Author Archives: fireflieslegal2022

Procedure laid down under NI Act for trial of 138 cases and Supreme Courts directions

Procedure laid down under NI Act for trial of 138 cases and Supreme Courts directions

Indian Banks Association filed a PIL in Supreme court for issuance of directions to all courts in the country for mandatory compliance of Section 143 of Negotiable Instruments Act, 1881(Referred as NI Act) read with provisions of Section 261 -265 of Code of Criminal Procedure and for framing procedure to be followed uniformly by all courts for speedy and expeditious disposal of 138 cases. A bench consisting of Justices K S Radhakrishnan and Vikramjit Sen delivered a judgment in the said PIL giving directions to all criminal courts to follow summary trial procedure in 138 cases as mentioned in its judgment.
 
For better understanding of the procedure laid down by the Apex court, it is necessary to refresh the memory of the readers about the ingredients of offence u/s 138 of NI Act and procedure laid down for filing of complaints under the NI Act.
 
When an offence under the Act is deemed to have been committed?
An offence under the NI Act shall be deemed to have been committed, if the following conditions are satisfied (Section 138):
– Cheque must have been drawn by the drawer in favour of a payee on his bank account for payment of a legally enforceable debt either in full or partly
 
– Cheque must have been returned by the Banker to the payee or holder in due course due to insufficient balance in the account of the drawer or it exceeds the arrangement he had with the bank,
 
Proviso requires fulfillment following additional conditions
a. Cheque must be presented within its validity period.
 
b. Written Notice must be given demanding payment of the cheque amount within 15 days from the date of receipt of notice. Such notice must be issued within 30 days from the date of receipt of intimation of dishonour memo from bank and
 
c. drawer fails to pay dishonored cheque amount within 15 days from the date of receipt of the notice
 
When Cause of action arises?
Cause of action arises only on failure of the drawer to pay demanded sum within the notice period and on expiry of notice period.
 
What is the Procedure for filing a complaint?
Let us now see the procedure mandated by the NI, Act for filing a complaint for prosecution of the accused. Complaint u/s 138 of NI, Act has to be filed within 30 days from the date of cause of action i.e. not before expiry of notice period nor after 30 days from the date of cause of action. The Apex court in the case of MSR Leathers V S planniappan & Anr, reversed its earlier judgment in Sadanandan Bhadran v. Madhavan Sunil Kumara and held that a payee or holder of a cheque can now issue a statutory notice to the drawer each time the cheque is dishonoured on subsequent presentations and institute proceedings on the basis of a second or successive statutory notice as well. Thus there is a trend in recent judgments of Supreme Court in interpreting the law relating to Cheque bouncing cases more in favour of the complainant. Similarly other recent judgments expressed a view that strict interpretation should not help dishonest drawers of cheque.
 
Cognizance of offence:
Section 142 of Act starts with “Notwithstanding any thing contained in Code of Criminal Procedure, 1973” and mandates that no court shall take cognizance of the offence unless a complaint in writing is given by the payee or holder in due course as the case may be and such complaint has to be made within one month from the date of cause of action.
 
The effect of this non obstante clause is that NI Act overrides the provisions of CrPC to the extent as stated in the NI Act. This section also permits belated complaints filed after prescribed period provided the complainant satisfies the court with sufficient grounds for late filing.
 
Summary Trial:
Section 143 permits summary trial and it also starts with a non obstante clause. The contents can be summarized as follows:
 
a. It gives power to judicial magistrate of First class or a Metropolitan Magistrate to try 138 cases summarily.
 
b. It specifies that provisions of Section 262- 265 of CrPC shall apply, as far as may be, to summary trials. In other words discretion has been given to the Magistrate to apply or not to apply provisions of CrPC depending on the facts of the case. However in practice it is not exercised.
 
c. Trial shall be conducted from day to day until its conclusion, unless the Court finds justifiable reasons for the adjournment of the trial beyond the following day. Courts must record reasons in writing for adjourning to a later date. Further courts shall make an endeavor to conclude the trial within 6 months.
 
Mode of service of summons:
Section 144 deals with mode of service of summons on the accused. It specifies that:
a. Summons may be served at the place where the accused or witness ordinarily resides or carries on its business or personally works for gain.
 
b. Summons can be served by speed post or such courier service authorised by the court of sessions and in case of refusal/receipt by any authorized person, court may declare it is duly served.
 
Evidence on affidavit:
Section 145 provides that complainant can give evidence on affidavit. Even though the NI act specifically provides for this, some Magistrates mechanically follow strict compliance of the provisions of section 261- 265 of CrPC. This is one of the main causes for abnormal delay in completion of trial. The complainant is made to appear twice at the pre-summoning stage and post summoning stage for cross examination or re-examination which really does not serve any meaningful purpose in 138 cases but contributes to the delay in the conclusion of trial. It is the accused who takes the maximum benefit out of such procedural delays.
 
