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Jerome Merchant + Partners

Jerome Merchant + Partners, formerly known as P&C Legal, was started by Vishnu Jerome.
04 March 2010
Legally India, Licit Media Limited and their employees and agents ("we") are providing LegallyIndia.com and related sites, newsletters and other services (the "Website") to users of the Website ("you").

We also provide a jobs recruitment portal, which is accessible via jobs.LegallyIndia.com (the "Jobs Site").

The Jobs Site is governed by the following terms and conditions (the "Jobs Terms"), which shall be read and construed in conjunction with the the terms and conditions (the "Main Terms") governing all usage of the Website. In the case of a conflict between the Jobs Terms and the Main Terms, the Main Terms shall prevail.

If you do not agree with the Jobs Terms and the Main Terms please do not use the Jobs Site.

We take your privacy seriously. Please refer to our separate privacy policy for information on how we will protect your personal data.

1) Jobseekers

1. The Jobs Site provides a way for jobseekers (the "Jobseekers") to directly contact employers (the "Employers") or recruitment agencies (the "Agencies" and together with the Employers, the "Advertisers"), in relation to jobs offered by the Advertisers.

2. The Jobs Site is provided for free to Jobseekers.

3. Jobseekers agree to provide true, accurate and complete information in their profiles. The profiles submitted for the purposes of the Jobs Site are separate and not connected to the personal details and social network profiles of the Website, although both the Website and Job Site make use of the same username and password. The social network username is not visible to Advertisers.

4. Jobseekers will communicate directly with Advertisers and we are not be responsible or liable for the contents of communications or agreements entered into pursuant thereto. We are acting as a passive electronic conduit of any such communication. Jobseekers therefore agree to exercise reasonable care and due diligence in communicating with Advertisers.

5. We are not responsible for any acts or omissions of Jobseekers and make no warranties or representations in respect of the Jobs Site, as further set out and subject to the Main Terms. We have provided the information on the Jobs Site by way of information only and any use of such information is at your own risk.

6. We do not promise uninterrupted or error free operation of the Jobs Site and the Website and we are not liable for any consequences thereby arising.

2) Employers and Agencies (the "Advertisers")

1. The Advertisers agree to advertise only genuine vacancies for currently available jobs for which they seek applicants.

2. Advertisers may create job advertisements under their real firm or company name or under generic anonymous descriptors, as long as such a description are accurate and not misleading.

3. The Advertisers shall not disclose the fact of Jobseekers' applications to anyone outside of their respective organisation, and in the case of Agencies to anyone other than the Agencies' client on whose behalf the job applied for has been advertised.

3) Indemnity for breaches

You agree to indemnify us against all liabilities, losses, claims, damages, costs and expenses suffered by us as a consequence of a breach of the Main Terms and the Jobs Terms by you or your agents.

4) Termination

We reserve the right to terminate this agreement with Jobseekers and/or Advertisers at any time and without notice at our absolute discretion and/or for any breach of the Main Terms and Job Terms.

5) Force majeure

Neither party shall be liable for events beyond either party's reasonable control, including but not limited to power failure.

6) Governing law

The Jobs Terms and the Jobs Site are governed by English law and you agree to submit to the jurisdiction of the English courts.

7) Variation

We reserve the right to amend or modify these Jobs Terms at any time without notice.

02 March 2010

A lawyer issued a legal notice to quit on behalf of his client. He posted it through registered AD and courier. Since he did not receive any AD card, h filed a complaint with the Post office .In the meantime, he sought for the proof of delivery from the courier company. He entrusted his clerk with the responsibility of pursuing the courier company and procure the hard copy of the proof of delivery.

Below you find the email conversation which ensued:


Clerk to the courier company


Please provide us delivery report for the shipment sent on September 09 vide AWB No. 123449276. It has extremely urgent due to legal requirement and has to be filed in the court tomorrow. So kindly favour us in this regard as required either by soft or hard copy to submit the same






The next day, the clerk received a reply from courier company with the soft copy of the proof of delivery attached.Since  he was asked to procure a hard copy of the same, he immediately wrote:


Dear Mr. Cheepak,


How could we explain our request which could be heard by your Jury (Ms. Jharokha & You). The day (03.02.2010), we had requested for the hard copy of said delivery report, it was assured by you telephonically and by Email of Ms. Jharokha that we will definitely send on 04.02.2010 and from that day after making several contacts, the matter is still on your wishes and obligation. Because you people have words to convince the customers and ignore the matter, however it is most important for customer and we are helpless with your great cooperation. This kind of issues have been raised to the upper channel time to time, but a single email simplify by mentioning as “We are looking into the matter” and story finished for future also. So this is the service standard we are getting through the Yellow Dart. Our firm has to file the matter in the court as mentioned in the trailing mail but the advocates has to wait until the turn of Yellow Dart ‘s wishes and blessings  will come to the queue  of our firm. So could we ask the day on which we can have your attention and could be bale to file the same in the court?






The clerk received the dart of a reply immediately from the courier company


Dear Mr Gidpade,


Jharokha is out of station, had to leave due to some emergency..hence seems missed out actioning mail on time.


We can send only electric details


The clerk was furious. He wrote


Dear Mr. Taqlief,


We have this kind of electric details but this could not be filed as evidence before the court. This has already discussed with Mr. Cheepak that we need copy of delivery receipt and agreed to collect from the Dhokhla Hub. Then Mr. Cheepak said that we are sending the scanned copy within two hours and hard copy will be received in morning i.e.04.02.2010. So please manage for the same as required.


