Civil procedure: India
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This is a collection of articles archived for the excellence of their content.
In WFH disputes
February 25, 2022: The Times of India
Kochi: When an employee is permitted to work from home (WFH) as a concession or convenience, it doesn’t change the jurisdiction from the place where the office is situated, the Kerala high court said.
Any dispute between the employer and an employee must be considered by the court with jurisdiction over the office’s location, the court said. The decision came on a petition filed by a woman who was a deputy general manager with Hindustan Insecticides Ltd (HIL) in Mumbai.
She had come to her native place in Ernakulam during the pandemic and had continued to work from home until she resigned in October 2020. While in Kochi, she had the additional charge of another HILunit. She had alleged that she was not paid one month’s salary and terminal benefits. Citing judgments from courts in the US, the court said there is a distinction between a company permitting an employee to work from a different jurisdiction and the employer knowingly facilitating it, promoting business at that place or conferring benefits for such business.
Legal proceedings to be initiated from which location?
HC: Worker can file suit at place of work, not transfer
February 27, 2023: The Times of India
Bengaluru : An employer cannot expect an employee to initiate legal proceedings at his or her place of work, just because he or she was transferred to that location, Karnataka HC ruled while granting relief to a medical representative who was given the pink slip, reports Vasanth Kumar.
The HC said if the employer’s argument is to be accepted then it can trigger chaos, wherein, “an employer can, at his or her whim and fancy, transfer a worker to any place in the country and contend that it is at that place of transfer that a legal dispute has to be raised”. Justice Suraj Govindaraj dismissed the argument of Jagsonpal Pharmaceuticals, saying petitioner A Vishwanath Shetty could have filed his petition in Udupi, Chennai, Bengaluru or New Delhi—places he was ordered to be transferred to before his dismissal.
The judge said labour court in Mangaluru had authority to decide on this particular complaint. “The termination of service occurred in Shivamogga, since the notice of termination, issued in New Delhi, would have been complete only upon its receipt by the workman in Shivamogga,” he said.
Representation by a lawyer
SC/ 2019: No right to lawyer in in-house proceedings
Dhananjay Mahapatra, May 12, 2019: The Times of India
In an important judgment, the Supreme Court has ruled that the right to be represented by a lawyer does not extend to in-house proceedings, closing the lid on arguments of activist-lawyers who have protested against the absence of legal assistance to the sacked SC employee who has levelled sexual harassment charges against Chief Justice of India Ranjan Gogoi.
The woman complainant had said that she felt intimidated while facing an in-house charges against the CJI.
The SC ruling came in a case about an individual facing in-house proceedings of a bank to declare him a wilful defaulter; an offence which entails serious civil and criminal consequences, including denial of the fundamental right to carry out lawful busicommittee of SC judges comprising Justice S A Bobde, Indira Banerjee and Indu Malhotra and sought the presence of her lawyer Vrinda Grover. She had also said that she and her husband were followed and that there should be an outside independent member on the panel set up to probe the ness. The in-house proceedings by a bank for declaring a person wilful defaulter involves presentation of evidence and its appreciation, summoning of borrowers and promoters and recording of submissions before issuance of an order.
Service of notice about a litigation
“Double [blue] ticks” on WhatsApp show delivery of summons
Shibu Thomas, Notice sent via WhatsApp valid, rules Bombay HC, June 16, 2018: The Times of India
Says Blue Ticks Show Recipient Has Read It
The Bombay high court has held that service of notice about a litigation through WhatsApp is valid. Justice Gautam Patel observed that a credit card defaulter who was evading the bank had not only received the notice in a PDF file but also opened it and read its contents.
The HC was hearing an application filed by SBI Cards and Payment Services to execute an arbitration award against a Nalasopara resident, Rohidas Jadhav, relating to payment of credit card dues of Rs 1.17 lakh.
“(Jadhav) was served by an authorised officer by sending a PDF and message to his mobile number as a WhatsApp message.” Justice Patel said. “For the purposes of service of notice I will accept this. I do so because the icon indicators clearly show that not only was the message and attachment delivered but that both were opened.”
Advocate Murlidhar Kale, counsel for the company, said they had been unable to serve the notice on Jadhav as he had changed his residence. His phone number was available with them, which the HC took on record. The bank representative sent Jadhav a message informing him about the next date of hearing along with a lawyer’s notice in a PDF. The blue ticks on the message revealed that Jadhav had received the message and read it.
Jadhav had run up credit card dues of Rs 85,000 in 2010. In 2011, following arbitration proceedings, he was ordered to pay back the amount along with 8% interest. When he failed to make the payment, the bank filed an execution application in 2015 to enforce the award. The amount at the time stood at Rs 1.17 lakh. Over the past two years, the bank had been trying to serve the notice about the litigation on Jadhav but without success as he kept shifting his rental accommodation.
Rules state that a notice is served in person or through registered post. Following the enactment of the Information Technology Act, which recognises electronic communication as evidence, courts have allowed parties in a litigation to serve notice through email, in addition to traditional methods. Earlier this year, a Delhi metropolitan magistrate had allowed a woman to serve summons in a domestic violence case on her estranged husband in Australia via WhatsApp. The court had said that the “double tick” on WhatsApp showed that the summons have been delivered.
Presumed served even if refused
May 24, 2022: The Times of India
The Punjab & Haryana HC has clarified that if a person refuses to receive summons in a case, it would be presumed that they have been validly served. And even if fresh notice has been issued in that case, it would be presumed that s/he has been served in view of the old report regarding the refusal of the first summons.