Monthly Archives: August 2014

Contract Labour – Control and Supervision

The expression “control and supervision” in the context of contract labour was explained by the Hon’ble Supreme Court in the case of International Airport Authority of India v. International Air Cargo Workers’ Union, (2009) 13 SCC 374 as under:
“If the Contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor.
The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor.” Workmen, Bihar Colliery Kamgar Union v. Bharat Coking Coal India Ltd., 2014 (142) FLR 536.

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Dying Declaration – Importance of

The philosophy of law which signifies the importance of a dying declaration is based on the maxim nemo moriturus praesumitur mentire, which means, “no one at the time of death is presumed to lie and he will not meet his maker with a lie in his mouth.” Though a dying declaration is not recorded in the court in the presence of the accused nor is it put to strict proof of cross examination by the accused, still it is admitted in evidence against the general rule that hearsay evidence is not admissible in evidence. The dying declaration does not even require any corroboration as long as it inspires confidence in the mind of the court and that it is free from any form of tutoring. At the same time, dying declaration has to be judged and appreciated in the light of surrounding circumstances. The whole point in giving lot of credence and importance to the piece of dying declaration, deviating from the rule of evidence is that such declaration is made by the victim when he/she is on the verge of death.
In spite of all the importance attached and the sanctity given to the piece of dying declaration, the courts have to be very careful while analyisng the truthfulness, genuineness of the dying declaration and should come to a proper conclusion that the dying declaration is not a product of prompting or tutoring.
The Hon’ble Apex Court in Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1, taking into consideration earlier judgments in Paniben v. State of Gujarat, (1992) 2 SCC 474 and another judgment of the Hon’ble Apex Court in Panneerselvam v. State of T.N., (2008) 17 SCC 190, has given certain guidelines while considering a dying declaration:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity, such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be rejected.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.” Umakant v. State of Chhatisgarh, (2014) 7 SCC 405.

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Filed under Criminal Law, Dying, Dying Declaration

Nature of Injuries

Nature of the injuries is to be determined taking into consideration the intense suffering to which it gives rise and the serious disability which it causes to the sufferer. However, in clause Seventhly of Section 302 Indian Penal Code, as the term “fracture”, has been referred to, it may be necessary that the bone is broken. Mere abrasion would not amount to fracture. Even a cut that does not go across the bone cannot be termed as a fracture of the bone. But if the injury is grave even a partial cut of the skull vault (root or chamber) may amount to a fracture. However, Clause Eighthly of Section 302 Indian Penal Code refers to the injuries which are not covered under any of the above clauses Firstly to Seventhly of the Section. However, it labels the injuries as grievous if it endangers life or it causes the sufferer to be during the space of 20 days in severe bodily pain or which causes the sufferer to be during the space of 20 days unable to follow his ordinary pursuits and all the three clauses have to be read independently. There is a very thin and subtle demarcation line between “hurt which endangers life” and “injury as is likely to cause death”. Sompal Singh and another v. State of Uttar Pradesh, (2014) 7 SCC 316.

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Contract of Sale vis-à-vis Works Contract

In CST v. Sabarmati Reti Udyog Sahakari Mandali Ltd., (1976) 3 SCC 592, it was held as under:
“It is well settled that whether a particular transaction is a contract of sale or a works contract depends upon the true construction of all the terms and conditions of the document, when there is one. The question will depend upon the intention of the parties executing the contract. As observed in State of Gujarat v. Variety Body Builders, (1976) 3 SCC 500, there is no standard formula by which one can distinguish a contract of sale from a contract for work and labour. The question is not always easy and has for all time vexed jurists all over. The distinction between a contract of sale of goods and a contract for work and labour is often a fine one. A contract of sale is a contract whose main object is the transfer of property in, and the delivery of the possession of, a chattel as a chattel to the buyer. (Halsbury’s Laws of England, 3rd Edition, Vol. 34, Page 6).
The above paragraph in CST v. Sabarmati Reti Udyog Sahakari Mandali Ltd., (1976) 3 SCC 592, sufficiently demonstrates that the question will depend upon the intention of the parties executing the contract and that there can be no standard formula by which one can distinguish a contract of sale from a contract of work and labour. The said principle stated in the abovesaid paragraph can be applied under all situations and since after the Forty-Sixth Amendment as held in Larsen and Toubro Limited v. State of Karnataka, (2014) 1 SCC 708, the first condition to be found out is as to whether a contract is a “works contract”. It has to be necessarily examined based on the terms agreed between the parties as to what is the intention of the parties. Therefore, applying the above tests, since it is found that the present contract is a contract for sale, it cannot be held to be a “works contract.”
In State of A.P. v. Guntur Tobaccos Limted, AIR 1965 SC 1396, it was held:
“The fact that in the execution of a contract for work some materials are used and property in the goods so used passes to the other party, the contractor undertaking to do the work will not necessarily be deemed on that account to sell the materials. A contract for work in the execution of which goods are used may take one of three forms. The contract may be for work to be done for remuneration and for supply of materials used in the execution of the works for a price, it may be a contract for work in which the use of materials is accessory or incidental to the execution of the work: or it may be a contract for work and use or supply of materials though not accessory to the execution of the contract is voluntary or gratuitous. In the last class there is no sale because though property passes it does not pass for a price. Whether a contract is of the first or the second class must depend upon the circumstances: if it is of the first; it is a composite contract for work and sale of goods: where it is of the second category, it is a contract for execution of work not involving sale of goods.” Kone Elevator India Private Ltd. V. State of Tamil Nadu, (2014) 7 SCC 1.

