"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, March 3, 2009

Recent Judgments

Construction of Will
Bhagwan Krishan Gupta v. Prabha Gupta & Ors. CIVIL APPEAL NO.1186 2009. Date of Judgment 25-02-09

The case discusses two aspects: interpretation of Will and the effect of ‘family settlement’ on a self acquired property as well as its relevance in the construction of Will.

The court held that though family settlement in stricto sensu have no implication with respect to self acquired property, given the potential of such settlement to bring harmony in family, it should not be absolutely dismissed. The court gave weight to family settlement made between the brothers as surrounding circumstance and thereby contributing to the construction of the Will.
The doctrine of ‘arm chair rule of construction’ was used to interpret the Will. The principle relating to interpretation of Will demands that it should be read as a whole and the surrounding circumstances should be given effect to ascertain the intention of the testator. This is done by placing the court in the arm chair of the testator.
Principle of appreciation of evidence by relative/interested witness
Joginder Singh v. State of Punjab. CRIMINAL APPEAL NO. 406 OF 2009. Date of Judgment 27-02-09

Eye witness being a family member does not per se disqualify a testimony. The allegation of interestedness has to be established. A statement otherwise cogent and credible cannot be dismissed just because the witness is related to the victim.
“Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.”
Reinstatement in employment and award of back wages
M/s P.V.K. Distillery Ltd. v. Mahendra Ram. CIVIL APPEAL NO.1349 OF 2009. Date of Judgement 02-03-09

The respondent successfully contended in the Labour Court that he was illegally terminated (on 19-01-85) and got an order of reinstatement with continuity of service with an entitlement of full employment benefits and back wages.

The appellant moved the HC and in the meanwhile the establishment was closed for a long duration and was eventually declared as a sick unit. The appeal continued and the HC confirmed the order and hence this appeal by SLP. The respondent did not appear despite substituted service.

The question taken up for consideration was “whether the Labour Court was justified in awarding full back wages, while directing the employer to re-instate the workman in service?”

Court reasoned that

1. Awarding of back wages is a discretionary remedy and there is no straight jacket formula that reinstatement under Industrial Dispute Act by default contain award of back wages

2. Back wages has to be determined by the Labour Court taking into consideration facts and circumstances of each case

3. The person is not entitled to get something only because it would be lawful to do so
4. A pragmatic view of the matter is being taken by courts realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively

5. It is now also well-settled that, despite a wide discretionary power conferred upon the Industrial Courts under Section 11A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so.

6. Grant of relief would depend on the fact situation in each case. It will depend upon several factors;
a. whether the recruitment was effected in terms of the statutory provisions operating in the field, if any
b. the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement

7. Earlier courts have not in absolute terms laid down that the right to claim back wages flow from an order of reinstatement

8. It may be natural to hold that removal of order of termination should lead to payment of back wages. But there may be circumstances that make such a conclusion inequitable like:
a. Industry being closed down
b. Industry being in financial difficulties
c. Employee already in another or better employment

9. It is impossible to lay down an absolute law as to in which all circumstances a reinstatement should follow back wages. For which, several factors need to be taken into consideration

Taking into consideration the factual circumstances that the service of the respondent was terminated since 1985 and the case is still pending for no fault of his and that the industry was closed for a long while and later declared as sick, the court found it equitable to award 50% of the total back wages.

It is interesting to note that the court required the appellant to deposit the amount with the concerned Labour Court within 6 weeks from the date of judgment. The Labour Court is directed to deposit the amount in a natioanlised bank and keep the amount for two years to be claimed by the respondent. Failing which the amount is directed to be handed over to the District legal Service Authority

After Taste

The case took 28 years to reach a final settlement (hopefully it will end here). It is not surprising that the respondent could not enter appearance. It is too much to expect a labourer that too out of job from 1985, to reach the SC and engage a lawyer.

The court may ‘feel good’ that it has done equitable justice by taking into consideration different aspects involved in the case and deciding the way it did. But how does the court expect the respondent to know that the amount is deposited in the bank? The state with its whole machinery and an appellant who could reach up till the SC despite its severe financial constraints could have given the duty to trace the respondent or his legal heirs. That would have been the real moulding of remedy and doing complete justice which is expected of a court of justice.

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