Supreme Court in “Indian Banks Association Vs Union of India”
After referring the objects of Section 138 of NI Act, Section 262- 265 of CrPC and its past judgments in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83, and Radhey Shyam Garg v. Naresh KumarGupta (2009) 13 SCC 201 on interpretation of Section 145 of NI, Act, it has drawn the following conclusions at Para 16 of the judgment:
a. Evidence by way of an affidavit can be given and complainant is not required to examine himself twice i.e. once after filing the complaint and another time after summoning of the accused.
 
b. There is no necessity to recall and re- examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled.
 
c. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence.
 
Procedure framed by the Supreme Court:
The Apex Court appreciating the efforts of Bombay and Kolkata high courts for speedy disposal of 138 cases, finally laid down the following procedure to be observed by all criminal courts in the country for speedy and expeditious disposal of 138 cases. The essence of these procedures can be summarized as follows:
a. Metropolitan Magistrate/Judicial Magistrate e (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint. If the complaint is accompanied by the affidavit and the documents are found in order, must take cognizance of the offence and direct issuance of summons on the same day.
 
b. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date is fixed. If the summons is received back un-served, immediate follow up action be taken.
 
c. Court may indicate in the summon itself that if the accused makes an application for compounding of offences at the first hearing of the case, it may pass appropriate orders at the earliest.
 
d. Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial. On the day of appearance, Court may ask him to take notice under Section 251Cr.P.C to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re- calling a witness for cross-examination.
 
e. The Court concerned must ensure that examination-in-chief, cross- examination and re-examination of the complainant are conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court.

Non-Compete Agreement = Known its Importance and Restrictions

Non-Compete Agreement = Known its Importance and Restrictions

A lot of cases have been heard where an employee left his job and took all the important information of the office with him and after a few days Employer found out that his ex-Employee has started his own business. Going forward, employer realizes that his employee has turned his clients towards himself (Employee).
 
Now, you may be wondering why the employer is not taking action against his employee for act done by him? I have a counter question against your question that if you want to take action against an employee, on what basis you will take action? Do you have any strong evidence which will help to take action against the employee?
 
Did you have any agreement with the employee when you appoint him at your workplace? Even if you had made agreement with the employee at the time of his appointment, was there a non-competitive clause in it? Or was there any separate agreement which is called as “Non-Compete Agreement”
 
Let’s Understand the Non-Compete Agreement concept and why it is important as any other agreement which is required while dealing with business activities.
 
The Non-Complete Agreement are that agreement where the Employees are enter into a contract with an employer may agree to neither compete with the employer nor join a competitor during their term of the employment and/or a period after and also agree for will not share the secrets, Know-How and other confidential information of the organisation with the rival company during the employment or after the employment period over.
 
Most of the time we have seen that the employees were took a specific training in the some organisation after joining the organisation and resigned the said job before the employment period has over and join the rival organisation only for getting the higher salary. We have also seen that employee use the technics and share the confidential information of ex-organisation with the rival organisation. Therefore the Ex-Organisation may suffer huge loss in the market. Hence, to avoid the consequences in the future the employer should have to make the Non-Compete Agreement with the employee at the time of joining the organisation by the employee.
 
Now the question arise about is it valid in the eyes of law? Because Non-Compete Agreements are seems like it is against Public interest and it is violet the right of the person who want to start his individual business after he/she resigned the organisation or want to join rival organisation.
 
Yes I agree. It is violet the rights of the individual who want to start his business or want to join the rival business but at the same time we also have to consider the situation of employment, fairness to both parties and Protection of employer and right of employee.
 
Section 27 of the Contract Act, 1872 states that every agreement by which anyone is restrained from exercising a lawful profession or trade or business of any kind, is to that extent void. But further also restraint the person from doing the business only when it meet the conditions to be considered as an exceptions to the section 27 of the Indian contract Act, 1872. Courts are also taking into consideration and assess the various cases of the Non-Compete Agreement on the basis of their reasonableness, nature and relation of the parties in the organisation.
 
The legal position of the Non-Compete Agreement in India in accordance with the Indian Contract Act, 1872, is that the provisions of restriction imposed on employees during employment are reasonable but restriction imposed after employment period over is void. Hence, Non-Compete Agreements are always useful and in favor of the employer when the employee resigned the job before the completion of tenure of the employment. In the case of Niranjan Shankar Golikari v. The Century Spinning And Mfg. Company in the 1976, it was held by the court that non-compete clauses are not to be considered as ‘restraint of trade’ if they operate during the time period of employment. This was largely due to the apprehension of the employer of the possibility of the employee disclosing confidential information throughout the time of employment. It was held to be valid.
 
Points should be cover to validate the Non-Compete Agreements
The following point must be cover to validate the Non-Compete Agreement or to impose restriction on the employee:
 
A. Time period: Means while making the Non-Compete Agreement the employer have to specified time period. During that time period the employee cannot start the same business after his resignation from the organisation. The time period may be for the one period or which is decided between employer and employee.
 
