The Delhi High Court in Review: April, 2021 [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 Mahesh Namkeen Private Limited v. Om Prakash Nebhwani Trading as Mahesh Matar Namkeen, the Court noted that once an order for appointment of a local commission had been granted ex-parte in favour of the plaintiff in a trademark infringement suit, then a subsequent application seeking a mere change of address wherein the commission was to be executed, premised upon the plaintiff learning that the offending goods were stored in a different location, should have been liberally allowed by the Trial Court without first insisting on compliance of Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 (‘CPC’).

LABOUR AND SERVICE LAW

In Virender Singh v. Delhi State Cooperative Bank Limited, the Court held that there was no absolute bar on the maintainability of a suit filed by an employee challenging a show cause-notice preceding an inquiry.

In Abhishek Kumar v. Office of District and Sessions Judge (HQ), the Court held that the stipulation for a written test in the recruitment rules connotes something which is not oral or spoken in nature, and an objective test would certainly qualify as a written test and the argument that a descriptive test would alone satisfy the requirement of a written test cannot be accepted.

In J Kumar - CRTV JV v. Regional Labour Commissioner, New Delhi, the Court observed that notwithstanding the fact that provisions of the Minimum Wages Act, 1948 (‘Minimum Wages Act’) were to be construed in a liberal fashion being a welfare legislation, however, an Order adjudicating an application seeking condonation of delay under Section 20(2) of the Minimum Wages Act had to contain sufficient reasoning to indicate that sufficient cause had in fact been established by the applicant.

In Professor Adya Prasad Pandey v. Union of India, the Court held that if a ‘terms of reference’ issued to the employee against whom the enquiry was contemplated clearly disclosed the charges being levelled, then even if the said communication did not strictly answer to the description of a chargesheet, the inquiry could not be said to be vitiated on that count alone. The Court further held that if the officer concerned chose to not appear before the inquiry officer on repeated occasions and was accordingly proceeded ex parte, no grievance could be sought to be raised at a subsequent stage especially when the inquiry report demonstrated application of mind and was based on the applicable principle of preponderance of probabilities.

In Banana IP Counsels LLP v. Nisha Kurian, the Court held that a prayer for damages was not the only consequential relief that an employee could claim in a suit for declaration of illegal termination of services, and relief in the form of an honorable discharge from services could also be claimed.

In Vijay Jyoti Bakshi v. Government of NCT of Delhi, the Court held that when the aggrieved party was allotted the accommodation on account of being in employment, and which employment was admittedly continuing without severance, then the said party could not be arbitrarily sought to be deprived of the accommodation without assigning any reason.

In Arun Attri v. Union of India, the Court reiterated that the opinion of the medical professional employed with the Indian Airforce would be preferred over a civilian doctor in relation to the medical suitability of a candidate.

In Force NO065180927 EX CT WM Bachhu Singh v. Union of India, the Court held that in the absence of any permission having been granted under the proviso to Rule 21(2) of the Central Civil Service (Conduct) Rules, 1964 (‘CCS Conduct Rules’), by the Central Government permitting the petitioner to enter into or contract a second marriage during the subsistence of the first marriage by virtue of personal law applicable to him, the act of the petitioner in contacting a second marriage was a clear violation of the CCS Conduct Rules.

In EX. RECT. Rajesh Kumar v. Union of India, the Court reiterated that it could not be presumed ipso-facto that any disorder not specifically mentioned at the time of enrollment was attributable to or aggravated by military service, and a fact-specific examination has to be carried out in each case in relation to the duties assigned and the likelihood of the same having led to disorder in question.

In SI GD Pradeep v. Union of India, the Court held that once the relevant condition in the advertisement specifically provided for a mandatory medical fitness standard, then the same could not be sought to be challenged after participation in the selection process.

In L CT/GD Geeta v. Union of India, the Court observed that there was no rule or principle permitting videography of the inquiry proceedings under the Central Industrial Security Force Rules, 2001.

In Anupam Kumar v. Director General, Border Security Force, the Court noted that an employee could not seek to challenge his/her annual performance report grading after a gap of more than 10 years, and the petition would be liable to be summarily dismissed as being barred by delay and laches.

