Judiciary on Schizophrenia

(By Sasisekhar Menon, Librarian, High Court of Kerala)

(1) Eera v. State (NCT of Delhi) - (2017 (3) KLT 560 (SC) : (2017) 15 SCC 133).

 Disabled and Differently abled Persons-Mental retardation/Mentally ill

 There is distinction between mental retardation and mentally ill person. Mental retardation or developmental delay is gauged on the parameters like Intelligence Quotient (IQ) and mental abilities (MA) which mostly relate to academic abilities. The Court has always kept itself alive to fact that Parliament has always kept the mentally retarded person and mentally ill person in two different compartments. Legislature in Section 164(5-A)(b),
Cr.P.C. has already safeguarded the interests of mentally disabled person.

(2) Z v. State of Bihar (2017 (3) KLT OnLine 2079 (SC) : (2018) 11 SCC 572 : AIR 2017 SC 3908).

Article 21-“Life”-Meaning and scope : Broadly construed.

Articles 21,14, 32 and 226 -- Woman’s right to reproductive choice and abortion-Statutory basis and international obligation discussed-Violation of said right due to fault of State authorities would attract compensation under public law-Court clarified that said Compensation would be in addition to remedies for Compensation under Criminal law or Private law of tort. Quantum of Compensation would depend upon facts.

(3) State of Himachal Pradesh v. Gian Chand (2001 (2) KLT SN 76 (C.No. 95) SC : (2001) 6 SCC 71 : AIR 2001 SC 2075).

Schizophrenia is one of a group of severe emotional disorders, usually of psychotic proportions, characterized by misinterpretation and retreat from reality, delusions, hallucina-tions, ambivalence, inappropriate effect, and withdrawn, bizarre, regressive behaviour; popularly and erroneously called split-personality.

(4)Veer Pal Singh v. Secretary, Ministry of Defence (2013 (3) KLT Suppl.31 (SC) : (2013) 8 SCC 83: AIR 2013 SC 2827).

Description in standard and medical dictionaries and medical literature, considered-Positive and Negative symptoms of Schizophrenia discussed- Perhaps the only judgment which touches the entire length and breadth of the term “schizophrenia”.

 In Merriam Webster Dictionary “Schizophrenia” has been described as a psychotic disorder characterized by loss of contact with the environment, by noticeable deterioration in the level of functioning in everyday life, and by disintegration of personality expressed as disorders of feeling, thought (as in delusions),perception (as in hallucinations),and behaviour -- called also as dementia praecox; schizophrenia is a chronic, severe and disabling
braindisorder that has affected people throughout history.

 The National Institute of Mental Health, USA has described “schizophrenia” as follows:

“Schizophrenia is a chronic, severe and disabling brain disorder that has affected people throughout history. People with the disorder may hear voices other people don’t hear. They may believe other people are reading their minds, controlling their thoughts, or plotting to harm them. This can terrify people with the illness and make them withdrawn or extremely agitated. People with Schizophrenia may not make sense when they talk. They may sit for hours without moving or talking. Sometimes people with Schizophrenia seem perfectly fine until they talk about what they are really thinking. Families and society are affected by Schizophrenia too. Many people with Schizophrenia have difficulty holding a job or caring for themselves, so they rely on others for help. Treatment helps relieve many symptoms of Schizophrenia, but most people who have the disorder cope with symptoms throughout their lives. However, many people with Schizophrenia can lead rewarding and meaningful lives in their communities”.

POSITIVE  AND  NEGATIVE  SYMPTOMS :

Positive symptoms are psychotic behaviour not seen in healthy people. People with positive symptoms often “lose touch” with reality. These symptoms can come and go. Sometimes they are severe and at other times hardly noticeable, depending on whether the individual is receiving treatment. They include “Hallucinations”, “Delusions”, “Thought disorders”, “Movement disorders”.

Negative symptoms are associated with disruptions to normal emotions and behaviours. These symptoms are harder to recognize as part of the disorder and can be mistaken for depression or other conditions. These symptoms include “Flat effect”, “Lack of pleasure in everyday life”, “Lack of ability to begin and sustain planned activities”, “Speaking little, even when forced to interact”.

In Modi’s Medical Jurisprudence and Toxicology (24^th edition,2011) the following varieties of Schizophrenia have been noticed:

(1) Simple Schizophrenia, (2) Hebephrenia, (3) Katatonia, (4) Paranoid Schizophrenia, paranoia and paraphrenia, (5) Schizo-affective psychosis,(6) Pseudo-neurotic Schizophrenia.

Section 45, Evidence Act,1872- Value to be accorded by Court to Expert opinion. Need for Court to satisfy itself as to validity/plausibility/compatibility of expert opinion by studying available standard dictionaries, encyclopaedias etc.

(5)Santokh Singh v. State of Punjab (2010 (4) KLT Suppl. 19 (SC) : (2010) 8 SCC 784: AIR 2010 SC 3274)

Proof of chronic Schizophrenia -- Facts being (1) admission register of hospital not giving particulars of patient, disease or treatment,(2) Doctor admitting overlapping of entries in register, and (3) absence of expert clinical explanation of deceased.