B. Confidential information or secrets: the employee cannot share the confidential information or trade secrets with the rival organisation or any other person during the employment or after the employment period has over.
 
C. Distance: if the Employee wants to start the business after his resignation from the ex-organisation then he cannot start the business within specified territory which is decided by the employer to protect his business/ organisation.
 
D. Work With rival Organisation: Once the Employee give his resignation from the organisation he is free to join any other organisation but what happened if the employee join the rival organisation, there is chances of reveal the secrets of the Ex-organisation and leak confidential information of the Ex-Organisation and ex-organisation can suffer the huge lose so to prevent the same or to protect the goodwill, the employer can restrict the employee from joining of the rival organisation.
 
Importance of the Non-Compete Agreement
  • Protect the confidential information and secret data of the company
  • Protect the unfair competition
  • Protect the Good will of the organisation
  • Prevent from the huge lose which can suffer by the employer due to employee.
  • It can also help to retain the employee if you put the clause of employee cannot join the rival organisation. Employee may be think hat it is better not to leave the organisation.
  • Helps to take legal action against the employee if the employer has suffered any loss due to any wrong action taken by the employee.
We will always recommend to the company./organisation take a best advice and draft the Non-Compete agreement from the lawyer who are dealing with the matter of business. So in future you will not face any problems regarding the Non-compete Agreement. It is necessary to draft the Non-Compete Agreement after considering the all fact which is related to public interest, protection of right of employee and employee in the employment.

Bail, Meaning And Factors

Bail, Meaning And Factors

Justice V. R. Krishna Iyer: ‘judges should be more inclined towards bail and not jail’
 
Bail is a kind of security which is given by the accused to the court that he will attend the proceedings against the accusation made upon him. The primary objective of arrest to the accused is to ensure that the accused in a criminal case appears before the court for the conveyance of justice. However, if the person’s presence can be guaranteed for the court trial without putting the person in a jail, it would unfair and unjust to violate a person’s liberty. Thus, bail can be granted as conditional liberty to the accused. In the matter of Sanjay Chandra vs. CBI (AIR 2012 SC) held that the principal purpose of bail is to ensure that the accused person will return for trial if he is released after arrest.
 
In the matter of State of Rajasthan vs. Bal Chand (AIR 1977 SC 224) held that the provision of bail restores the liberty of the arrested person without jeopardizing the object of the arrest. The general rule of bail is not jail
 
The procedure of Bail is provided under Section 436 in the Criminal Proceeding Code. Bail has not been defined in the Criminal Proceeding code although the offences are classified as bailable and Non-Bailable.
 
What is a Bailable offence and Non-Bailable offence?
In a simple word:
 
 Bailable offence means a Non Cognizable offence (अदखलपात्र गुन्हा) which is punishable with imprisonment for less than 3 years.
 
 Non Bailable offence means cognizable offence (दखलपात्र गुन्हा) which is punishable with imprisonment for more than 3 years.
 
Factor Consider at the time grant or denial of Bail Application in Non-Bailable offence.
 
At the time of grant or denial of Bail Application in respect of Non Bailable offence, the primary consideration is the nature and gravity of the offence. While passing the order on bail applications, the Court cannot go into the question of credibility and reliability of the witness which is put up by the prosecution. These factors only tested during the trial of the matter. The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital has stated few factors to be taken into consideration, before granting bail, namely:
 
1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
 
Other factors considered by the Court at the time of granting the Bail
1. Whether there is or is not a reasonable ground for believing that the accused has committed the offence alleged against him.
2. The nature and gravity of the offence.
3. The severity of the punishment which might fall in the particular circumstances in case of a conviction.
4. The likelihood of the Accused absconding, if released on bail.
5. The character, means, standing and status of the Accused.
6. The likelihood of the offence being continued or repeated on the assumption.
7. That the accused is guilty of having committed that offence in the past.
8. The likelihood of the witnesses being tampered with.
9. The opportunity of the Accused to prepare his defence on merits.
10. Previous conduct and behaviour of the accused in the Court,
11. The period of detention of the accused
12. Health, age and sex of the accused
 
The Hon’ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Others, has held that, “the condition of not releasing the person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed.”
 
Anticipatory Bail
In case a person is of the apprehension that he might be arrested on the accusation of a non-Bailable offence, he can apply to the High Court or Court of Session for Bail.
 
Conditions for granting Anticipatory Bail
1. Make himself (Accused) available for interrogation by a police officer as and when required.
2. Not make any inducement, threat or promise to any person so as to prohibit him from disclosing any material facts to the Court or any Police officer.
3. Not leave India without prior permission of the Court.
 