In Airports Authority of India v. P Sree Krishna, the Court held that complete non-application of mind by the inquiry officer, followed by perfunctory agreement with the said findings by the disciplinary authority and the appellate authority would render the entire proceedings liable to be quashed. The Court further observed that though the inquiry officer may not be bound to summon all the witnesses, however, even witnesses who are necessary having regard to the nature of the charge could not be declined to be summoned without a cogent and justifiable explanation from the same.

In Civil Audit Association, Category-I (Sr. Audit Officers and Audit Officers) v. Comptroller and Auditor General of India, the Court noted that the service jurisprudence in the country has evolved to the effect that, under normal circumstances, when a particular set of employees is granted relief by the Court then all the other identically situated employees were also required to be extended the benefit of the same relief by the employer.

In Dinesh Singh v. Dr. Ajay Bhushan Pandey, the Court held that even if the Departmental Promotion Committee (‘DPC’) wrongfully follows the sealed cover procedure and which is subsequently found to be invalid with a consequential direction issued for giving effect to the recommendation of the DPC, however, if before the actual promotion is effected, the circumstances in which sealed cover procedure is prescribed to be followed actually come into existence, then the promotion is not be granted and is to await the outcome of the disciplinary proceedings or the prosecution.

In Ishwar Singh v. Union of India, the Court observed that when the terms of the recruitment advertisement clearly stipulated that even ex-servicemen were required to fulfill all the physical standards prescribed in the recruitment procedure for the post of Sub-Inspector/Assistant Sub-Inspector, no exemption from the said requirements could be sought on the ground that the petitioner had successfully served a long tenure in the past with the Indian Army and complied with the exacting medical standards expected therein.

In KS Dhingra v. Union of India, the Court held that the words ‘clerical error’ as used in the Rule 70 of the Central Civil Service (Pension) Rules, 1972 (‘Pension Rules’), have to be given a broader meaning and if it was subsequently realized by the authority concerned that the pension had been wrongly fixed on account of mis-interpretation of the Pension Rules, the same would amount to a clerical error and the authority would have the right to revise the same at a later point of time.

In Krishan Kumar Agarwal v. Director (HR) Bharat Sanchar Nigam Limited, the Court held that merely because a petitioner had enjoyed a good/very good grading in the earlier and subsequent periods, it could not be stated as an unequivocal proposition that a low grading in a particular period in the middle was impermissible inasmuch as ups and downs in performance is a natural part of life.

In Mahesh Kumar v. Government of NCT, Delhi, the Court reiterated that re-evaluation or scrutiny of an answer sheet in a recruitment process can only be allowed under rare or exceptional circumstances.

In Meena Matai v. Union of India, the Court reiterated that if the Courts were to interfere in a routine manner with the orders of transfer, then there will be complete chaos in the administration, and which would be detrimental to the public interest.

In Naresh Kumar Gupta v. Union of India, the Court reiterated that with seniority being a right inter-se others holding the same post, the petitioner could not on the basis of an order in his favor with respect to promotion, seek to claim seniority over others holding the same post from a period even prior to the date when the petitioner actually occupied the said post.

In Rajender Prasad Sharma v. The Commissioner of North Delhi Municipal Corporation, the Court reiterated that there is no concept of negative equality in service jurisprudence.

In Shashi Bhanu v. Union of India, the Court reiterated that the Central Administrative Tribunal is empowered even to deal with Constitutional issues as also examine the vires of a statutory legislation.

In Subhash Malik v. Commissioner of Police, the Court reiterated that in exercise of powers under Article 226 of the Constitution of India, the Court was not acting as an appellate authority and could interfere in disciplinary matters only if there has been any error of procedure, violation of the principles of natural justice or if the decision arrived at was so wholly arbitrary and capricious that no reasonable person could have arrived at that conclusion.

In Subhashini Rajan v. Union of India, the Court while rejecting the challenge to a revised pension scheme inasmuch as it sought to exclude persons who had resigned/left the services of their respective companies before coming into force of certain beneficial schemes, observed that the two categories of employees viz. those who had continued in employment and those who had left, constituted separate classes and there was an intelligible differentia that prevailed between them. The Court observed that the Petitioners could not have the best of both the worlds, by on the one hand earning salary or other remuneration on account of employment after leaving the services, and on the other hand, by seeking advantage of beneficial schemes introduced after they had left the employment.

