‘UCC is long due; can’t be made voluntary’: Allahabad HC calls upon Central government to implement the mandate of Article 44 - The Daily Guardian
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‘UCC is long due; can’t be made voluntary’: Allahabad HC calls upon Central government to implement the mandate of Article 44

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While dealing with a batch of petitions that were 17 in number and which were concerned with an interfaith marriage contracted by the petitioners and who sought protection from the Court, the Allahabad High Court as recently as on November 18, 2021 in an extremely commendable, courageous, cogent, composed and convincing judgment titled Mayra alias Vaishnvi Vilas Shirshikar and another vs State of UP and others and 16 connected cases in Writ – C No. – 14896 of 2021 and 16 others while underscoring that Uniform Civil Code (UCC) is long overdue called upon the Central Government to implement the mandate of Article 44 of the Constitution of India [Uniform Civil Code]. It must be apprised here that the Single Judge Bench of Hon’ble Justice Suneet Kumar minced absolutely no words to candidly say that the issue of UCC, though Constitutional, rakes political overturns whenever raised or debated in the public domain and called for its implementation in the wake of a multiplicity of marriage and family laws in place. The Bench also underscored that uniform civil code is necessary for interfaith marriages. It is mandatorily required now. It also rightly called upon the Central Government to implement the mandate of Article 44.

To start with, the ball is set rolling in this learned, laudable, latest and landmark judgment authored by a Single Judge Bench of Justice Suneet Kumar by first and foremost putting forth in para 4 that, “Petitions are being decided finally at the admission stage, as per Rules, on the consent of the parties.”

While elaborating on the facts, the Bench then states in para 5 that, “The batch of petitions (17 in number), pertain to interfaith marriage contracted by the petitioners. Petitioners, herein, claim to be major and one of the party to the marriage has converted to the religion/faith of his/her partner. The petitioners apprehend threat to their life, liberty and wellbeing. Hence the instant writ petitions seeking protection.”

To put things in perspective, the Bench then envisages in para 6 that, “In the leading writ petition (14896 of 2021) (Marya @ Vaishnvi Vilas Shirshikar and another vs. State of U.P. and others), it is pleaded that both the petitioners are medical professionals. The first petitioner (Vaishnavi), a Hindu, after conversion accepted Islam, thereafter, she married the second petitioner according to Muslim customs. The petitioners have applied for registration of their marriage. It is specifically pleaded that since they belong to different faiths, they eloped and got married on their free will. They apprehend threat to their life and liberty as the contesting private respondent, father of the first petitioner, is opposing the interfaith marriage. The first petitioner converted to Islam on 5 January 2021 and the Nikahnama is dated 23 January 2021. It is also pleaded that the first petitioner belongs to Maharashtra and the second petitioner is from Bijnor, Uttar Pradesh. The conversion and marriage had taken place in the State of Maharashtra. The registration of the marriage has been applied before the Marriage Registrar/Officer at Bijnore.”

As we see, the Bench then points out in para 23 that, “The common thread running through all the petitions is that the petitioners have contracted interfaith marriage upon conversion; petitioners are major. It is pleaded that the conversion is on free will; some petitioners are highly qualified i.e. professionals, graduates and some appear to have not passed secondary examinations. They apprehend threat to their life and liberty at the hands of their parents, relatives and other family members in connivance of the State machinery. Some of the petitioners have approached the District Police seeking protection.”

Truth be told, the Bench then remarks in para 24 that, “The petitioners are before this Court, under Article 226 of the Constitution of India, seeking protection of their life, liberty and privacy guaranteed under Article 21, to live independently as man and woman without the interference of the private respondents.”

To be sure, the Bench then candidly concedes in para 55 that, “Having regard to the rigour of the enactments governing conversion, marriage and registration of marriage, the parties in the backdrop of the opposition of the family members, as is the case with the petitioners, are compelled to take recourse, either, under the Arya Marriage Validation Act or Muslim Personal Law (Shariyat) Application Act i.e. instant conversion followed by marriage. In other words, the legal system, particularly secular laws, governing marriage and registration, as it exists on date, compels and coerces a party to interfaith marriage to compulsorily convert. The conversion of faith may appear voluntary, but, at the same time it could in all probability be a case of going against one’s conscience, thus, unwillingly violating the freedom of conscience guaranteed to the individual under Article 25 of the Constitution.”

