Tag: #DelhiHighCourt

-Report by Himanshi Chauhan

In the recent case of Ruksana v. Jawahar Lal Nehru University, a writ petition was filed, in the Hon’ble Court for the violation of Articles 14 & 15 of the Indian Constitution, by the petitioner i.e. Ruksana. 

FACTS:

The petitioner i.e. Ruksana belongs to the OBC category. She applied for admission to the Ph.D course of “Social Exclusion & Inclusive Policy” at JNU for the academic year 2021-22. There were a total of 8 seats for the said course out of which only 2 are reserved for the OBC category. For admission in the said course, a computer-based test (CBT) was conducted by National Testing Agency. The petitioner took the test and secured Rank-08 in the OBC category. Therefore she was not selected for the course. 

But at the same time, Mr Shahid C. who secured Rank-07 in the OBC category was selected for the Ph.D course. He blocked his seat but had failed to submit his documents and certificates before 19.01.2022 which was the last date of admission according to the petitioner. Mr Shahid C. also via an email to the respondent university on 15.02.2022 requested the cancellation of the seat blocked by him.

Therefore, the petitioner is of the view that the vacant seat should have been offered to the petitioner as she was the next candidate on the merit list. Petitioner relied on clause 6.3 of the Admission Policy & Procedure 2021-22 notified by the JNU which provides that seats that remained vacant could be offered to the candidates next in the merit list.

PETITIONER’S CONTENTIONS:

➢ The learned counsel for the petitioner submits that through the texts received by Mr Shahid C., it is evident that the last date for submitting documents and certificates was 19.01.2022 and in the event of the failure to submit requisite documents by 19.01.2022 the admission will be deemed as cancelled.

➢ He further contended that Mr Shahid C. had failed to submit the required documents by 19.01.2022, therefore, his admission will be deemed as cancelled. He also submits that Mr Shahid C. had also conveyed his intention to the respondent university to cancel his admission through an email.

➢ The learned counsel, therefore, urged that seat should have been offered to the petitioner due to the vacancy created.

➢ The learned counsel further submits that the last date for admission according to the timetable was 20.02.2021 but the fifth and final list was issued by the university on 28.01.2022 i.e. much later than the deadline. It clearly shows that the university itself did not adhere to the last date of admission.

➢ He further contended that the date of admission written on the Semester Registration Card of Mr Saddam Hussain is 04.03.2022 which is much later than the deadline for admission. The learned counsel, therefore, submits that the respondent had the discretion in deciding whether candidates were to be admitted or not after the last date.

RESPONDENT’S CONTENTIONS:

➢ The learned counsel for the respondent submits that Mr Shahid C. was pursuing M. Phil from Pondicherry University but at the same time, he had blocked a seat for Ph.D. in JNU. But a student cannot be registered in two regular courses at the same time.

➢ The council draws the attention of the court to the circulars dated 24.12.2022 which provided that the students pursuing M. Phil from other universities had to submit the dissertation in their respective universities on or before 31.01.2022 and simultaneously had to submit a certificate with the JNU for confirming their admission in Ph.D. program. 

➢ The counsel further submits that Mr Shahid C. kept the seat blocked till the final merit list i.e. on 28.01.2022 and accordingly, no vacant seat was available which could be offered to the petitioner.➢ The learned counsel further submits that the cancellation of admission by Mr Shahid C. on 15.02.2022 was of no use to the petitioner as the admission process was already closed by then.

➢ As far as the date on the registration card of Mr Saddam Hussain was concerned, it was submitted that he had already blocked his seat in Ph.D. program in the first merit list itself. Further, due to Covid, the semester started late and the date mentioned in the registration card is the date on which the same was generated at the school/centre level.

➢ Therefore it was urged by the respondent university that they had acted in the four corners of the admission policy and the petitioner had no right to seek admission when there was no vacant seat available till the last merit list.

JUDGEMENT:

The Hon’ble court while deciding the case, referred to clause 6.3 of the Admission Policy & Procedure 2021-22 which makes it clear that only such seats which are vacant before the deadline for admission, shall be offered to the eligible candidates next in the merit list. But in the present case, Mr Shahid C. had blocked his seat till 15.02.2022 which was much later than the deadline for admission i.e. 28.01.2022. Therefore the seat in the Ph.D. program was not vacant till the admission process continued and the same could not be offered to the petitioner contrary to the mandate of clause 6.3 of the Admission Policy & Procedure, 2021-22.

The court thus held that as there was no vacant available, the petitioner cannot claim the right to admission against the said seat and no mandamus can be issued directing the respondent institute to grant admission to the petitioner contrary to the approved timeline.

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-Report by Sakshi Tanwar

The question in the present writ petition is whether the past service rendered by the petitioner as a Civil Judge can be counted for the purpose of calculating the qualifying service viz. ten years as Civil Judge, for appointment to the Delhi Higher Judicial Serviceby promotion on the basis of merit through Limited Departmental Competitive Examination (‘LDCE’).

FACTS:

The petitioner joined the HCS as a Civil Judge on June 27, 2012. Following that, the petitioner successfully completed the Delhi Judicial Service. Examination, 2015, and joined the Delhi Judicial Service (‘DJS’) through the proper process, i.e., after being discharged from the post of Civil Judge (Junior Division)-cum-Judicial Magistrate. Upon her request, the petitioner was exempted from mandatory induction training and was given the benefit of her HCS service for the limited purpose of being exempted from training in the DJS, carry forward of leave, Leave Travel Concession and pay protection. In a letter, the petitioner sought that the Court enable her to appear for the LDCE 2022 for promotion to the DHJS by including her previous service with the HCS towards the required service of ten years as a Civil Judge. The petitioner’s request was heard by the Court’s Examination Committee and later rejected.

