Delhi High Court Weekly Round Up: September 26 To October 2, 2022

1. Mere Emails & Form 16A Not Sufficient To Establish Employer-Employee Relationship: Delhi High Court on Freelancing

Title: KAUSHAL KISHOR SINGH v. M/S SITA KUONI WORLD TRAVEL INDIA LTD.

Citation: 2022 LiveLaw (Del) 906

The Delhi High Court has observed that there is no master-servant relationship in freelancing as the freelancer is his own master who has the ability to pick and choose his assignments, thereby enabling him to work for himself as well as multiple employers.

Justice Dinesh Kumar Sharma added that a freelancer is a person who acts independently without being affiliated with or authorized by an organization and is thus distinguishable from part-time, full-time or contractual employees.

"Freelancer or freelancing thus are terms currently used to mean a person who is self-employed or an independent contractor in the business of selling their services and skills to different employers for a specified time period. Etymologically, freelance has derived from the words - "Free‟ a Germanic word which means to "love‟, and "lance‟ which is akin to the French word meaning to "launch‟, or discharge with force," the Court said.

2. After SC Order on Sedition, Delhi High Court Asks Trial Court To Consider Sharjeel Imam's Bail Plea Afresh

Title: Sharjeel Imam vs. State

Citation: 2022 LiveLaw (Del) 907

Permitting him to withdraw his application for regular bail in a 2019 sedition case, the Delhi High Court has asked the trial court to first consider former JNU student Sharjeel Imam's application seeking relief under Section 436-A CrPC on the ground that he has remained in custody for 31 months in the FIR.

Justice Anoop Kumar Mendiratta in the order passed on September 26 asked the trial court to also take into consideration Supreme Court's order of keeping the offence of sedition in abeyance, while taking a decision on Imam's application.

Imam was denied bail by a Saket Court in October 2021, saying that the tone and tenor of his 'incendiary speech' had a debilitating effect upon public tranquility, peace and harmony of the society. While his plea seeking bail was pending before High Court, Imam had recently moved an application in trial court under Section 436A.

3. CCI Director General's Report Not Determinative Or Conclusive, Commission Can Consider All Aspects Before Final Decision: Delhi High Court

Title: BUILDERS ASSOCIATION OF INDIA v. COMPETITION COMMISSION OF INDIA

Citation: 2022 LiveLaw (Del) 908

The Delhi High Court has said a probe report prepared by the Director General of Competition Commission of India (CCI) is neither determinative nor conclusive since it is ultimately for the Commission to take all aspects, including views that may be expressed before it, into consideration before passing final orders.

Section 26(2) of the Competition Act, 2002 provides that the Director General will submit a report on his findings after a complaint or a reference is received by it from the Commission.

Justice Yashwant Varma observed that after the report of Director General comes up for consideration before CCI, it is open to any party, person or enterprise having substantial interest in the outcome of proceedings, or who is able to establish that its presence before the Commission is necessary in public interest, to seek a right of audience and present its opinion for the competition regulator's consideration.

4. [Comparative Advertising] Cannot Permit Domex's TV Ad, Disparages Harpic: Delhi High Court

Title: RECKITT BENCKISER INDIA PRIVATE LIMITED v. HINDUSTAN UNILEVER LIMITED

Citation: 2022 LiveLaw (Del) 909

Observing that 'puffery' and 'hyperbole' may have an element of untruthfulness, the Delhi High Court Monday said an advertiser cannot disparage or defame the competitor's goods while doing comparative advertisement.

Noting that such advertisements would always involve statement that advertiser's goods are better than that of the competitor, a division bench comprising of Justice Vibhu Bakhru and Justice Amit Mahajan emphasized that there is a line that an advertiser cannot cross.

5. Aam Aadmi Party Made Statements Against Delhi LG In Reckless Manner, Corruption Allegations Based On Hearsay: High Court

Title: VINAI KUMAR SAXENA v. AAM AADMI PARTY & ORS.

Citation: 2022 LiveLaw (Del) 910

The Delhi High Court on Tuesday said the tweets and statements by Aam Aadmi Party and its five leaders against Delhi's Lieutenant Governor Vinai Kumar Saxena, alleging corruption by him, were made in a reckless manner, without any factual verification, to tarnish his image.

Justice Amit Bansal restrained the party and the five leaders from posting any defamatory or factually incorrect tweets, comments, videos of press conferences or interviews and any other online content against Saxena or his daughter, pertaining to the controversy.

