Wednesday, December 11, 2019

Hindustan Antibiotics Limited and Insolvency Procedures

The Bombay High Court will decide if National Company Law Tribunal (NCLT) can initiate insolvency proceedings against Government Company under the Insolvency and Bankruptcy Code, 2016 (IBC).
In doing so, the High Court recently stayed proceedings against Hindustan Antibiotics Limited, a public sector Pharmaceutical Company before NCLT Mumbai Bench.
A Division Bench of Justice SC Dharmadhikari and R I Chagla was hearing an interim application by the company seeking a stay on insolvency proceedings initiated by employees under section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC).

The applicant Company also sought from Court to restrain respondent employees from taking further steps for recovering their alleged dues until the final disposal of the writ plea, which was filed by Hindustan Antibiotics in May this year. Moreover, in its application, Hindustan Antibiotics has claimed that Sections 3(8), 3(23), 7, 8, 9 and 238 of IBC are unfair, illegal, drastic, unreasonable and arbitrary and are in direct conflict with statutory provisions of Companies Act, 2013.
The counsel for the Hindustan Antibiotics submitted that it is an entity under the direct control of the Central Government for administration, policy-making and all aspects dealing with the management and day to day affairs.
Furthermore, the petitioner company had submitted before the NCLT that there are intricate, legal and constitutional issues involved and substantive plea challenging provisions of IBC, particularly, its applicability to Government Company or public sector entity is pending before the High Court.
In this regard, it was argued that the composition and constitution of the company being peculiar, IBC ought not to be applied to the Hindustan Antibiotics.

The Court noted, after perusing contentions, that the NCLT Bench comprising the Member (Judicial) and Member (Technical) were divided in their opinion since they could not agree on applicability of the Code. Thereafter, President of NCLT, Delhi nominated a third member (Judicial) of the Mumbai Bench to take up the matter.
In this backdrop, the company had filed a writ plea before the High Court and argued that NCLT proceedings are without jurisdiction from inception and in light of the constitutional challenge, the NCLT could not have taken cognizance of the plea by employees.
Senior Counsel Debabrata Ray Choudhari for Hindustan Antibiotics contended that the third member of NCLT is likely to retire by end of this month (December 2019).
“If in his haste, he passes an order, the entire petition before this Court could be rendered infructuous,” argued Choudhuri.
On the other hand, the respondent employees argued that the company has committed a default in making payments along with interest. In this regard, it was submitted that they are admitted dues and the sum has not been paid by the Government Company.

After perusing submissions and material on record, the Court refused to express an opinion on the maintainability of the proceedings before the NCLT.

Moreover, the Division Bench noted that it cannot prevent the Government Company from proceeding with the writ plea irrespective of orders passed by the NCLT. It held that the Tribunal should not precipitate the matter and noted,
“That the NCLT exercises the jurisdiction conferred on it by the IBC is undisputed. That such an issue with regard to the constitutional validity of the provisions of the IBC, therefore, cannot be decided by the National Company Law Tribunal which is but a creature of the IBC.” 

Justice Dharmadhikari further noted that prima facie the issue is not concluded by the judgement in a case decided by the Supreme Court in Hindustan Construction Company Ltd. vs. Union of India relied on by the respondent employee.
The Court went on to note that it needs to probe a little deeper with respect to the said judgement to decide whether it clinches the issue against the petitioner Hindustan Antibiotics.
As a result, the Court held,

“For all these reasons, we do not think that the NCLT would be well advised in proceeding with the matter. We think that the petitioner has made out a strong prima facie case for grant of interim relief and balance of convenience is also in its favour. It will suffer grave loss, irreparable harm and injury in the event the proceedings are concluded.”
Ultimately, the Division Bench proceeded to pass an interim order and ruled that there will be a stay on the proceedings in the plea filed by the employees before the NCLT Mumbai Bench until further orders.
The Court also issued a notice to the Attorney General for India to argue on the constitutional validity of the provisions of IBC challenged by the employees. The Additional Solicitor General Anil Singh is likely to argue during the next hearing on January 22, 2020.

Sunday, December 8, 2019

Woman’s rights in live-in relationship

The relationship is not bound by legality of marriage, but the woman and her kids can claim their rights under the law.