Grounds for Cancellation of Bail by the Court
As the court has the power to grant bail, the same way the court has the power to cancel the bail. On following grounds Court can cancel the Bail:
1. Accused Misused Liberty
2. Interfere with the course of the investigation
3. Attempt to tamper with evidence
4. Threaten witnesses
5. Try to shift in another Country
6. Attempt to make himself scary by going underground grave offence
 
In the case of Dolat Ram vs. State of Haryana (1995), the Supreme Court held that in this case the following situations as supervening factors that may justify the cancellation of the bail:
 
1. Interference or attempt to interfere with the due course of administration of justice;
2. Evasion or attempt to evade the due course of justice;
3. Abuse of the concession granted to the accused;
4. Possibility of the accused absconding;
5. Likelihood of/actual misuse of bail.
6. Likelihood of the accused tampering with the evidence or threatening witnesses;
7. Other supervening circumstances, which have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by being on bail.

Litigant cannot blame lawyer for losing case

Litigant cannot blame lawyer for losing case

There is a rising tendency on the part of litigants who lose their cases to blame their own advocates, hoping to earn sympathy of the appellate court. Such sympathy used to be granted, as a litigant should not suffer for the fault of an advocate. The ploy was successful till judges realized how it was being misused. The national commission, in its decision on November 11 last year came down heavily on a litigant and penalized him for making wild allegations against his advocate.
 
Case Study:
Noor Isam Mondal purchased a gold testing machine from Anklist Exim Inc. A payment of Rs 13,72,750 was made by availing a loan under the Prime Minister’s Employment Generation Programme 2010-2011. Mondal found that the machine did not give the right gold clarity reading. Though he asked the manufacturer to remove the defects, the company did not respond. Ultimately, he sent a legal notice, through his advocate, demanding that the defect be removed, but no heed was paid even then. So, Mondal filed a complaint before the Hooghly district forum, but it was rejected due to lack of territorial jurisdiction. The complaint was then filed before the Howrah district forum.
 
The manufacturer contested, pointing out inconsistencies in the notice and complaint. While the notice stated Mondal had not received the machine, the complaint said the machine had been received but was not working properly. The firm argued that the complaint was false and vexatious and ought to be dismissed.
 
The forum directed the company to replace the defective machine with a new one having the same model number and specifications, along with a six-month guarantee, or alternatively refund the entire amount of Rs 13,72,750. The company was also ordered to pay a compensation of Rs 50,000, of which half should be paid to Mondal and the balance to the Consumer Welfare Fund. Additionally, costs of Rs 5,000 were also granted. In appeal, the West Bengal state commission modified the order by holding that the entire compensation of Rs 50,000/ should be paid to Mondal.
 
Mondal filed a revision before the national commission, as he was not satisfied with the compensation and wanted a refund of Rs 13,72,750. Mondal blamed his earlier lawyer for having made false statements before the state commission, resulting in conflicting statements. The commission observed that Mondal had admitted in the complaint the machine had been received by him on March 22, 2011. Yet in the subsequent notice of May 18, 2011, he said the machine had not been delivered. These averments were contradictory. If the lawyer was at fault, appropriate action ought to have been taken against him. But without doing so, it would not be right to blame the lawyer. The commission concluded that such an allegation is an after-thought, and not acceptable.
 
The national commission observed that Mondal was trying to mislead the consumer fora. It held that any litigant who makes false assertions is not entitled to any equitable relief, and such a complaint must be rejected at the threshold.
 
By its November, 2014, order, delivered by Justice V B Gupta along with member Suresh Chandra, the commission dismissed the complaint, directing Mondal to pay punitive damages of Rs 50,000 to legal aid.

Parole – What Exactly This Means?

Parole - What Exactly This Means?

Parole means to release the Accused from the Prison after part of the sentence has been served by him. While on Parole, the released prisoner remains in the custody and under the supervision of the Paroling Authority.
 
Parole gives a chance of reformation to the prisoner. It can have a positive impact on changing the prisoner’s attitude toward what they have done and made them come to accept that their behavior was wrong.
 
Parole is granted by the Parole Board after the accused has served one-third sentence.
 
Parole granted on certain grounds as follows:
1. Serious illness of a family member
2. Accident or Death of Family Member
3. Marriage of a member of the family
4. Delivery of child by a wife of the convict (except high-security risk prisoners)
5. Maintain family or social ties
6. Serious damage to life or property of the family of the convict by natural calamities
7. Pursue filing of a special leave petition.
 
Types of Parole
There are two types of parole Custody (Emergency) and Regular Parole.
 
The Custody or emergency Parole is granted in emergency circumstances like a death in the family member, serious illness, or marriage in the family. For custody parole all convicted persons eligible for this type of parole except the foreigner and those serving a death sentence.
 
The Regular Parole is granted when Delivery of child by wife (except high-security risk prisoners), Serious illness of father/mother/spouse/ son/daughter, in case of natural calamities such as flood, house collapse, earthquake, fire, etc., to pursue the filing of special leave petition before the supreme court against a judgment delivered by High Court convicting or upholding the conviction, as the case may be.
 
