with the UNCITRAL Rules, 1976. Further, agreement also specifically provided that right to arbitrate disputes and claims under said contrac

Constitution of India — Art. 310 — Doctrine of Pleasure - Cases Reported in 2014 SCC VOL. 6 JULY 14, 2014 PART 3 - Termination whether based on material evidence, can be examined by Court, but not sufficiency of the grounds. Furthermore, there is no need of assignment/disclosure of reasons for invocation of pleasure doctrine. Lastly, Court cannot substitute its own conclusion on the basis of materials on record. In a constitutional set-up, when office is held during the pleasure of the President, it means that the officer can be removed by the authority on whose pleasure he holds office without assigning any reason. The authority is not obliged to assign any reason or disclose any cause for the removal. Union of India v. S.P. Sharma, (2014) 6 SCC 351

Service Law — Promotion — Entitlement to promotion  - Complete denial of promotion forever cannot be comprehended under Arts. 14 and 16 of Constitution. Once a service gets merged with another service, the employee concerned has a right to get positioned appropriately in the merged service. That is the plain meaning of “absorption”. Chances of promotion are not conditions of service, but negation of even the chance of promotion certainly amounts to variation in the conditions of service attracting infraction of Arts. 14 and 16 of the Constitution. No employee has a right to particular position in the seniority list but all employees have a right to seniority since the same forms the basis of promotion. Panchraj Tiwari v. M.P. SEB, (2014) 5 SCC 101 Constitution of India — Arts. 21, 14, 32, 142 and 136 — Communal riots — Muzaffarnagar Riots, 2013 - In light of various steps taken by State Government for rehabilitation, protection and other preventive measures, facts and figures, s

IN THE SUPREME COURT OF INDIA S. Syed Mohideen v. P. Sulochana Bai 2015 (2) RCR (Civil) 810 Decide on: 17.03.2015 Respondent was a registered owner of trade mark ‘Iruttukadai Halwa’. Respondent was in the business of selling halwa in the aforesaid name since 1900 through it’s father-in-law. When Respondent found that Appellant was also selling halwa under the trade name ‘Iruttukadai Halwa’, she filed suit for declaration, permanent injunction and other reliefs on the ground that the Appellant had adopted deceptively similar trade mark to confuse the consumers. Respondent’s suit was decreed by the trial court on 20.04.2011. Appellant filed an appeal against the said decree before the High Court of Madras. High Court dismissed the appeal vide judgment dated 07.06.2013. Against the said judgment, the Appellant filed the present appeal before the Supreme Court. Appellant’s Contentions: It was not open to the Respondent to claim that the halwa manufactured in their shop a

In Krishna Bhattacharjee V.  Sarathi Choudhury, 2015 scc 1229, 2015 while dealing with a question whether the retention of stridhan by the husband or any other family members is a continuing offence or not, the division bench comprising of Dipak Misra and Prafulla C. Pant, JJ held that the concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians The respondent contended before the Magistrate that the claim is barred by time and that she should have claimed it prior to their judicial separation. The Magistrate admitted the fact that the respondent and the appellant had entered into the wedlock. The magistrate treated her as an aggrieved person. But concluded that no domestic relationship existed between the parties and hence she is not entitled to file the application under Sec 12 of the 2005 Act. The Court taking reference of various c

In an important judgment, the Supreme Court has upheld election of Mr. Mohammed Sadique from a constituency reserved for Scheduled Castes in Punjab by setting aside the High Court judgment which had invalidated the same. Dismissing the Election petition which was allowed by the High Court, the Supreme Court Bench comprising of Justices Ranjan Gogoi and Prafulla C. Pant has reiterated that a person can change his religion and faith but not the caste, to which he belongs, as caste has linkage to birth. Article referred: http://www.livelaw.in/person-can-change-religion-faith-not-caste-belongs-caste-linkage-birth-sc/

The private institutions cannot be permitted to operate like money minting institutions, the innocent people of this State cannot be allowed to be duped any further, observed the High Court of Himachal Pradesh which directed the Government to investigate all the private Educational institutions in the state and to ensure that no one is allowed to charge fee towards building fund, infrastructure fund, development fund etc. A Private Educational Institution which approached the High Court against the orders to refund the fees it took from some persons desirous of getting admission for MBA PGDM Course, had to face the music as Justice Tarlok Singh Chauhan, who heard the petition,not only dismissed it with costs, but also made a highly critical remark about the institution to the effect that it is no less than a commercial shop, where the aspiring needs of the students stand defeated due to its malpractices and frivolous activities. The Court taking judicial notice of the fact that number