With regards,



To this, Mr. Gidpade was sent a soft copy of the delievery report.

A frustrated Gidpade replied :


Dear Mr. Jayjay,


Please see my trailing mail wherein I have clearly asked for DELIVERY REPORT not for Delivery Details and this document could only be accessed from your distribution hub. Please manage to provide me as needed for legal requirement.






The clerk received the below mail the next day


“Hard copies are only kept for 90 days”


To which he replied


Dear Mr. Jayjay


Now it’s clear to go ahead but spent time in processing of the said matter


No Regards,





02 March 2010

The judgment of the Supreme court in Sundaram Finance Ltd v. NEPC India Ltd., reported in   (1999) 2 SCC 479 observed at para 12 thereof that though section 17 gives the arbitral tribunal the power to pass orders, the same cannot be enforced as orders of a court and it is for this reason only that Section 9 gives the court power to pass interim orders during the arbitration proceedings.

Subsequently, in M.D. Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd., reported in  ( 2004 ) 9 SCC 619 , the Apex Court had held at para 56 thereof that under section 17 of the Act no power is conferred on the arbitral tribunal to enforce its order nor does it provide the judicial enforcement thereof.

However, in the case of Sri Krishan Vs. Anand, OMP. No. 597/2008, decided on 18.08.2009 by Mr. Rajiv Sahai Endlaw, J. of the Hon’ble Delhi High Court, reported in Manu/De/1828/2009, the Hon’ble Delhi High Court held that Enforcement of an order of injunction passed by the Arbitral Tribunal would be enforced under Section 27 (5) of the Arbitration and Conciliation Act, 1996 which deals with "Court assistance in taking evidence” which is as under:


Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the Court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the court.”

The Court stated as under:

Any person failing to comply with the order of the arbitral tribunal would be deemed to be "making any other default" or "guilty of any contempt to the arbitral tribunal during the conduct of the proceedings". Thus the remedy of the other party is to apply to the arbitral tribunal for making a representation to the court to meet out such punishment, penalty to the guilty party, as would have been incurred for default in or contempt of the court. Naturally, the arbitral tribunal would make such a representation to the court only upon being satisfied that the party/person is in default or in contempt. Once such a representation is received by this court from the arbitral tribunal, this court would be competent to deal with such party in default or in contempt as if in contempt of order of this court, i.e., either under the provisions of the Contempt of Courts Act or under the provisions of Order 39 Rule 2A Code of Civil Procedure, 1908.”

The Hon’ble Court also clarified that Section 27(5) was not noticed in Sundaram Finance Ltd. or in Sumangal Services Pvt. Ltd. (supra) perhaps, because it was hedged in the heading/title of Section 27. However, since the said heading/title cannot limit or narrow the otherwise wide amplitude of Sub-section (5) of Section 27, the default, contempt mentioned therein cannot be limited to that only in appearance of witnesses before the arbitral tribunal. To do so, would be to render the words "any other default" and "guilty of any contempt" therein otiose.


In arriving at the aforesaid dicta, the Court found support of the following  decisions which held as under:

(i)                 Anuptech Equipments Private Ltd. v. Ganpati Cooperative Housing Society Ltd. AIR 1999 Bombay 219 where in para 16 reference is made to Section  27(5) in the context of holding that the arbitral tribunal discharges the inherent judicial function of the State – it is for this reason only that in a major departure from 1940 Act, power of contempt of arbitral tribunal has been conferred; once a person can be punished for contempt of the arbitral tribunal and which can bring the administration of justice into disrespect or interference with the administration of justice, it shows the legislative intent qua the arbitral tribunal and

(ii)              Maharashtra State Electricity Board v. Datar Switchgear Ltd. reported in MANU/MH/1187/2002 also holding that Section 27(5) reveals the scheme of the legislation; the contempt of the arbitral tribunal has been made subject to imposition of disadvantages, penalties and punishments by order of the court on the representation of the arbitral tribunal, also approved by the Hon’ble Gujarat High Court in Saurashtra Chemicals Ltd. v. Hon'ble Mr. Justice K. Ramamoorthy (Retd.) reported in MANU/GJ/0329/2005.

26 February 2010

I began to write this about three weeks ago. A lot has changed since then. Terror has shaken our relatively sleepy city from its sense of security.  

“And yes, we need peace more because we have a good thing going in India and we have more to lose” says Bhagat and in a way that sums up what he is trying to say – we need peace for ourselves, to hell with ‘them’. Something about the title of the column really irked me. His column is titled the ‘Underage Optimist’. I began to wonder, is he supposed to represent what the youth think? So I write this just to say, I’m young as well and this is what I think.  

The original op-ed can be found here

Heres what I would have written:  

The attacks in Mumbai in November 2008 were a stern test to India’s foreign policy and its commitment to peace. The administration had to contend with a rising public demand for retaliatory measures, criticism from all corners of the political arena of how the attacks were handled and the fear of looking weak in its response.  

The administration in its reaction has made an important distinction between the who it is dealing with. By ensuring that they did not sever ties with Pakistan, the Government displayed the sense to say that Pakistan did not solely consist of terrorist groups or even just of those supporting the terrorists. Whether the Government of Pakistan is doing enough to combat these elements is a question which certainly needs to be answered. But it is clear that that is where India’s foreign policy needs to be focused. Our neighbours share common histories with us, have faced common hardships and share common cultures. Why then should we vilify all those across the border and claim that the intent of some is equal to the intent of all?  

