AN OVERVIEW OF TRADEMARK INFRINGEMENT IN INDIA - The Daily Guardian
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AN OVERVIEW OF TRADEMARK INFRINGEMENT IN INDIA

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Brand name recognizes the proprietor of the item. Under any approved understanding of item, a brand name can be utilized, an illustration of brand names products names are, iPod and a major Macintosh. Organization logos like the Golden Arches at McDonald’s and McDonald’s “I’m Lovin’ it. Brand names as Mcdonald Apple’s, and Dolce and Gabbana.

The use of the brand name by unapproved implies or unlawful means by delivering it in exchanging is known as brand name robbery. Assuming there is an encroachment of brand name, the proprietor of the enrolled brand name can make a lawful move and for an unregistered brand name, the main choice passes off. Numerous nations like the United States, Canada and a lot more likewise, acknowledge the brand name strategies, so they additionally gave the right to the expert of item to make the move for the security of their brand name A typical idea of a brand name is that the proprietor of an enlisted brand name has a more legitimate appropriate for assurance than the proprietor of unregistered brand name.

The idea of use of the non-actual brand name the Supreme Court held on account of Hardie exchanging Ltd. v. Addison paint and synthetic substances Ltd. The Supreme Court gave a more extensive translation on the utilization of a brand name that it very well may be non-physical and that there were no grounds to confine the client to use on the items or to the offer of the products bearing the brand name.

ENCROACHMENT OF BRAND NAME

An enrolled brand name is encroached by an individual who not being an enlisted owner or an individual utilizing via allowed use over the span of exchange, an imprint which is indistinguishable with or misleading like the brand name corresponding to labor and products in regard of which the brand name is enrolled. After encroachment, the proprietor of the brand name can go for common judicial actions against a the enlisted party brand name. Essentially, Trademark encroachment implies the unapproved utilization of a brand name on in regards to items and advantages in a way that will create turmoil, troublesome, about the dealer or possibly benefits.

THE TRADEMARKS ACT

The Trademarks Act, 1999 (hereinafter alluded to as the Act) is the regulation that secures brand names in India. The Act sets out the guidelines managing enlistment, insurance and punishments against encroachment in regards to brand names. Brand names are given the situation with protected innovation across the globe. There are numerous associations, both worldwide and public, that undertaking to ensure scholarly properties like brand names.

In India, the association that arrangements with the security of brand names are the Indian Patent Office regulated by the Controller General of Patents, Designs and Trademarks. In straightforward words, brand name encroachment is the unapproved utilization of an imprint that is indistinguishable or misleading like an enlisted brand name. The term beguilingly comparable here implies that when a normal purchaser takes a gander at the imprint, it is probably going to confound him/her of the beginning of the labor and products.

TRADEMARK LAW IN INDIA

Before 1940 there was no law on brand names in India. Various issues of encroachment of enlisted and unregistered brand name emerged which were settled under Section 54 of the Specific Relief Act, 1877 and enrollment was mediated under the Indian Registration Act,1908. To conquer these hardships, the Indian Trademark law was implemented in 1940. After the requirement of the brand name law, interest for assurance of brand names expanded as there was significant development in exchange and business. The Trademark law was supplanted with the Trademark and Merchandise Act, 1958. It gives better assurance of brand name and forestalls abuse or deceitful utilization of imprints on stock. The Act gives enrollment of the brand name with the goal that the proprietor of the brand name might get a legitimate appropriate for its elite use. This past Act got supplanted with the Trademark Act, 1999 by the public authority of India by consenting it with TRIPS (Trade-related parts of protected innovation freedoms) commitment suggested by the World Trade Organization. The point of the Trademark Act is to give assurance to the clients of brand name and direct the conditions on the property and furthermore give lawful solutions for the execution of brand name freedoms.

The Trademark Act, 1999 gives the right to the police to catch in occurrences of infringement of the brand name. The Act gives a total definition for the term encroachment which is oftentimes utilized. In Trademark Act, it gives disciplines and punishments to the wrongdoers. It likewise builds the time term of enlistment and furthermore enrollment of a modern brand name.

DESGINATION OF TRADEMARK

Trademark is assigned by:

• ™ (™ is utilized for an unregistered trademark .it is utilized to advance or brand products)

• ( utilized for an unregistered help mark. it is utilized to advance or brand administrations).

• R (letter R is encircled by a circle and utilized for enrolled brand name).