(6) Mariappan v. State of Tamil Nadu (2013 (2) KLT SN 77 (C.No.93) SC: (2013) 12 SCC 270: 2013 Crl L.J. 2334).

Trial Judge convicted Appellant under Sections 449 and 302, IPC. High Court confirmed conviction and Sentence. Appellant-accused contended that at the time of incident, he was suffering from “paranoid Schizophrenia” and, hence, entitled to benefit of exception under Section 84, IPC. Held, there is no evidence as to unsoundness of mind of Appellant at the time of occurrence. Accused failed to discharge the burden as stated in Section 105, Evidence Act. The trial Judge, after noticing his answers in respect of the questions under Section 313,Cr.P.C., had concluded that the accused could not be termed as an “insane” person.

7) Shrikant Anandrao Bhosale v. State of Maharashtra(2002 (3) KLT OnLine 1034 (SC) : (2002) 7 SCC 748 : AIR 2002 SC 3399).

Disease of paranoid schizophrenia can recur. The cause of Schizophrenia is still not known but heredity plays a part. Suspiciousness is the characteristic symptom of the early stage. Since so many people, he feels, are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus may change from persecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his memory and orientation and does not show signs of insanity, until the conversation is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is often a source of danger to himself and to others.

Eera v. State (NCT of Delhi) (2017 (3) KLT 560 (SC) : (2017) 15 SCC 133:

(Crimes against Women and Children-POCSO Act, 2012).

Provisions under IPC are on different basis and foundation. Legislature thought it wise to define the term “age” which not only mentions “child” but also adds words “below age of 18 years”. Parliament has felt it appropriate that definition of term “age” by chronological or biological age to be safest yardstick than referring to person having mental retardation which may be due to fact that standards of mental retardation are different which require determination by expert body and degrees are also different. Parliament has not included “mental age” which was within legislative domain. In such situation, to include perception of mental competence of victim or mental retardation as factor would tantamount to causing violence to legislation which is impermissible. Modern trend while interpreting statute is to examine text as well as context and object or purpose as well as literal meaning.

“X” v. State of Maharashtra(2019 (2) KLT 527 (SC) : (2019) 7 SCC 1 : AIR 2019 SC 3031).

Principles for Sentencing- Sentencing is a socio-legal process in which discretion of Court, as provided by statute, plays major role. In India, sentencing is mostly led by “guideline judgments” in death penalty context. Article 21 of the Constitution mentions “Procedure established by law”. The principle is fortified not only by the statute under Section 235(2), Cr.P.C., but also by judicial interpretation. Any increase or decrease in the quantum of punishment than the usual levels need to be reasoned by the Trial Court. In the context of mentally ill prisoners, Section 20(1) of the Mental Healthcare Act,2017 explicitly provides that “every person with mental illness shall have a right to live with dignity”.

 In recognition of civilised standards, India is a signatory to the Convention on Rights of Persons with Disabilities which endorses “prohibition of cruel, inhuman or degrading punishments” with respect to disabled persons. Additionally, there is a strong international consensus against the execution of individuals with mental illness.

(10) Vinita Saxena v. Pankaj Pandit (2006 (2) KLT 150 (SC) : (2006) 3 SCC 778).

Hindu Law-

Hindu Marriage Act, 1955- Section 13(1)(iii)

 “Mental disorder” as ground of Divorce- Paranoid Schizophrenia, its serious nature, causes, psychotic symptoms and treatment, it must be held that the Appellant had proved beyond doubt that the Respondent suffered from mental disorder. It has been established beyond doubt by the medical doctors who had deposed as witnesses and brought the Original medical record of the Respondent that the Respondent is suffering from mental disorder.

 (11) Kollam Chandrasekhar v. Kollam Padma Latha (2013 (4) KLT SN 38 (C.No.33) SC :(2014) 1 SCC 225 : 2013 SCC OnLine SC 858).

Hindu Marriage Act- Section 13(1)(iii) Expln. And Section 9.

 Divorce on grounds of “unsoundness of mind” and “mental disorder” including Schizophrenia, when may not be granted. Mere existence of mental disorder insufficient to justify dissolution of marriage. There should be existence of serious mental disorder. Further held, one spouse cannot simply abandon the other spouse because the latter is suffering from sickness.

 Impugned judgment not granting decree of divorce and allowing petition for restitution of conjugal rights, upheld- Special Marriage Act,1954-Section 27(1)(e).

 Marriage is to weather storms and embrace sunshine, both with equanimity.

(12) Laxmanram Poonia v. Union of India (2017 (1) KLT OnLine 2036 (SC) = (2017) 4 SCC 697 : AIR 2017 SC1179).

Armed Forces-entitlement to Disability Pension: Absence of disabilities or disease noted or recorded at time of entry into Service of armed forces. Presumption of sound physical and mental condition on basis thereof. In event of subsequent discharge on medical grounds, deterioration in health presumed to be due to military service.

