The Delhi High Court in Review: September, 2020 [Part II]

With its vast and varied case-docket, the High Court of Delhi has occasion to pronounce verdicts on diverse subjects and myriad areas of law. This two-part monthly column attempts to offer a brief over-view of the important pronouncements of the High Court of Delhi over the period of the relevant month in review..While an attempt has been made to ensure the widest possible coverage of the various judgments rendered, comprehensive analysis and critique of the individual judgments is eschewed for the sake of brevity..INTELLECTUAL PROPERTY RIGHTS.In Indoco Remedies Limited v. Bristol Myers Squibb Holdings Ireland Unlimited Company, while refusing to lift the injunction on the sale of a generic drug already manufactured and lying in storage with the applicant, the Court held that though the element of public interest was definitely one of the relevant parameters while determining interim relief in such matters, supposed public interest could not, by itself, supplant the other elements of the existence of a prima-facie case, balance of convenience and irreparable loss.In Mittal electronics v. Sujata Home Appliances Private Limited, the Court reiterated that the proprietor of a trademark could not seek to enjoy a monopoly right over the entire class of goods when it was admittedly not using the said trademark in relation to other goods falling under the same class..In Anil Rathi v. Shri Sharma Steel Tech (India) Private limited, while reiterating that a mark which had acquired a secondary or distinctive meaning could not be sought to be utilized for an artificial person or entity and would, accordingly, not be entitled to protection under Section 35 of the Trademarks Act, 1999 (‘Trademarks Act’).In Vinod Kumar Proprietor of Kunal Trading Corporation v. State (NCT of Delhi), the Court held that the registration of a F.I.R. pursuant to a complaint under Sections 103 and 104 of the Trademarks Act, could not be said to be barred by Section 113 of the Trademarks Act, for the mere reason of the pendency of a prior application for rectification, and that instead of seeking to quash the F.I.R., the appropriate remedy would be to seek a stay against the F.I.R. by approaching the competent Court under Section 113(2) of the Trademarks Act..LABOUR AND SERVICE LAW.In Dr. Prasannanshu v. Selection Committee for Vice Chancellor, National Law University, Delhi and Monalisa Joshi v. Jawaharlal Nehru University through its Vice Chancellor, the Court held unless there was a clear stipulation in an advertisement to this effect, it could not be urged that a candidate had a vested right to be called for an interview especially when an eminent committee comprising of experts had undertaken the task of short-listing the names of candidates to be called for the interview and there was no allegation that mala-fides had vitiated this process.While construing Rule 26 of the Border Security Force Rules, 1969, the Court in Ashok Vishwakarma v. Union of India, elaborated on the difference between a general order of dismissal as opposed to retirement on the grounds of unsuitability in terms of the said Rules. The Court noted that for retirement on the ground of unsuitability, an admission that the officer concerned had entered into a bigamous marriage was sufficient to exercise the power to retire.While reiterating that the authority concerned which was conducting the recruitment was best suited to determine the medical and fitness parameters for applicants, the Court in Dr. Vani Vishwanathan v. Union of India, further held that the certificate provided by an outside entity which does not even engage with the specific requirements of the medical manual of the authority concerned cannot be relied upon..In EX JWO Keval Krishan Vij v. Union of India, the Court held that as opposed to pension in general, the entitlement to disability pension is dependent on a finding of disability attributable to or aggravated by service, and therefore an extremely belated filing of a claim, resulting in the relevant records having been weeded out in the interregnum, would be fatal to the consideration of the case of the petitioner.In Kiran Pooja v. Union of India, the Court observed that the office memorandum dated 30.09.2009 in relation to posting of a husband and wife at the same place was not mandatory in nature and would have to defer to exigencies and operational requirements of the concerned authorities.In Shri Bhagwan v. Union of India, the Court observed that a rule in a transfer policy providing for the maximum period of posting at a particular place implicitly recognizes that the term of posting can be lesser that the said maximum period..In Ratnesh Kumar v. Union of India, the Court reiterated that a circular providing benefit of pro-rata pension only to commissioned officers leaving employment before qualifying for pension and not giving the same benefit to non-commissioned officers was discriminatory.In Rajeev Kumar v. Union of India, the Court reiterated that a person on deputation has no vested right to continue in the post or to be absorbed therein as also that an order of reversion can only be challenged on the narrow ground