PETITIONER’S CONTENTION:

According to the learned counsel, the petitioner was initially appointed in the HCS on June 6, 2012. He stressed that the petitioner’s remuneration in both HCS and DJS was the same. As a result, he claims, the petitioner made a lateral entry into DJS. He stated that the provision making Civil Judges with ten years of qualifying service eligible for promotion in the 10% LDCE quota for DHJS came into effect only on April 19, 2022, as a result of a Supreme Court of India judicial order in All India Judges Association Vs. UOI & Ors. He contended that the competent authority had not considered the above judgment of the Supreme Court. He stressed that the Government of India had issued an O.M. dated September 1, 1998, for all its workers to count past service for the fulfilment of qualifying service for promotion in the new department.  He contended that the interpretation of O.M. is no longer res integra because it has been interpreted by the Supreme Court in accordance with the petitioner’s claim in Renu Mullick vs. Union of India, (1994) 1 SCC 373.

RESPONDENT’S CONTENTION:

The learned counsel submitted that the judicial officers nominated to HCS and DJS are subject to distinct service rules and are overseen by different High Courts, and so the terms of service of people subject to various rules cannot be equated as a matter of right.He submitted that Rule 2(e) of the DJS Rules categorically defines the word ‘service’ as the ‘Delhi Judicial Service’ and there is nothing in the DJS Rules which states that the service rendered as a judicial officer in another State is to be counted for calculating the qualifying service. He contended that the benefits of carry forward of leave, LTC, and pay protection, all of which fall within the monetary genre, were granted to the petitioner in accordance with the guidelines provided in O.M. dated 17th August 2016 of the Government of India. He also contended that the petitioner’s entire case violates the well-established legal concept that the fundamental qualification for a position is completely determined by the employer.

JUDGEMENT:

The High Court stated that there is no merit in the present writ petition. Accordingly, the present writ petition along with applications stands dismissed but with no order as to cost.

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-Report by Mehul Jain

It was held by the Delhi High Court in the case of Alliance of Digital India Foundation Vs Competition Commission of India & Ors that on April 24, It is made clear that the observations made herein are only to the extent of deciding the present law before this Court and shall not tantamount to any expression on the merits of the case and the same is therefore, without prejudice to the rights and contentions of all the parties, to be taken at an appropriate proceeding. It is the conclusion of the Delhi High Court.

FACTS

The judgment is made by the learned Single Judge bench “Hon’ble Mr JusticeTushar Rao Gedela” On 24 April 2023. 

The petitioner has filed the instant writ petition that the following facts shorn of all unnecessary details and germane and relevant to decide the dispute are as under: -1. On 20.02.2020, an anonymous informant filed an information before the Competition Commission of India (hereinafter referred to as “CCI”) under Section 19 of the Competition Act, 2002 (hereinafter referred to as “Act”) against Respondent No. 2 – 5 (collectively referred to as ‘Google’) (First Information). The CCI registered the First Information as Case No. 07 of 2020. 2. Thereafter, on 09.11.2020, the CCI issued a prima facie order under Section 26(1) of the Act in Case No. 7 of 2020 directing the Office of the Director General (DG) to investigate Google. 3. Subsequently, on 29.06.2021, a second informant (Match Group Inc.) (Respondent No. 6 herein) filed information before the CCI against Google under Section 19 of the Act (Second Information). The Commission registered the Second Information as Case No. 14 of 2021. The same was followed by an application for interim relief filed by Alliance of Digital India Foundation (Petitioner) against Google on 06.10.2021 (First IRA) in Case No. 07 of 2020 and Case No. 14 of 2021, seeking ad-interim relief restraining Google from implementing its Payments Policy under Section 33 of the Act. 4. That thereafter, on 18.10.2021, Petitioner filed a piece of information against Google under Section 19 of the Act (Third Information). The CCI registered the Third Information as Case No. 35 of 2021, which was finally clubbed by Case Nos. 07 of 2020, 14 of 2021 vide its Order dated 02.11.2021. 5. Consequently, from 16.03.2022 till 01.09.2022, the proceedings of these cases moved in full swing by the filing of an investigation report by the DG, which was subsequently followed by its response filed by Google, and the detailed hearings conducted thereafter by the CCI. All such proceedings reached their conclusion by CCI and the matters were reserved for orders. 6. After the conclusion of CCI oral hearings and when the final order was reserved, Google swiftly announced a user choice billing (UCB) pilot program for non-gaming app developers in India on 01.09.2022. 7. The CCI passed the final order in Case No. 07 of 2020, 14 of 2021 and 35 of 2021, which was challenged by Respondent Nos. 2 to 5 by filing a statutory appeal before the National Company Law Appellate Tribunal (NCLAT). 8. Therein, Google, on 25.01.2023, submitted its Compliance Report on its supposed implementation of the eight remedial directions given by the CCI. 9. To the said Compliance Report filed by Google, Petitioner filed three applications, one after the other, under Section 42 of the Act, before the CCI, mainly for causing an inquiry into the compliance report filed by Google along with certain other prayers. That all such applications filed before CCI on 31.01.2023, 06.03.2023, and 28.03.2023 under Section 42 of the Act are still impending adjudication to date.