 It is the duty of Medical Board while recording opinion to the contrary to give reasoned determination necessarily.

(13) Narsingh Yadav v. Union of India (2019 (4) KLT OnLine 3287 (SC) = 2019) 9 SCC 667: 2019 SCC OnLine SC 1285).

Armed Forces-Disability Pension : Illness noted while in Service. Applicability of R.14(d) (as amended of 1952 Rules) in terms of which disability pension is to be granted only in case where cause of such disease or disability is attributable to conditions of Military Service.

 The scope for Judicial Review of the Opinion of Medical Board, held limited. Held, though opinion of Medical Board is subject to Judicial Review, Courts do not possess expertise to dispute such Report unless there is strong medical evidence warranting it.

(14) In Re : Death of 25 Chained Inmates in Asylum Fire in Tamil Nadu v. Union of India & Ors. (2017 (2) KLT SN 85 (C.No.116) SC : W.P.(C) No.334 of 2001 of the Supreme Court
of India).

This PIL was a consequence of the death of more than 25 Chained inmates in an Asylum Fire on the 6th August, 2001 at Ervadi in Ramanathapuram District. This Writ Petitionwas disposed only on the 21st August, 2017.

During the course of proceedings in this matter, the Union of India enacted an express legislation on the Subject under consideration. Parliament enacted the Mental Healthcare Act, 2017; more or less fulfilling the prayers in the case.

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NOTE: The story of Shri.Amrit Kumar Bhakhshy, Former President, Schizophrenia Awareness Association, who helped draft the Mental Healthcare Act,2017 :

In 1991,when his only daughter, Smt.Richa was diagnosed as Schizophrenic, Mr.Bhakhshy had not even heard of the term “Schizophrenia”. Richa was then at a boarding School in Dehradun. For the last 30 years, Mr.Bhakhshy, now 79, has been looking after his daughter’s needs. His wife passed away a year ago; leaving him struggling in his old age. There are a very few lucky ones who permanently recover from mental illnesses. Otherwise there is a constant shift between remission and relapse, and it is hard to pinpoint how the latter happened”, says Mr.Bhakhshy.

 In 2007, his family relocated to Pune. In 2010, eventually he became the President of the Schizophrenia Awareness Association, and served for 5 years on the Institutional Board of NIMHANS. Schzophrenia Awareness Association is one of India’s top centres for the rehabilitation of the mentally ill. The Institute started a centre for patients to socialize and mingle during the day, while their Caregivers had to carry out their jobs or other work. Richa was the first patient. Now there are 40 to 50.Mr.Bhakhshy retired in 2019.

 In 2010, the Government of India decided to change the Mental Health Act, 1987 and the Indian Law Society, Pune was responsible for drafting changes and Mr.Bhakhshy as President of SAA was involved.

 In 2016, Mr.Bhakhshy authored the book, “Mental Illness and Caregiving” which was a best-seller throughout India. This is now considered as the Bible to Caregivers of patients with Schizophrenia. It has 4 Parts and contains more than 200 pages detailing every aspect in full.

Long Working Hours

reduceLife Expectancy

‘Monday Blues’ of Four day Week will Inevitably Cause More Harm than Good

Monday blues [laziness and lethargy felt by those who work on Monday after enjoying 'work-free' weekend(s)] are the serious warning signs that everything is not fine after free weekends. According to a survey conducted in European countries, the cases of heart strokes occur more on Mondays than on any other days because employees feel unduly stressed with the feeling of going to offices and workplaces after a two-day vacation on Saturdays and Sundays. One can imagine the disaster which may entail after three days of leisure at a stretch in a four-day week. 

Right from the day, it has been proposed to go for a four-day week by increasing the working hours to 12 hours a day, a large section of the society has gone gaga over it. There seems to be no end to the euphoria among these people, but they forget that the work can never become more important than the worker. A worker is much more than a means of production. While moderate work develops a person, excessive hours of work grind a person down, dull the mind, wear out the body and harm the person’s social and spiritual development. Long working hours also lead to reduced life expectancy due to many reasons associated with it. Section 25 of the Occupational Safety, Health and Working Conditions Code, 2020 also stipulates that no worker shall be required to work for more than eight hours a day. It also says that the period of work in each day shall be so fixed so as not to exceed such hours, with such intervals and spread overs as may be notified by the appropriate Government.

It further clarifies in Rule-28(1) that no worker shall be required or allowed to work in an establishment for more than forty-eight hours in any week. It goes on to provide that the period of work of a worker must be arranged in a manner such that spread over is not more than twelve hours inclusive of the intervals for rest. Finally, it stipulates that no worker shall work for more than five hours before he has had an interval of rest for at least half an hour.

Hard work, individualized attention, and ready availability should characterize the service of personnel but equally desirable is an appropriate balance between work, availability, and leisure. The stress and tension that seem increasingly to accompany institutional activity today make it more than ordinarily important that an administrator pay serious attention to the question of working hours and leave provisions of employees.