The Maharashtra government has framed new rules which will not grant “regular” parole to those convicted for rape, rape with murder, murder, terrorist crimes, kidnapping, narcotics smuggling, human trafficking, and sexual offenses against minors.
 
A prisoner shall not be released on regular or emergency parole for a period of one year after the expiry of his last emergency or regular parole except in case of death of his nearest relatives.
 
In the matter of Election Commission of India vs. Mukhtar Ansari (MANU/ DE/0487/2017), the Hon’ble Delhi High Court held that custody parole cannot be a substitute for grant of bail and cannot be extended for long periods or for daily visits.
 
The procedure of obtaining Parole
1. The prisoner after completing the mandate jail time applies for parole.
2. The jail authority then asks for a report from the police station where the arrest was made.
3. The report is then verified.
4. If the reason for parole is a medical emergency, relevant medical records and certificates are also verified.
5. The final report is then submitted to the Deputy Secretary, State Government, or Inspector General of Prisons.
6. The competent authority then takes the decision on parole.

What Is Probation = Let Us Understand

What Is Probation = Let Us Understand

Probation is the suspension of the sentence of an offender and allowing them to stay in the community while inculcating good behavior, under the supervision of a probation officer.
 
The report of a Probation officer is important at the time of passing order by the Court to release the Offender without imposing any sentence on him. In the matter of Gouranga Charan bhol vs. State of Orisa, it was laid down that in the absence of a report from the Probation officer. The court has no authority to release the accused on probation. This view is supported by the Mysore High Court in the case of State of Mysore vs. Saib Gunda (1964) Cr. L.J 460.
 
Power of Court to release certain offenders after admonition (instruction)
 
The Court has the power to release certain offenders after giving instruction to them under section 3 of THE PROBATION OF OFFENDERS ACT, 1958.
 
Let’s understand when the Court can exercise this power to release the Offender:
 
1. When any person is found guilty of having committed an offense:-
• Punishable under section 379 of IPC, 1860 (Whoever Commits Theft) or
• Punishable under section 380 of IPC, 1860 (Whoever Commits theft in dwelling house) or
• Punishable under section 381 of IPC, 1860 (Theft by clerk or servant of property in possession of master) or
• Punishable under section 404 of IPC, 1860 (Dishonest misappropriation of property possessed by deceased person at the time of his death) or
• Punishable under section 420 of IPC, 1860 (Cheating and dishonestly inducing delivery of property) or
 
2. Any offense punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and
 
3. No previous conviction is proved against offender and
 
4. The court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offense, and the character of the offender,
 
After consideration of all the above factors the Probation officer instead of the sentencing the offender to any punishment or releasing him on probation of good conduct under section 4 of THE PROBATION OF OFFENDERS ACT,1958, releases him (Offender) after due admonition.
 
What if the Offender Failed to a fulfilled condition which is imposed on him at the time of release on probation period;
 
If the Offender failed to fulfill the condition which has been imposed by the Court on him, then Court Can take following steps against the offender:
 
1. Court Can issue an arrest warrant against him or may issue summons to him and to the surety to appear before the Court.
2. When Offender Appears before the Court, the court may either remand him to custody until the case is concluded or it may grant him bail, with or without surety, to appear on the date which it may fix for hearing.
3. If the Court After hearing the case, if the court satisfied that the offender has failed to follow conditions which have been mentioned in the bond then the Court may :
a. Sentence him for Original offense
b. If failure to follow the condition for the first time then the court may impose a penalty on the offender or order him to continue to follow the condition which is mentioned in the bond.
4. If the Offender failed to pay the penalty within a time period has given by the Court then the court may sentence the offender for the original offense.

Brief on Industrial Disputes Act

Brief on Industrial Disputes Act

Introduction
Starting with the Bengal Regulation VII of 1891, labour laws has come a long way with the enactment of the Industrial Disputes act, 1947. The Act relates to all the relevant aspects of the industrial relations machinery, namely, collective bargaining, mediation and conciliation, arbitration, adjudication and matters incidental thereto. According to the preamble, the Act makes provision for the investigation and settlement of industrial disputes and certain other purposes. The objective of this legislative act is to achieve the promotion of harmony in labour-capital relationship and to ensure social justice and economic progress by fostering industrial harmony. As observed by the Hon’ble Supreme Court of India in Steel Authority of India v. Union of India, AIR 2006 SC 3229, the act was enacted for investigation and settlement of industrial disputes. It envisages collective bargaining and settlement between the union representing the workmen and the management.
 
Applicability
The act came into force on 1st April, 1947 and extends to the whole of India. It applies to the state of Jammu and Kashmir only to the extent to which the Act applies to Government of India workmen. Although section 1 provides that the Act applies to the whole of India, it may be noted that the subject matter of the Act is in the Concurrent List of the Indian Constitution, and therefore the States are also entitled to make their own laws on the subject.
 
