Casual workers are covered under the definition of ‘employee’ as defined in ESI Act #indianlaws

Mar
3
2016


Supreme Court has held that Section 2(22) of the ESI Act covers the “casual employees” employed for a few days on a work of perennial nature and wages as defined in section 2(22) and wage period as defined in section 2(23) does not exclude the wages payable to casual workers. They cannot be deprived of the beneficial provisions of the Act. The employees’ work for the day of racing which is perennial activity of Appellant Club and in view of the provisions of the Act, Rules, Regulations and notification, such employees are covered and consequently are entitled for benefit of the Act.  




Prevention of Corruption Act applies to Private Banks as well #indianlaws

Mar
3
2016


The Supreme Court held that, clearly, the object of enactment of PC Act was to make the anti-corruption law more effective and widen its coverage. In view of definition of public servant in Section 46A of Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a Banking Company operating under licence issued by Reserve Bank of India, were already public servants, as such they cannot be excluded from definition of ‘public servant’. It was stated that for banking business what cannot be forgotten is Section 46A of Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165A of IPC have been repealed by the P.C. Act, 1988, relevance of Section 46A of Banking Regulation Act, 1949, is not lost. 




Qualification clause for the purposes of pre-natal diagnostic tests(PNDT) invalid #indianlaws

Feb
25
2016


Delhi High Court has held that Section 2(p) of the PNDT Act defining a Sonologist or Imaging Specialist, is bad to the extent it includes persons possessing a postgraduate qualification in ultrasonography or imaging techniques – because there is no such qualification recognised by MCI and the PNDT Act does not empower the statutory bodies constituted thereunder or the Central Government to devise and coin new qualification; Rule 3(3)(1)(b) of the PNDT Rules (as it stands after the amendment with effect from 9th January, 2014) is ultra vires the PNDT Act to the extent that it requires a person desirous of setting up a Genetic Clinic / Ultrasound Clinic / Imaging Centre to undergo six months training imparted in the manner prescribed in the Six Months Training Rules.




IPAB has exclusive jurisdiction to consider and decide upon trademark registration invalidity #indianlaws

Feb
25
2016


Delhi High Court has held that IPAB has exclusive jurisdiction to consider and decide upon the merits of a plea of trademark registration invalidity – applying Section 47 and 57 of the Act- in the context of an infringement suit based on such registered trademark. Access to IPAB is not dependent on the civil court’s prima facie assessment of tenability of a plea of invalidity of trademark registration. In other words, Section 124 of the Trademarks Act does not control the choice of a litigant to seek rectification of a registered trademark.




Arraigning of Partnership firm imperative to prosecute partner U/s.141 of the NI Act #indianlaws

Feb
25
2016


There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous. Therefore for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. It was accordingly held that for maintaining prosecution against a partner under section 141 of the NI Act, arraigning of partnership firm as an accused is imperative.




SARFAESI prevails over the Sick Industrial Companies (Special Provisions) Act #indianlaws

Feb
24
2016


The Supreme Court was observed that the purpose of the two enactments is entirely different. The purpose of one is to provide ameliorative measures for reconstruction of sick companies, and the purpose of the other is to provide for speedy recovery of debts of banks and financial institutions. Both the Acts are "special" in this sense. However, with reference to the specific purpose of reconstruction of sick companies, SICA must be held to be a special law, though it may be considered to be a general law in relation to the recovery of debts. Whereas, the RDDB Act may be considered to be a special law in relation to the recovery of debts and SICA may be considered to be a general law in this regard. 




A female can be a Karta, if eldest amongst coparceners #indianlaws

Feb
10
2016


The Delhi High Court has held that the impediment which prevented a female member of a HUF from becoming its Karta was that she does not possess the necessary qualification of coparcenership. Now that this disqualification was removed by the 2005 Amendment, there is no reason why Hindu women should be denied the position of a Karta. If a male member of an HUF, by virtue of his being the first born eldest, can be a Karta, so can a female member.  The objective of Section 6 of the Hindu Succession Act is to recognise the rights of female Hindus as coparceners and to enhance their right to equality apropos succession. 




There is a presumption that a negotiable instrument is supported by consideration #indianlaws

Feb
10
2016


The Hon'ble Court held that there is a presumption that a negotiable instrument is supported by consideration. There was no dispute that such a consideration existed in as much as the cheques were issued in connection with the discharge of the outstanding liability against Respondent. Mentioning of date that the cheques can be presented for encashment after certain date clearly showed that the cheques issued by him were not ornamental but were meant to be presented if the amount in question was not paid within the extended period. 




Intent of Parties to Arbitration cannot be ignored relating to law governing Arbitration #indianlaws

Feb
10
2016


The Hon’ble Supreme Court has held that the parties are free to agree on application of three different laws governing their entire contract – (1) proper law of contract, (2) proper law of arbitration agreement and (3) proper law of the conduct of arbitration, which is popularly and in legal parlance known as curial law. The agreement, in the instant case  revealed that the intention of the parties was to apply English Law to the arbitration agreement also and not limit it to the conduct of the arbitration was fairly clear from the relevant article in the Agreement. Once it was found that the law governing the arbitration agreement was English Law, Part I of the Indian Arbitration Act stood impliedly excluded. 




Public Prosecutor when asking for withdrawal of prosecution U/s 321 of CrPC to act independently with application of mind #indianlaws

Feb
10
2016


The Supreme Court, in this case has held that while filing an application u/s 321 of CrPC, the Public Prosecutor is required to apply his own mind and the effect thereof on the society in the event such permission is granted. The Public Prosecutor is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal from the prosecution would really subserve the public interest at large. He is not supposed to act as a post office and he is expected to remember his duty to the Court as well as his duty to the collective. 








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