Monthly Archives: February 2017

Indian Citizen – Rights of

In Sielmakh Leonid Lullia v. Secretary to the Ministry of External Affarirs, Government of India (W.P. No. 1648 of 2010) decided on 25.11.2010 while relying on Chairman, Railway Board v. Mrs. Chandrima Das¸ AIR 2000 SC 988, it was observed as under:
“In the aforesaid case, a Bangladeshi woman was subjected to rape by an accused in India. A writ petition was filed by a practicing advocate under Article 226 of the Constitution of India for paying compensation to the victim. The Supreme Court has considered the applicability of Articles 21 and 14 of the Constitution in such cases.
The Fundamental Rights are available to all the citizens of the country but a few of them are also available to “persons”. While Article 14, which guarantees equality before law or the equal protection of laws within the territory of India, is applicable to “person” which would also include the “citizen” of the country and “non-citizen” both. Article 15 speaks only of “citizen” and it is specifically provided therein that there shall be no discrimination against any “citizen” on the ground only of religion, race, caste, sex, place of birth or any of them nor shall any citizen be subjected to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hostel and places of public entertainment, or the use of wells, tanks, bathing ghats, roads and place of public resort on the aforesaid grounds. Fundamental Rights guaranteed under Article 15, is therefore, restricted to “citizen”. So also, Article 16 which guarantees equality of opportunity in matters of public employment is applicable only to “citizens”. The Fundamental Rights contained in Article 19, which contains the right to “Basic Freedoms”, namely, freedom of speech and expression; freedom to assemble peaceably and without arms; freedom to form associations or unions; freedom to move freely throughout the territory of India; freedom to reside and settle in any part of the territory of India and freedom to practice any profession, or to carry on any occupation, trade or business, are available only to “citizens” of the country.
The word “citizen” in Article 19 has not been used in a sense different from that in which it has been used in Part II of the Constitution dealing with “citizenship”. It has also been held that the words “all citizens” have been deliberately used to keep out all “non-citizens” which would include aliens.
Thus, Government service is strictly restricted to the persons who are natural citizens of India or have acquired Indian Citizenship. A person who is not an Indian citizen cannot take a regular or permanent job with the Government, either Central or State. Raj Kumari v. State of U.P., 2017 (1) AWC 873.

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Filed under Employment Law, government service

Doctrine of Equal Pay for Equal Work – When can be invoked

In Deb Narayan Shyam v. State of West Bengal, (2005) 2 SCC 286, the Court summarized as to when doctrine of equal pay for equal work would apply:
“Large number of decisions have been cited with regard to the principle of ‘equal pay for equal work’. The principle is settled that if the two categories of posts perform the same duties and function and carry the same qualification then there should not be any distinction in pay scale between the two categories of posts similarly situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work.”
In State of Madhya Pradesh v. Ramesh Chandra Bajpai, 2009 (11) SCALE 619, the court said that it is well settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in designation or nature or equation of work is not determinative for equality in the matter of pay scales. The court has to consider the factors like the source and mode of recruitment/appointment, qualifications, nature of work, the value thereof, responsibility, reliability, experience, confidentiality, functional need, etc., In other words the equality clause can be invoked in the matter of pay scale only when there is a wholesale identity between the two posts.
That doctrine of equal pay for equal work can be invoked only when the employees are similarly situated and that similarity of the designation or nature or quantum of work is not determinative of equality in the matter of pay scales and that the court has to consider several factors and only when there was wholesale identity between the holders of two posts, equality clause can be invoked and not otherwise. Vishal Chand v. State of U.P., 2017 (1) AWC 841.