The blast in Pune shook me. I have been in Pune for almost five years and have always felt that the city has a distinct small town feel to it. German Bakery is a place I have been to countless times. It wasn’t just that it had good food; there was an atmosphere of freedom which I loved. The fact that such an unimportant place could be a target has really hit home, what could they target next? The threat seems almost too real now. They have struck fear in our hearts, we are afraid, we wonder if our friends are safe, our parents constantly check if we are back home. Something as innocuous as a bag has now become a source of fear, why just a few days ago there were two bomb scares on the same day. How are we supposed to go on from here – as a city, as a country? For now the terrorists have won. 

What worries me is that if we do not choose our response carefully, we will let the terrorists win long term. If our response is to snap ties with Pakistan, or put untenable pre-conditions on talks, how are we ever going to break this cycle? The Pune blast was just a few days ahead of the scheduled foreign secretary level talks between Islamabad and New Delhi. To me, talks present the only way to establishing a long term and sustainable peace.  

Yes, we have a good thing going on in India but is that the only reason we want peace? How can we wish peace just for ourselves, has our indifference overshadowed our humanity? Having seen the carnage that violence creates up-close, I cannot wish such pain and suffering on anyone. So in that sense I love you my Pakistani brothers and sisters. I hope you and your families are not affected by violence.I certainly hope that the violence doesn’t originate from my country.  

And no, I will not sign your petition.

24 February 2010

Yeah right you pervert pricks. This post isn’t the answer to the kink in you. This post is not on your office fantasies. This is a post on the bad times which may come at “that time of the year” - It’s the appraisal and bonus time. That time of the year when you pretend to be extra cool with the partners. That time of the year when every miss of a semi colon feels like a burning rod shoved where it fits the best. When every cough on a con-call is like a resounding echo in Qutub Minar. When you would want to hold on to your pee till your palms start hurting because of your nails sinking in them so that you can show your partners how you sit on your chair. If you turn out to be one of those hopeless souls getting “laid off” despite all your attempts, here are TOP FIVE READYMADE ALTERNATIVES:


1. The Hopeless Historian

The Sheriffs Fees Act, 1852, Negotiable Instruments Act, 1881, Indian Telegraph Act, 1885 – with so much of vintage and history in law, being a historian is as easy as picking your nose! (eww)

2. The Writer

If you can draft this -

Any other acts whatsoever beyond the reasonable control of the Party affected, then the Party so affected shall upon giving prior written notice to the other be excused from such performance to the extent that such cause prevents, restricts or interferes with it PROVIDED THAT it shall use its best to avoid or remove such cause of non performance and shall continue performance hereunder with the utmost despatch whenever such causes are removed; then upon such prevention, restriction or interference as aforesaid arising, the Investors and the Company shall meet forthwith to discuss what modifications (if any) may be required to the terms of this Agreement in order to arrive at an equitable solution.”

You might as well be the next Shakespeare or Wordsworth.

3. Weird Name Giver

This is a great business idea. The first of its kind. After names project such as Project Chumchum, Project Bulbul, Project Dil(de)do, I am sure naming new-borns babies, cats, caterpillars, gutters hair and mosquitoes is not difficult.

4. Casting (no couch here) Director

Be a casting director for a movie. “If we put Popat and Poet on this project they won’t be compatible. Popat does more of banking work. Maybe Kian and his capital market expertise may help us to get the desired result” – SIMILARLY – “Shah Rukh and Salman Khan cannot be cast in Dhoom 3 together because of their problems. So let’s put SRK with Shahid Kapoor. Shahid Kapoor with his chocolate boy image may make get the desired result and make the movie a hit.”!

5. Fingerer!

Pervert mongrels – Not again - it’s not what you think it is. After years of “fingering” and “pressing” your blackberries, the fingers sure cannot rest any more. You may take up fingering a saxophone or a piano. I am sure a little bit of tweaking and practicing and get you to Altaf Raja heights!

Worry not, the future is filled with opportunities. But keep up the fingering, unless you want to be Laid (off)!

Squawk  Squawk


20 February 2010

Rajani Associates, a Mumbai based law firm has concluded private equity deal whereby New Silk Route has invested in Nectar Lifesciences Limited, listed on the Bombay Stock Exchange and the National Stock Exchange.


Nectar Lifesciences Limited a fast growing pharmaceutical company with ambitious plans to become market leader in the segment, also, intending to scale its share in $35-billion healthcare industry which would be touching $75 billion by 2012.


A fast track private equity deal in the listed entity was approx. USD 20 million fetching NSR Direct PE Mauritius LLC a significant minority stake in Nectar Lifesciences Limited.


Rajani Associate has advised the Company while Desai & Diwanji had advised the NSR Direct PE Mauritius LLC  on structuring and negotiating the transaction on a time crunched private equity transaction to make it a win-win deal for all the parties with fast, focused and effective strategy.

19 February 2010

A few days after the Lawyers' Collective judgment last December, Ashurst Asia emailed out "Season's Greetings from Ashurst offices around the world", with 13 shiny balls for each country it operated in.

Next to the US and France, the Indian liaison ball was the smallest of them all.

Now that Ashurst is closing its Delhi office, everyone is wondering what will happen to that delightful shiny orange ball.

Will the firm have to take down the Indian ball for next year's Christmas?