In Sumeeksha v. Government of NCT of Delhi, the Court reiterated that in case of any ambiguity in the qualifying criteria, the employer was best suited to assess the qualification required from the candidate to be recruited and due deference should be accorded to such a view.

In Suraj Kumar v. Staff Selection Commission, the Court held that when there was no material to show that the petitioner made diligent efforts to upload his application for the post in question, then if the petitioner waited till the last moment to do the needful and failed in the same, then the entire examination process could not be set at naught for the said reason.

In Yash Ratan v. Union of India, the Court held that persons aspiring to be appointed to a vacant post do not have any vested right to the same and that only upon completion of the selection process does a candidate becomes a selected candidate. The Court, therefore, reiterated that seniority cannot be claimed from the date when the incumbent is yet to be born into the cadre.

In Rajender Kumar v. Union of India, the Court reiterated that an ad-hoc order of promotion does not create any right in favour of the person concerned.

In Tallapalli Sai Krishna v. Union of India, the Court reiterated that a qualifying requirement of prior work experience not only serves as a necessary prerequisite to assess the suitability of potential candidates to cater to organisational needs, but also ensures efficiency and quality in the cadre. The Court further observed that it is permissible to have a reasonable classification of the employees for the purpose of direct appointment or promotion, as the same stem from two different sources.

In Umesh Chandra Singh v. Union of India, the Court held that when the employment contract clearly provided a right to the employer to change the designation of the employee from time to time on the basis of the work being performed by him/her, no fault could be found with a transfer order premised upon the said redesignation.

In Union of India v. Binay Kumar Biswas, the Court reiterated that though the wisdom of the executive in deciding to appoint an officer to a particular post could not be gone into, however, the process of decision making could indeed be reviewed. The Court specifically observe that though the Appointments Committee of the Cabinet could differ and refuse to appoint an officer to a post, despite a favourable recommendation by the Selection Committee, however, there has to be a justifiable reason for so disagreeing and the records should reveal that there was due application of mind which preceded the decision and that such decision was impelled by reasons which were germane or relevant to the subject matter.

In Union of India v. Rajiv Ranjan, the Court observed that it was an undesirable practice to promote an employee officer against whom disciplinary proceedings are pending owing to the mere technicality of the person having been wrongfully denied promotion prior to commencement of proceedings.

In Rakesh v. J.M.J Singnage, the Court reiterated that the adjudicatory authorities under the Industrial Disputes Act,1947 (‘ID Act’) are not bound by the strict technical rules of procedure as provided under the CPC.

In Rama Tent v. Sh. Inderjeet, the Court reiterated that while the burden of proof lay on the workmen to establish that they were in the employment, the degree of proof would vary from case to case and the onus would be shifted onto the employer once any evidence was produced by the workmen to establish his/her employment with a particular industrial establishment.

LAND ACQUISITION

In Ramesh Chand v. Government of NCT of Delhi, the Court reiterated that acquisition of the land would be said to have been lapsed only on the cumulative fulfillment of two independent conditions i.e. (i) possession of land has not been taken over, and (ii) compensation amount has not been paid or deposited or tendered with the Land Acquisition Collector (‘LAC’). The Court further observed that in a case where the title of the party to the land in question was not admitted by the LAC, the special procedure for claiming compensation under such circumstances as prescribed under the Land Acquisition Act, 1894, would have to be taken recourse to by the aggrieved party and the said issue could not be adjudicated upon in a writ petition.

LIMITATION

In Chander Mohan Chopra v. Nand Kishore, since Deceased, through LR’s, the Court reiterated that a party would have to demonstrate that it was prosecuting the other proceedings with due diligence and in good faith in order to be entitled to the benefit of Section 14 of the Limitation Act, 1963.