APPELLANT‘S CONTENTION

At the outset, Mr Roy, learned counsel for the petitioner submits that the interpretation of Section 15 of the Act, insofar as the CCI is concerned, is no more res integra since this Court in Cadd Systems and Services Private Limited vs. Competition Commission of India reported in AIR 2019 Del 194, categorically has, after examining the decision in Mahindra and Mahindra Ltd. vs. Competition Commission of India reported in 2019 SCC OnLine Del 8032 is also the judgment rendered by the Hon’ble Supreme Court in B.K. Srinivasan and Others vs. the State of Karnataka and Others reported in (1987) 1 SCC 658and State of Gujarat vs. Utility Users Welfare Association reported in (2018) 6 SCC 21, concluded, after examining the provisions of Section 15 of the Act, that the said provisions amply make it clear that no act or proceedings of CCI would be invalid because of any vacancy or defect in its Constitution. Learned counsel submits that as a result of the aforesaid observation, the Coordinate Bench of this Court in Cadd Systems (supra) concluded that notwithstanding that a judicial member is required to be appointed at CCI, the order passed by CCI cannot be called into question. Learned counsel relies upon Paras 26,38,39 of the judgment of learned Single Judge in Mylan Laboratories (supra) and fairly submits that the judgment in Mylan Laboratories (supra) was rendered in respect of Intellectual Properties Appellate Board Particularly Section 84(2) of the Trade Marks Act, 1999, regarding the constitution of its bench. Learned counsel has also placed on record a compilation of judgments which have also been considered.

RESPONDENT’S CONTENTION

Learned senior counsel submits that the petitioner is aware that on merits, so far as the charges are concerned, the CCI had given a finding in favour of respondent nos. 2 and 3 and the same was never challenged by the petitioner by filing a statutory appeal thereagainst. He submits that having not challenged the said finding, now to challenge the same by way of the present writ petition or even the application under Section 42 of the Act would amount to the re-agitation of an issue which has been decided by the CCI. On that basis, the learned senior counsel submits that the observations and findings reached by the CCI are final and binding upon the petitioner. Thus, neither the application under Section 42 of the Act nor the present petition is maintainable either on facts or on the law. 

Mr Sandeep Sethi learned senior counsel appears on behalf of respondents nos. 4 and 5 and vehemently opposes the submissions made by the petitioner. According to Mr Sethi, learned senior counsel, Section 8 of the Act decides the composition of the Commission. Referring to sub-Section 1 of Section 8 of the Act, Mr Sethi submits that by the usage of the word “shall”, the legislative intent is to ensure that the Commission would necessarily consist of a Chairperson and not less than two and not more than six other members makes it clear that the minimum quorum for the composition of a competent commission would be minimum of three Members, including the Chairperson.

Learned senior counsel also submits that having said that, the respondents have challenged the directions contained in the Final Order dated 25.10.2022 before the NCLAT. On an overall conspectus, Mr Sethi submits that the present petition is devoid of any merit, is an abuse of the process of law and ought to be dismissed in limine with exemplary cost.

JUDGEMENT

This Court has heard the submissions made on behalf of the respective parties and considered the ratio laid down in various judgments passed by the Hon’ble Supreme Court as well as the judgments delivered by the Division Bench of this Court as well as other High Courts.

Moreover, according to Mr N. Venkataraman, learned ASG, the CCI is constituted following the provisions of the Competition Act, 2002 and is very much functional and also simultaneously carrying out adjudicatory functions. Because of the above, there is no impediment, legal or otherwise, in directing the CCI to take up the applications under Section 42 of the Act, as filed by the petitioner, for hearing and considering the same following law on or before 26.04.2023. Accordingly, the petition stands disposed of in the above terms. It is made clear that the observations made herein are only to the extent of deciding the present is before this Court and shall not tantamount to any expression on the merits of the case and the same is therefore, without prejudice to the rights and contentions of all the parties, to be taken at an appropriate proceeding.

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-Report by Nehha Mishra

In the case of DILIP KUMAR VS UNION OF INDIA, the court said that the “petitioner may be unfit to perform the duty for the post he was appointed but certainly, punishment of “removal from service” inflicted upon him is too harsh.”

FACTS

The petitioner joined the Indo-Tibetan Police Force (ITBP) in 1993 as a Sub-Inspector and was later elevated to Subedar Major and Assistant Commandant (Group A)/General Diary Duty in 2008.

According to the Shape system of annual medical examination, the petitioner claims to be in Shape -1 absolute medical fitness through 2014. He was sent to Cuttack, Orissa for 28 days under Shape-2 after the petitioner’s wife made a complaint saying that he was an alcoholic.The petitioner was then transported to Base Hospital Tigadi in New Delhi, where, by the opinion, he was determined to be in Shape-1 medically fit. But once more, in their opinion from June 25, 2013, the respondents put the petitioner in Shape 3 for a period of six months.

Petitioner preferred representations in opposition to the opinion from June 25, 2013, but those were not responded to. Six months passed, and the petitioner had been deemed fit for Shape-1. The petitioner claims to have been in an accident and off work for 256 days, which the respondents approved of before allowing him to resume his job. Although the petitioner had not disclosed his medical condition, the 256 days were treated as unpaid leave for not doing any duties.

Petitioner was Shape 1 on January 4, 2014, but changed to Shape 2 again on August 6, 2015, and again on July 20, 2016. On April 11, 2017, it was suggested that he be placed under Shape-5 and removed from service. At another facility, the petitioner underwent a self-examination and was given the all-clear. 