Legally India is holding an appeal to give the ball a new home. Anyone who can take it in and save it until next Christmas, please contact us.

Christmas Greetings from Ashurst

19 February 2010


I have a mixed feeling. It definitely is a positive step of the Govt to choose Quality over quantity. However, it is pertinent that the govt also provides job opportunities and set up more courts with better facilities. 

Its a good way to encourage competition and skim out the cream. However, I very strongly feel that , it should be a 2 way communication. For instance, let us  have the  salary revised for the quality lawyers and lets also have better courts and court facilities. Provide good, basic facilities to the quality lawyers to work proficiently and expeditiously like good internet connection and connected P.C in the courts. 

The idea is, to encourage talented lawyers to channelise their energy for the betterment of the whole Indian legal system. Cutting out the quacks from the good ones doesn't actually solve the real problem that the Indian legal system faces today. 

Hopefully, this ain't another red herring. 

18 February 2010

It is interesting to note that the constitutional validity of section 36 of the Industrial Disputes Act, 1947  was challenged before the Delhi High Court in the matter of The Cooperative Store Limited, New Delhi v. O.P.Dwivedi, P.O.Industrial Tribunal –II & Others, reported in 1988 1 LLJ 135.In the case of Madras –Bangalore Transport Company Vs. The Madras –Bangalore Transport Company Worker's Union and Ors., reported in (1964) II LLJ 614 Kant, a Division Bench of the Karnataka High Court held  that the limited restriction imposed by S.36 in a law sanctioned by Parliament in the exercise of its legislative competence as conferred by the Constitution, cannot be viewed as an abridgment of any fundamental right. A three Judge Bench of the Supreme Court interpreted the said provision in the case of Paradip Port Trust v. Their Workmen And Management of Keonjhar Central Co-operative Bank Ltd. Vs.  Their Workmen, reported in (1977) 2 SCC 339.

However, thereafter when the same issue came up before the Allahabad High Court, Markandeya Katju, J (as he then was) vide his decision in ICI India Ltd. v. Labour Court (IV) & Another) reported in 1992-1- LLN 972, has held that Section 36(4) of the Industrial Disputes Act and a similar provision i.e. Section 6-I(2) of the UP Industrial Disputes Act are ultra vires of the Constitution.


In Kusum Ingots and Alloys Ltd. Vs. Union of India (UOI) and Anr., reported in (2004) 6 SCC 254, the Hon’ble Apex Court observed that a  parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a  legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It futher held that an order passed on a writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.

Here we have a situation where the Delhi High Court has upheld the validity of Section 36 of the I.D Act and the Allahabad High Court has said that the same is unconstitutional.


Under the circumstances, what  would be the effect on the rest of the Country?


18 February 2010

Section 36 (4) of the Industrial Disputes Act, 1947 mandates both the consent of the opposite party and the leave of the Tribunal will have to be secured to enable a party to seek representation before the Tribunal through a legal practitioner qua legal practitioner. This is a clear, significance of Section 36(4) of the Act. The same was held by a three Judge Bench of the Apex Court in the case of Paradeep Port Trust reported in  (1977) 2 SCC 339.

However, the judiciary of this country is divided on the interpretation of Section 36(4) of the Industrial Disputes Act, 1947 as to whether such consent and leave can also be “implied”.

The Courts, among others, which have decided that such a consent and leave of the Court has to be express are as under:

1.     General Manager, National Bank for Agricultural and Rural Development v. Presiding Officer, Industrial Tribunal - I, Hyderaband and Anr.- Andhra Pradesh High Court. reported in 1998 (4) L.L.N. 908

2.     Bhavani Art Handicrafts v. Gulab Singh and Ors. - Rajasthan High Court, reported in 1999 (2) L.LN. 1070

3.      J.B. Transport Company and Ors. v. Shankarlal @ Mavaram Nathuji Patel] - Gujarat High Court, reported in 1999 (4) L.L.N. 290

4.     Lakshmi Engineering Industries v. State of Rajasthan and Ors. Rajasthan High Court, reported in 2003 (2) L.L.N. 773

5.     Management of Muttapore Tea Estate, Assam v. Presiding Offcer, Labour Court, Dibrugarh, Assam- Gauhati High Court., reported in 2004 Lab. I. C. 4035

6.      Grapes Synthetics Pvt. Ltd. v. The Judge, Labour Court, Bhilwara] - Rajasthan High Court, reported in 2004 (2) SLR 665 [

7.     Chandrakanth and Ors. v. All India Reporter Ltd.] - Bombay High Court - Nagpur Bench, reported in 2005 (105) FLR 300

8.       Brooke Bond Lipton India Ltd. v. Brooke Bond Shramik Union- Orissa High Court, reported in 2005 (105) FLR 256

On the other hand, the Division Bench of the Calcutta High Court in the case of Shiraz Golden Restaurant Vs. State of West Bengal and Ors. reported in (2000) II LLJ 1101 Cal , relying upon an earlier Calcutta High Court judgment of Reckitt and Coleman of India Ltd. and Ors. Vs. Jitendra Nath Maitra and Ors., reported in AIR1956 Cal 353, and  a Division Bench judgment of the Bombay High Court in the matter of Engineering Mazdoor Sabha, Bombay v. Meher and Ors, reported in (1966) I LLJ 580 Bom, held that since the section does not prescribe that the consent must be given in a particular manner or in a particular form, the consent of a party which is the basis for the grant of leave to the other party for being represented by a lawyer in a proceeding under the I.D. Act, could be inferred from the surrounding circumstances as also the conduct of the consenting party. It held that such a consent could also be implied. It futher held that since the section does not insist upon a written consent, a consent once given could not be revoked at a later stage because there is no provision in the I.D. Act enabling such withdrawal or revocation. To put it simply, the consent once given by a party, entitling the other party to be represented in the proceeding, by a lawyer would inure to his benefit till the proceeding is finally disposed of.