"It cannot be gainsaid that reputation of a person is earned after years and the same cannot be tarnished by any other individual in a casual manner. The damage caused to the reputation of an individual is immediate and far- reaching on the internet. So long as the impugned content continues to be in circulation and visible on social media, it is likely to cause continuing damage to the reputation and image of the plaintiff," the Court said.

6. No PMLA Proceedings After Quashing Of FIR Against Accused: Delhi High Court Set Aside Proceedings Against IHFL And Its Employees

Case Title: Indiabulls Housing and Finance Limited v. Enforcement Directorate

Citation: 2022 LiveLaw (Del) 911

The Delhi High Court has set aside the proceedings under the Prevention of Money Laundering Act, 2002 against Indiabulls Housing and Finance Limited (IHFL) and its employees.

The division bench of Justice Anish Dayal and Justice Mukta Gupta relied on the decision of the Supreme Court in the case of Vijay Madanlal Choudhary & Ors v. Union of India & Ors.

7. Recovery Of Annual Report And Share Certificate From the Assessee's Premises Are Not Incriminating Documents: Delhi High Court

Case Title: PCIT Versus Panchmukhi Management Services Pvt. Ltd.

Citation: 2022 LiveLaw (Del) 912

The Delhi High Court has held that the recovery of the annual report and the share certificate of the assessee premises cannot be considered to be incriminating documents.

The division bench of Justice Manmohan and Justice Manmeet Pritam Singh Arora has observed that the genuineness of the share capital has been accepted both by CIT (A) and ITAT and that there is no live link between the seized material and the additions made.

8. Court Cannot Modify Arbitral Award By Awarding Interest Under Section 34 Of A&C Act: Delhi High Court

Case Title: Canara Bank versus The State Trading Corporation of India Ltd. & Anr.

Citation: 2022 LiveLaw (Del) 913

The Delhi High Court has ruled that though the claimant is entitled to pre-arbitration interest on the amount of counter-guarantee released in its favour, the Court, in view of the limited scope of judicial review under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act), cannot award interest to the claimant since it would amount to modification of the award.

The Division Bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad observed that though the Supreme Court, in certain cases, has awarded interest to the relevant parties by modifying the arbitral awards, however, the same was undertaken by the Apex Court in exercise of its discretionary powers under Article 142 of the Constitution of India.

9. [WhatsApp Privacy Policy] There Has To Be Some End To 'Luxury To Litigate': Delhi High Court To Facebook's Indian Subsidiary

Title: Facebook India Online Services Private Limited v. CCI

Citation: 2022 LiveLaw (Del) 914

The Delhi High Court has dismissed Facebook India Online Services Private Limited's petition challenging the probe initiated by Competition Commission of India (CCI) against it in connection with the national regulator's investigation into WhatsApp's privacy policy of 2021.

The Facebook India Online Services Private Limited is the subsidiary of Facebook Inc or Meta, the multinational technological company.

Justice Yashwant Varma dismissed the plea observing that there has to be some end to "luxury to ligate".

The subsidiary was "clubbed" in the investigation on the basis of the decision of CCI's Director General which issued notice designating it as an opposite party after an information was received from Internet Freedom Foundation regarding its relevance in the investigation.

10. Delhi High Court Sets Aside Ban On Manufacture And Sale Of Chewing Tobacco Products In National Capital

Title: SUGANDHI SNUFF KING PVT. LTD. & ANR. v. COMMISSIONER (FOOD SAFETY) GOVERNMENT OF NCT OF DELHI and other connected matters

Citation: 2022 LiveLaw (Del) 915

The Delhi High Court has quashed various notifications prohibiting the manufacture, storage, distribution or sale of Gutka, Pan Masala, flavoured tobacco and similar products in the national capital. Since 2015, seven notifications were issued by the Commissioner of Food Safety.

Justice Gaurang Kanth observed that the notifications were issued year after year "in a mechanical manner" without following the general principles laid down under the provisions of Food Safety and Standards Act, 2006.

"The classification sought to be created between smokeless and smoking tobacco for justifying the issuance of the impugned Notifications is clearly violative of Article 14 of the Constitution," the Court observed.