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Filed under Commercial Law, Works Contract

Employee has an interest to seniority and a right to be considered for promotion

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 Articles 14 and 16 of the Constitution of India. 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.
An employee has always an interest to seniority and a right to be considered for promotion. If after integration, only the chances of promotion are affected, it would have been only a case of heartburn of an individual or a few individuals which is only to be ignored, as held by the Hon’ble Apex Court in T.N. Education Department Ministerial and General Subordinate Services Association v. State of Tamil Nadu, (1980) 3 SCC 97.
In S.S. Bola v. B.D. Sardana, (1997) 8 SCC 522, it was held as under:
“A distinction between the right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affecting the chances of promotion “would not be” regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a constitutional court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the court is the result of the declaration of law but not the operation of the rules per se.” Panchraj Tiwari v. Madhya Pradesh State Electricity Board, (2014) 5 SCC 101.

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Filed under Employment Law, Promotion

Sting Operations and Entrapment

In R v. Mack, (1998) 2 SCR 903 (Can SC), it has been explained by the Canadian Supreme Court that entrapment occurs when (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. The following factors determine whether the police have done more than provide an opportunity to commit a crime:
(1) The type of crime being investigated and the availability of other techniques for the police detection of its commission.
(2) Whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime.
(3) The persistence and number of attempts made by the police before the accused agreed to committing the offence.
(4) The type of inducement used by the police including deceit, fraud, trickery or reward.
(5) The timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity.
(6) Whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship.
(7) Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction.
(8) The proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves.
(9) The existence of any threats, implied or express, made to the accused by the police or their agents.
(10) Whether the police conduct is directed at undermining other constitutional values.
In the United Kingdom, the defence of entrapment is not a substantive defence as observed in R. v. Sang, 1980 AC 402, by the House of Lords:
“The conduct of the police where it has involved the use of an agent provocateur may well be a matter to be taken into consideration in mitigation of sentence, but under the English system of criminal justice, it does not give rise to any discretion on the part of the Judge himself to acquit the accused or direct the jury to do so, notwithstanding that he is guilty of the offence.”
However, a shift in judicial reaction appears to be emerging which is clearly discernible in R v. Looseley, (2001) 1 WLR 2060, wherein the House of Lords found that:
“ A prosecution founded on entrapment would be an abuse of the court’s process. The Court will not permit the prosecutorial arm of the state to behave in this way.
Entrapment is not a matter going only to the blameworthiness or culpability of the defendant and, hence, to sentence as distinct from conviction. Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the State’s involvement in the circumstance in which it was committed.” Rajat Prasad v. Central Bureau of Investigation, (2014) 6 SCC 495.

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Filed under Criminal Law, Sting Operation

Lease and License-Distinction

The definition of “Lease” under the Indian Stamp Act, 1899 is a bit wider than what is provided under Transfer of Property Act, 1882. In the sum and substance, it can be said that a license is a right or permission granted by a competent authority or the owner of premises to carry on business or to do an act which, without such license/permission would be illegal. In other words, it is a formal or official permit or permission to carry on some business or to do some act which, without the license, would be unlawful and the word ‘License’ and ‘Permit’ are often used synonymously. The word “Lease” is frequently used to designate the contract by which relationship of landlord and tenant is created. A “Lease” is a species of contract for possession and profits of land and tenements, either for life or for a short period of time or during the pleasure of parties or a contract for the possession and profit of the land for a determinate period with the recompense of rent. A lease may be regarded as a conveyance or grant of an estate or interest in the real property, for limited period with conditions attached. A “License” is distinguishable from a “Lease” in more than one ways. “License” generally provides to the Licensee, less rights in real estate than a “Lease”. If a contract gives exclusive possession of premises against all the world, including the owner, it is a “Lease”, but if it merely confers a privilege to occupy the premises under the owner, it is a “License”. Accordingly, a license in a property is the permission or authority to engage in a particular act or series of acts upon the land of another without possessing an interest therein, and is thus subject to management and control retained by owner. A lease generally conveys an interest in the land, requires a writing to comply with the Statute of frauds and transfers possession, while the license merely excuses acts done by one, on the land in possession of another, that without license, would be trespass and conveys no interest in land. M/s Godwin Construction Pvt. Ltd. V. State of U.P., 2014 (124) RD 298.

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Filed under Civil Law, Lease and License