The petitioner claims that despite repeated requests, he was not granted leaves. On 03.07.2017, just as he was about to leave for his hometown, he was informed that his Invalidation Medical Board (IMB) was scheduled in the 9th battalion and instructed to report there. When the petitioner arrived there, he was informed that there was no order for the formation of the IMB; as a result, he returned and reported to his 10th battalion. 

After that, the petitioner was under the doctor’s care, when he was deemed fit, but in the medical report, he was once more placed in the Shape-5 category. On the petitioner’s request, he was sent for a second test, during which time he was determined to be qualified to carry out his duties. But by instructions provided by the MHA, the defendants held the petitioner under observation in Shape-5 and forwarded him to IMB. The Medical Board recommended that the petitioner be terminated from ITBP services.

PETITIONER’S CONTENTION

When removing the petitioner from his position, the respondents, according to the petitioner’s knowledgeable attorney, failed to consider the provisions of Rule 23 of the ITBP Rules, 1994, which state that the officer or board issuing such an order must believe the incumbent is physically unfit, even though it is clear from Dr. Bhatnagar’s report that the petitioner was healthy on the day of his examination.

The seasoned attorney further argued that the MHA guidelines, do not state that anyone who is in Shape-5 must be terminated from employment. The Board considered the period from 2013 to 2016, which includes the 122 days that he was absent from work due to an accident rather than ADS. Since 2013, no complaint has been filed against the petitioner. The relevant fact is that neither of the doctors mentioned above determined that the petitioner had ADS and that he was therefore fit to carry out his obligations. It was argued that the respondent’sactions were malicious, and as a result, they should be disregarded.

RESPONDENT’S CONTENTION

The petitioner was discovered to be intoxicated and was sent for a medical examination, first to Composite Hospital, CRPF, Bhubaneshwar where he was kept in a Low Medical Category; next, he was referred to a Referral Hospital, ITBP for the opinion of a psychiatrist who opined it a case of “Mental and behavioral disorder due to use of alcohol, Harmful use,” according to the learned counsel appearing on behalf of respondents.

Further claimed that the petitioner was assessed by a psychiatrist before being submitted to the IMB. The psychiatrist concluded that the petitioner had been given more than three years to improve and stop drinking, but he had failed and was held under Shape 5. He was then taken before the IMB, which, after considering the specialists’ opinion, advised that the petitioner board out on 06.12.2017.

JUDGEMENT

According to MHA guidelines dated 31.07.2007, para.235(f)(vi), the Controlling Authority is required to watch for any signs of relapse, but in the present case, we do not find any mention of a relapse of ADS in the petitioner. Instead, various reports from different doctors and psychiatrists at various points noted that the petitioner was in a normal, stable state of health.

The court ordered the respondents to have the petitioner examined to determine whether or not he is currently experiencing ADS. As a result, a Medical Board was established, and the petitioner had a physical examination at the Base Hospital in Delhi Cantt by Dr. Virendra Vikram Singh.

According to Dr. Virendra Vikram Singh, a prolonged full remission of the petitioner cannot be predicted with absolute confidence in light of the petitioner’s elevated AST/LFT and sickness, which has the potential for lapse and return. It is widely accepted that it is unfair to intervene in situations involving the Medical Board’s opinion while seated in an appellate or writ jurisdiction, particularly if the opinion is provided by subject-matter experts.

The petitioner may not be qualified to carry out the duties of the position to which he was assigned, but this Court believes that the punishment of “removal from service” meted out to him is excessive. This Court determines that if the petitioner received a lighter sentence, the interests of justice would be served.

As a result, the challenged orders from the respondents, dated 13.04.2021 and 05.05.2020, are hereby reversed. The petitioner will be regarded as having “compulsorily retired from service” and will be eligible for pensionary and other benefits as of the date he was let go from his position. The respondents have four weeks to issue the required orders and provide the necessary benefits.

The present petition is disposed of as a result of the instructions.

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-Report by Sejal Jethva

ZAFAR BADYARI VS. SANDEEP SINGH, in this matter, the appellant/defendant seeks to challenge the decision made by the learned, Tis Hazari Courts, Delhi, according to Order 43 Rule 1 read with Section 104 CPC.

FACTS

The respondent/plaintiff had brought the underlying lawsuit, CS No.461/2021, following Order 37 CPC, to collect possession, licence fees, and damages of Rs.13,30,000. It was said in the lawsuit that the suit property, a shop on the ground level (apart from the mezzanine floor), had been licenced to the appellant for 11 months at a rate of Rs. 1,33,000 per month, minus additional costs. The dishonoured checks that the appellant had given to the respondent to cover the arrears were the basis for the lawsuit. The contested order states that on September 17, 2021, the appellant received summonses in the suit and was deemed to have been served. Due to the appellant’s refusal to present and/or submit a leave to defend under Rules 3 and 5 of Order 37 CPC, respectively, the trial court issued the ex-parte decree by using Rule 6 of Order 37. A finding of respondent serving of process had been made by the Trial Court.

APPELLANT’S CONTENTION

Rather than using Order 37 Rule 4 as provided for in the CPC, an application was submitted for the setting aside of the ex-parte decree under Order 9 Rule 13 of the CPC. The impugned order makes it clear that the trial court did not suffer any harm as a result of this misunderstanding and treated the case exactly as if it had been submitted in accordance with Order 37 Rule 4 and made identical decisions as such. The appellant did not establish “exceptional circumstances,” as the trial court noted in the impugned ruling, and this suggests that the trial court decided the application in accordance with Rule 4 of Order 37 and not Order 9 and Rule 13.