In a marriage that goes sour and ends in a split, it’s often the woman who gets the short end of the stick. Typically ill-informed about her rights, she cedes them to the partner and invites financial insecurity for herself and her children. It’s easy to assume then that her situation would be worse in a live-in relationship. However, over the years, Indian courts have stood up for the rights, financial and otherwise, of a woman who is in a live-in relationship.
Woman’s rights in a marriage: There are six basic rights that a married woman can lay claim to for her financial, physical and emotional security. These include the right to maintenance for herself and her children, to the matrimonial home, to streedhan, to living with dignity and respect, to a committed relationship and parental property. The right to maintenance is covered under Section 125 of the Criminal Procedure Code. After divorce, maintenance is covered by the Hindu Marriage Act, 1955 (2) and the Hindu Adoption and Maintenance Act, 1956. The Protection of Women from Domestic Violence Act, 2005, covers all forms of physical, mental, emotional and economic abuse and neglect.

Maintenance rights in a live-in relationship: 

After the recommendations of the Malimath Committee in 2003, Section 125 was incorporated in the Criminal Procedure Code to alter the meaning of ‘wife’ and expand it to include women who were in a live-in relationship. This ensured that her financial needs were taken care of by the partner if she was unable to maintain herself or if the relationship became estranged. Similarly, protection against all forms of abuse is covered under the Domestic Violence Act, 2005, as it is for married women.

Right to property: 

The woman’s right to parental property is covered by the Hindu Succession Act, 1956, after it was amended in 2005. This gives her the same rights as a son to ancestral and self-acquired property, irrespective of her marital status. So, whether she is married, unmarried or in a live-in relationship, the right to ancestral property will accrue to her by birth, while the self-acquired property will be distributed as per the will.

Children’s inheritance rights: 

In 2014, the Supreme Court said that if a man and woman lived like husband and wife for a long period and had children, they would be considered legitimate. While personal laws don’t offer maintenance to kids born in live-in relationships, they are given protection under Section 125 of the Criminal Procedure Code. As for property rights, Section 16 of the Hindu Marriage Act provides legitimacy to children born out of marriage. This means that these kids are legal heirs to both ancestral and self-acquired properties.

Man secures job using fake degree, bank files complaint

A nationalised bank through its HR manager on Saturday filed a complaint with Madhavpura police alleging that a 29-year-old man from Motera has obtained a job of junior associate in the bank after submitting a forged degree from a university in Rajasthan.
In the FIR filed with Madhavpura police, Himanshu Mehta, 57, the HR manager with regional business office (RB) of SBI in Shahibaugh, states that the accused Uday Arora, 29, a resident of Mahengibanagar in Motera, worked in the bank for around 10 months by getting the job of junior associate, a clerical job, on forged degree.
The FIR states that Arora had applied for the job in the physically handicapped person’s category and passed written the test and interview. He was selected for the job on November 3, 2018 and was sent for required training at Gandhinagar for a month.
On December 3, 2018, he was given a posting at the Cantonment branch in the Shahibaugh area. As the manager of the Cantonment branch started the verification procedure of Arora’s document, he wrote a letter to the Rajasthan university. The officials from Rajasthan university wrote back to the branch manager in August 2019 stating that the degree seemed to be fake.
After this, the bank took up the issue with is senior officials and the Sabarmati branch manager was sent to the university in Rajasthan where the registrar of the university told him in person that the BA degree was forged, states the FIR.
The bank officials also instructed Arora to prove that the degree was genuine but he could not prove it. Later, the bank officials filed a complaint with the city police. Madhavpura police have registered a complaint of forgery and for producing forged documents as genuine and began an investigation.

Friday, December 6, 2019

Hyderabad Encounter: National Human Rights Commission (NHRC) has decided to take suo motu cognisance of the Encounter

National Human Rights Commission (NHRC) has decided to take suo motu cognisance of the Encounter

In light of media reports that the four people accused of the rape and murder of the veterinarian doctor in Hyderabad have been killed in a police encounter, the National Human Rights Commission (NHRC) has decided to take suo motu cognisance of the same. It was informed through a statement issued on their website that NHRC has taken note of the facts that have emerged and passed orders for a spot inquiry by its investigation team.

The statement highlights the facts that have come out through media reports and expressed its concern that the matter required to be probed very carefully.

"(The accused) have died in an encounter with the police at 3:00 AM this morning. As per reports, all four accused, were taken to the scene of the crime around 60 Km from Hyderabad for a re-construction as part of the investigation. Reportedly, as per police version, one of them signaled to the others, possibly to escape and they tried to snatch weapons from the police personnel when the police fired on them and they died allegedly in cross firing."

NHRC has asked the Director General of the Investigation Division of the Commission to send a team, headed by an SSP to leave for the spot immediately, find facts and submit its report at the earliest. It was further informed that NHRC has sought detailed reports from "all state governments, police heads as well as from the Union Ministry of Women & Child Development" after having "taken cognisance of the increasing cases of rapes and sexual assault on women across the country".