of existence of mala-fide.In Rajeev Kumar v. Union of India, the Court reiterated that a prayer seeking revision of a seniority list after many years when vested rights had accrued in favor of various other persons would not be permissible..In R. Jani Wife of SGT Sanoj Sanker K. V. v. Union of India, the Court held that a writ petition on behalf of an estranged wife to restrain the transfer of her spouse to a place where his alleged second wife was residing would not be maintainable, and the remedy lay before the other appropriate forums.In Nikam Vikram Anandrao v. Union of India, while refusing to interfere with an order of termination of services of a constable for absenteeism, the Court noted that if the concerned person had any grievance in relation to the alleged ill-treatment meted out to him by his superior officer then the appropriate remedy there against was to invoke the redressal mechanism and not to abscond from work.While reiterating the difference in scope between a disciplinary enquiry and a criminal proceeding on the same allegations, the Court in Mukesh Gurjar v. Union of India further observed that an acquittal in the criminal proceedings as a result of the complainant turning hostile and arriving at a compromise with the petitioner could not amount to an honorable acquittal, thereby, inuring any benefit of the same in the disciplinary proceedings..In Pavnesh Kumar v. Union of India, the Court upheld a policy requiring Assistant Commandants seeking to qualify for the rank through the Limited Departmental Competitive Examination, to undertake a physically demanding Young Officers Commando Course, notwithstanding the fact that promotee Assistant Commandants, who were of a much more advanced age, were not required to undertake the said course inasmuch as it noted that the sheer difference in age between the two groups was sufficient for the two to be treated differently in this regard though they were aspiring for the same rank.In Mahipal v. Union of India, the Court reiterated that in the event of certain errors having been found in the marking process in an examination, it was permissible to modify the results of the examination after correcting the said errors even if it meant that certain candidates already declared qualified prior to this exercise were allowed to retain their status, though not deserving of the same in light of the revision carried out, and it was still preferable to en-masse cancellation of the examination.While rejecting the challenge to a transfer order which was sought to be impugned on medical grounds, the Court in Baikuntha Nath Das v. Central Reserve Police Force observed that the place of posting was a large city with ample medical facilities..While refusing to interfere with an order withdrawing a cadet from the Indian Military Academy, the Court in Dhruv Jakhar v. Union of India observed that the record was replete with instances of indiscipline and absenteeism on the part of the cadet and this would demonstrate clear incompatibility with a military lifestyle.In Vaibhav Prasad Singh v. Union of India, the Court observed that an unambiguous and standardized mechanism for the computation of the aggregate result of the first three years of the four-year engineering degree course was required to be specified in the advertisement, to obviate the confusion arising as a result of the diverse methods prevalent in different universities in relation to the said computation.In Unush Khan v. Union of India, the Court deprecated the failure of the Central Reserve Police Force in implementing the directions contained in the judgments to other similarly situated persons, thereby forcing litigants to repeatedly approach the Court to access the necessary reliefs..In Professor Udaya Kumar v. Jawaharlal Nehru University, through its Registrar, the Court observed that while it was a settled proposition that extraordinary leave could not be claimed as a matter of vested right, however, when the rejection is completely arbitrary, unfair and militates against the applicable rules, then, the Court would definitely be entitled to step in and grant the requisite relief.In Kirti Arora v. Reserve Bank of India, the Court held that once the authority in question was undoubtedly the competent one and had the expertise to determine equivalence of a degree for the purpose of an advertisement which it itself had conceptualized, then, it would not be permissible for the Court to interfere in the said exercise.In Mohit Dahiya v. Delhi Pollution Control Committee, the Court held that the general rule that a contractual employee could not be replaced by another contractual employee would not be applicable in a case where the employment was purely temporary in nature, was not against a sanctioned post and was further intended solely to impart training..In Ms. Bhupinder Kaur v. Punjabi Academy, the Court reiterated that in terms of Rules 10(6) and 10(7) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, a modification or revocation of the order of suspension was required to be effected before the expiry of 90 days from the date of order of suspension and that the order of suspension would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days.In