Monthly Archives: September 2016

Employment Law – Double Jeopardy

The concept of double jeopardy, to some extent, is allergic to service law. The Supreme Court has made it clear in as many cases as one can think of (a) that imposition of a punishment and the denial of promotion did not amount to double jeopardy and (b) that the conviction by a criminal court and the disciplinary proceedings initiated on the basis of conduct which led to the conviction or on pure questions of misconduct, did not amount to double jeopardy. Reference in this regard may be had to a Full Bench judgment of the Madras High Court reported in the case of Manikandan and others v. Chairman, Tamil Nadu Uniformed Services, Recruitment Board, Chennai and Others, (2008) 2 MLJ 1203.

In the case of R. Viswan v. Union of India, (1983) 3 SCC 401, the issue of double jeopardy was discussed and in that case Government servant was punished for the same misconduct both under the Army Act as well as under Central Government Rules, and it was held that, two proceedings under the army Act and the Central Government Rules operate in two different fields though the crime or the misconduct might arise out of one and the same Act. The Martial Court proceedings deals with the penal aspect of misconduct while proceedings under the Central Government Rules deals with disciplinary proceedings in respect of the misconduct. Therefore, it was held that it does not amount to double jeopardy. Dashrath Singh v. Andhra Bank, 2016 (150) FLR 540.

 

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Hotel – Falls within the purview of Factories

In G.L Hotels Ltd. v. T.C. Sarin, (1993) 4 SCC 363, the Hon’ble Supreme Court even included Hotels to fall within the purview of factories by ruling thus:

“Since the manufacturing process in the form of cooking and preparing food is carried on in kitchen and the kitchen is a part of the hotel or a part of the precinct of the hotel, the entire hotel falls with the purview of the said definition of Factory.

In the same line, the decisions rendered in Poona Industrial Hotels Ltd. v. I.C. Sarin, 1983 (63) FLR 354 and ESI Corporation v. ITC Hotel Ashok, Bangalore, 1984 (64) FLR 184 answered the issue in clear terms that manufacture of food constitutes a Factory. Taj Madras Flight Kitchen Pvt. Ltd. v. Assistant Inspector of Labour, 2016 (150) FLR 315.

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Further Investigation – Powers of

From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of Police Report under sub-section (2) on completion of investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “re investigation”. The meaning of “further” is additional; more; or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Arun Kumar v. State of U.P., 2016 (95) ACC 823.

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Pre-Deposit for Appeal under Section 18 of Securitisation Act – Refund of

The Appeal under Section 18 of the Securitisaton Act is permissible only against the order passed by Debt Recovery Tribunal under Section 17 of the Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. The partial deposit before the DRAT as a pre-condition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the pre-deposit, the same has to be allowed and the pre-deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under section 13(10) of the Act read with Rule 11 of the Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law. Axis Bank v. S.B.S. Organics Pvt. Ltd., 2016 (132) RD 507.

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