Apart from the Calcutta and the Bombay High Court , the Madras High Court concurs with the above view as held in the matter of The Management, Hindustan Motors Earth Moving Equipment Division Limited, Chennai Car Plant V. The Presiding Officer, Principal Labour Court, Mr. T. Soundrarajan and Catter Pillar India Private Ltd., (Erstwhile Hindustan Motors Limited, Earthmoving  Equipment, reported in (2007) II LLJ 59 Mad  , the Kerala High Court in the matter of Calicut Co-operative Milk Supply Union v. Calicut Co-operative Milk Supply Workers Union, reported in 1986-II-LLJ-422 at 422, 423 and in the matter of Francis Gomez and Anr. Vs. President, Thiruvananthapuram Shops & Commercial Employees' Union and Ors, reported in (1999) III LLJ 1250.

Till very recently, the Delhi High Court followed 2004 1 CLR 163 [Hindustan Motor Ltd. v. Presiding Officer and Ors.] - Delhi High Court, (1999 (1) L.L.N. 983 [Prasar Bharathi Broadcasting Corporation of India v. Suraj Pal Sharma and Ors.] - Delhi High Court which stated took the view contrary to Calcutta, Bombay, Madras and Kerala. However, in a recent judgment of the Division Bench of the Delhi High Court in the matter of Bhagat Brothers decided in LPA 212 of 2008, the Division Bench overruled its earlier decisions and concurred with the view of Calcutta and Bombay on the issue.


Since the judiciary of this country appears to be divided on the interpretation of Section 36(4) of the Industrial Disputes Act, 1947, hopefully either the Supreme Court would resolve the issue once and for all or the legislature shall amend the law to suit the demands of the 21st Century.


18 February 2010

 Section 36(4) of the Industrial Disputes Act, 1947 states that in any proceeding before a Labour Court, Tribunal or National Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be.

Thus, representation of a party by a legal practitioner can only be with the consent of the other party to the proceedings and with the leave of the Tribunal.

If the workman raises an objection for appearance of a practicing Advocate on behalf of the employer, then in view of the provision of Section 36, the practicing Advocate could not be permitted to appear on behalf of the employer.  

The Industrial Disputes Act was enacted in the year 1947 the Trade Union movement in this Country was in its infancy. The Legislature had visualised the legal battle between two unequals. On the one hand, the Trade Unions with scarce resources could not be pitted against the mighty employers, who had all the wealth at their command. They could hire the best lawyers at the Bar while the Trade Unions and/or workmen were likely to not have any trained persons to defend them. Their leaders had no necessary legal training and knowledge of Court functioning. The lawyers who had professionally acquired law training were rarely available for the Trade Unions and workmen who could hardly afford their fees. In order to bring about and maintain fairness and equality, the Legislature provided under Section 36 of the Act how the parties would be represented in the proceedings under the Act. The parties, of course, could themselves appear in their own litigation. A legal practitioner is permitted only with the consent of the other party in the proceedings and with the leave of the Labour Court/Tribunal or National Tribunal as the case may be. It was left to the other party and also to the discretion of the forum before which the proceedings were instituted. The underlying principle of this section is just and fair trial.

However, over the last 62 years, the Trade Union movement has long crossed its age of infancy. Today, excellent Trade Unionists are available who have acquired knowledge, legal acumen and skill to defend the working class in the proceedings under this Act. Very often these dedicated and reputed trade Union leaders are more than a match to even the best of the practitioners before the Labour Court or Tribunal or National Tribunal. Similarly, there are experienced office-bearers of a number of Trade Unions who have also acquired rich experience in the field of legal knowledge.

In view of the present business scenario and the increased entry of foreigners in this area, would it be a fair and an equal fight between a powerful Trade Union represented by a very seasoned, senior and experienced Trade Union representative or a leader against an ordinary small /foreign employer if he is not assisted by a legal practitioner? The Trade Unions are professional litigants. Since the employers are not, they are required to engage the services of legal practitioners to represent themselves in the legal battle. If they are prevented from engaging legal practitioners as against the powerful representatives of the Trade Unions it would not be a fair, just and equal trial of the strength between the two.

Since there has been a considerable change in the circumstances, both in the industrial and legal sector, the utility of such a law in today’s times need to be revisited. There is no dearth of decent legal practitioners available now even for the workmen or Trade Unions. Lawyers' services are nowadays available to all those who can pay a reasonable remuneration. A lot of advocates represent the cause of social justice. It would therefore be unreasonable and unfair to deny the same opportunity to the employer.

R.J. Kochar, J in the matter of T.K. Varghese Vs. Nichimen Corporation, reported in 2001 (4) Bom C R 168, stated that “Moreover, the provision of Section 36 has given rise to formation and floating of bogus paper organisations of employers who engage and appoint some legal practitioners as their so-called office-bearers to circumvent the provisions of Section  36 as such "office-bearers" are permitted to appear in industrial proceedings with legal authority. The result is that very good legal practitioners are appointed as "office -bearers" of the employers' organisation or even as the employees of the employers to appear for the members-employers to circumvent the objections of the Trade Unions/workmen. To face the situation successfully, the employers like the Respondents are compelled to enroll themselves as the members of such organisations to be able to be defended by legal practitioners who are the officers or office-bearers of such organisations.”