Malcolm John Campbell v. The Regional Provident Fund Commissioner, the Court deprecated the action of the provident fund authorities in not even releasing the undisputed sums which the petitioner was entitled to and forcing him to run from pillar to post for the said relief.In Krishan Kumar Sharma v. The P.O. Labour Court No. VIII., the Court upheld the finding of the Labour Court that there has to be a bare modicum of material to establish an employer-employee relationship and observed that a mere entry in a log book would not suffice for the said purpose in the complete absence of any other document such as an appointment letter, termination letter, proof of payment of any salary etc..In Prasanna Prakash Panda v. Union of India, the Court reiterated that when an appellate remedy was available against a penalty imposed pursuant to disciplinary proceedings, a writ petition should ordinarily not be entertained till the remedy was exhausted.In Ritu Hooda v Directorate of Education, the Court directed that a challenge under Section 8(3) of the Delhi School Education Act and Rules, 1973 (‘Delhi School Education Act’) would encapsulate a challenge to all forms of termination except where the service has come to an end by efflux of time and was not restrictive in scope to termination of service because of dismissal or removal alone.In Harish Chand v. Preet Public Sr. Sec. School & Ors., the Court held that a petition seeking to impugn the request of a school for imposing penalty of termination would be pre-mature and non-maintainable inasmuch as the request was pending before the Director of Education under Section 8(3) of the Delhi School Education Act and no final decision had been taken thereon..In BS Rawat v. Shyam Lal College, the Court reiterated that the Payment of Gratuity Act, 1972, would have an overriding effect over other enactments including the Delhi University Act, 1922 and the statutes made there under.While rejecting a challenge to the territorial jurisdiction of the Court in a writ proceeding by certain servicemen seeking payment of deputation allowance, the Court in Inder Kumar Raina v. Union of India, held that when the authority concerned was admittedly situated at Delhi, the concerned servicemen were entitled to invoke the jurisdiction of the Court and the servicemen/ex-servicemen could not be left to the mercy of the uncertain circumstances of where they may be posted so as to be forced to file petitions before different High Courts.In Vikas Tomar v. Union of India, the Court reiterated the importance of having exhaustive and detailed protocols for performance of duties in order to avoid the exercise of discretion and consequential allegations of indiscipline or insubordination..In Union Public Service Commission v. Soumya Pandey, while refusing to pass directions for further extension of time in producing the economically weaker section (‘EWS’) certificates by the prospective applicants inasmuch as the same would result in interference with the dates of examination and related processes, the Court also remarked upon the dynamic nature of the EWS certificates inasmuch as unlike capturing caste status which could not be changed overnight, economic status was far more fluid and which is why the EWS certificate generally had a fixed validity of about a year.In PTI Employees Union v. Press trust of India Limited, the Court while reiterating that that in the presence of an alternative remedy under the Industrial Disputes Act, 1947, a writ remedy could directly be invoked only under exceptional circumstances, further observed that these exceptional circumstances must mandatorily be specifically pleaded in the petition..LAND ACQUISITION.In Jai Gopal Bedi through LR Anil Bedi v. Delhi Development Authority, the Court held that in matters involving land acquisition, a tenant’s right cannot be said to be greater than that of the landlord and when the right of the landlord was itself in serious doubt, then the purported tenants could not seek to raise a belated challenge to the acquisition proceedings..MATRIMONIAL DISPUTES, CUSTODY AND MAINTENANCE.In Geeta Vohra @ Geeta Chopra v. Nitin Chopra, the Court observed that a stipulation in a visitation order that the future visits would be with the continued consent of the child, could not be sought to be misused by the parent who had custody of the child to try and completely defeat the visitation order.In Pooja Mehta v. Government of NCT of Delhi, the Court held that inasmuch as Rule 22(3)(3) of the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 (‘Delhi Senior Citizens Rules’) provides that enforcement of an order of eviction passed by the District Magistrate under the provisions of the Delhi Senior Citizens Rules, could be enforced only after a period of 30 days, any coercive enforcement of the order prior to the said period would be completely illegal and the party which had been forcibly evicted would be entitled to be put back in possession..MEDIA LAW, CENSORSHIP, AND DEFAMATION.In Harper Collins Publishers India Private Limited v. Sanchita Gupta @ Shilpi, the Court held that a convict also has an inalienable right to reputation and any discussion which results