11. 'CBI Has Filed A Piecemeal Chargesheet, Only Concluded Part Investigation': Delhi High Court Grants Bail To Chitra Ramkrishna, Anand Subramanian

Case Title: Chitra Ramakrishna v. CBI, Anand Subramaniam v. CBI

Citation: 2022 LiveLaw (Del) 916

Granting statutory bail to former NSE CEO Chitra Ramkrishna and former Group Operating Officer Anand Subramanian in the co-location scam case, the Delhi High Court on Wednesday said the Central Bureau of Investigation has filed a "piece meal charge sheet" and same is not in respect of all the offences that are subject matter of the FIR

Justice Sudhir Kumar Jain said that probe agency is not legally permitted to pick one portion of investigation and thereafter file a piece-meal chargesheet qua few offences, while leaving the investigation open qua other offences.

"This would be complete negation of section 167(2) of the Code. The investigating agency cannot be permitted to fragment or break FIR for the purpose of different charge sheets and this will tantamount to negation of section 167(2) and would against mandate of Article of 21 of the Constitution," the Court said.

12. 'Apathy Of Authorities Seeping Through Cracks': Delhi High Court Issues Guidelines For Better Functioning Of Child Care Institutions

Case Title: RAJESH KUMAR v. STATE (GOVT. OF NCT OF DELHI) & ORS.

Citation: 2022 LiveLaw (Del) 917

The Delhi High Court has issued a slew of guidelines for better functioning of child care institutions in the the national capital and said it is unfortunate that the "apathy of authorities" is seeping through the cracks and hampering the development of those at a vulnerable age.

Stressing on the need for improving existing institutions to ensuring that quality standard of care is provided to children, Justice Subramonium Prasad said there is a complete lack of direction and initiative among persons manning these institutions as to how they must guide the children towards a better future

Justice Prasad made the observations and passed guidelines as well as directions in an order in a plea seeking a magisterial enquiry into an incident concerning escape of five minor girls in March last year from a children home in the city and other similar incidents reported in the past.

13. Issuance Of Notice To Unrelated Mail Address Does Not Constitute Due Despatch: Delhi High Court

Case Title: Suman Jeet Agarwal v. ITO

Citation: 2022 LiveLaw (Del) 918

The Delhi High Court has held that the issuance of e-mail-attaching electronic notice to an unrelated e-mail address does not constitute due despatch and, therefore, the notices cannot be said to have been issued on 31st March 2021.

The division bench of Justice Manmohan and Justice Manmeet Pritam Singh Arora has observed that since an authenticated copy of the notice was placed on the registered account of the assessee on the E-filing portal, as that is how the petitioners learnt about the notices, the notices will be held to have been issued on the date on which the notices were first viewed by the assessees on their e-filing portal.

14. DTC Cannot Unleash Untrained And Incompetent Drivers On Public, Must Check Antecedents Of Employees: Delhi High Court

Title: DELHI TRANSPORT CORPORATION v. RUBY & ORS.

Citation: 2022 LiveLaw (Del) 919

Observing that Delhi Transport Corporation (DTC) is not expected to unleash "untrained and unlicensed drivers" on "unsuspecting innocent public", the Delhi High Court has observed that the public transport undertaking is required to check the antecedents of its prospective employees, particularly whether they possess a valid driving license.

Justice Gaurang Kanth said that having such license is the basic qualification for employment of drivers by a Government undertaking and it is expected that only after passing the special training, the selected candidates are offered employment.

The exercise of checking the validity of the driving license could be carried out even after offering provisional employment to the successful candidates, the court added.

15. [GAIL Service Rules] Provision On Notice Period Only Applicable In Case Of Employees, Not Probationers: Delhi High Court

Case Title: Paras Khuttan v. GAIL India Ltd. & Anr

Citation: 2022 LiveLaw (Del) 920

The Delhi High Court recently observed that once the employer has a right to terminate the probationer without issuing any notice and without granting any salary in lieu of notice, the same has to be made applicable to the probationer - when he wants to leave the job.

The court made the observation in an judgement allowing an appeal of a probationer. In the decision, the court referred to the GAIL (General Terms and Conditions of Service Rules) that are applicable to the Gas Authority of India Limited employees.

99. GST Not Payable On Renting Of A Residential Dwelling For Personal Use: Delhi High Court

Case Title: Seema Gupta v. Union Of India

Citation: 2022 LiveLaw (Del) 921

The Delhi High Court has held that Goods and Service Tax is not payable on renting a residential dwelling for personal use.

The division bench of Justice Manmohan and Justice Manmeet Pritam Singh has observed that the rental of a residential dwelling to a proprietor of a registered proprietorship firm who rents it in his personal capacity for use as his own residence and not for use in the course or furtherance of the business of his proprietorship firm and such renting is on his own account and not that of the proprietorship firm, shall be exempt from tax under Notification No.04/2022-Central Tax (Rate) dated 13.07.2022.

