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1981 (9) TMI 306
... ... ... ... ..... ontract realises its manifest intention. The Division Bench pointed out It does not seem to be a correct principle of law that term as to payment of wages or increase in remuneration can be read into a contract of service as an implied term by reason of the conduct of the person after the contract of service has been entered into. The learned Judges observed ..... We find it difficult to appreciate how an implied term as to payment of incentive bonus over the fixed target figures can under general law or common law become an implied term of service for a particular individual . 23. It is thus clear that the whole argument it at there is an implied right in the agreement to claim incentive payment beyond the maximum prescribed is wholly misconceived and must be rejected. 24. In the view which I have taken, the impugned order of the Industrial Court is liable to be quashed. The petition is thus allowed. Rule absolute. However, there will be no order as to costs of the petition.
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1981 (9) TMI 305
... ... ... ... ..... n he compel the Chief Minister to rebut the same. He cannot be allowed to escape himself and net the Chief Minister. Perhaps realizing this position, Mr. Mridul became lukewarm while arguing this point. In such a situation the creation of corporation at Muzaffarpur cannot be struck down on the ground of mala fides. 29. It would thus appear that all the points urged by the petitioners of both the applications to challenge the constitution of Muzaffarpur corporation (through a notification Annexure 1) have failed. If Annexure 1 has stood the scrutiny of law, the order appointing respondent No. 4 as Administrator of the corporation has also to be upheld. As a matter of fact no argument has been advanced to challenge his appointment if the creation of corporation is upheld. 30. In view of my discussions aforesaid it is clear that there is no merit in any of the writ applications and as such they are dismissed. In the circumstances, parties shall bear their own costs. 31. I agree.
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1981 (9) TMI 304
... ... ... ... ..... uld not entitle the accused-petitioners to be released on bail. The bail application of the accused-petitioners, Shriram and Bangali. cannot, therefore, be accepted. 23. Shri R.P. Goel, the learned Counsel for the petitioners, has, however, submitted that after the passing of the order dated June 10, 1981 by Additional Sessions Judge No. 1, Dholpur, dismissing the bail application of the accused-petitioners, certain further developments have taken place and that the accused-petitioners may be permitted to move a fresh bail application before the Sessions Judge in the light of the said developments. It is made clear that this order rejecting this bail application will not stand in the way of the accused-petitioners moving a fresh bail application before the Sessions Judge in the light of the developments which have taken place after the passing of the order, dated June 10, 1981 by the Additional Sessions Judge. ' 24, In the result, both the bail applications are dismissed.
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1981 (9) TMI 303
... ... ... ... ..... or contempt of Court has been made out against Sri Krishna Singh. Let notice be issued to Sri Krishna Singh to appear in person on September 25, 1981 to show cause why he should not be punished for contempt of Court. 24. We also direct the Civil Judge to send an explanation as to why despite our clear orders, he did not proceed to deliver possession of the property to Harshankaranand from Sri Krishna Singh as also the circumstances under which he passed the extraordinary and palpably wrong order under Order XXI, Rule 29 of CPC. We further direct the Civil Judge to deliver possession of the property from Sri Krishna Singh and others to the decree-holder Harshankaranand and report compliance within a week from the receipt of this order. If necessary, the Civil Judge can take the aid of police. Let a copy of this order be send to the Civil Judge so as to enable to give his explanation. 25. Our order dated August 10, 1981 stands, except regarding discharge of notice for contempt.
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1981 (9) TMI 302
... ... ... ... ..... d storage of pious wishes. With the emergence of the General Insurance Corporation which has taken over general insurance business of all kinds, including motor vehicles insurance, it should be easy to give statutory recognition to the State's obligation to compensate victims of road-accidents promptly, adequately and without contest. 29. We are happy to note that the Gujarat High Court, by its judgment under appeal, took a just, correct and realistic view of the matter by holding that, under the statutory policy, the appellant insurance company is liable to pay the full amount of compensation to the heirs of the driver of the car and to the passenger who was travelling in the car, each amount being less than ₹ 20,000. 30. In the result the appeals are dismissed with costs in separate sets in favour of respondents 1 (a) to 1 (g) who are the heirs of the deceased Ajit Sinh and in favour of respondents 3 to 6 who are the heirs of Jadavji Keshavji Modi since deceased.