While moderate work develops a person, excessive work can prejudice the quality of a person’s life. A young and eager worker continually availing himself of overtime and holiday work, encashing rather than taking his earned leave, can quickly injure his whole physical, mental, and emotional tone.

Hours of work

The Supreme Court in Associated Cement Staff Union Vs. The Associated Cement Co. Ltd., Bombay, AIR 1964 SC 914, has stated that the hours of work must be fixed in consideration of many factors including:(i)   The question of fatigue on the health of the workmen,(ii)    effect on their efficiency,(iii)   physical discomfort that may result from long and continuous strain,(iv)    need of leisure in the workmen’s lives,(v) hours of work prevailing for similar activities in the same region and also in similar concerns, and(vi)  other relevant factors.

Disadvantages of Increased Working Hours

When a comparison is made between the advantages and disadvantages of the increased hours of work, there is no doubt that the latter outweighs the former one. Let it be considered one by one. 

Less time for sleep

Sleep is essential to function properly. Studies show that deep sleep can rewire the brain to be less stressed and anxious. When you work for long hours, it’s likely that it will squeeze your sleep time a bit. Even after going to bed, you might face difficulty falling asleep. The result? You’re crankier and more tired than usual the next morning.

One may turn alcoholic

According to a survey, those who work 49-54 hours a week are more likely to consume excessive amounts of alcohol - excessive is defined as more than 14 units of alcohol a week for women and 21 for men. As we all know, this puts us at risk of liver-related issues and type 2 diabetes.

Back and shoulders might ache

Sitting for long hours, that too without regular breaks, might make your boss happy but not to your back. In today’s time, it is one of the most common issues faced by employees. The longer you sit in your office chair, the greater the risk of back pain. Researchers say women tend to develop pain in the neck first whereas men usually experience lower back pain.

The heart might be at risk

A study published in The Lancet says employees who work long hours have a higher risk of stroke than those working standard hours. It is speculated by researchers that working for 61 to 70 hours a week leads to a 42% increased risk for coronary artery disease. Moreover, if you stretch it to 71 to 80 hours, the risk increases by 63%.

Stress might dominate life

Who doesn’t know what stress can do? It’s bad enough by itself but it is also a common culprit for several diseases, the big ones being diabetes, depression, strokes, high blood pressure and even cancer.

Productivity might decrease over time

Do smart work, not hard work. If one works long hours without visible results, one might feel burdened, and productivity might even decrease with time. A paper published by Stanford University showed that people who work for 70 hours a week don’t turn out to be more productive than colleagues who work 56 hours a week.

Relationships might suffer

If you spend most of your day at the workplace, family and friends could feel deprived of your presence, love, and affection. And often work-related frustration can come out on loved ones, making relationships strained.

Also, the impact of the Occupational Safety, Health and Working Conditions Code (OSHWC) Rules is not to increase working hours but to allow greater flexibility in spread over. Consider the following example, a security guard is employed for two periods- between 8 AM to 12 AM and 4 PM to 8 PM. Between these periods he is free to return home or occupy a rest area on the premises. The number of hours worked in the above scenario would be eight hours as he is working for two four-hour periods. Whereas the spread over would be twelve hours as it includes the four hours, he spends off duty. But this is possible when there is not much distance between the dwelling and place of work.

This may appear to benefit a large number of workers ranging from those engaged in call centres to female workers who have delivered a child, as it will give them sufficient time to rest at work. Thus, from the above, it is clear that the move that is being criticized for being restrictive and repugnant to workers’ interests is creating greater flexibility and is providing workers with sufficient rest between their work periods.

There are only a very few countries in the world where there are long working hours, but it cannot be forgotten that most of these countries belong to cold climates, where the physical health of workers is much stronger than their Indian counterparts, with the exception of China, where the workers are condemned to live sub-human life.

ILO and Working Hours

Working hours have been a key facet of the ILO’s work since its inception and were a part of key labour rights movements. The Hours of Work (Industry) Convention, 1919 is the first international convention on labour and has been followed with numerous instruments that solidify the importance of regulating work time and the dangers of excessive working hours. These include the Hours of Work (Commerce and Offices) Convention, 1930, the Forty-Hour Week Convention, 1935 and the Weekly Rest Conventions of 1921 and 1935, respectively.

India is one of the original members of the ILO and has ratified the Hours of Work (Industry) Convention of 1919. Therefore, the eight-hour workday with a twelve-hour spread over is in keeping with India’s international obligations.

Much, if not most, of an employee's life (and that of his family) revolves around and is structured by his hours of work.  Eight or nine hours, generally speaking, is the ideal number of hours of work that can be required of an employee daily, and that the weekly total should not exceed 48 hours.  Whereas 48 hours is the common work week for industrial workers.