A recent decision of the Division Bench of the Delhi High Court overruling the Court’s earlier stance to the contrary in the case of Bhagat Brothers , decided in LPA 212 of 2008 echoes the observations of Justice Kochar wherein they state “It would be totally unjust to deny the legal community access to this field and the Courts and the Tribunals would face great handicap if they do not get proper assistance from the legally trained persons in their decisions which finally land in the higher Courts.”.

Further, one must also appreciate that in view of judicial review by higher courts , appeals and other judicial remedies, such industrial matters most of the time, if not always, end up in High Courts or higher up. There is no protection similar to section 36 available to the workman when it comes to the fight in the appellate forums. Thus, such partial protection also does not make sense, especially since usually there is a huge difference in the ability and affordability between the legal practitioners at the tribunals and the ones at the High Courts and/or Supreme Court.


In view of the above, in my humble opinion, its time for an amendment to section 36(4) of the ID Act.

18 February 2010

The consumer awareness in India is still at a nebulous stage. The Consumer Protection Act was legislated in 1986 and consumer disputes redressal forums erected pursuant to the Act. However, the practice and procedure followed in these forums id perhaps not what was intended bythe legislature.

Section 13 (3A) of the Act states that every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months, if it requires analysis or testing of commodities:

It also provides that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Forum and costs to be awarded as a deterrent measure.

          In practice, however, final and conclusive adjudication by the forums within the prescribed time period, has almost never been heard of. The reasons. The usual problems which plague the civil courts leading to long delays and a burden of backlogs. Resultantly, the consumer disputes redressal is sluggish and ineffective. The system, contrary to the wise intentions of the law, ends up playing into the hands of the market mal-practitioners necessitated by greed and the consumer in fits off fury and frustration.

The clear divide between the legislative intention and actual justice dispensation procedure and practice  continues to remain unaddressed.

If the system wakes up to deliver on time, needless to mention that more and more consumers would seek redressal of their disputes. The system, once it functions in a more civilized fashion, would bring in more matters to the legal practitioners specializing in this branch of law and in these forums. More importantly, the legal system would be more professional in its response as required in this service sector. Needless to mention that on one hand when we are opening the doors of this country inviting more foreign business into the country, a country with the lofty goals of being a superpower in the near future, necessarily needs to relook and rebuild a civilized redressal mechanism which has more credibility in practice.



18 February 2010

mundkur-kriti-tannanThe Supreme Court of India has recently determined that allegation of fraud in a dispute will affect a party's ability to require that dispute to be referred to arbitration under Part I of the Arbitration and Conciliation Act, 1996 in N. Radhakrishnan vs Maestro Engineers.

17 February 2010

Legal Service


The legal services market in India has been growing steadily and is currently pegged at USD 300 mn. The increase in demand for paralegal lawyers has led to a growing interest from foreign entities. According to different market research firms the total offshore legal market would reach $4 Billion by the year 2015. Deals like Rio Tinto, Linklaters are the perfect examples of the growing offshore demand of the Indian lawyers. what according to you guys are the under current and the status of this industry and where do you think would this reach in the near future.

I would also try to give my insights for the issue of the entry of the foreign firms in India very soon.

Devesh Gupta

Manager Legal

Choir de Law Pvt Ltd 

16 February 2010

Lawsuits from asbestos exposure in many countries is a big issue. People who have been exposed are able to sue manufacturers who knowingly sold products that could result in a deadly cancer called mesothelioma. The fact is that these companies, and the government, knew about the dangers of asbestos as far back as the 1920's.

Basically the whole world has agreed that asbestos is very bad and can result in lung cancer. India is the exception.

I found this bit of news interesting I found here:

"There is a political consensus in India to promote asbestos at any human cost" declares Gopal Krishna, after his country - joined by Canada, Russia and Pakistan - last month spiked the banning of crysotile asbestos under the Rotterdam Convention on Prior Informed Consent.

Madhumitta Dutta points out that India based its refusal to join most of the rest of the world by claiming it has to await the result of a health study on asbestos impacts. However "India failed to inform the international community ...that the study was funded in part by the asbestos industry... Still worse, the study is kept under wraps and is not accessible to public health specialists or labour groups."

The fact is that there is a strong link between politicians and the asbestos industry. As a result, India is not acting like a responsible super power. Maybe soon they will reverse their decision, lawsuits will follow and the asbestos industry will die a slow death.

15 February 2010

The last few days have been sadly violent ones, also for the legal fraternity. But in both cases so far not much is really clear.

Three days before the bomb blast in Pune's German Bakery, criminal lawyer and 26/11 defence counsel Shahid Azmi was shot dead in what appears to have been a targeted assassination.
Legally India
's sincere condolences go out to his family and friends, as well as to the victims of the Pune attacks and their close ones.

Of course, for the papers the Azmi killing has been a perfect story.

A young idealist or "convicted child terrorist" with an alleged "outlaw" past, climbing out of poverty and prison to the top of the respected profession of law to defend alleged terrorists.
Cue a violent murder with options for conspiracy theories aplenty.

However, not much is clear so far, but for the significant emotion involved, particularly now with the untimely Pune attack.