Quite significantly, the Bench then without mincing any words clearly states in para 56 that, “The stage has reached that the Parliament should intervene and examine, as to whether, the country requires multiplicity of marriage and registration laws or the parties to a marriage should be brought under the umbrella of single Family Code. Marriage is just an association of two persons, recognized by law. There is nothing ‘special’ about marriage to subject it under different laws for various communities, thus, erecting barriers in the free intermingling of the citizens. The petitioners, herein, cannot be hounded as criminals. Their crime, if any, is that they have succumbed to the dictates of their heart for each other.”

Needless to state, the Bench then specifies in para 57 that, “The issue of UCC, though Constitutional, rakes political overturns whenever raised or debated in public domain.”

As it turned out, the Bench then concedes in para 58 that, “In the midst of all this clamour, the Law Commission 21st Report dated August 31, 2018 struck a wary note. In its report, the Commission observed:

“While diversity of Indian culture can and should be celebrated, specific groups or weaker sections of the society must not be dis-privileged in the process. Resolution of this conflict does not mean abolition of difference. This Commission has, therefore, dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage ….. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy. (emphasis supplied).””

Having said this, the Bench then pulls back no punches to make it absolutely clear in para 59 that, “The single sentence/observation by the Commission that ‘uniform civil code is neither necessary nor desirable at this stage’ has been flagged by the opponents of UCC as their anchor sheet to oppose the enactment of UCC. The entire report of the Commission neither discusses nor points out the merit or demerit of UCC for the citizen. The observation is probably confined to the discrimination noted in the personal laws of various religious groups. On having detailed the discrimination with regard to family laws within the personal laws of Hindus, Muslims, Christians and Parsis, the Commission recommended their removal, in the first instance, to make the personal laws equitable with regard to marriage, divorce, guardianship, succession and adoption. In doing so, probably the ‘stage’ for enacting UCC would be facilitated, therefore, the Commission opined that the stage for enacting UCC has not reached. The desirability, and/or, non desirability of UCC, in the backdrop of differences/discrimination of various personal laws has not been considered by the Commission so as to keep the directive of Article 44 in abeyance. The bald observation of the Law Commission is of no assistance to the opponents of UCC.”

It cannot be glossed over that the Bench then remarks in para 60 that, “Supreme Court, very recently (2019), in Jose Paul Coutinho vs Maria Luiza (Civil Appeal 7378 of 2010 delivered on September 13, 2019), as against the view of the Commission, observed that:

“Whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard.””

It also has to be taken note of that the Bench then observes in para 61 that, “The observation of the Supreme Court that till date no action has been taken with regard to UCC comes within a year, in contradiction to the observation of the Law Commission. In other words, the Supreme Court desires that UCC should be enacted as ‘the stage’ has reached the citizens of the country.”

Be it noted, the Bench then minces no words to underscore most commendably in para 82 that, “The piecemeal attempts of Courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. The Court has its limitations and cannot embark the activist role of providing a civil code. The Parliament has to step in and initiate the process of enacting the UCC by appointing a committee, and/or, making a reference to the Law Commission (Shah Bano case).”

Briefly stated, the Bench then stipulates in para 92 that, “To put it in a nutshell, the HFC as a uniform civil code has integrated the citizens into an integrated and united Hindu citizenry, on terms that is equal and uniform, insofar as the law regulating family law is concerned. The impact of HFC on Hindu society has been phenomenal.”

It is worth noting that the Bench then observes in para 93 that, “The area that immediately demands attention of the Parliament is with regard to the interfaith relationships. The answer to regulating such relations is through legislative intervention by enacting the UCC. The Court since Shah Bano (1986) opined that enactment of UCC is necessary for the unification and national unity of the country. This has been reiterated by the Supreme Court time and again until recently. By national unity, the Court meant to say that by enacting UCC, the legislature would create an environment based on uniform law pertaining to family that would foster creation of an Indian citizenry where citizens of the country, irrespective of their religion, culture can interact on equal terms without the intervention of religious texts, priest, customs and dogmas of personal law.”