The appellant attempted to make arguments regarding the case’s merits, but given that the maintainability of the case has been questioned, this Court will first address the maintainability problem because the merits of the case are not currently a factor that should be taken into account. The learned counsel for the appellant was unable to cite any CPC provisions under which the appeal would fall, but he argued that because the two provisions, which essentially deal with the court’s ability to overturn an ex-parte decree, are similar, the appeal may be deemed to be maintainable against the Order 37 Rule 4 order because it is maintainable against an Order 9 Rule 13 order.

RESPONDENT’S CONTENTION

The respondent’s knowledgeable attorney, Mr. Aaditya Vijay Kumar, raised a preliminary challenge to the appeal’s maintainability. He claimed that because the contested ruling was issued in accordance with Order 37 Rule 4 CPC, it is not subject to appeal under Order 43 Rule 1 CPC.

JUDGMENT

1. In order to speed up the resolution of commercial lawsuits, Order 37 CPC relates to the summary trial method. After being served, a defendant is obligated under sub-rule 2 to appear in court; otherwise, the averments in the plaint are deemed conceded, and the plaintiff is entitled to a decree. Within ten days of receiving the summons, the defendant must appear in court and submit a memo of appearance. The plaintiff must serve the defendant with a summons for judgment upon the defendant’s attendance, and the defendant must submit an application for leave to defend the action within ten days of receiving the summons. The Court then decides whether to grant unconditional leave to defend, conditional leave to defend with the conditions it may deem appropriate, or dismiss the leave to defend and pronounce the lawsuit. 

2. A challenge to the order issued in accordance with CPC Order 37 Rule 4 is not admissible under Order 43 Rule 1. As a result, the appeal is denied and the respondent’s initial objection is upheld. The appellant is free to look for a legal remedy if one is available. It is made clear that this Court has not addressed the arguments made by either party about the case’s merits.

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-Report by Srishti

Delhi High Court in the case of LOUIS VUITTON MALLETIER Vs SANTOSH & ORS. on April 18 passed an ex parte decision imposing a permanent injunction to restrain the defendant from using the plaintiff’s trademark for manufacturing and selling goods and granted other temporary reliefs.

FACTS:

The plaintiff company Louis Vuitton Malletier was set up in France and is a Frenchluxury fashion and leather goods company owning the brand named Louis Vuitton. In 2003, it established its first store in India and currently, there are three stores of the plaintiff in India. It uses its trademark ‘LV’ from the initials of the name of its owner Louis Vuitton. The plaintiff has been using its canvas designs since 1986 popularly known as ‘ Toile monogram’. The plaintiff has also registered its trademarks, ‘the LV’, ‘the Toile monogram pattern’, ‘the Damier pattern’, and ‘theLV flower pattern’. Their ‘LV’ trademark has also been included in the list of ‘well-known trademarks’ by the Indian Trademark Office.

Through the periodical market surveys in 2018, theplaintiff came to know about the selling and manufacturing of goods under histrademark by the defendant. Therefore the plaintiff appointed an investigator toascertain the activities of the defendant and the same was confirmed by theinvestigator. Accordingly, the suit was filed in the court for granting a permanentinjunction to restrain the defendant.

While keeping in view the irreversible damages that canbe caused to the plaintiff, the court on 23^rd February 2018 granted an interiminjunction against the defendant until the delivery of the final order. Hence, thedefendant was temporarily restrained from using the registered trademarks of the plaintiff. Also, three local commissions were set up to seize the manufactured products by the defendant under the trademarks of the plaintiff.

PLAINTIFF’S CONTENTIONS:

1) The assertions made by the plaintiff had not been rebutted and therefore, it was established that the defendant was aware of his illegal acts.

2) He had proved his goodwill and his reputation in respect of the trademarksby registration of the same.

3) He also succeeded in establishing statutory and common law rights as he was using his ‘LV’ trademark for a long time.

Since the defendant was not appearing in the court despite summons, theplaintiff pleaded for a permanent injunction.

DEFENDANT’S CONTENTIONS:

The defendant did not appear in court despite the service of a summons andalso, no written statements were filed by him.

JUDGEMENT:

The court while referring to Hindustan Lever Ltd. Vs . Satish Kumar held ‘since, the defendant has maintained silence, therefore, the guilt of the defendantspeaks for itself’. Hence, it is evident that he’s aware of his illegal acts and has failed to contend the case on merits. Therefore, to avoid further irrevocable damages and to avoid deterioration of the plaintiff’s reputation, the court granted a permanent injunction against the defendant.

The defendants were ordered to provide compensation ofRs.5,00,000. to the plaintiff. As per the volume of seizure products, they were further liable to provide compensation of Rs.1,50,000 and the defendants engaged in manufacturing such products were made liable to compensateRs.3,50,000 in favour of the plaintiff. In total, Rs.9,59,413 was granted to the plaintiff which included fees of local commissions, court fees, and legal fees.

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-Report by Arunima Jain

The Delhi High Court on Thursday while referring to Section 73 of the Finance Act, 1994, upheld that the question of whether the notice or demand for recovery was given within a reasonable length of time considering the case’s facts and circumstances should be considered by the pertinent official. Moreover, it is established law that jurisdiction must be exercised within a reasonable amount of time even if a time limit is not specified. If there exist nojustified reasons to condone the delay cause, then the relevant case becomes unreasonable in the court of law. Through the case of Sanghvi Reconditioners Pt. Ltd. v. Union of India through the Secretary, Department of Revenue & Ors^., the court further iterated the fact that the definition of ‘reasonable time’ is sufficiently open-ended to take account of the particular facts and circumstances of each case.