in vilification of the individual concerned and is based on mere speculation and imputation cannot be permitted. The Court further observed that even though all discussion as regards the convict could not be barred so as to protect the freedom of free speech, however, if the discussion were to veer towards the malicious or wanton and defamatory, then an injunction thereagainst could be maintained.In Benett Coleman and Co. Ltd & Anr. v. Broadcast Audience Research Council India, while rejecting a challenge to the ratings methodology devised by the Broadcast Audience Research Council India (‘BARC’), the Court observed that with the BARC being an expert body having diverse representation from the broadcasting and advertising industry, its decisions could not be interfered with lightly. The Court further observed that there was no bar against the BARC devising new algorithms and processes to address shortcomings in its system, and it could not be said to be bound to keep following the same system without change or reform of any kind..RENT CONTROL.In Prem Kumar v. Abhimanyu Arora, the Court observed that a residential accommodation available with the landlord’s daughter cannot be said to be an alternative suitable accommodation for the landlord who was seeking eviction of the tenant from a commercial shop for the purpose of expansion of his business. The Court further reiterated that the landlord could not be expected to obtain the requisite commercial or trade license, in advance, in anticipation of the shop being vacated..PERSONAL LAW AND SUCCESSION.In Avanti Mathur v. Ram Gopal Gupta, the Court reiterated that partition could be sought based on constructive possession and it was not necessary for the plaintiff to be in actual possession of any of the properties to seek partition thereof..TAX, EXCISE AND CUSTOMS.While reiterating that the cost recovery charges at Inland Container Depots/Inland Container Depots are in the nature of fee incurred by the government for the services rendered by the custom staff, the Court in Apeejay Infra-Logistics Private Limited v. Union of India held that the Conditions mentioned by the Clause 1 of the Inland Container Depots/Inland Container Depots of the concerned exemption Circular required satisfaction of both the conditions viz. number of containers handled by Inland Container Depots/Inland Container Depots as well as number of Bill of Entry/ Shipping Bill processed and achievement of one alone would not be sufficient to claim waiver.In Manufacturers Traders Association v. Union of India, while repelling the challenge to the fixation of a tax-slab for the commodity in question, the Court observed that the framework for the Goods and Services Tax (‘GST’), 2017 is premised upon collaborative efforts which embody the spirit of co-operative federalism. While noting that the composition of the GST Council reflected the said co-operative spirit, the Court observed that no challenge could be made against the determination of a tax-slab by the Council once the decision was admittedly arrived at through the correct process..In Krishna International v. Commissioner Delhi Goods and Service Tax, the Court reiterated that an order which would be appealable under Section 107 of the Goods and Services Act, 2017, cannot be sought to be impugned in writ proceedings.In Neutron Steel Trading Private Limited through its Directors v. The Commissioner CGST, Central Ex Commissionerate, Delhi West, the Court reiterated that in the case of an order of attachment passed under Central Goods and Services Tax Rules, 2017, the appropriate remedy would be to file an objection under Rule 159(5) of the said Rules, and a writ petition against the order of attachment would not be directly entertained in the normal course..TENDER AND BLACKLISTING.In Rhonpal Biotech Private Limited v New Delhi Municipal Council, the Court observed that while it was permissible to blacklist an entity which had admittedly relied upon a false document, however, it was necessary to consider the element of proportionality while arriving at the punishment and an en-masse blacklisting order without specific application of mind across all classes of products could not be countenanced when the bid in question was admittedly only for a limited type of products.In a similar vein, in Diwan Chand Goyal. v. National Capital Region Transport Corporation, the Court observed that while the submission of a forged certificate definitely amounting to a fraudulent practice, the authority concerned was still required to take into account the element of proportionality and the past track-record of the defaulting entity before arriving at a decision as to the punishment to be imposed..TRUST LAW.In Anil Rathi v. Sanjog Steels Private Limited, the Court held that an individual trustee cannot be expected to be a mute spectator to the infringement of the valuable intellectual property owned by the Trust, and is entitled to maintain a suit for protection of the same..Dr. Amit George is an Advocate practicing before the High Court of Delhi..The author would like to place on record his appreciation for the assistance provided by Advocates Amol Acharya, Bharat Rayadurgam and Piyo Harold Jaimon.