The Act is applicable to all industries falling within the ambit of section 2(j) of the Industrial Disputes Act, 1947. An “industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. Pursuant to the decision in the Bangalore Water Supply and Sewage Board v. Rajappa (AIR 1978 S.C 584), the ambit of the term “industry” was widened. Institutions like hospitals and dispensaries, educational, scientific research and training institutes, institutes engaged in charitable, social and philanthropic services etc. were included if such institutions carried out any industrial activity. It also laid down tests to help determine whether and activity is an “industry” as defined in the industrial Disputes Act.
 
The tests, as laid down in the judgement are broadly as follows:
1. Where systematic activity is organized by so-operation between employer and employee for the production and distribution of goods and services to satisfy human wants and wishes, prima facie, there is an “industry” in that enterprise.
 
2. The absence of the profit motive or gainful objective is irrelevant, irrespective of whether the venture is in the public, joint, private or any other sector.
 
3. The true test is functional, and the decisive aspect is the nature of the activity, with special emphasis on the employer-employee relationship.
 
4. If the organization engages in activity in the nature of trade or business, it does not cease to be an “industry” because of the philanthropy animating its objects.
 
The effect of this judgement was to bring within the scope of the term “industry” almost all undertakings, calling and services, analogous to the carrying on of trade of business. Thus, if these conditions are fulfilled, a business will fall under the definition of an “industry” under the act.
 
Moreover, all persons employed in an establishment for hire or reward including contract labour, apprentices and part-time employees to do any manual, clerical, skilled, unskilled, technical, operational or supervisory work, are covered under the Act.
 
Importance for business entities of pvt companies etc
Section 2(k) of the act states what constitutes into an industrial dispute. An “industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person working in an industry.
 
If you are a business owner be it a private business and your falls under the definition of “industry” as defined in the Act, then you must have encounter having certain disagreements with your employees at some point of time. This act understands that there is a high possibility that certain disagreements may arise between the employer and the employee related to working hours, wages, overtime pay etc. and thus, provides various methods with which the party to dispute may resolve the problem. Disputes which affect the production/quality of products is a huge concern for the employer as it would affect his business and eventually the economy of a country, and thus, it is important for an employer to know how to resolve such disputes fast. This Act acts as a communication tool when there is an industrial dispute.
 
Following are the various authorities under the act which help in settling an industrial dispute:
1. Works Committee
 
The works committee is a committee consisting of representatives of employers and workmen. The main objective of the works committee is to solve the problems arising in the day-to-day working of a concern and to secure industrial harmony and to arrive at some agreement. The committee is formed by general or special order by the appropriate Government in an industrial establishment in which 100 or more workmen are employed or have been employed on any day in the preceding 12 months. Sch works committee consists of representatives of employers and workmen employed in the establishment.
 
2. Conciliation officer
 
The appropriate Government may by notification in the official Gazette, appoint such number of conciliation officer as it thinks fit. The main objective of appointing conciliation officer is to mediate in the settlement of industrial dispute and to promote the settlement of industrial disputes. Conciliation officer has to hold conciliation proceedings, investigate the disputes and do all such things as he thinks fit for the purpose of inducing the parties to arrive at a fair settlement/agreement. He has to send a report and memorandum of settlement to appropriate Government. The report by the conciliation officer has to be submitted within 14 days of the commencement of the conciliation proceeding or shorter period as may be prescribed by the appropriate Government.
 
3. Boards of Conciliation
 
The appropriate Government may by notification in the official Gazette, constitute a Board of Conciliation for the settlement of industrial disputes. The Board shall consist of a chairman and 2 or 4 other members in equal numbers representing the parties to the disputes as the appropriate Government thinks fit. The Chairman shall be an independent person. The Board of Conciliation has to bring about a settlement of the dispute. The board has to send a report and memorandum of settlement to appropriate Government along with mentioning the steps taken by the Board in case no settlement is arrived at. The Board of Conciliation has to communicate the reasons to the parties if no further reference is made. The Board has to submit its report within 2 months of the date on which the dispute was referred to it within the period what the appropriate Government may think fit.
 
4. Court of Inquiry
 
The appropriate Government i.e the State or the Central government, may by notification in the official Gazette, constitute a court of inquiry into any matter appearing to be connected with or relevant to settlement of industrial disputes having an independent person or of such independent persons as the appropriate Government may think fit. The court of inquiry are expected to inquire into matters referred to them and to report thereon to the appropriate government, within a period of 6 months from the commencement of the enquiry.
 
 
5. Labour Court
 
The appropriate Government may by notification in the Official Gazette, constitute one or more labour court for adjudication of industrial disputes relating to any matters specified in the Second Schedule. A labour court consists of one person only to be appointed by the appropriate Government. Where an industrial dispute has been referred to a labour court for adjudication, it is bound to hold its proceedings expeditiously and submit its award to the appropriate government.
 