FACTS

In the matter at hand, the petitioner is a partnership firm registered under the IndianPartnership Act, 1932. The petitioner company was a contractual worker which was tasked with building residential flats by the Housing Board, Haryana (HBH) during July 2005 which had been completed thereafter. The Anti-Evasion branch of the Respondent organisation proceeded investigation as to why the petitioner company hadn’t paid taxes amounting toapproximately

2.15 crores in addition to not having registered with the Service Tax Department.Accordingly show cause notices and letters were issued to the petitioner from the respondent. After initial proceedings, the petitioner did not receive further communication from the respondent, and considered the case to be closed. But the respondent further asked the petitioner to submitshow cause as to the inability to pay taxes. The show cause notices and letters are being challenged in the present court by the petitioner on the grounds of exceeding the limitationperiod and the nature of the contracts between the petitioner company and its clients beingstatutory bodies in nature.

CONTENTIONS

Petitioner

The petitioner’s learned counsel has submitted before the High Court that the contractsprovided by the Housing Board of Haryana were composite in nature and were solely ‘workcontracts. Moreover, since the construction of the residential flats was made in the interest ofpublic good, alongside HBH, the petitioner company was merely aiding in a statutory activityand was hence not liable for service tax. In addition, the petitioner also claimed that theperiod of limitation under Section 73 of the Finance Act, the present case had exceeded its capacity.

 Respondent

Contrary to the petitioner’s counsel, the respondent’s learned counsel submits that therespondent no.1 had immediately placed the matter at hand in the ‘Call Book’ with theapproval of the commissioner, as had been prescribed by the norms of the CBEC Circulars.Additionally, the respondent also claims that the petitioner was not eligible to attain 67%value of the benefits from the taxable service since the supplies for these services were received by the Petitioner at zero cost from the HBH.

JUDGEMENT

Upon giving due regards to the facts and law in the above-mentioned case, the Hon’ble HighCourt finds it challenging to accept that the impugned show cause notice could not have been decided upon because the Supreme Court was still debating the controversy it involved as regards to the matter of M/s Sobha Developers Ltd. when it came to the concept of ‘CallBooks.’ Even if the concept of such books was assumed to be true, it was still quintessentialfor the respondents to have maintained communication with the petitioner company which itwas unable to do. Moreover, there is no excuse for delaying the decision on the notice formore than fifteen years after the show cause notice and letters were issued. The respondents were directed to restrain from taking any actions regarding the same and the petition was allowed, disposing of all other pending applications.

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-Report by A.K. Sooraj

The Delhi High Court in the case VIJAY KUMAR JHAMB vs. UNION OF INDIA held that the respondent overstepped its jurisdiction in opining that the bank clerk with 20 years of service was not entitled to any pension under the Pension Rules of the bank.

FACTS

The petitioner joined the services of the State Bank of India as a clerk on April 10, 1981, and was removed from service on the basis of an order dated November 24, 2004, pursuant to ex parte disciplinary proceedings held against him. The petitioner requested the release of his pension from the bank because he had more than 20 years of service and claimed that because he had submitted his retirement on March 10, 2004, he was entitled to it. After not hearing back, the petitioner brought a complaint before the Assistant Labour Commissioner on behalf of the All India Bank Staff Association. The bank asserted during the conciliation proceeding that the petitioner was not entitled to a pension under the applicable Pension Rules. The respondent issued the challenged order denying to refer the petitioner’s claim for adjudication after receiving a failure report from the Assistant Labour Commissioner serving as the Conciliation Officer due to the bank’s opposition to the petitioner’s claim. Being aggrieved, the petitioner approached this Court by way of the present petition.

PETITIONER’S CONTENTIONS

The petitioner’s learned counsel argued that the impugned order was completely without jurisdiction since, according to Section 12(5) of the I.D. Act, the appropriate government lacked the authority to decide on the opposing positions expressed by the parties. He argued that the Conciliation Officer’s and the Appropriate Government’s jurisdictions were extremely constrained, and all that they needed to take into account was whether or not there was a dispute between the parties. A disagreement can only be completely frivolous before the government decides not to refer to it. It was the respondent’s responsibility to refer the case to the Industrial Tribunal in the current instance after it became clear that the bank was refusing to consider the petitioner’s demand for a pension. According to I.D. Act Section 12(5), the respondent was not permitted to perform an adjudicative duty. Therefore, he requested that the contested order be reversed and that the respondent immediately refer the petitioner’s claim to the Industrial Tribunal.

RESPONDENT’S CONTENTIONS

Mr. Gogna, experienced counsel for the respondent, attempted to justify the assailed order by arguing that the appropriate government was required to determine whether a prima facie case was made out for adjudication prior to making a reference under the Industrial Disputes Act. In exercising its authority under Section 12(5) of the I.D. Act, he contends that the appropriate government is not compelled to refer to every issue; rather, it is expected to first determine whether a reference is warranted or not. The government is not compelled to make any references unless it is convinced that the claim has to be submitted for adjudication. Nevertheless, it had to give a justification for not referring the case to the Industrial Tribunal for resolution. As a result, he prayed that the petition be dismissed.