USES OF TRADEMARK

Brand name recognizes the proprietor of the item. Under any approved understanding of item, a brand name can be utilized, an illustration of brand names products names are, iPod and a major macintosh. Organization logos like the Golden Arches at McDonald’s and McDonald’s “I’m lovin’ it. Brand names as mcdonald Apple’s, and Dolce and Gabbana.

The use of the brand name by unapproved implies or unlawful means by delivering it in exchanging is known as brand name robbery. Assuming there is an encroachment of brand name, the proprietor of the enrolled brand name can make a lawful move and for an unregistered brand name, the main choice passes off. Numerous nations like the United States, Canada and a lot more likewise, acknowledge the brand name strategies, so they additionally gave the right to the expert of item to make the move for the security of their brand name A typical idea of a brand name is that the proprietor of an enlisted brand name has a more legitimate appropriate for assurance than the proprietor of unregistered brand name.

The idea of use of the non-actual brand name the Supreme Court held on account of Hardie exchanging Ltd. v. Addison paint and synthetic substances Ltd. The Supreme Court gave a more extensive translation on the utilization of a brand name that it very well may be non-physical and that there were no grounds to confine the client to use on the items or to the offer of the products bearing the brand name.

ENCROACHMENT OF BRAND NAME

An enrolled brand name is encroached by an individual who not being an enlisted owner or an individual utilizing via allowed use over the span of exchange, an imprint which is indistinguishable with or misleading like the brand name corresponding to labor and products in regard of which the brand name is enrolled. After encroachment, the proprietor of the brand name can go for common judicial actions against a the enlisted party brand name. Essentially, Trademark encroachment implies the unapproved utilization of a brand name on in regards to items and advantages in a way that will create turmoil, troublesome, about the dealer or possibly benefits.

INFRINGEMENT OF TRADEMARK

The development of the web is additionally prompting an extension of improper brand name encroachment charges. Likely, an organization will attest brand name encroachment each time it sees one among its brand names on a web-based page of a Third party. For instance, a person who fosters a site online that talks about her mastery with Microsoft programming could utilize Microsoft’s brand names to counsel careful product without the concern of encroachment .Notwithstanding, she predominantly would never again be equipped to involve the imprints in this sort of means as to plan watchers of her web page to feel that she is partnered with Microsoft or that Microsoft is someway supporting her net page. The honor could easiest be broke down after perceiving how the imprints are truly utilized on the encroachment of brand name on the web.

CASE LAW ON INFRINGEMENT

Hearst organization Vs Dalal road verbal trade Ltd.

The court held that a brand name is encroached when a person throughout exchange utilizes an imprint which is same with or beguilingly like the brand name as far as the products in regard of which the brand name is enrolled. Utilization of the imprint by utilizing such man or lady should be in a way which is bound to be taken as getting utilized as a brand name.

ACCORDING TO TRADEMARK ACT, A MARK WILL BE REGARDED TO BE INFRINGED MARK IF:

1. It is found copy of whole enlisted mark with a couple of augmentations and adjustments,

2. The encroached mark is used throughout exchange,

3. The usage of the encroached mark is printed or normal portrayal of the imprint in promotion. Any oral use of the brand name isn’t encroachment.

4. The imprint used by the other person which nearly appears as though the quality of the enlisted proprietor as is likely going to misdirect or create turmoil and according to merchandise in regard of which it is enrolled.

PROTECTION AGAINST INFRINGEMENT OF TRADE MARK:

Under section 29 of the Trade mark Act, 1999, the use of an exchange mark by a person who not being enrolled proprietor of the exchange mark or an enlisted customer thereof which is unclear with, or misleadingly like an enrolled brand name adds up to the encroachment of brand name and the enlisted proprietor can take action or gain alleviation in regard of encroachment of brand name.

For a situation Supreme Court has held that in an activity for encroachment assuming the two imprints are undefined, by then the encroachment made out, in any case for the situation the Court needs to take a gander at the two denotes, the level of likeness by phonetic, visual or in the fundamental ides as introduced to the enlisted proprietor, whether or not the fundamental elements of the sign of the enrolled owner is viewed as utilized by other individual the Court might close the matter.