RENT CONTROL

In Bata India Limited v. Smt. Sarla Sharma (Since Deceased) through LRs, the Court held that in an eviction petition to which the procedure prescribed under Section 25B of the Delhi Rent Control Act, 1958 (‘DRC Act’) applies, an appeal under Section 38 of the DRC Act is not maintainable against an Order dismissing an application under Order IX Rule 13 of the CPC / Section 25B(9) of the DRC Act. The only remedy available to the aggrieved tenant is in form of a petition under Section 25B(8) of the DRC Act which is to be filed before the High Court.

In Satish Parashar v. Prem Bihari (Since Deceased), the Court held that the effect of striking-off of the defense under Section 15(7) of the DRC Act is not only in the form of depriving the tenant of the right to defend the eviction petition, but the same would also lead to the tenant losing the protection under Section 14(2) of the DRC Act. Therefore, the Court cautioned that such a power was to be exercised sparingly and judiciously.

In Suraj Prakash Pahwa v. Nand Lal, the Court held that the purpose of a notice under Section 44(3) of the DRC Act is to put the landlord to notice that the tenanted premises are not in a habitable or usable state and require repairs. Though normally, the tenant is to give such a notice to the landlord before filing of the petition, the petition itself can be considered as a notice to the landlord of such state of affairs. In this regard, it is to be noted that the learned Controller can pass an order on a petition under Section 44(3) of the DRC Act only after granting an opportunity of hearing to the landlord. In such hearing, the landlord can accept the contents of the petition with respect to the state of the tenanted premises and offer to carry out the repairs; or can dispute the contention of the tenant regarding the tenanted premises being uninhabitable or unusable; or can dispute the estimate of cost required for the necessary repairs. The non-service of notice by the tenant prior to the filing of the petition does not in any manner, therefore, cause prejudice to the landlord. The service of prior notice may only be for the benefit of the tenant as in case the landlord agrees to the notice, the tenant may not be burdened with moving the learned Controller for seeking appropriate relief.

SPECIFIC RELIEF AND PROPERTY

In Northern India Carriers v. Vinay Kumar, the Court reiterated that an unregistered lease agreement would result in the tenancy being deemed to be a month-to-month tenancy terminable by a fifteen days’ notice. The Court further held that it was permissible for a co-owner to bring a suit against a tenant for eviction as long as all the co-owners agreed to eject the tenant. The Court also reiterated that a tenant in occupation of the premises was estopped from denying the title of the landlord who had placed him/her in possession of the property.

In Ashok Kumar Bagga v. Rajvinder Kaur, the Court reiterated that where a tenancy had otherwise expired by efflux of time, then the mere continued possession of the property by the tenant and acceptance of rent by the landlord, could neither renew the tenancy nor create a new one.

While construing the modality of cancellation of a written document under Section 31 of the Specific Relief Act, 1963 (‘Specific Relief Act’) the Court in Anita Chandra v. Sudhir Chandra held that the Trial Court should not proceed to make any endorsement on the document under challenge without first granting reasonable opportunity in terms of waiting for the limitation period for the appeal against the judgment directing cancellation to be exhausted. The Court observed that if the endorsement was made forthwith and in a hurried manner, then the same would result in an unwarranted mutilation of the document if the judgment directing cancellation was to be subsequently overturned by the Appellate Court.

In Vijay Singh v. Jamshed Ali, the Court held that when the issues in controversy in a suit were such that a demarcation of the property by the concerned revenue authorities would help to shed significant light on the same, then it would be in the interest of justice to direct such an exercise to be undertaken.

In National Highways Authority of India v. Panipat Jalandhar Nh-I Tollway Private Limited, the Court reiterated that when the concession agreement in question between the parties was determinable in nature, no injunction could have been passed restraining termination of the same for howsoever short a duration of time, in the light of the bar under Section 14(1)(c) of the Specific Relief Act.

TENDER AND BLACKLISTING

While rejecting a prayer for restraining the floating of a tender by the authority concerned, the Court in Sushil Kumar Singh v. North Delhi Municipal Corporation held that though the incumbent operator might be entitled to be considered for extension of the contract period, it could not be said to have an absolute right to the said extension.

Dr. Amit George is an Advocate practicing before the High Court of Delhi.