JUDGEMENT 

The judgement was given by considering the facts of the present case with the decision given in the case of M.P. Irrigation Karamchari Sangh Vs. State of M.P. and Another, (1985) 2 SCC 103. It was held that the respondent had overstepped its jurisdiction in opining that the petitioner was not entitled to any pension under the Pension Rules of the bank. The respondent has failed to appreciate that it was the petitioner’s specific case that he had voluntarily resigned from service with effect from May 1, 2004, but was thereafter malafidely removed from service on November 24, 2004. Additionally, despite being terminated, he would still be eligible for a pension because he served for more than 20 years. The respondent could not have simply rejected the petitioner’s position on the basis of a prima facie case without giving him the chance to present evidence before the learned tribunal. For the aforesaid reasons, the impugned order, being wholly unsustainable, was accordingly set aside. The matter was returned to the respondent, who will immediately refer the petitioner’s disputes to the appropriate industrial adjudicator so that a decision can be made without further delay.

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-Report by Yashica Dhawan

Case name: HINDUSTAN UNILEVER LIMITED versus RECKITT BENCKISER(INDIA) PRIVATE LIMITED

In this case, the appellant (hereafter ‘HUL’) has filed the present appeal impugning a judgement dated 09.11.2021 passed by the learned Single Judge of this Court whereby the appellant abstained from publishing a print advertisement and airing three YouTube videos. These advertisements for the toilet cleaner sold under the tradename ‘Domex’ were found tobe, prima facie, disparaging the toilet cleaner sold by the respondent (hereafter ‘Reckitt’) under its trademark ‘Harpic’. HUL claims that the impugned advertisement and videos truthfully depict that the effect of its product lasts longer than Reckitt’s product. Reckitt disputes the claims made by HUL and complains that the impugned advertisements andvideos are misleading and disparaging.

FACTS:

HUL is a company established in India and is engaged in manufacturing, marketing andselling various consumer products, including toiletries, floor cleaners, toilet cleaners, toilet soaps, washing, and detergents. Reckitt has been manufacturing a well-known toilet cleaner under India’s trademark ‘Harpic’. According to Reckitt, Harpic is India’s most widely used toilet cleaner brand. In 1979, Reckitt became the registered proprietor of the word ‘HARPIC’. The aforementioned trademark registration is valid and subsisting as of date. Reckitt has alsoobtained a registration for the shape of the bottle used for packaging ‘Harpic’ brandedproducts in India. Reckitt claims that since the launch of Harpic, the shape of the bottle has become a source identifier for its product.

HUL also manufactures and markets a toilet cleaner under the trademark ‘Domex’. It claimsthat Domex is superior to Reckitt’s Harpic in fighting bad odour. HUL has been granted apatent for using a technology that involves the use of a chemical compound called ‘Saline’,which enhances the malodour fighting capabilities by extending the period of itseffectiveness.

HUL also ran an advertisement campaign with the message that its product fights malodourfor an extended time. The advertisement campaign included the impugned advertisement,videos and a TV Commercial. On 26.07.2021, Reckitt instituted the aforementioned suitclaiming that the TV Commercial, impugned advertisement and the impugned videos weredisparaging its product (toilet cleaner) sold under the brand name ‘Harpic’. An applicationseeking interim relief was also filed by Reckitt restraining HUL from publishing ortelecasting the impugned advertisement and the impugned videos. The said application was disposed of by the impugned judgment dated 09.11.2021. The learned Single Judge held that prima facie, the impugned videos seek to denigrate and malign HUL’s product by depictingReckitt’s Harpic bottle as an ordinary toilet cleaner. However, both parties assailed the impugned judgment. This Court found that the learned Single Judge was wrong in drawing aprima facie conclusion that the TV Commercial did not belittle Reckitt’s product.Accordingly, this Court restrained

HUL from airing the TV Commercial. The present appeal is confined to the impugnedadvertisement (published in a newspaper) and the impugned videos (three videos broadcastedon YouTube).

APPELLANT’S CONTENTIONS:

In this case (HUL), the appellant contended that the learned Single Judge had misjudged inassuming that the impugned videos denigrated any product. The plot of the impugned videosmerely promoted HUL’s product sold under the brand name ‘Domex’ and did not disparageany other product. It was wrongly stated that the generic shape of the toilet cleaner bottle, asshown in the impugned videos, depicted Reckitt’s product. Furthermore, the impugned videoscontained a disclaimer stating that the ordinary toilet cleaner did not use water-repellenttechnology. Reckitt’s claim that it had a registration regarding the shape of the bottle was alsocontested. He referred to the documents, which reflected the trademark status as filed byReckitt and submitted that the registration to obtain a trademark was regarding the devicemarks as depicted on the bottle and not the shape. There were various similar products sold inbottles that were broadly similar to the shape of the toilet cleaner bottle shown in theimpugned videos as a representation of an ordinary toilet cleaner.

In the present case, HUL had produced test reports, which established that HUL’s product hada better odour-fighting ability. The learned Single Judge had erred in disregarding the said testreport. Insofar as the impugned advertisement is concerned, the impugned advertisementexplains that the Fresh-Guard technology used in Domex works to fight off bad smells for alonger period of time. The impugned advertisement intended to put forth the claim, whichwas neither untrue nor disparaging.

RESPONDENT’S CONTENTIONS

From the respondent’s side (Reckitt), the impugned advertisement depicted that the side ofthe toilet bowl, which Harpic cleaned, was smelly and emanated a foul odour. Thus, this is aclear case of disparagement. HUL’s claim that its product is superior is untrue. HUL’s claim isbased entirely on using a chemical compound called ‘Saline’, which makes the hard surface of the toilet bowl hydrophobic. It overlooks the effect that the toilet bowls are made of ceramic and has a smooth surface, making them hydrophobic. Even if the odour-causing liquid does not stick to the side of the toilet bowl, it would collect in the water body below and would not reduce the smell. Thus HUL’s product does not have any additional advantage in that regard. HUL’s claim that it uses a patented technology was also misleading, as the Patent Office rejected several of the claims regarding the anti-microbial effect.