Most significantly and also most remarkably, what forms the cornerstone of this brief, brilliant, bold and balanced judgment is then enunciated in para 94 wherein it is held that, “There is no evidence of any official activity for framing a uniform civil code for the country. A belief seems to have gained ground that it is for the minority community to take a lead in the matter of reforms of their personal law. That has been the consistent official stand of the Government within the country and in international forums. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.The Supreme Court speaking through Justice Kuldeep Singh [Sarla Mudgal Case (paragraph 35)] had humbly requested the Government through the Prime Minister to intervene and initiate the process of framing the UCC by appointing a committee, but after a lapse of so many decades nothing has been done.”

Equally significant and remarkable is what is then envisaged in para 95 wherein it is held that, “We have entered in the third decade of the twenty first century, the UCC is long due. It should be taken note of the fact that before HFC could see the light of the day the deliberations went on for 15 years. The Government, if decides to initiate the process by appointing a Committee/Commission for enacting the UCC, it would take considerable time. The process, therefore, should be initiated forthwith. This Court reiterates and calls upon the Government of India to initiate the process as the ‘stage’ has been reached. The UCC is a necessity and mandatorily required today. It cannot be made ‘purely voluntary’ as was observed by Dr. B.R. Ambedkar 75 years back, in view of the apprehension and fear expressed by the members of the minority community.”

Finally, the Bench then concludes by holding in para 107 that, “The writ petitions are allowed by passing the following orders:

(i) The State respondents and the private respondents are restrained from interfering with the life, liberty and privacy of the petitioners to live as man and woman;

(ii) The police authorities of the respective districts shall ensure the safety of the petitioners and provide protection to them, if demanded or needed;

(iii) The Marriage Registrar/Officer of respective districts are directed to forthwith register the marriage of the petitioners, without, insisting/awaiting approval of the competent district authority with regard to conversion of faith;

(iv) It will be open to the aggrieved party, in the event of fraud and misrepresentation, to take recourse of law, both – criminal and civil, including, annulment of marriage before the competent forum;

(v) The Government of India to consider the constitution of a Committee/Commission for implementing the mandate of Article 44, as directed by the Supreme Court;

(vi) The State Government to issue appropriate Government Order to the Marriage Registrar/Officer, District Authority, to comply and implement this order;

(vii) It will be open to the private respondents to seek modification/recall of this order in the event of being affected by the order;

(viii) The Registrar General of this Court is directed to supply copy of this order to –

(a) Department of Justice, Ministry of Law and Justice, Government of India, New Delhi.

(b) The Chief Secretary, Government of Uttar Pradesh, Lucknow.”

In conclusion, I cannot find one single reason to differ with what Hon’ble Justice Suneet Kumar has held so remarkably in this notable judgment. He has ably cited the relevant case laws and so also advanced valid reasons for holding that uniform civil code should be now ushered in promptly. He also made it clear that UCC is long due and it can’t be made voluntarily and is mandatorily required. He also made it crystal clear that government has to bring it, not any community or court. As we are nearing 75 years of independence, I can’t see any other way better to celebrate it other than to ensure that uniform civil code is enacted by the Centre at the earliest as we are a democratic country! What Hon’ble Justice Suneet Kumar has stated must be implemented by the Centre forthwith! No denying it!

Quite significantly, the Bench then without mincing any words clearly states in para 56 that, “The stage has reached that the Parliament should intervene and examine, as to whether, the country requires multiplicity of marriage and registration laws or the parties to a marriage should be brought under the umbrella of single Family Code. Marriage is just an association of two persons, recognized by law. There is nothing ‘special’ about marriage to subject it under different laws for various communities, thus, erecting barriers in the free intermingling of the citizens. The petitioners, herein, cannot be hounded as criminals. Their crime, if any, is that they have succumbed to the dictates of their heart for each other.”

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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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