IN AN ACTIVITY FOR ENCROACHMENT OF TRADE MARK :

1. The outraged party should be the enlisted owner of a brand name

2. The respondent should use an imprint misleadingly comparative with the outraged party’s imprint.

3. The usage should be comparing to the products in respect of which the outraged party’s imprints is enrolled,

4. The usage by the respondent should not be unintentional anyway throughout the span of exchange.

LATEST UPDATES ON TRADEMARK LAW – 1ST AUGUST TO 8TH AUGUST ,2021 –

INDIAN TRADEMARK UPDATES

Samsung India faces temporary Injunction in trademark infringement suit- In a new choice by the City Civil Court at Bengaluru, innovation monster Samsung India, alongside its specialist organization Story Experiences Pvt. Ltd., have been briefly limited from utilizing the expression “Attendant”. The suit was initiated by Dipali Sikand, the organizer of Lesconcierges Services Pvt. Ltd. furthermore Club Concierge Services (India) Pvt. Ltd., who guaranteed that she was the first individual to present attendant services in Quite a while, and who had enlisted the brand name “Attendant” under classes 35, 39, 41, 43, and 45. It was stated by Sikand that she was giving attendant services to Samsung India, nonetheless, after the expiry of her underlying commitment with the tech monster, Story Experiences was named to give the previously mentioned administrations to Samsung India. Story Experiences along these lines started sharing flyers and handouts bearing the expression “Attendant” to planned customers, which prompted Sikand documenting this case, asserting encroachment of her brand name privileges. The City Civil Court at Bangalore in this way allowed a brief directive against Samsung India and Story Experiences Pvt. Ltd. until the finish of the suit

Before 1940 there was no law on brand names in India. Various issues of encroachment of enlisted and unregistered brand name emerged which were settled under Section 54 of the Specific Relief Act, 1877 and enrollment was mediated under the Indian Registration Act,1908. To conquer these hardships, the Indian Trademark law was implemented in 1940. After the requirement of the brand name law, interest for assurance of brand names expanded as there was significant development in exchange and business. The Trademark law was supplanted with the Trademark and Merchandise Act, 1958.

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Electricity connection cannot be denied only because dispute regarding ownership of land is pending: Gujarat High Court

The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.

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The Gujarat High Court in the case Yogesh Lakhmanbhai Chovatiya v/s PGVCL Through the Deputy Manager observed and has clarified that occupiers of a land cannot be denied electricity connection only because a dispute regarding ownership of the land is pending.

The bench comprising of Justice AS Supehia observed and referred to a division bench judgment stating that right and title and ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.

In the present case, the petitioner current occupiers of the land and submitted that they were denied an electricity connection only because the land that they were occupying was in the name of the Government. However, the proceedings were initiated by the Mamlatdar against them u/s 61 of the Gujarat Land Revenue Code for removal of encroachment. Further, to bolster their contention, it was relied by the petitioner on an order of the High Court and Sec 43 of the Electricity Act, 2003 which mandates the supply of electricity to any occupier or owner of premises.

The Petitioners could be said to be ‘occupier’ of the land in question and the connection could not be denied by the Respondent.

The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.

Further, the bench of Justice Supehia concluded while perusing Sec 43 that the provision stipulated that the licensee shall supply electricity to those premises where the application had been filed by the owner or the occupier. Consequently, a reference was made to the order of the Division Bench of the High Court in LPA No. 91/2010 wherein it was observed:

The Court stated that such power being not vested under the law with the company and as the company cannot decide the disputed question of right and title and this court is of the view that ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.

While keeping in view of the aforesaid provisions, it was directed by Justice Supehia that the Respondent-Company to supply electricity connection to the Petitioners in the premises of the property at the earliest in accordance with the list maintained by the name containing the names of the Petitioners in the list.

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ANALYSIANG SECTION 194R OF THE INCOME TAX ACT

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Recently, Section 194 R was inserted by the Finance Act 2022, which came into effect on July 1st, 2022. CBDT made certain recommendations via Circular 12 from the day of the addition of this section, it has become highly debatable. Before touching the issues of this section, we need to understand the legal provision of section 194 R.

In simple terms, the new section mandates a person who is responsible for providing any benefit or perquisite to a resident to deduct tax at source at 10% of the value or aggregate value of such benefit or perquisite before providing such benefit or perquisite. The benefit or perquisite may or may not be convertible into money, but it must result from such resident’s business or professional activities. As per this section, tax will be deducted by business or profession on any benefits or perquisites of a person who is residing in India. The benefit or perquisite can be in the form of cash or kind, or partially in cash and partially in kind. Tax deduction will be 10 percent if the aggregate value doesn’t exceed INR 20,000. In such a case, tax will not be deducted. Such conditions will not be applicable in If the turnover of business doesn’t exceed INR One Crore, If the turnover of the profession doesn’t exceed INR fifty lakhs, For instance, if a person is a sales agent and he exceeds the target allotted by the company and receives a new car worth INR 5, 00,000/-the value of INR 5,00,000 will be taxed under the head of Profit.