Further, the claim that HUL’s product is effective for longer was also rejected. It was alsocontended that Reckitt got third-party laboratories to conduct tests and the malodour intensityresults, which showed no difference between HUL’s product (Domex) and Reckitt’s product(Harpic). Both products were effective in cleaning germs at the time of usage but wereineffective after subsequent wash cycles.

The respondent argues that the impugned advertisement and videos must be viewed not in thecontext of literal truth but by the honesty of the message they convey. In the present case, themessage given by the impugned advertisement and videos is untruthful.

JUDGEMENT:

The application filed by Reckitt was disposed of by the impugned judgment dated 09.11.2021wherein it was held that prima facie, the impugned videos seek to denigrate and defameHUL’s product as they depict Reckitt’s Harpic bottle as an ordinary toilet cleaner. It was also noted that the shape of the bottle was a registered trademark of Reckitt and, accordingly, restrained HUL from broadcasting the impugned videos in any form till HUL removed all reference to Reckitt’s product ‘Harpic’ or the bottle in question. Insofar as the impugned advertisement is concerned, HUL was restrained from publishing the same.

It is not necessary that an advertisement must expressly mention the competitor’s product. Itwill be impermissible if the disparaged product is likely to be identified as that of a rival. InHindustan Lever Ltd. v. Colgate Palmolive (India) Ltd. & Anr., the appellant had telecastedan advertisement regarding toothpaste, claiming it would be more effective in combatting germs. The TV Commercial characters did not mention the respondent’s product (ColgateToothpaste). It merely showed a lip movement by a child in the TV Commercial, which could be identified as pronouncing ‘Colgate’.

Further, a jingle was played in the background, which could be identified as that from therespondent’s advertisement. This was sufficient to establish that the appellant indirectlyreferred to its rival’s product, ‘Colgate Toothpaste’. Similarly, in the case of M/s ColortekMeghalaya, a depiction of a red toothpowder was found to be referring to the appellant’stoothpowder.

Thus it has been agreed upon that the shape of the bottle, as depicted in the impugned videos,is deceptively similar to Reckitt’s trademark. Undisputedly, the case lies in favour of Reckitt.A false advertisement campaign would cause irreversible loss to Reckitt. In contrast, forHUL, postponing the broadcast of an advertisement referring to Reckitt’s product may not have any material effect on them, considering that it is free to advertise its product without reference to Reckitt’s products.

Given the nature of the controversy and the facts, the learned Single Judge has merelydirected HUL to remove all references to Reckitt’s product, and the bottle representing ordinary toilet cleaners as the same is identifiable with Reckitt’s product – Harpic. For the above reasons, no infirmity is present with the impugned judgment.

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-Report by Nehha Mishra

In the case of KALPANA DEVI VS UNION OF INDIA, the appellant failed to prove the situation as an ‘untoward incident’ defined under Section 123(c) of the Railways Act and was denied compensation by the Railway Claims Tribunal and was endorsed by the High Court of Delhi.

FACTS

The appellant claimed that her husband boarded the train after purchasing a rational 2^nd class superfast railway ticket for the train running from Agra Cantt to Hazrat Nizamuddin railway station. 

Her Husband was standing at the door of the compartment and fell accidentally from the moving train and died at the stop. The appellant claimed that her husband has died in an ‘untoward incident’ and she is entitled to get compensation.

The Railway Claims Tribunal decided that the appellant cannot claim compensation as the journey ticket was not recovered, proving he was not a bona fide passenger. After reading the thorough details of the material on record, it further concluded that the had not occurred due to falling from the moving train. 

The claim petition was dismissed by the Railway Claims Tribunal as they found the appellant non-suited on both counts. 

PETITIONER’S CONTENTION

Referring to the post-mortem report, the Learned counsel for the appellant contended that in the report, the cause of death was particularly expressed as ‘…possible in a railway track accident.’ The Tribunal has misjudged that the accident has not occurred due to the falling from a moving train.

He further contended that declaring him as a bona fide passenger is incorrect as the ticket was lost at the time of the accident.

RESPONDENT’S CONTENTION

A detailed analysis of the case record showed that the incident was first informed by a record that was made at 18:40 hours where it was expressed that one person was lying run over on the Ashram railway bridge whereas another record made at 19:50 hours mentioned that three dead bodies were found in the badly disfigured condition lying at the UP- line of Nizamuddin – Tughlakabad Section.

Adding to this fact, he said no eyewitness could confirm the incident and the appellant herself did not see her husband buying the tickets or boarding the train.

The cause of death was recorded as “a result of combined effects of craniocerebral damage and shock.”  Whereas, the post-mortem report did not mention anything to the matter related to brain damage but rather noted multiple crush injuries, fracture of skull bones, and fracture of the pelvis on both sides.

JUDGEMENT

The fact that 3 dead bodies were found at the place of the accident makes it difficult to conclude that all of them died by accidentally falling from the moving train at the same time. 

Supporting this fact, the journey ticket was not found, and the first information as well as the post-mortem report mentioned that the appellant’s husband was run over.

The appellant failed to make out a case of an ‘untoward incident.’ The court agreed to the decision of the Tribunal.

The Findings recorded were upheld by the court and the appeal was hence, dismissed.

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