6. Labour/Industrial Tribunals
 
The appropriate Government may by notification in the official Gazette, constitute one or more Industrial Tribunals for adjudication of industrial disputes. A Tribunal shall consist of one person to be appointed by the appropriate Government. The Appropriate Government may appoint two persons as assessors to advise the Tribunal. The proceedings before an Industrial Tribunal are quasi-judicial in nature with all the attributes of a Court of Justice. Industrial tribunal has the same duties and function that of a labour court.
 
7. National Tribunals
 
The Central Government may, by notification in the official Gazette, constitute one or more National Industrial Tribunals for the adjudication of industrial disputes. National Industrial Tribunals are involved only in case of the questions of national importance or if they are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such industrial disputes.
 
The above methods have been proved to be effective methods in settling an industrial dispute. However, such process turned out to be time consuming and can take years to settle an industrial dispute. Thus, the Act also provides for voluntary reference of disputes to arbitration. Section 10A provides that when an industrial dispute is not referred to the above-mentioned boars/tribunals for adjudication, the employer and the workmen through a written agreement can agree to settle the matter via arbitration mentioning the names of the arbitrators. Such an agreement should be made in prescribed form and should be signed by the parties.
 
The Act also provides for directions for lay-off, lockout and retrenchment that should be followed by an employer at all costs. These sections also help an employer from malicious strikes and acts as a safeguard for the employer.

Stages of Civil Suits under Civil Procedure Code, 1908

Stages of Civil Suits under Civil Procedure Code, 1908

1. Presentation of plaint.
 
2. Service of summons on defendant.
 
3. Appearance of parties
 
4. Ex-parte Decree
 
5. Interlocutory Proceedings
 
6. Filing of written statement by defendant
 
7. Production of documents by parties (plaintiff and defendant)
 
8. Examination of parties
 
9. Discovery and Inspection
 
10. Admission
 
11. Framing of issues by the court.
 
12. Summoning And Attendance Of Witnesses
 
13. Hearing Of Suits And Examination Of Witnesses
 
14. Argument
 
15. Judgment
 
16. Preparation of Decree
 
17. Appeal, Review, Revision
 
18. Execution of Decree

Guardianship under Muslim law

Guardianship under Muslim Law

The term ‘guardian’ is defined in the Guardians and Wards Act as a person having the care of the person of a minor or of his property, or of both his person and his property.
 
Kinds of guardianship under Muslim law:
Muslim law makes a distinction between guardian of the person, guardian of the property and guardian for purposes of marriage in case of minors.
 
(1) Guardianship in marriage (jabar): The following persons can act as guardians in the marriage of a minor, in the order of enumeration:-
(i) Father
 
(ii) Father’s father
 
(iii) Full brother and other male relations on the father’s side
 
(iv) Mother
 
(v) Maternal relations within prohibited degrees
 
(vi) Qazi or the court
 
Shia law recognizes only the father and failing him the father’s father howsoever high as guardian in the marriage of a minor.
The rule of Muslim law is that when a remote guardian allowed marriage, when the nearer one is present, the validity of the marriage is dependent upon the latter’s ratification and consent. A marriage by a remoter guardian when the nearer guardian is present and has given his consent is not only irregular but void.
 
(2) Guardianship of person of the minor for custody (hizanat)
(i) Mother- under hanafi school, mother is quardian of her minor till he attains age of 7 years and of her daughter till she reaches puberty. Under shia school, mother is guardian of her son till he attains the age of 2 years and of her daughter till she attains the age of 7 years.
An illegitimate child is left in the charge of mother till the age of 7 years but legally belongs to neither of his parents.
In the absence of mother, under hanafi school, custody belongs to:
(a) Mother’s mother
 
(b) Father’s mother
 
(c) Full sister
 
(d) Uterine sister
 
(e) Consanguine sister
 
(f) Full sister’s daughter
 
(g) Uterine sister’s daughter
 
(h) Consanguine sister’s daughter
 
(i) Maternal aunt
 
(j) Paternal aunt
 
However, the right of hizanat of the mother and other female relations is lost if she leads an immoral life or, neglects to take proper care of the child or, marries a person not related to the child within prohibited degrees or, if during the subsistence of marriage, she goes and resides at a distance from the father’s place.
 
In Rahima Khatoon v Saburjanessa[1], the court held that the mother loses the guardianship of the minor daughter if she remarries with a person not related to the child within prohibited degrees. In this case, the court granted the certificate of guardianship to the child’s paternal grandmother.
 