NHRC also noted that though the accused had been arrested during investigation, a court of law had not passed a judgment yet. If they were to be found guilty, they would have been punished in accordance with the law, "pursuant to the directions of the competent court."

Expressing that the "death of four persons in alleged encounter with the police personnel when they were in their custody" was a matter of great concern, the Commission also noted that the manner in which the encounter took place indicates that the police officials were not alert and unprepared for any untoward activity by the accused.

Alluding to the public outrage regarding the increasing crimes against women, the commission acknowledged the atmosphere of fear and anger, but cautioned that "loss of human lives even of a person arrested by the police under law, in such circumstances, would definitely give a wrong message to the society."

Referring to the Constitution of India, the commission invoked the right to life and equality, and urged law enforcement agencies to keep the human rights angle in mind while dealing with persons in their custody.

"The Commission has already expressed its view that there is lack of "Standard Operating Procedure" to immediately respond to the panic situations by the police authorities. The Commission has been insisting upon all law enforcing agencies to keep human rights angle in their view while dealing with the persons arrested by them or being kept in their custody. The right to life and equality before law are the basic human rights recognized and granted by the Constitution of India."

Wednesday, December 4, 2019

Wearing helmet is now optional in Gujarat cities

However, helmet is mandatory when travelling in highways or village roads. 

After slashing fines for traffic violations, the Gujarat government has now decided to make wearing helmets optional in urban areas of the State.
To be specific, helmets will be optional in municipal corporations and within municipality limits as per the decision taken by the State government. 
“We received many complaints regarding mandatory helmets within the city areas. So we decided to make it option only within the city areas,” Transport Minister R.C. Faldu said after the cabinet meeting.
He added that one needs to wear helmet when you head outside the city limits while driving on national or state highways, or even village roads.

Saturday, November 30, 2019

Pen drive, Memory cards are documentary Evidence-SC

The contents of a memory card or a pen-drive are documents and the same shall be furnished to an accused under the mandate of Section 207 of the Code of Criminal Procedure Code (CrPC), the Supreme Court held on Friday.
This Bench of Justices AM Khanwilkar and Dinesh Maheshwari laid down that all documents, including electronic records, that the prosecution intends to use against an accused must also be supplied to the accused. This judgment came in the case concerning Malayalam film actor Dileep, who is one of the accused in a sexual assault case.
Dileep had sought a copy of a memory card that contains video footage of the assault allegedly committed by his co-accused at his behest. The pertinent question of whether the memory card would be considered as a "material object" or "document" was posed before the Court in this case.
The Court pointed out that under Section 176 of the CrPC, the Investigating Officer(IO) is required to forward "all documents" to the Magistrate. While some liberty is given to the IO as regards copies of documents or statements, the Court highlights that the IO has no power to withhold any documents from the Magistrate.
Further, under Section 207 of the Code, the Magistrate furnishes copies of these statements and documents to the accused. The Magistrate has the discretion to withhold documents should he find them to be voluminous. This, the Court says, is the right of the accused.
"furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution."
In this backdrop, the Court further examined the question regarding the nature of the contents of the memory card and whether or not they would be treated as documents. In the instant case, the Kerala High Court had concluded that a memory card must be treated as a material object and not a document.
The Court, on examining the scope of the definitions laid down in the Code, and referring to precedents regarding objects that store data, said that electronic records are documentary evidence under Section 3 of the Code. The judgment explains:
"It may be useful to advert to the exposition of this Court holding that tape records of speeches and audio/video cassettes including compact disc were “documents” under Section 3 of the 1872 Act, which stand on no different footing than photographs and are held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the 1872 Act"
The Court further said that if the prosecution was to rely on the fact of recovery of a memory card, then it could be treated as a material object. However, if the contents of the memory card are sought to be relied upon by the prosecution, then the same would be documentary evidence.
This conclusion was arrived at after taking into consideration provisions of the CrPC and the definitions of "electronic record", "data", "communication device", and "information" as given in the Information Technology Act. The Court thus said,
"On a bare reading of the definition of “evidence”, it clearly takes within its fold documentary evidence to mean and include all documents including electronic records produced for the inspection of the Court. "
Having held this, the Court further stated that should the prosecution rely on the contents of the memory card, a cloned copy of the same ought to be furnished to the accused in this case in the interest of upholding the right to fair trial under Article 21 of the Constitution of India. It is said,
"It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the statutory mandate contained in the 1973 Code, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution of India."
However, in the instant case, the Court allowed Dileep to be given access to the contents of the memory card instead of allowing his prayer in toto. This was done keeping in mind the issues concerning the identity and privacy of the victim in the case. The judgment notes,
"However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial."
The Bench also directed the trial court to conclude the trial in the Dileep case within six months.