The intention of this section is to expand the scope of deducting tax on benefits or perquisites and to increase transparency in the reporting of benefits and perquisites received by an individual. Because this particular incentive is in kind rather than cash, recipients of such kinds of transactions do not include it in their income tax return. As a result, inaccurate income information is provided. Such an incentive or bonus in kind ought to ideally be reported as income under the 1961 Income-tax Act (ITA). Also, according to Section 28(iv) of the ITA, any benefit or perk received from a business or profession, whether convertible into money or not, must be reported as business income in the hands of the receiver. Now Section 194(R) gives the right to the payee to deduct the amount, whether in cash or kind, arising out of business promotion.

The terms “benefits and perquisites” are not defined under the IT act. If they receive any such perquisites or incentives, whether in cash or in kind, they must deduct TDS. In cases where the benefit is wholly in kind, the person providing such a benefit or perquisite is required to pay TDS on the value of such benefit or perquisite out of his own pocket. In this case, benefits and perquisites are determined as per the value of the purchased price and manufactured price. However, no taxes to be deducted u/s 194R on sales discount, cash discount, or rebate are allowed to customers.

In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment. The main goal of these conferences and seminars is to keep doctors up to date on the most recent advancements in medicine, which is advantageous for both the pharmaceutical industry and the doctors treating patients. Free medication samples provided to doctors by pharmaceutical corporations cannot be considered freebies in light of the aforementioned value.

Hence, under such circumstances, for such a sales effort, the pharmaceutical company may deduct its expenses. The promotion would, however, be taxable income in the hands of the receiver, and the pharmaceutical company would need to deduct TDS on it.

Another question that pops up is that in the case of gifts and perks received on special occasions like birthdays, marriages, and festivals, under such circumstances, Section 194R will only be applied if they arise out of business or profession.

As we know, we are heading towards digitalisation. There are many social media influencers who are playing a crucial role in marketing strategy. Income received by an influencer is calculated by deducting expenditure incurred on their business. Filming costs, such as cameras, microphones, and other equipment; subscription and software licencing fees; internet and communication costs; home office costs, such as rent and utilities; office supplies; business costs, such as travel or transportation costs; and others are examples of what can be written off as a social media influencer. To illustrate how Section 194 R will be applicable in such a situation, let’s consider Nandini is a social media influencer. She received an offer from a company for product promotion in another city. She charged her fee of Rs 88,000 and the travel expense incurred by her was Rs 25,000. Here, the company will reimburse her travel expenses. So, the travel expenditure incurred by the company is covered under the benefits and perquisites provided to Nandini. Hence, TDS is to be deducted under section 194R at the rate of 10%, i.e., Rs 2500 is deductible from the fees payable to Nandini.

There is no further requirement to check whether the amount is taxable in the hands of the recipient or under which section it is taxable. The Supreme Court took the same view in the case of PILCOM vs. CIT in reference to the deduction of tax under Section 194E. It was held by the Hon’ble Supreme Court that tax is to be deducted under section 194E at a specific rate indicated therein, and there is no need to see the taxability under DTAA or the rate of taxability in the hands of the non-resident.

In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment.

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GUJARAT HIGH COURT: WRIT PETITION FILED AGAINST PRIVATE UNIVERSITY NOT MAINTAINABLE, REMEDY FOR ALLEGED ARBITRARY TERMINATION LIES UNDER CIVIL LAW.

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The Gujarat High Court in the case Shambhavi Kumari v/s Sabarmati University & 3 other(s) observed and has declined to intervene in a writ petition seeking reinstatement with full back wages and benefits filed by an Assistant Professor against a private university, Sabarmati University.

The bench comprising of Justice Bhargav Karia observed and has clarified that the dispute regarding termination was ‘in the realm of a private contract’ and therefore, held that if on the part of the respondent, there is an alleged arbitrary action, the same would give cause to the petitioner to initiate civil action before the Civil Court but in the facts of the present case, the writ petition would not be maintainable against the private educational institution governed by the Gujarat Private Universities Act, 2009.