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Filed under Employment Law, Equal Pay for Equal Work

Companies Act – Right to Appeal

In the case of M/s Videocon International Ltd. v. S.E.B.I., (2015) 4 SCC 33 a right of appeal has been understood to be a substantive right and not a mere procedural right so as to affect it’s applicability upon any amendment. The forum of appeal as provided under Section 483 of the Companies Act would not stand altered as no such provision in such a situation is contemplated so as to transfer the right of appeal before the Company Appellate Tribunal.
The enforcement of Section 303 of the Companies Act w.e.f. 15.12.2016 would not repeal the right or abrogate the right of a person to file an appeal against the order of a learned Single Judge in a company petition for which the High Court continues to have jurisdiction to decide the matter. The Company Appellate Tribunal has not been conferred with any such authority specifically as an alternative, granting a right of appeal as against an order of a learned Single Judge passed in a company petition. In the absence of any such specific conferment of power on the Company Appellate Tribunal the powers statutorily granted under Section 483 of the Companies Act would stand revealed, cannot be repealed. The doctrine of implies repeal, therefore, will have no application in view of the aforesaid background of the legislation as no such express intention can be gathered from the same. J.R. Organics Ltd. v. Jupiter Dyechem Pvt. Ltd., 2017 (1) AWC 751.

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Filed under Corporate Law, Right of Appeal

Impounding of Passport

Pendency of criminal case against the holder of passport would not automatically result in impounding of his passport and the mere fact that certain conditions specified in Section 10(3) of the Passport Act, on the basis of which a passport can be impounded, subsists in a given case cannot by itself result in impounding of passport automatically and once the Passport Authority, in his wisdom, chooses to exercise his discretion in the said direction as to whether on account of pendency of such criminal case, the passport in question should be impounded or not, then, at the said point of time, the Passport Officer should apply his mind looking into the nature of the criminal cases that have been lodged/initiated against the individual and further if a passport is not impounded, then there are possibilities that the incumbent would not at all face the criminal cases. Even if a criminal case is pending against a person that by itself does not require Passport Authority to impound/revoke the Passport in every given case. It is only in appropriate cases for adequate and cogent reasons such an order could be passed. While passing order of impounding/revocation of passport, merely by quoting the requirement mentioned in the section is clearly indicative of circumstances that order has been passed without there being any objective consideration of the subject matter. Mohd. Farid v. Union of India, 2017 (1) AWC 475.

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Filed under Criminal Law, Impounding of Passport

Word “Entertain” – Means to “proceed to consider on Merits”

In Lakshmiratan Engineering Works Ltd. v. CST¸AIR 1968 SC 488 the meaning of the expression “entertain” in the context of a provision in Uttar Pradesh Sales Tax Act, 1948 wherein it was held that, the expression has the meaning of “admitting to consideration”. It was held thus:
“The word “entertain” is explained by a Division Bench Judgment Kundan Lal v. Jagan Nath Sharma, AIR 1962 All 547 of the Allahabad High Court as denoting the point of time at which an application to set aside the sale is heard by the Court. The expression “entertain”, it is stated, does not mean the same thing as the filing of the application or admission of the application by the court. A similar view was taken in Dhoom Chand Jain v. Chaman Lal Gupta, AIR 1962 All 543 in which it was observed that the word “entertain” in its application bears the meaning “admitting to consideration”, and therefore when the court cannot refuse to take an application which is backed by deposit or security, it cannot refuse judicially to consider it. In Bawan Ram v. Kunj Behari Lal, AIR 1962 All 42 the deposit had not been made within the period of limitation and the question had arisen whether the court could entertain the application or not. It was decided that the application could not be entertained because Proviso (b) debarred the court from entertaining an objection unless the requirement of depositing the amount or furnishing security was complied with within the time prescribed. In Haji Rahim Bux v. Firm Sanaullah & Sons, AIR 1963 All 320, a Division Bench interpreted the words of Order 21 Rule 90, CPC by saying that the word “entertain” meant not “receive” or “accept” but “proceed to consider on merits” or “adjudicate upon”. Axis Bank v. SBS Organics Private Limited, (2016) 12 SCC 18.

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Filed under Civil Law, Entertain

Waiver of A Right

In P. Dasa Muni Reddy v. P. Appa Rao, (1974) 2 SCC 725 it was held as under:
“Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognize is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there had been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one’s right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent.”
It is important to note that waiver is an intentional relinquishment of a known right, and that, therefore, unless there is a clear intention to relinquish a right that is fully known to a party, a party cannot be said to waive it. But the matter does not end here. It is also clear that if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to such public interest. All India Power Engineer Federation v. Sasan Power Ltd., (2017) 1 SCC 487.

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Filed under Contract Law, Waiver of A Right