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What is privacy: A myth, a right, or a currency?

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The advent of 2021 has put the Tech World in a frenzy with a multitude of rules, guidelines, and notifications coming into play, with the view of scrambling the tech companies off their feet and making them amenable to the law of the land. One such set of rules is the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 which has been in the limelight since its introduction in February 2021, with the recent controversy surrounding Twitter and WhatsApp. The ongoing discussions surrounding social media rules bring to the spotlight one key issue: Privacy. In the modern era, privacy is considered a fundamental right and an integral component of all communication on the Web. Unfortunately, in the clash of government rules and tech policies, the one stakeholder that suffers the most is the Consumer.

In the backdrop of the race to personal data dominance between Big Tech-hegemony and State-intervention, the authors seek to analyse the changing countours of Privacy over the years since 2017 and its impact on consumer preferences.

DOES THE IT RULES 2021 CONTRAVENE THE TENETS OF THE K.S. PUTTASWAMY JUDGEMENT?

In the famous case of K.S. Puttaswamy vs Union of India (W.P. (C) NO. 342/ 2017), the Supreme Court held Privacy, inclusive of one’s rights over personal decisions, bodily integrity, and protection of personal information, as a fundamental right within the ambit of Article 21 of the Indian Constitution. It is a landmark judgment that is of great significance due to the stance taken by the Apex Court in the pivotal issue of Personal & Data Privacy.

However, looking into the provisions of the IT Rules 2021 in the optic of the Puttaswamy judgment, social media intermediaries will have to maintain access to the messages of users to be able to abide by the mandatory requirement of tracing the origin of messages, thereby infringing the end-to-end encryption and creating a substantial breach of privacy, along with raising concerns on security of the data obtained and stored. The purpose of tracing the messages is to aid the law enforcement agencies in tracing those who are accused of spreading fake, inciteful, or offensive messages, and in bringing them to justice accordingly. Furthermore, the 2021 IT Rules take into consideration the interest of the nation’s sovereignty, public order, morality, and national security for making tracing mandatory. Stanford Internet Observatory Scholar Riana Pfefferkorn in her opinion observes that, “The new traceability and filtering requirements may put an end to end-to-end encryption in India.” The logical follow-up is that in India, where there is an absence of a specific Data Privacy Law, this mandatory procedure could be deleterious as because there is no legislative measure that safeguards the users against the arbitrary use of traceability.

In context to whether the newly introduced IT Rules is in breach of the constitutional safeguards laid down in the Puttaswamy judgment, the answer is two-fold – First, in its observation, the Court made it abundantly clear that the fundamental right of Privacy accorded to the citizens is not absolute and it is subject to reasonable restrictions by the State, which is expressly mentioned under Part III of the Indian Constitution corresponding to Fundamental Rights. The Court opined that any exception made has to be for the interception of data by the State on the grounds of national security & public order and morality. In consonance with the exception, a “Triple Test” needs to be adhered to for any infringement of privacy by the State to be legitimate, which ordains that any State action should:

(i) Have a “Legitimate Aim” that should be inclusive of goals of the State, i.e. security, proper deployment of resources, etc.

(ii) Have “Proportionality” which underlines the rational nexus between the object and the means that would be adopted to achieve the object

(iii) Have “Legality” vis-à-vis the law of the land.

Second, it has to be noted that in its judgment, the Apex Court mentioned also the need for data protection laws for citizens. The Court undertook a notably worthy and pro-active outlook aimed at citizen-welfare. Although the judgment was pronounced three years ago, yet there lies confusion on the enactment and enforcement of the Personal Data Protection Bill to date. At this juncture, one cannot set aside the fear or aspersion of the provisions being used potentially as a weapon for infringement of privacy as the rules give wide powers to the Government to strong-arm the social media intermediaries to procure users’ data.

Hence, a concern of a risk of potential breach of the Puttaswamy judgment arises, all the more now as the State has introduced a set of Rules which legitimizes the interception of data and the tracing of the first originator of messages, in the absence of an appropriate data protection law – and this places citizen-welfare and autonomy in a precarious spot.

THE LION AND THE RINGMASTER: THE CIRCUS SHOW OF FACEBOOK, WHATSAPP & CCI

In recent times, news has been strife about the legal matter in the doors of the Delhi High Court of WhatsApp’s Privacy Policy being put to scrutiny by the competition regulator by way of a Suo moto cognizance. Prior to diving into the row between the Competition Commission of India (CCI). & WhatsApp, one needs to understand the concept of Suo moto cognizance and the working of the CCI. Suo moto cognizance essentially means the legal action taken by the government or authorities upon receiving information regarding violation of rights or any infringement thereof. The purpose for the establishment of CCI is to promote a competitive environment which brings better goods and services to the consumers. One of the main duties of the CCI is to protect the interest of the consumers and ensure freedom of trade. In the fulfillment of its duties, as per Section 19 of the Competition Act 2002, CCI can inquire into alleged contravention of their provisions, upon receipt of information from persons/trade associations or from references made by the Central/State Government. Moreover, according to Section 60 of the Act, the provisions will have an overriding effect over any law in force, notwithstanding anything inconsistent therein. This means the CCI will have the power to take matters in its hands which it believes falls within its purview, and accordingly issue notices or conduct probes.