In default of mother and other female relations, hizanat belongs to:
(a) Father
 
(b) Nearest paternal grandfather
 
(c) Full brother
 
(d) Consanguine brother
 
(e) Full brother’s son
 
(f) Consanguine brother’s son
 
(g) Full brother of the father
 
(h) Consanguine brother of the father
 
(i) Son of father’s full brother
 
(j) Son of father’s consanguine brother
 
(ii) Father- father is the defacto guardian of son over the age of 7 years under Hanafi school and 2 years under Shia school and unmarried daughter over the age of 7 under Shia school and who has attained puberty under hanafi school.
 
The court will interfere with the father’s guardianship of his children only if he is unfit in character and conduct or is unfit as regards external circumstances or waives his right or enters into an agreement to the contrary or is out of jurisdiction of the court or intends to go abroad.
 
Illegitimate child- the mother of an illegitimate daughter is entitled to its custody.
 
Termination of hizanat
(a) General disqualifications- minor and non muslim
 
(b) Disqualifications affecting females- immoral, has married a stranger, resides at large distance from father, neglects the child.
 
(c) Disqualifications affecting males- no male entitled custody of female child who is not within prohibited degree.
 
(d) Disqualifications affecting parents- The court will interfere with the father’s guardianship of his children only if he is unfit in character and conduct or is unfit as regards external circumstances or waives his right or enters into an agreement to the contrary or is out of jurisdiction of the court or intends to go abroad.
 
The mother does not lose her right to the custody of the children by divorce by the father of the children.
 
(e) Disqualifications affecting husband- if the wife has not attained puberty, mother has greater right over her.[2]
 
(3) Guardianship of property
(a) Dejure guardianship- legal or natural guardian order of persons entitled to guardianship of the property of a minor:-
 
(i) Father
 
(ii) Executor appointed by father’s will
 
(iii) Father’s father
 
(iv) Executor appointed by the will of father’s father
 
(b) Certified guardianship- guardian appointed by the court- in absence of legal guardians, the duty of appointing a guardian falls on the court.
 
(c) De facto guardianship- a person who is neither a legal guardian nor a guardian appointed by court but has voluntarily placed himself in charge of the person and property of a minor is known as de facto guardian. He is a mere custodian of the person and property of the minor and has no right over them.
 
Removal of guardian
A guardian can be removed in the interest of the minor. The court may remove a guardian appointed or declared by court or a guardian appointed by will or other testament if:
(1) He abuses trust
 
(2) Fails to perform his duties
 
(3) Incapacity to perform duties
 
(4) Ill-treatment or neglect of ward
 
(5) Continuous disregard of provisions of Guardianship and Wards Act or of any order of the court
 
(6) Conviction of an offence showing moral turpitude
 
(7) Having interest adverse to his duties as a guardian
 
(8) Ceases to reside within limits of the court
 
(9) Goes insolvent (guardian of property)
 
(10)Cease to be under the law to which the minor is subject
 
Cessation of authority of guardianship
 
(A) Guardian of person
 
(1) Death, removal or discharge
 
(2) By the court of wards assuming superintendence of the person of the minor
 
(3) Ward ceases to be minor
 
(4) In case of female, her marriage
 
(5) In case of minor whose father was unfit for guardianship, with father ceasing to be so.
 
(B) Guardian of property
 
(a) Death, removal or discharge
 
(b) By the court of wards assuming superintendence of the property of the minor
 
(c) Ward ceases to be minor
 
Difference between shia and sunni law
(1) Under shia law, only father and true grandfather are guardian for marriage while under sunni law, a number of other relations are also guardians.
 
(2) Under shia law, marriage by any other guardian is ineffective unless ratified while under sunni law it maybe repudiated upon attaining majority.
 
(3) Under shia law, mother is guardian of son upto age of 2 years and of daughter upto age of 7 years while under sunni law, she is guardian of son upto the age of 7 years and of daughter till she attains puberty.

Is FIR a pre-requisite to file Anticipatory Bail under Sec. 438 of CrPC

Is FIR a pre-requisite to file Anticipatory Bail under Sec. 438 of CrPC

Filing of a FIR and registration of a crime by the police is not a condition precedent to the exercise of A.Bail. Jurisdiction of the court can be invoked by any person even in the absence of registration of a crime and there is no requirement of furnishing the crime number as such. There is also no requirement that a copy of the FIR should be made available for the purpose of considering the application u/s 438.
 
In the absence of tangible material , any direction to release an applicant u/s 438 of Cr.P.C would amount to grant of a blanket order of A. Bail.
 
Vague, indefinite allegations or mere suspicion entertained by an applicant is not enough to invoke the extraordinary power of the court u/s 438 of Cr P C.
 
The intense of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet files.
 
Mere” fear ” is not “belief” for which reason it is not enough for the applicant to show that he has some fear of a vague apprehension that someone is going to make an accusation against him , in pursuance of which he may be arrested.
 
A.Bail is a device to secure the individual’s liberty.
 
It is neither a passport to the commission of crime nor a shield against any and all kinds of accusations.