Tuesday, November 26, 2019

80 Kashmir companies get Internet after signing bond

The informal bond titled ‘Undertaking for usage of Internet’ asks subscribers to promise to share all the contents and infrastructure of the Internet as and when required by the security The Jammu and Kashmir administration has restored the Internetconnections of more than 80 subscribers who have signed a bond agreeing to use the services strictly for business purposes.

The informal bond titled ‘Undertaking for usage of Internet’ asks subscribers to promise to share all the contents and infrastructure of the Internet as and when required by the security agencies.

The bond directs users not to upload encrypted files containing any sort of video or photographs. “For the allowed IP, there will be no social networking, proxies, VPNs and Wi-Fi and that all the USB ports will be disabled on the network,” reads the bond.

A senior police official told ET on condition of anonymity, “This is just an assurance we need so that there is no wrong use of the Internet. Connections of some call centers, corporate offices and tourism related entities whose work is completely dependent on the Internet have been restored as well.” The bond mentions that the companies will be held responsible for any kind of breach and misuse of the Internet.

In the wake of the abrogation of special status of J&K and downgrading of the state into two Union territories, the authorities blocked the Internet, landline and mobile communication services. While the landlines and post-paid connections were restored in October, the ban on the Internet and prepaid mobile phones continues.

Super 30 founder Anand Kumar fined Rs 50,000 by Gauhati High Court

The HC fined Anand Kumar for failing to appear in connection with a PIL filed by four students of IIT-Guwahati accusing him of cheating The Gauhati High Court on Tuesday fined Anand Kumar of Super-30 Rs 50,000 for failing to appear in connection with a public interest litigation filed by four students of Indian Institute of Technology-Guwahati (IIT-G) accusing him of ‘cheating’.

A bench comprising Chief Justice Ajai Lamba and Justice Achintya Malla Bujor Barua directed Kumar to be personally present before the court on November 28, the next date of hearing.
On November 19, the court had asked Kumar to be personally present on November 26. Super 30 is a Patna-based institute which prepares students from poor economic backgrounds for entrance test to the premier IITs.
 Also Watch | Super 30 | Hrithik Roshan hosts premiere, Anand Kumar attends

“The bench was unhappy that despite its earlier order, Kumar had not appeared in court. Hence it directed him to pay Rs 10,000 each to the five guardians and students, who were present in court as compensation,” said Amit Goyal, advocate for the petitioners. 
The present case dates to September 2018 when four students of IIT-G filed a petition alleging Kumar gave a false impression that he could help poor students’ clear the entice examination to IITs, JEE.
They said when students from different parts of the country landed in Patna to enrol in Super 30, they were instead admitted to a coaching institute called Ramanujan School of Mathematics by charging Rs 33,000 per student as tuition fees.
Based on the petition, the court had issued notices in September last year to Kumar and senior Indian Police Service (IPS) officer Abhayanand, who started Super 30 along with Kumar in 2002. The two parted ways in 2008.
While Kumar has not appeared in the court or replied to the notice, Abhayanand filed an affidavit in January this year, saying that he had no knowledge of how Super 30 has been functioning after 2008.
The petitioners alleged Kumar has not been running any Super 30 classes after 2008, but each year after IIT-JEE results are announced he appears before the media with some students of Ramanujan School of Mathematics claiming that they are Super 30 students who have cleared the exam.
It added that last year too, Kumar claimed that 26 students of Super 30 had cleared IIT-JEE, but he hadn’t released the names of those students.
The petition stated that through his false propaganda, Kumar was cheating IIT aspirants and their guardians and also common people of the country including those from the northeast.
Kumar’s work related to Super 30 is the basis of a hit Hindi movie of the same name, starring Hrithik Roshan, released this year.