Patent Misuse : The Doctrine and its Relevance

(By Dr. Raju Narayana Swamy, IAS)

Introduction

Patents protect technical embodiments of an invention. They bestow exclusive rights upon their owners. This means that the patent holder has the right to prevent others from using his or her invention and thus control the manufacture and distribution of such products including their prices. Patent misuse serves as an insurance policy against unanticipated roguish behaviour from patentees. The ingenuity of patentees to devise ways of abusing their patent rights is matched only by the potential malleability of patent misuse. It appeals to our sense of right and wrong and exists to arrest misconduct not made illegal under existing laws even at the cost of vagueness.

Patent misuse is a court-made doctrine. It is an affirmative defence. In fact, judges tailor the penalty for misuse according to the justice required by the individual case.
It refers to a loose collection of activities by which the patent owner is said to have taken unfair advantage of the patent right in the marketplace. Patent misuse  is a tool that courts use to maximize net social welfare by invalidating inefficient restrictions through which patent holders earn rewards that are incommensurate with the patent grant and suppress technological progress. It acts as a public injunction against abuses of the privilege granted under patent law and balances public and private interests. It creates a scheme of royalty free compulsory licensing when a patentee is guilty of misuse. Patent misuse is designed to have a deterrent effect and it is less concerned with reversing an improperly accrued market benefit. It is a special form of punishment devised for over-reaching patentees who are using their patents to monopolize something other than the invention. Examples of patent misuse include the following under the guise of sham patent licenses

(a)        Tying: - It occurs when a seller conditions its sale of a patented product on the
            purchase of a second product.

(b)        Package Licensing:- A package license covers more than one patent.

(c)        Horizontal Price Fixing: - It involves an agreement among competitors at the
            same level of the market structure (eg:- producers, wholesalers or retailers) to set
            a price for a particular commodity – directly or indirectly.

(d)        Territorial Allocations:- These are arrangements to divide up territories so that
            customers have no choice but to purchase from the seller who has the rights to the
            designated territory.

Patent misuse first appeared in the 1917 US Supreme Court decision called the Motion Picture Patents Case.¹In the said case, the plaintiff owned a patent on a mechanism for threading film into a movie projector. The patent was licensed on condition that all movie projectors contain a notice precluding the use of any film not manufactured by the patentee. The Court held that the restriction violated patent policy as it imposed a license restriction falling outside the scope of the patent. However it was not until 1942 that the Supreme Court formally articulated the doctrine in Morton Salt v. G.S.Suppiger Co. Morton Salt’s patented machine deposited salt tablet in canned goods. It leased its machines to customers if they purchased their salt tablets from Morton Salt. Morton Salt discovered the defendant making infringing machines and sued it for patent infringement. Chief Justice Harlon Fiske Stone framed the question as “ whether a court of equity will lend its aid to protect the patent monopoly when respondent is using it as the effective means of restraining competition with its sale of an unpatented article.” But things came to a head in Mercoid Corporation v. Mid -- Continent Inv. Co.(320 US 661 (1944)) when the Court
extended misuse to render tying arrangements unenforceable even though the tied components had no substantial non-infringing uses. Throughout the 1940s, Courts made abundant use of the patent misuse doctrine and struck down a variety of restrictive license agreements particularly those that involved tying.2The expansion of the patent misuse doctrine occurred mostly before the 1970s. This has led some scholars to contend that the doctrine is an anachronism that can only be explained by the jurisprudential setting in which it arose -- at a time when antitrust was in its formative years. The main reason why patent misuse is difficult to define and operationalize is its “identity crisis” which stems from a lack of a coherent basis in IP policy because misuse lacks unifying principles for determining which practices should be condemned and why.

A chequered history of the doctrine

Patent misuse as a doctrine has waxed and waned through the years. Early on in 1968, the Tenth Circuit recognised that the success or failure of patent misuse lay with the courts. It is often analogized to the fair use defence in copyright law. Like fair use, patent misuse is an open ended and context-sensitive inquiry. It is viewed favourably by some and reviled by others. Those who object to it point out its vagueness, lax standing requirements and punitive effect on patentees. Criticisms of patent misuse in fact centre on three areas.

First, vagueness of misuse detracts from commercial certainty. The lack of sharply defined boundaries may deter those with a penchant for rationality from buying into reinvigorating patent misuse as a robust defence. Put it a bit differently, misuse should not become an open ended pitfall for patent supported commerce. There are arguments that patentees face a challenge staying on the right side of the law and that operationalizing policy through patent misuse creates an undesirable in terrorem effect. Critics point out the judgement in Control Components Inc. v. Lexmark International Inc where a District Court was faced with the novel question of whether patentees whose patents cover single-use toner cartridges could restrict the use of any given cartridge after the exhaustion of its patent rights in that cartridge even without licensing agreements containing post-sale reuse restrictions. The Court could not find misuse as a matter of law even though it agreed that Lexmark was doing something wrong in a vague sense. However, the counter argument is that uncertainty is the price of ensuring appropriate incentives for innovation and that it is the flexibility to mould each decree to the necessities of the particular case that allows equity which provides the fine-tuning to the broad brush of legislation and governmental policy.