In the present case, the petitioner was given a three months’ notice starting August 2013, allegedly without any reason. Consequently. Earlier, an application was filled by the petitioner before the Gujarat Affiliated Colleges Service Tribunal and thereafter, withdrew the application to file the writ before the High Court.

It was contested by the respondents that the petition was not maintainable on the ground that the University was a private University and did not fall within the term ‘State’ under Article 12 of the Constitution of India. Therefore, the employment conditions of the Petitioner would not bring her services within the realm of ‘duty or public function.’

It was observed that the petitioner, per contra, insisted that the University was established under the Gujarat Private Universities Act, 2009. However, Universities were established to provide quality and industry relevant higher education and for related matters and hence, it could not be said that the Universities were not performing public duty. It was directed by the State Government and pervasive control over the functioning of it as was mentioned in Sec 31-35 of Chapter VI of the Act. Reliance was placed on Janet Jeyapaul vs. SRM University and ors. where the Top Court had held that the writ petition was maintainable against the deemed university and whose functions were governed by the UGC Act, 1956.

The bench of Justice Karia, while taking stock of the contentions referred to Mukesh Bhavarlal Bhandari and ors vs. Dr. Nagesh Bhandari and ors where the Coordinate Bench of the High Court in similar circumstances had reiterated that merely because the activity of the said research institute ensures to the benefit of the Indian public, it cannot be a guiding factor to determine the character of the Institute and bring the same within the sweep of ‘public duty or public function.

It was observed that the High Court also rejected the reference to Janet Jeyapaul since in the instant case and held that in the realm of a private contract, the Petitioner termination was to be decided.

Further, it was observed that it is not necessary to go into the merits of the case with regard to the issue of show-cause notice for providing an opportunity of hearing resulting into breach of principle of natural justice and weather the action of the respondent University is unfair or not because all such disputes essentially are in the realm of private contract.

Accordingly, the bench dismissed the petition.

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Gujarat HC Quashes Reinstatement Order: Industrial Dispute Act| Person Working In The Capacity Of ‘Consultant’ Cannot Be Deemed ‘Workman’

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The Gujarat High Court In the case Santram Spinners Limited v/s Babubhai Magandas Patel observed and has struck down the order of the Labour Court which had held that the Respondent-workman was entitled to reinstatement along with 20% back wages in the Petitioner-institute. Thus, the High Court, after perusing, Form No. 16A which pertains to Tax Deducted at Source, concluded that the Respondent was being paid consultant fees and not a salary and the same had been ignored by the Labour Court.

The bench comprising of Justice Sandeep Bhatt noted that the Respondent had raised an industrial dispute, inter alia, claiming that he was working in the company of the Petitioner as a Technical Maintenance In-Charge while the respondent earning a salary of INR 9,000 per month. Thereafter, it was alleged by him that he was terminated orally in 1997. Consequently, the Labour Court ruled in his favour and ordered reinstatement and back wages.

It was submitted by the petitioner that the Respondent did not fall within the definition of the term ‘workman’ in Sec 2(s) since he was employed as a Maintenance Consultant, receiving consultant fees and not a salary and the respondent had failed to produce any documentary evidence such as TDS statement, appointment letter, bills to bolster his contention.

Further, it was also averred by the petitioner that the relevant documentary evidence was absent. It was stated that Form 16A was produced to show that if the Respondent was a consultant, then there was no need to deduct TDS. It was observed that the Form No. 26K was disagreed by the Labour Court, which was produced by the Company to show that the tax was deducted from fees for technical or professional services.

The bench comprising of Justice Bhatt firstly observed that the Respondent had admitted that he had no evidence with him to prove that he was working as a ‘workman’ in the Company of the Petitioner that his salary was fixed at INR 9,000 per month. It was stated by the Manager of the Company that the Respondent was rendering services as a consultant raising his Vouchers/bills regularly and being paid through cheque. As per the Bench, there was ‘ample evidence’ to prove that that the Respondent was employed as a technical consultant.

Justice Bhatt stated that it is pertinent to note that the learned Labour Court has committed gross error in holding that those documents are complicated and thus, the learned Labour Court has also erred in giving findings that since TDS is deducted by the petitioner company and therefore, the respondent is workman, who is serving in the petitioner institute and in my opinion, this finding of the learned Labour Court is against the settled proposition of law and is highly erroneous.

Therefore, the High Court affirmed that there was no evidence that the Respondent had been working for more than 240 days during the year preceding termination.