Friday, November 22, 2019

Gujarat high court quashes RERA’s penalty order

The Gujarat high court has quashed an order of penalty imposed on a real estate firm by the Gujarat Real Estate Regulatory Authority (RERA) for not mentioning its registration details in advertisements of its scheme.
The order has come as a breather for builders, who have been penalized by the RERA for skipping a mention of authority’s web address and details of project registration either in their prospectus or in advertisements. The RERA has punished 462 builders for breach of section 11(2) of the Real Estate (Regulation and Development) Act for not mentioning the details in any of them.
The issue involved Narayan Realty Infrastructure from Surat, which has mentioned details about its project in its prospectus, but not in its advertisements. The RERA slapped a penalty of Rs 1.5 lakh for the breach. Later, an appellate authority reduced the penalty amount to Rs 75,000.
The firm challenged the penalty in the high court through advocate Bhargav Hasurkar, who pointed out that the legislation mentions that the details should be mentioned either in prospector or in advertisements.
After hearing the case, the high court said that the RERA tribunal opined that the breach on part of the firm was not of a serious nature.
“However, in the opinion of this court, there was no breach at all. Penalty was thus unnecessarily imposed,” the HC observed and remanded the issue back to the appellate authority.

Supreme Court refuses to stay NGT ban on RO filters, asks manufacturers to approach govt.

The Supreme Court has asked the RO Manufacturers Association to approach the government on the National Green Tribunal's order prohibiting the use of reverse osmosis (RO) purifiers where total dissolved solids (TDS) in water are below 500 mg per litre.
The SC said this while hearing a petition filed by Water Quality India Association, representing the RO manufacturers, challenging the NGT's order which had directed the government to regulate the use of purifiers and sensitise public about the ill effects of demineralised water.
A bench of justices RF Nariman and S Ravindra Bhat said the association can approach the concerned ministry within 10 days with relevant materials in this regard and the government will consider it before issuing a notification as per the NGT's direction.
During the hearing, the counsel representing the association referred to a recent BIS report on standards of water in various cities across the country and said that it points out presence of heavy metals in Delhi's groundwater.
The Water Quality India Association had on Thursday moved the Supreme Court against a ban imposed by the NGT on use of RO filters in Delhi as they "unnecessarily result in rejecting 80 per cent of potable water".
The NGT in its order on May 20 had directed the Ministry of Environment and Forests to frame rules for manufacturing and sale of RO filters, and banned use of RO in areas where the Total Dissolved Solids (TDS) in water was already low.
It had also directed that wherever RO is permitted, manufacturers should ensure that more than 60 per cent of water should be recovered. Current systems discard about 80 per cent of the water which is being treated, leading to huge wastage.

Thursday, November 14, 2019

S C on Rafale deal

Supreme Court
 on Thursday dismissed the review petitions against its verdict in the 
Rafale deal
 on grounds that they lacked merit, reiterating its clean chit to the Modi government in the fighter jet agreement with French firm Dassault Aviation.

The apex court also rejected the contention that there was need to register an FIR in connection with the Rs 58,000 crore deal.

Wednesday, November 6, 2019

The kin of former Chief Minister Farooq Abdullah challenging their alleged house arrest by the State, dismissed - J & K high Court

The Jammu and Kashmir High Court on Tuesday declined to entertain the pleas filed by the kin of former Chief Minister Farooq Abdullah challenging their alleged house arrest by the State.
Justice Ali Mohammad Magrey dismissed the pleas filed by Muzafar Ahmad Shah, Begum Khalida Shah and Dr. Mustaffa Kamal in this regard, opining that their plea involved disputed questions of fact in which case the High Court is not the appropriate forum to approach by way of a writ petition. The order reads,
"... a Writ Court is neither to hold an enquiry into the allegations made in a petition, nor take oral evidence. In writ proceedings, a fact is to be supported and proved by authentic documentary evidence. 
Whereas the petitioners had alleged that they were being unlawfully detained in their houses since September 5, 2019, the State countered the submission on the strength of a communication by the Additional Deputy Commissioner. The said communication stated that neither have the petitioners being placed under house arrest, nor has their liberty been curbed.
In response, the petitioners' counsel had also submitted certain paper clippings to show that the petitioners were in fact under house arrest. However, the Court declined to place reliance on the same, remarking that,
"Press cuttings cannot be relied upon as authentic documentary evidence. Further, a Writ Court cannot hold enquiry into disputed facts."
The Court proceeded to observe that,
"Once facts are disputed, the writ petition is rendered not maintainable. In such circumstances, the only option available to a Writ Court is to dismiss the writ petition, leaving the party concerned free to take recourse to appropriate remedy."
It, therefore, dismissed the petition as not maintainable before the High Court and unnecessary. However, the judge clarified that the parties were free to pursue other appropriate legal remedies available to them.
"In light of the above, this petition is dismissed, as being not maintainable and unnecessary, leaving the petitioner free to take appropriate remedy available to him under law before an appropriate forum."
Farooq Abdullah himself was recently placed under house arrest invoking the Public Safety Act (PSA), following the abrogation of Article 370 of the Constitution.