Second, critics of misuse oppose lax standing requirements that allow those unharmed by the patentee’s misconduct to invoke the aid of courts to render the patent unenforceable. Misuse pays the sanction as a windfall to an unrelated third party thereby encouraging infringement while failing to compensate those actually injured. Third, they believe that unenforceability of an entire patent due to an offending claim is too harsh. Denying the  successful patentee its remedies is a species of forfeiture. In fact, studies point out that judges are often unwilling to find misuse in marginal cases because of the perceived harshness of the doctrine. Courts have often exercised their discretion -- even upon finding misuse – not to impose the remedy of unenforceability where the impact would be too drastic. For instance, in Ethyl Corp.v. Hercules Powder Co³it was held that although Zeigler attempted to do that which he was incapable of legitimately doing, application of the doctrine of misuse is too drastic. Legal circles often propose that cases should distinguish between transaction and litigational misuse with the patent being rendered unenforceable only in the latter case. The former case results only in unenforceability of the offending contractual provision.

It is worth mentioning here that the early twentieth century is often described as an era of IP expansion and antitrust accommodation. Then antitrust aggressiveness was ushered in beginning with the New Deal and extending through the Warren era. During this period, the Supreme Court was more inclined to view patents as inherently anticompetitive and to interpret the antitrust laws expansively. In the 1960s and 1970s antitrust was scaled back to focus on identifying serious threats to competition that were not justified by explicit provisions of the IP laws. Thereafter came the present epoch when we once again live in an era of IP expansionism. In fact, the heyday of patent misuse began to wane in the 1980s and the doctrine was almost terminated in 1988 by legislation which prohibited a finding of patent misuse unless the patentee’s practices violated the antitrust laws. The ultimate version of this legislation produced an amendment to the patent law. With this amendment – which was drafted in response to persistent criticism of this judge-made equitable defence to patent infringement – the very existence of the doctrine of  patent misuse independent of antitrust law was viewed as being of questionable validity.

Even before the aforesaid amendment, the creation of the CAFC in 1982 diminished the importance of the patent misuse doctrine. In a series of cases, the CAFC cut back on the scope of patent misuse. Whittled away by the CAFC and directly modified by the amendment, the patent misuse doctrine seemed of dubious validity by the end of the 1980s. Still the doctrine has been affirmed more than twelve times by the Supreme Court. Although there has been a drift away from the doctrine in the decades thereafter, the Supreme Court never addressed the Federal Court’s hostile pronouncements on the doctrine. And even the Federal Court has progressively backed away from its initial negative attitude. In fact, Federal Circuit cases identified three categories of patent misuse. The first are forms of per se misuse (which include tying, post-expiration royalties and price–fixing arrangements). The second category includes forms of conduct specifically immunized from a finding of misuse (which includes refusal to licence as well as tying arrangements in which the patent owner had no proven market power). The third category is where the conduct is neither expressly exempted nor condemned.  Since “Windsurfing” , the CAFC has also backed off its draconian statement. 

Patent Misuse and Courts of Equity

The origin of patent misuse lies in the equitable doctrine of unclean hands. This doctrine -- colourfully named, equitable in origin and reflecting in its name at least the moralistic background of equity in the decrees of the clerics who filled the office of Lord Chancellor of England during the middle ages - now a days just means that equitable relief will be refused if it would give the plaintiff a wrongful gain. It is guided by more than sterile economic analysis. In framing its approach to patent misuse, the Supreme Court has categorically stated that the necessities or convenience of the patentee do not justify any use of the monopoly of the patent to create another monopoly.⁴The fundamental inquiry is whether by imposing a challenged condition the patent owner has improperly expanded the physical or temporal scope of the patent grant with anticompetitive effect.⁵Where the restriction is reasonably within the patent grant, the misuse defence can never succeed⁶
 If the patent owner can be proved to be engaged in prohibited conduct, the patent is rendered unenforceable despite its validity.

Courts will not aid a patent owner who has misused his patents to recover any of their emoluments accruing during the period of misuse or thereafter until the effects of such misuse have been “purged”.⁷Critics argue that as the bar on infringement suits continues until the wrongful consequences have been dissipated fully, a finding of misuse essentially gives a green light to infringers for the foreseeable future. In fact, the burden of purging misuse may well be greater than the benefits of pursuing the infringement and it will deter patentees from enforcing legitimate rights. Thus misuse unnecessarily undermines the value of patents and the innovation policies pursued by the regime. Purging requires patentees to show that they have completely abandoned the misconduct and that their “baleful effects” have dissipated. There is no set time period for purging. In fact, the time will vary with the facts of each case. Whether a purge has been accomplished is a factual matter and is largely discretionary with the trial court.⁸However, a defendant claiming patent misuse is not required to show that he/she was personally harmed by the misuse.9Evidence of direct harm to the complainants is a secondary factor in determining the issue of standing. They serve a more important role- a bugler alerting the Court to wrongdoing so that public interest may be protected.10