Accordingly, the High Court struck down the award of the Labour Court.

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GUJARAT HIGH COURT QUASHES REINSTATEMENT ORDER: PERSON WORKING IN SUPERVISORY CAPACITY CANNOT RISE “INDUSTRAIL DISPUTE”

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The Gujarat High Court in the case Gujarat Insecticides Ltd. & 1 other(s) v/s Presiding Officer & 2 others observed and has reiterated that a person working in “supervisory” capacity cannot raise an industrial dispute under the Industrial Disputes Act, 1947.

The bench comprising of Justice AY Kogje observed and further made it clear that while deciding whether such person is a workman or not, the Labour Court ought to carefully consider the evidence placed on record and there is no exhaustive list of work to differentiate between the management employee and the Workman.

In the present case, the Petitioner Company averred that the Respondent was working in the non-workman category and engaged in the ‘supervisory category’ and was drawing salary of more than INR 1600. Therefore, the dispute was not an industrial dispute within Section 2(s) of the Act, 1947.

It was insisted by the Respondent that he had worked with the company as a Maintenance Engineer and the duties assigned to him were of the nature of a workman’s duties as per the ID Act. The respondent was wrongly terminated by way of termination and without any procedure established by law and as such, was entitled back wages.

It was observed that the high court took into consideration the Respondent’s appointment letter and witness depositions regarding the nature of work performed by him to conclude that the Respondent in Grade-9 was indeed discharging duty of Maintenance Engineer. It was also specified by the depositions that the hierarchical grading in the petitioner-company as per which, the employees above Grade-7 were of the Management Cadre.

The High Court observed that the Labour Court has completely disregarded this evidence, which according to this Court is most relevant for the purpose of deciding the status of workman and the Labour Court has proceeded that the petitioner-company ought to have produced evidence in the nature of whether the respondent-workman has sanctioned any leave, sanctioned any overtime or prepared any gate passes for employees to go home or has made any ordered or Appointment dismissal. Thus, when the Labour Court, instead of referring to this evidence already on record to establish the nature of work of the respondent and has decided to chase the evidence which is not on record and then on the basis that such evidence not being on record, it was concluded that in the definition of workman, the workman will be covered, this is where, in the opinion of the Court, perversity has crept in.

Accordingly, the bench quashed the impugned order. Therefore, seeing the passage of time, it was held by the High Court that the allowances paid u/s 17B of the Act should not be recovered by the Petitioner company.

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COURT CALLS FOR SENSITIZATION OF POLICE: DELHI RIOTS SITE PLANS PREPARED CASUALLY, S.65B CERTIFICATE NOT FILLED FOR DIGITALLY SOURCED EVIDENCE

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The Court while dealing with a case related to 2020 Delhi riots, a city Court has called for sensitisation of investigating officers (IOs) on making the photos obtained from digital sources as admissible in evidence by filing a certificate under section 65B of Indian Evidence Act, 1872.

The bench comprising of Additional Sessions Judge Pulastya Pramachala observed and thus ordered that whenever, photographs are filed from digital sources it is needless to say that a certificate under Section 65-B of I.E. Act, is must to make those photographs admissible for the purpose of evidence. However, all the IOs are required to be sensitized this respect as well and it is high time to control the casual and callous approach of any IO.

It was also observed that court expressed displeasure over “casually prepared site plans” by stating that preparation of the same were not even expected in cases triable by the Metropolitan Magistrates.

Adding to it, the Judge stated that unfortunately this kind of site plan has been filed in such a serious case involving session triable case. Moreover, from the documents filed on the record, the court find that certain photographs have been placed, but without any certificate under Section 65-B of Indian Evidence Act.

In the present case, the court was dealing with an FIR registered on the complaint of one Salim Khan wherein it was stated by him that his spare parts and barber shop shop was looted and was put on fire during riots.

It was admitted by one of the accused Dharmender that his involvement in the matter and he, with other co-accused was seen carrying the carton of Rooh Afzah from the warehouse of a complainant in another FIR.

The Court stated that a serious re-look over the quality of evidence/documents place on the record in the case, is required by senior officer with all serious attention.

Further, the court added that in this case the ld. DCP (North East) is requested to go through the records and to submit his report, if the prosecution is to be carried on, on the basis of other materials and same site plan as placed on the record.

As in future, the Special Public Prosecutor undertook to be much careful.

Accordingly, the Court listed the matter for further hearing on August 17.

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