On the face of it, consumer welfare seems to have prompted the CCI to launch an inquiry into the putative abuse of market dominance by Facebook and WhatsApp. The nose-diving of the CCI by taking a Suo motu cognizance of the matter (the very first in relation to social media intermediaries!) is in contrast to its generally placated self, and it seems to have been triggered after Whatsapp introduced a revamped privacy policy in January of this year. To draw a parallel, comparable to the German competition authority, the CCI also considers data & privacy protection to be a strand of qualitative non-price competition, which basically means that the competition rules must be evoked to discipline any commercial entity which is abusing its dominant position by causing a slump in its service quality by coercing or forcing users to adhere to such terms and conditions that might damage their privacy rights.

As much as the heart of the CCI is at the right place, however, the haste in which this probe is being undertaken against one of the largest Big Tech conglomerates functioning in India seems not just uncanny, but can also lead to legal ambiguities in the near future considering that the nation is gearing up for the advent of a new data protection law. If the CCI doesn’t introspect and perform a course correction, then it is gearing itself up for an impending discordance with the Personal Data Protection Bill, which is now being refined under the auspices of the Joint Parliamentary Committee of the Indian Parliament.

Ostensibly, the CCI seems to be driven by impulse and an arguably shallow grasp of the link between privacy and competition in its rush to straighten Facebook and WhatsApp out. Curiously, the entire premise of the CCI behind its examination of the Big Tech conglomerate is based on the notion that data becomes an integral ingredient of competition by virtue of being the price the consumer has to pay for availing services of social media & messaging platforms – thus, what CCI essentially contends is that the market dominance of Facebook and Whatsapp increases with a decrease in the levels of privacy.

However, there is a critical oversight from the CCI’s end in its approach. As much as the concerns, needs, and necessities of protection and preservation of data and privacy are crucial to consumer welfare, nonetheless credible research showcases that consumers profess to be very concerned about their data and privacy, although they also continue to provide their personal as well as sensitive data to platforms that provide free services on the internet – a contradiction that we call the “Privacy Paradox” in common parlance.

Hence, it may come as a surprise, but research shows that a substantial chunk of the consumer base for digital services in India believes that their personal data is a good barter to avail “free” services offered by platforms and subsequently targeted advertisements being shown to them. And, this re-emphasizes the necessity to examine the Privacy Paradox in the Indian milieu in greater depth and nuance.

It needs to be noted that one of the very rudimentary premises of Competition law is built on the edifice of consumer welfare. Therefore, the need of the hour is to ponder over, first and foremost, if consumers really are opposed to the data & privacy policies of social media and messaging platforms, and if yes, then why, and what are their concerns? A follow-up to the preceding question is whether the consumer base is in favor of giving precedence to the “free” services provided by Big Tech in exchange for its use of the consumers’ personal data.

Secondly, and substantially, a pertinent question arises – should privacy solely be the metric that the CCI peruses for measuring competition in the social media & messaging market segment?

Unless such precursory issues are not delved in detail, and active stakeholder consultations are not undertaken, then any action by the CCI carries with it the risk of absolutely disregarding consumer preferences – which contravenes the very premise of Competition law.

IV. Concluding remarks

“When it comes to privacy and accountability, people always demand the former for themselves and the latter for everyone else.” – David Brin. This aptly captures the irony which exists, whereby personal accountability is shoved into the oblivion, but demanding rights and privileges is always priority one. One must also be wary to not muddle the concerns of data-breach and security with that of data-sharing by an informed user, only on the premise that every bit of data shared is subject to eventual misuse.

The contrasting approaches of the Puttaswamy judgment & the CCI’s probe, distinct in the issues contended & the forums approached to seek relief from, are merged on their emphasis of keeping Consumer welfare first. As a constitutional truism, the actions of statutory bodies are regarded to be governed by the principles of equity and good conscience, keeping the interests of the general public at an elevated pedestal. However, if in the garb of welfare, ad lib actions are taken hastily, it can have a detrimental effect – the burden of which will be incurred by the Consumer.

Privacy is a sensitive issue, taking into account the voluminous communication over the Internet via a myriad of platforms on a daily basis. The need of the hour is to give due consideration to the opinion of the relevant stakeholders, including that of the consumer-base, and a conscious deliberation over the measures taken to regulate Big Tech in India with the view of promoting sustainable development. Additionally, consumers should be apprised of the importance of their data, thereby enabling them in taking informed decisions with regards to their personal data and privacy sharing.

In the end, all that we as consumers are left with is the wild wonder of what privacy is: A myth, a right, or a currency?


In context to whether the newly introduced IT Rules are in breach of the constitutional safeguards laid down in the Puttaswamy judgement, the answer is two-foldL: First, in its observation, the court made it abundantly clear that the fundamental right of privacy accorded to the citizens is not absolute and it is subject to reasonable restrictions by the state, which is expressly mentioned under Part III of the Indian Constitution corresponding to Fundamental Rights. The court opined that any exception made has to be for the interception of data by the state on the grounds of national security & public order and morality.

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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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