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1981 (9) TMI 301
... ... ... ... ..... not been able to point out any defect or to satisfy that determination of turnover is arbitrary It is true that final determination of bullion at ₹ 12,000/- was against the disclosed turnover and, therefore, it has to be done on the figure disclosed by assessee. But as regards oil the mere fact that units of electricity consumed in two years were not identical it did not debar the revising authority from determining turnover of the same figure in each year. 4. In the result the revision No. 127 of 1981 for assessment year 1969-70 fails and is dismissed. In respect of revision No. 128 of 1981 it shall stand allowed only in part. The turnover of bullion shall be determined at ₹ 12,609.71 instead of ₹ 12,000/-. This would mean an enhancement in the total turnover by ₹ 609.61 only. A copy of this order shall be sent to Tribunal to pass appropriate order under section 11 (8). The assessee is entitled to its costs which is assessed at ₹ 200/- one set.
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1981 (9) TMI 300
... ... ... ... ..... outside India has a definite connotation and a mere visitor cannot be taken to be a resident outside India. In this case, the department has not established that the slip which has been referred to in the statement, is from a specified person outside India. As a matter of fact, the Department is not able to name the person resident outside India from whom instructions had been received by Manickam Reddiar. In this view of the matter, it is not possible to say that the Department has established any nexus between the appellant and the person resident outside India, who is said to have instructed the appellant or Manickam Reddiar to receive the amount. Therefore, on the materials on record, we cannot say that the contravention of S. 5(1)(aa) of the Act has been established as against the appellant. Accordingly, the appeal is allowed and the orders of the Deputy Director, Enforcement Directorate as also the Appellate Board are set aside. No order as to costs. 7. Appeal allowed.
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1981 (9) TMI 299
... ... ... ... ..... eral before the High Court, that by the expression "cooperative societies" hl the scheme, the Government intended and meant "consumers' cooperative societies", and that if by mistake there was a wrong allotment made to a 'cooperative society' which was not a "consumers' cooperative society', the Government would take steps to cancel the allotment. The constitutionality of the impugned scheme is also challenged as abridging Art. 19(1)(g) of the Constitution. The short answer to the challenge is that the scheme in no way infringes the petitioners' right to carry on their- trade in foodgrains. They are free to carry on business as wholesale or retail dealers in foodgrains by taking out licences under the Madhya Pradesh Foodgrains (Licensing) order, 1964. There is no fundamental right in any one to be appointed as an agent of a fair price shop under Government Scheme. Accordingly, we dismiss the Special Leave Petitions with costs.
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1981 (9) TMI 298
... ... ... ... ..... ff was entitled to relief of permanent injunction. (22) The plaintiff has also claimed A decrees for rendition of accounts and an order for destruction of dies, blocks, labels, etc. There is no evidence that the defendant had any dies, transfer labels, etc., and Therefore no order for their destruction was required. (23) Account of profits is an equitable remedy and the Court) has discretion whether or not to grant it. There is no reasonable prospect that the inquiry will reach any positive result. In such circumstances I do not think it proper to grant a decree for accounts. The issues are decided accordingly. (24) The plaintiff is, Therefore, granted a decree for permanent injunction restraining the defendant, their servants, agents, representatives from selling or offering for sale or dealing in Sarees under the trade name 'Kala Niketan' or any other identical or deceptively similar trade name. The rest of the suit is dismissed. The plaintiff is entitled to costs.