16. [MACP Scheme] Claimant Cannot Be Denied Benefit Based On Clause Quashed By Tribunal Once Decision Is Upheld By HC: Delhi High Court

Title: UNION OF INDIA & ANR v. GIRBAR SINGH & ORS

Citation: 2022 LiveLaw (Del) 922

The Delhi High Court has observed that once a clause of a scheme is quashed by a tribunal and the decision is upheld by a High Court, the said clause ceases to exist in the scheme particularly when the government has decided to accept the ruling and implemented the same.

The division bench of Justice Sanjeev Sachdeva and Justice Tushar Rao Gedela made the observation while dismissing Centre's plea challenging an order passed by the Central Administrative Tribunal (CAT) directing it to consider the claim of some individuals for financial upgradation in terms of the Modified Assured Career Progression Scheme (MACP), 2009.

The MACP scheme is a promotional scheme for Central Government employees. The scheme provides additional pay benefits in the form of Financial upgradation when regular promotion is getting delayed.

17. [Motor Accident Death] 'Parental Consortium' Available To All Children Irrespective Of Whether They Were Dependent On Deceased Or Not: Delhi High Court

Title: KANTI DEVI & ORS v. NEW INDIA ASSURANCE COMPANY LTD. & ORS

Citation: 2022 LiveLaw (Del) 923

The Delhi High Court in a recent judgement observed that in cases of motor accident deaths, parental consortium is available to all the children irrespective of the fact that whether they were dependent on the deceased or not.

Parental consortium is granted to the child on the premature death of a parent for loss of parental aid, protection, affection, society, discipline, guidance and training, explained the court.

Justice Gaurang Kanth was dealing with a plea challenging an order passed by Motor Accident Claims Tribunal awarding compensation to four dependents of the deceased, a 44 year old man who had died in an accident.

18. 15 Days After Minor Car Accident, Delhi HC Quashes FIR; Tells Accused To 'Serve Well Cooked Food In Orphanage'

Title: SACHIN SHARMA v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 924

Quashing an FIR against a car driver who had hit a bike in Hari Nagar area on September 13, the Delhi High Court has directed the accused to do some social service by serving hygienic and well cooked food in an orphanage, which has at least a 100 children, on October 5 and October 24.

Justice Jasmeet Singh also directed the accused, who was in custody, to be released forthwith and sought a compliance report from him as well as the investigating officer within a period of six weeks.

The Court quashed the FIR registered on September 13, 2022 at Hari Nagar Police Station under Section 308 of the Indian Penal Code - Attempt to commit culpable homicide.

19. FSSAI Must Ensure Expeditious Inspection Of Imported Food Articles For Home Consumption Release : Delhi High Court

Title: AROMATRIX FLORA PVT LTD v. UNION OF INDIA & ORS.

Citation: 2022 LiveLaw (Del) 925

The Delhi High Court has observed that the authorities of Food Safety and Standards Authority of India (FSSAI) have an obligation to ensure that all imported articles of food are inspected with due expedition and promptitude.

However, Justice Yashwant Varma added, it would not be prudent for the court to prescribe or stipulate a particular timeframe within which such exercise of inspection, taking samples and clearance has to be completed.

"This since it would be impossible for the Court to predict the vagaries of a particular situation as well as the volume of imported articles of food that may be pending for inspection at any particular point of time by FSSAI," said the court.

20. 'ED's Apprehension Not Filmsy': Delhi High Court Dismisses Satyendar Jain's Plea Against Transfer Of Proceedings In PMLA Case

Title: Satyendra Kumar Jain v. ED

Citation: 2022 LiveLaw (Del) 926

The Delhi High Court has dismissed the plea moved by Aam Aadmi Party leader Satyendar Jain challenging the transfer of proceedings against him in a money laundering case from a Special Court to another judge recently.

Justice Yogesh Khanna said that the apprehension of Enforcement Directorate (ED) was not flimsy or unreasonable.

"The apprehension raised were not at a belated stage, as the request for an independent evaluation were consistently made and rather the respondent rushed to this Court in Crl.MC. No.3401/2022 (supra), hence, all these facts were duly considered by the learned Principal District and Session's Judge, hence in view of above, it cannot be said the impugned order suffers from any illegality or need any interference," court said.