Between three and four attackers (reports conflict there) on Thursday evening fired four shots to Azmi's chest and head from point-blank range after covert phone calls and preparation.

"He was bumped off for being 'anti-establishment' and 'anti-police'", reported DNA, quoting lawyers. The family also apparently blames the police. Then there are the suspicions of mafia involvement and a "patriot" gangster trying to make a name for himself.

The general public is divided.

On one hand there is the age-old antipathy directed at lawyers defending those the public does not deem worthy of a defence (or a fair trial).

In the comments on the Hindustan Times website, one reader writes: "Some body took care of Terror friendly lawyer...Give those guy Padam Bhushan", while another simply says "good job".

"Just deserts" writes another, followed by: "Brilliant. Melt pot trusts a former child soldier and convicted terrorist over the Indian Government and Police. I'll be honest, sleep will come easier to me tonight knowing that this 'man' is no longer at large", on the Times of India site.
Another on the TOI's site takes the opposite angle: "A clear indication of what awaits Ajmal Kasab [Azmi's 26/11 defence brief]. He will never get a fair trial in India."

Further investigations are undoubtedly necessary, as in any murder.
But with details and the motives of the killing so sparse, is it not too early to point fingers and allocate blame?

Surely, whether it was the underworld, shadowy powers up high or someone completely unrelated will make all the difference, as will the reasons of why it happened. 

Then again, the sad risk is that no one will ever truly know and speculation and finger pointing will be all there will be.

Today's new angle in the story is that lawyers are up in arms about the security allocated to advocates acting in dangerous cases.
"We have planned a meeting to discuss this serious issue. Shahid's death demands an urgent look into the security of lawyers who deal with dangerous cases, which at times doesn’t go well with certain section of the society," senior advocate Rohini Salian, who is special public prosecutor in the 2008 Malegaon blast case and general secretary of the City Civil and Sessions Court Bar Association, told the Indian Express.

What are your views? Is the security of lawyers taken too lightly in India?

15 February 2010

A strong resolution

rolled down

from a cluster of tariffs


take your time


prohibit asbestos within the limits of the city

in a manner contrary

to the principles set forth

in promulgated paragraphs


but take your time

to speak about National Treatment of tear-glands



08 February 2010

According to draft Overall Public Satisfaction (OPS), data compiled by the Magsaysay awardee Arvind Kejriwal-led NGO Parivartan as part of an initiative to promote people’s right to access information from government organisations. West Bengal is at the bottom of the heap, scoring just 6% in OPS while Karnataka tops the country in implementing the Right to Information (RTI) Act, scoring 55%..


There is no dispute that the Supreme Court and all other courts are public authorities under the RTI Act. Its a different issue whether the office of the CJI is a public authority or not. Even though two courts have held it to be so, final determination in the matter is still pending before the Supreme Court.


Chapter II of the RTI Act deals with right to information and obligations of public authorities. Section 4 of the Act mandates that it shall be a constant endeavour of every public authority to take steps to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information. For the said purposes, every information shall be disseminated widely and in such form and manner which is easily accessible to the public.

All the kinds of information enumerated in section 4(1) of the Act was to be published within one hundred and twenty days from the enactment of this Act. The Act was enacted way back in 2005. and thus the one hundred and twenty years have long gone by.

It appears that the Calcutta High Court, as it continues to decide matters relating to the Act, despite being a public authority, fails to disclose on its website the information as mandated by the Act.


And this blatant violation of the mandate of law stares at your face in the highest court of this communist state by the complete absence of the RTI disclosure mandated under the RTI Act, 2005.


There is possibly no reason to assume that the same agency (NIC) which has created and designed the websites of the Supreme Court and high courts and has created an icon/provision for the RTI therein has failed to display the said information inadvertently while designing the site. The said agency, NIC, obviously is not in a position to do so since it does not decide what information is disclosed.


A lot of questions to ask.

But who is the Public Information Officer of the Calcutta High Court?

08 February 2010

The     High   Court   at  Calcutta, formerly    known  as   the High Court of Judicature at Fort William, was brought into existence by the Letters Patent dated 14th May, 1862, issued under the High Court's Act, 1861.The High Court of Judicature at Fort William was formally opened on 1st July, 1862, with Sir Barnes Peacock as its first Chief    Justice.  Appointed   on   2nd   February, 1863, Justice Sumboo Nath Pandit was the first Indian to assume office as a Judge of the Calcutta High Court, followed by legal luminaries  such as Justice D. N. Mitter, Justice R.C Mitter, Sir Chunder Madhab Ghosh, Sir Gooroodas Banerji, Sir Ashutosh Mookerjee and Justice P.B. Chakravartti, whose judgments are still revered.

The Calcutta High Court has the distinction of being the first High Court and one of the three Chartered High Courts to be set up in India. It is the oldest High Court in India.

The seat of the High Court is Kolkata, capital of West Bengal. It also has a permanent Circuit Bench in Port Blair, the capital of the Andaman and Nicobar Islands. The court has sanctioned judge strength of 58.


Countless Court officers and litigants flock the magnificent court premises every working day of this great institution. However, the said Court, unlike most of the Courts of a similar stature in India, fails to imbibe the latest technological advancements introduced in our justice delivery system.


NIC is a Premier Information Technology Organisation in India ostensibly providing “state of art Solutions” for information management and decision Support in Government and Corporate Sector. A number of Services are being provided by NIC to all the Government Ministries/Departments/States/Districts. NIC has created the websites of various courts across the country including that of the Calcutta High Court.