In contrast with contract-based defences such as equitable estoppels and implied license, the patent misuse defence is not restricted to those who had negotiated with the patentee.  As the District Court observed in Petersen v. Fee International Ltd., “ It is not material that plaintiffs were not a party to any of the various agreements and assignments.... In their ‘ball of wax’ is patent misuse with an adverse effect upon the public which disqualifies defendants from claiming infringement of the patent.” In Multimedia Patent Trust v. Apple Inc,
a case involving standard setting organizations, although the defendants were neither licensees nor competitors, the District Court implicitly accepted that misconduct warranted further scrutiny, pointing to the use of misuse as a type of system integrity check to ensure that the mechanism Congress had put in place to promote innovation and competition is not compromised. Similarly in Compton v. Metal Products Inc, the Fourth Circuit concluded that the agreement amounted to misuse and that it did not matter that Metal Products was not a party to the agreement. In Procter & Gamble Co.v. CAO Grp Inc, the District Court recognised that defendant represents not only itself but in a sense also the public which is likewise excluded from the field of monopoly that an in-force patent grants to the holder. Needless to say, the doctrine offsets other pro-patentee doctrines that effectively extend patents such as the doctrine of equivalents.

Patent Misuse v. Antitrust Law

The patent misuse doctrine overlaps antitrust law in many ways. It quintessentially represents the patent-antitrust interface. Though its past is rooted in patent law, its present is intertwined with antitrust laws. Both seek to restrain the myriad ways that a patentee’s exclusive right can be abused. At a sufficiently high level of abstraction, the goals of promoting innovation and competition pursued by both the antitrust and patent laws are similar. In fact, misuse contains a blend of competition and innovation policies.  The discussion of the history of misuse reveals two different premises for invoking the defence -- the Morton Salt standard which focuses on abuses of the patent system and the Windsurfing standard which focuses on anticompetitive effects measured through the rubric of the antitrust laws. 

Opinions are galore that the misuse doctrine arose at a time when antitrust was in its infancy and that today when our understanding of competition is much more elaborated, there is no continuing need for the doctrine which must simply be folded into antitrust law. In fact, antitrust law is a larger and more fully developed body of law than patent misuse.
A source of confusion at the junction of patent and antitrust law could be eliminated by applying antitrust rules in such a manner as to provide greater clarity to the misuse doctrine.  The thinking is that antitrust has evolved a  precise methodology as opposed to the equitable doctrine of misuse which is relatively imprecise.  This sentiment was expressed by Judge Posner who stated that “ if misuse claims are not tested by conventional antitrust principles, by what principles shall they be tested?”¹¹Some are also of the opinion that the misuse doctrine reduces the incentive to innovate while discouraging pro-competitive licensing practices that disseminate patented technology. The opposite side on the other hand argues that the doctrine despite the overlap serves policy goals that differ from antitrust. Michael Carrier for instance conceptualizes the tension between patents and antitrust as the patent antitrust paradox. According to him, patent and antitrust systems promote welfare in different often conflicting ways: the patent system is based on exclusion while antitrust law focuses on competition. Since exclusion -- based acts often restrict competition, Courts are left to reconcile the two systems for promoting welfare without any compass to guide them.

To enumerate the differences between the two, first of all an antitrust plaintiff must prove injury to sustain a course of action. In fact, the plaintiff’s injury must have been proximately caused by the defendant’s antitrust violation. By contrast, a defendant asserting patent misuse has a less strict standing requirement.  Secondly, only injunctive and not monetary relief is available  for patent misuse the remedy of which is essentially equitable in nature. This is in striking contrast to antitrust laws which grant damages and lawyer’s fees in addition to injunctive relief.  To put it a bit differently, whereas misuse results in unenforceability of the patent, antitrust provides a host of remedies including a devastating nondiscretionary trebling of damages by a Court. A word of caution is needed here : Allowing misuse defence to exist separately from antitrust laws affords the infringer a dual recovery. Thirdly, antitrust law is designed to address only particular types of harm and cannot reach everything that patent policy addresses. For instance, patents do not necessarily result in market power and hence patent policy concerns itself with broader considerations than with firms that enjoy market power. On the contrary, applying antitrust standards will only prevent extensions by firms that have market power.  Antitrust is not sensitive to situations where a patent holder has leveraged its power into neighbouring markets and where those acts would not constitute an antitrust violation such as attempted monopolisation. The basic problem is that antitrust focuses on competition in defined markets and may even be blind to activities that undermine the overall effectiveness of the patent system.  On the other hand, patent misuse is not only about ‘monopolistic abuse’ but also serves as an internal constraint on efforts to expand the patent system beyond its bounds.

The infusion of patent misuse with antitrust law became even more apparent in the Federal Circuit’s 1992 decision in Mallinckrodt Inc v. Mediapart Inc where “as with an affirmative antitrust claim, the issue of misuse was held to require further legal analysis under relevant antitrust principles before it could be determined whether invalidating misuse had occurred.”