The Supreme Court M.K. Indrajeet Sinhji Cotton Pvt Ltd. Vs. Narmada Cotto Coop. Spg. Mills Ld. & Ors has held that Registrar of Cooperative Societies has no jurisdiction to decide whether the suit is tenable for want of notice or not. Apex Court Bench comprising of Justices S.A. Bobde and Amitava Roy observed that that a question whether a suit is tenable under Section 167 of the Co-operative Societies Act for want of notice under the said provision is a question within the exclusive competence of a Civil Court. A company was refused permission to continue the suit filed by it before the City Civil Court, Ahmedabad by the Registrar of Co-operative Societies on the ground that the suit is not tenable because notice of its institution required by Section 167 of the Gujarat Co-operative Societies Act, 1961. Though the Single Bench of the High Court quashed the order of Registrar, the Division Bench on appeal restored that order. The company approached Apex Court. The court observed th

Every Internal Complaints Committee constituted under the provisions of Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 has to follow the principles of Natural Justice in conducting their enquiry, said the Court. Kerala High Court in L.S Shibu v Air India Limited &others has held that every internal complaints committee constituted under the provisions of Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 has to follow the principles of natural justice in conducting their enquiry. Article referred: http://www.livelaw.in/sexual-harassment-women-work-place-internal-complaint-committee-follow-principles-natural-justice-kerala-hc/

Dilip Manhar Parekh vs. DCIT (ITAT Mumbai) COURT: ITAT Mumbai CORAM: Amit Shukla (JM), Ramit Kochar (AM) SECTION(S): 2(47), 54F GENRE: Domestic Tax CATCH WORDS: binding precedent, exemption, transfer COUNSEL: Dr. K. Shivram DATE: April 15, 2016 (Date of pronouncement) DATE: April 28, 2016 (Date of publication) AY: 2007-08 CITATION: S. 54F: The demolition of a structure does not amount to a "transfer". It is not correct to contend that Vania Silk Mills 191 ITR 647 (SC) is overruled by Grace Collis 248 ITR 323 (SC). Lower authorities cannot refuse to apply binding High Court judgements on the basis that the High Court has not considered a Supreme Court judgement (i) The demolition of the structure would not constitute a transfer of the assets in terms of Section 54(3) of the Act in view of the decision of the Apex Court in the matter of Vania Silk Mills P. Ltd. v. CIT, reported in 191 ITR 647. In the above case, the Apex Court has held that when an ass

CIT vs. Ramaniyam Homes P Ltd (Madras High Court) COURT: Madras High Court CORAM: T. Mathivanan J, V. Ramasubramanian J SECTION(S): 28(iv) GENRE: Domestic Tax CATCH WORDS: business income, capital vs. revenue receipt, OTSS, waiver of loan COUNSEL: Dr. Anitha Sumanth DATE: April 22, 2016 (Date of pronouncement) DATE: April 28, 2016 (Date of publication) AY: 2006-07 S. 28(iv): The waiver by the lender of even the principal amount of loan constitutes a "benefit" arising from business and is assessable to tax as income. Logitronics 333 ITR 386 (Del), Rollatainers 339 ITR 54 (Del), Mahindra & Mahindra 261 ITR 501 (Bom) and Iskraemeco Regent 196 TM 103 (Mad) not followed The High Court had to consider whether the amount representing the principal loan amount waived by the bank under the one time settlement scheme which the assessee received during the course of its business is exigible to tax. The department contended that the waiver of principal amount

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6774 of 2015 (@ SLP(C) NO. 16650 OF 2012) Poonam ... Appellant Versus State of U.P. & Ors. ... Respondents J U D G M E N T Dipak Misra, J. 14. First, it is necessary to understand about the concept of necessary and proper party. A Four-judge Bench in Udit Narain Singh Malpaharia v Additional Member Board 12 Page 13 of Revenue, Bihar and another2 has observed thus:- “7. ....it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in this proceeding. ” 15. In Vijay Kumar Kaul and others v. Union of India and others3 the court refe