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1981 (9) TMI 297
... ... ... ... ..... 2) of the Employees Provident Fund & Family Pension Act 1952. 8. Mr. De with much emphasis contends that assuming that these (sic) ments are correct even then it has not been said that the petitioners were in charge of the business or in over all control of the day to day business of the Company. These averments cannot make the petitioner vicariously liable for the offences alleged to have been committed by the Company simply because he is a Director. We accept the contention of Mr. De and relying on the decisions referred to above hold that the statements in the petitions of complaint have not made out a case against the petitioner. 9. In the result. Criminal Revision Nos. 2249 to 22G2 of 1979 are made absolute. The proceedings being 0311 to C,324 are quashed. Criminal Revision Nos. 2263 to 2265 of 1979 are made absolute. The proceeding is quashed so far as the petitioner Krishna Kumar Dalmia is concerned. Let the records go down immediately. N.G. Chaudhuri, J. I agree.
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1981 (9) TMI 296
... ... ... ... ..... in holding that there is no real conflict between the provisions of the New Code, particularly S. 27 thereof, and the provisions of the Bal Adhiniyam. In short, the provisions of the New Code clearly save any special or local law like the Bal Adhiniyam and S. 27 of the New Code is merely an enabling provision which does not express any contrary intention to undo the saving provided in S. 5 of the New Code. There being thus no conflict or repugnancy, the question of Art. 254 of the Constitution being attracted does not arise." With respect, Verma J. has expressed the correct opinion. 12. As a result of the foregoing discussions, we allow the appeal, set aside the conviction and sentence imposed upon the appellant and quash the entire trial of the appellant. We direct that the appellant shall be dealt with in accordance with the provisions of the Haryana Children Act. 13. It is a pity that the point urged before us was not urged in any of the Courts below. Appeal allowed.
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1981 (9) TMI 295
... ... ... ... ..... plication, the High Court has erroneously imported the rule of criminal jurisprudence that the guilt of an accused must be proved beyond reasonable doubt to the law of detention. The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether the material was adequate or not, which is the function of an appellate authority or Court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in Section 3 of the Act is the satisfaction of the detaining authority and not of the Court. The judgment of the High Court, therefore, is liable to be set aside. We set aside the order of the High Court and allow the appeal. G S.R. Appeal allowed.
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1981 (9) TMI 294
... ... ... ... ..... therefore, succeeds. The Judgment and order passed by the High Court are hereby set aside and the writ petition is dismissed. There will, however, be no order as to costs. Though this appeal succeeds, yet in our opinion, justice requires that the respondent Nivedita Jain who has already been admitted to the Medical College on the basis of interim order passed by the Court and has been prosecuting her studies should be allowed to continue her studies and to continue to be student of the Medical College where she is already studying. She is otherwise a qualified candidate and eligible for admission into the medical course which she is now undergoing and the cause of justice does not require that her studies should be interrupted and her career should not be put in jeopardy. We, therefore, direct the authorities concerned to treat the student Nivedita Jain as a regular student of the college where she has been admitted and to allow her to continue her studies. Appeals allowed.
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1981 (9) TMI 293
... ... ... ... ..... n to the post of STO Gr. III without passing the departmental examination, placed STIs from Bombay at a disadvantage. To ensure 'fair and equitable treatment', the State Government rightly dispensed with the requirement of passing the departmental examination in the case of STIs from the former State of Bombay. In the end, reverting back to the main question. On an overall view of things, we are satisfied that the State Government acted with the best of intentions. It endeavoured to strike a balance between the competing claims to relative seniority. When sub-s. (5) of s. 115 of the Act speaks of "fair and equitable treatment", obviously it envisages a decision which is fair and equitable to all. The result, therefore, is that the appeal succeeds. The judgment of the High Court of Bombay is set aside and the writ petition filed by Respondents 1 to 5 is dismissed. There shall be no order as to costs in the facts and circumstances of the case. Appeal allowed.
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1981 (9) TMI 292
... ... ... ... ..... e Government under s. 12 of the Act was without due application of mind. This is a serious infirmity in the case which makes the continued detention of the detenu illegal. We refrain from expressing any opinion on the other grounds raised. It appears to us prima facie that the grounds for detention set out the facts with sufficient degree of particularity and that they did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority. It seems to us that the order of detention cannot also be challenged that the grounds furnished were vague or indefinite or lacking in particulars or were not adequate or sufficient for the satisfaction of the detaining authority, or, for that matter, for the making of an effective representation. For the reasons stated above, the order of detention passed by the District Magistrate, Ropar dated June 1, 1981 is quashed and we direct that the detenu Inderjit alias Billa be set at liberty forthwith. Petition allowed.