A plain comparison of the official websites of the Delhi High Court and the Calcutta High Court would show the number of services which are not available in the hallowed Chartered High Court of Calcutta .

 The website of the Calcutta High Court (http://calcuttahighcourt.nic.in/) does not inform the common litigant of the following:

The roster of the judges and the various determinations

It does not have a display board which informs both the advocate and the litigants regarding the Board as it moves in Court.

NIC, on the website of the Calcutta High Court, states inter alia its activities and the impact it seeks to create:

“List of Business Information System (LOBIS): It is about scheduling of cases to be heard by the courts on the following day. It enabled the Registries of Supreme Court and High Courts in eliminating manual process of Cause List generation thus any manipulation by vested interests. These databases contain details of fresh cases, disposed and pending cases. It is the backbone application of every Court.

Impact :

  1. As Cause Lists are generated automatically by the computer manual intervention has been eliminated resulting in generation of Cause List in time with out any hassle
  2. Cases are listed strictly in chronological order of date of filing; eliminated irregularities
  3. All cases having the same law point(s) to be decided by the courts are bunched/grouped and posted before one bench. This has helped the courts in faster disposal of cases.
  4. It has become simpler to recall dismissed cases when review petitions are filed.
  5. On the spot reliable and instantaneous statistical reports are generated “

Curiously, the Calcutta High Court website fails to provide the Causelist for the Appellate Side. It only provides the Cause list for the Original side. Considering the limited Original jurisdiction of the Calcutta High Court, the website completely fails to reach out to the majority of the litigants of this Court. Similarly, the case status for the Appellate Side is also not provided. Unlike the Delhi High Court website, there is no provision for “judgewise orders/judgements” where one can find out the judgment and read its content when he either knows the name of the judge who passed the order and the date on which it was passed. Similarly, the judgments are not available in PDF format. The website is conspicuous by the absence of the facility to track applications for certified copies of the Court’s orders. The said department continues to languish in the age old system of corrupt monetary exchange and other irritating and disparaging motions of red tapism.


 As a common litigant and an officer of the Court having a pan India practice, it becomes extremely difficult to track cases listed in the Appellate side of the Calcutta High Court, procure orders , apply for certified copies, inform my Client as to the name of the Judge likely to hear a fresh matter, track matters and the next date of hearing together with orders.
I am confident that the said website does not convenience a vast number of advocates practising on the Appellate Side and even the Advocates on the Original Side who are not as privileged as their Delhi High Court counterparts. Considering that this noble profession in time has turned into a major service sector/industry with globalization, rise in international trade  and when we are debating only on the timing of entry and practice guidelines of  foreign law firms and not whether they should be allowed to practice law or not, the Calcutta High Court website fails to cater to provide the basic information to the majority of its Litigants and officers of its own Court.


05 February 2010

The Times of India, on 14th December 09, carried a piece titled ‘Legalise Prostitution? Then Why Not Graft?’ by Dhananjay Mahapatra based on a recent observation by two Supreme Court Judges asking the Government if the worlds oldest profession could not be controlled, then why not legalise it. 

The author seemingly annoyed with the court's suggestion draws an analogy between prostitution and corruption based on the common ground that neither problems seem capable of solution. The author suggests that legalising the sex trade would be akin to letting those guilty of corruption go scot-free.

The piece can be found here.

Here is what I would have written:

 Supreme Court: Why not Legalise Prostitution?

Yes! Yes! A thousand times yes! This is exactly the kind of thinking we need!

As it stands today, the Immoral Trafficking (Prevention) Act, has not been able to achieve what is was originally enacted to do – to check the illegal trafficking of persons for sexual exploitation. Instead what it has managed to do is make the unsafe environment, that commercial sex workers work in, more dangerous, it has allowed pimps and brothel keepers perpetrate acts of violence without fear of them approaching the police, it has allowed the police to repeatedly pick up sex workers and keep them in lock up, rape and violence is often reported. It has also made it difficult for sex workers to insist on the use of condoms.


Recently, a proposed amendment tried to bring in a new approach; one which proposed to penalize the customer. This has been tried in Sweden and unfortunately has not yielded successful results. Reports from Sweden show that the proposal has pushed sex work underground, made women feel more unsafe and there have been increased reports of violence.


It seems therefore, that there is clear evidence of what doesn’t work. A system which allows authorities to effectively check the trafficking of women and at the same time allows the improvement of the condition of women already working as sex workers, seems to be the need of the hour. Members of Parliament during the legislative debates in 1956 had observed that penalising the sale and purchase of sex would not eliminate prostitution. (Source: the Lawyers’ Collective)


Why then are we trying the same approach in different ways? The hon’ble judges’ propensity to try something new, more importantly with the recognition that the current law is not working, is vital and must be recognized and hopefully mirrored by the administration.

Activist groups have campaigned for either legalization or a decriminalization of the sex work industry. The approaches have their own pros and cons. What either of these approaches may allow however, is an increased regulation and scrutiny of red light areas and sex work in general. This could allow increased monitoring of and a reduction of violence on the women, presence of trafficked and minor girls in the brothels and would allow an all round improvement in the working conditions of the women. There is of course a worry that over-regulation would push the industry back underground thereby undoing any advantages of legalization or decriminalization.


New law and policy is needed and though comments from judges from the highest court of the land are an excellent starting point, there must be a consultative process, one which seeks to involve the views of commercial sex workers.