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1981 (9) TMI 291
... ... ... ... ..... d. Accordingly, there is no warrant for adopting a construction that would, in reality, deprive the Central Government of the jurisdiction plainly vested and thus frustrate the obvious intent of the legislature. 12. The contention that the word “or” occurring between the words “fine” and “penalty” in sub-clause (c) of the proviso to Section 131B(2) was one of despair. It recalls to mind the celebrated observation of Lord Simon L.C., extracted in A.I.R. 1967 Goa 169 at 186-to the effect that “and/or” is a bastard conjunction which was the contribution of commercial courts to basic English. 13. In the premises, we have no hesitation in rejecting the contentions of the learned Counsel. The Appeal may be re-transferred to the Central Government for disposal since we cannot arrogate ourselves to a jurisdiction which we do not obviously have. If we were to hear and decide such a matter as this, our order would be a nullity.
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1981 (9) TMI 290
... ... ... ... ..... her a producer nor a manufacturer he could not be held liable for any clearances of coffee made without payment of duty by a manufacturer. Furthermore, on a perusal of the records of the case, Government find that what was seized was roasted coffee and the onus of proving that it had been made out of non-duty paid raw coffee was on the Department and this onus has not been discharged by the Department. Government accordingly set aside the impugned order in appeal and allow the revision application.
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1981 (9) TMI 289
... ... ... ... ..... haser of the caprolactum and not the manufacturer. Government observe that in the second Appeal No. 189/71 in the case of Union of India and others vs. Silchar Electric Supply Co. Ltd. (1977 E.L.T. J 167) decided on 30-11-1973 the Gawahati High Court have held that a person who was not a manufacturer or purchaser and who had also not paid the excise duty directly is in no position to claim refund of excise duty. Government observe that the ratio of the aforesaid decision of Gawahati High Court is directly applicable to the present case since the assessee have not paid the central excise duty directly to the Government. If the assessee have any claim at all it is for them to claim it from M/s. Gujarat State Fertilizer Corporation, Baroda and not from the Government directly. 4. In view of the above, Government of India set aside the impugned order-in-appeal and hold that the refund claim in question ought to be rejected. The review proceeding are accordingly disposed of.
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1981 (9) TMI 288
... ... ... ... ..... 37; ad valorem on the tariff value. According to them technically value-wise the three master items are only subjected to duty and the remaining accessories are exempted from payment of central excise duty. Thus according to him the parts apart from projector head and sound head and arc lamp are mere accessories of the projector and projector is complete without them. Government however observe that a combination of projector head, sound head and arc lamp is not capable of being used as a projector and the other item which have been called accessories by the petitioner are necessary for the functioning of the projector and are therefore not mere accessories. 5. In view of the above, the Appellcate Collector has rightly held that the projector head, sound head and arc lamp cleared together ought to pay central excise duty at the rates leviable on parts of cinematograph projector under Item 37B(b) of Central Excise Tariff. The revision application is accordingly rejected.
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1981 (9) TMI 287
... ... ... ... ..... by rolling from pre-heated wire bars are known as “Hot Rolled Rods” and the rods manufactured by Properzi Process are known as “Cast Wire Rods of Properzi Rods”. Government of India, however, observe that sub-item (a) (ii) of Item 27 of the Central Excise Tariff incudes wire bars, wire rods and.castings as three distinct products. Hence, manufacture of wire rods from wire bars amounts to manufacture within the meaning of Section 2(f) of the Central Excise and Salt Act, 1944, the term “Wire Rods” in the Tariff is not qualified by any manufacturing process. In the trade ‘Aluminium Wire Rods’ may be known either a ‘Hot Rolled Rods’ or ‘Cast Wire Rods or Properzi Rods’, but both of them are used for drawing wires. Hence, the contention, that the Tariff includes only those wire rods which are manufactured by the Properzi method, is not tenable. The revision application thus fails and is accordingly rejected.
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