The Actavis Decision

No discussion on the patent-antitrust interface will be complete without a reference to the recent caseFTC v. Actavis Inc ¹²wherein the US Supreme Court revitalized the debate on how the law should operationalize policy dichotomies underlying the same. It however needs to be underlined that Actavis did not mention -- much less explain-misuse. Actavis has made it clear that both patent and antitrust policies are relevant in determining patent misuse. For patent misuse, this means the rule of reason-type analysis will continue to feature in its jurisprudence and so should patent policy.The Court held that pay-for-delay settlements between patent-owning drug companies and their generic competitors could be anti-competitive even if these settlements were within the scope of the owner’s patent rights. The Actavis decision has been hailed as potentially one of the most important
patent/ antitrust rulings of all times and as the latest in a string of cases signalling a concerted effort by the Supreme Court to narrow the reach and scope of patent rights. In fact, the shift in Actavis stems from more than a changing view of patent rights. It also signals a shift in the Court’s view of antitrust law itself. The Court held that “ patent and antitrust policies are both relevant in determining the ‘scope of the patent monopoly’ ”. Whether a particular restraint lies beyond the limits of the patent monopoly is a conclusion that flows from that analysis and not its starting point. The Court also found it important that the public interest in granting patent monopolies exists only to the extent that the public is given a novel and useful invention in consideration for its grant.  Where this interest is violated, the Court has struck down overly restrictive patent licensing agreements -- irrespective of whether those agreements produced supra- patent-permitted revenues.

The Actavis case pertained to a situation wherein a dominant drug company paid potential rivals millions of dollars not to compete at the cost of public access to cheaper medicine. To be specific to facts, Solvay agreed to pay millions of dollars to each generic- $ 12 million in total to Paddock, $ 60 million in total to Par and an estimated $ 19- $ 30 million annually for nine years to Actavis. The interests of these rivals- once aligned with the public – had been twisted to align with its former rival and current paymaster. These settlements cost consumers $ 3.5 billion a year. The Court pointed accusingly to the Hatch- -Waxman Act as a significant reason for these settlements.

Actavis ushered in an age of more vigorous antitrust scrutiny of patent rights. Its true  legacy lies in the promise of catalyzing those from patent and antitrust spheres into moving towards a realistic compromise on how the rules that affect them both should look like and function. Even a valid and infringed patent did not give the patentee carte blanche to do as it pleased. Antitrust law could limit the exercise of patent rights if it harmed market competition and consumer welfare.  To support its conclusion, the Court dusted off its older decisions from the 1940s to the 1970s. However, a word of caution is needed here as regards the two risks involved in increased antitrust scrutiny -- first, patentees may be less willing to invest in new drugs and second, generics may be less willing to mount patent challenges because the likelihood of obtaining a settlement needs to be further documented post Actavis.  Described by Robin Feldman as “ground zero” for pharmaceutical development and sales, the impact of Actavis on drug prices and innovation -- for better or worse- will be felt in US and far beyond.

Kimble v. Marvel Enterprises Inc.

Another case that could affect both the defence of patent misuse and the patent-antitrust interface more generally is Kimble v. Marvel Enterprises Inc.¹³ An enterprising attorney named Stephen Kimble invented a toy that allowed its user to shoot foam-string and subsequently obtained patent for it (US Patent No 5,072,856 (filed May 25,1990) (Issued December 17, 1991).¹⁴When Marvel began making “Web Blaster” Spider- Man toys, Kimble sued Marvel for patent infringement. It is to be mentioned here that the Web Blaster allowed that toy’s user to shoot foam-string from a can mounted on the user’s wrist by activating a trigger in the user’s hand. Like Kimble’s toy, the Web Blaster was packaged with a glove, but unlike Kimble’s toy, the Web Blaster grove was purely cosmetic- a Web Blaster user did not need the glove in order to shoot foam-string. The District Court awarded Kimble 3.5 % of net product sales on the Web Blaster. The parties eventually settled the case, but the settlement provided no end dates for royalty payments. Over the years, Kimble earned more than six million dollars in royalties. Cordial relations broke down when Kimble sought royalties over the purchase price of newer toys when the invention was only one fifth of the functionality of the toy. In response, Marvel sought a declaration that it was not obligated to pay Kimble following the patent’s expiration.

Judge Callahan held that the hybrid licensing agreement encompassing inseparable patent and non-patent rights was unenforceable beyond the expiration date of the underlying patent unless the agreement provides a discounted rate for the non-patent rights or some other clear indication that the royalty at issue was in no way subject to patent leverage. It deserves to be mentioned here that the Kimble Court invoked the dictum laid down in Brulotte v. Thys Co¹⁵ (which concerned hop-picking machines that were sold for  flat fee along with licences requiring seasonal royalty payments for their use to be paid indefinitely). The Supreme Court found that a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se. The Court drew on the fact that the Constitution prescribed exclusive rights to inventors for limited times. Once the patent expired those once exclusive rights became public property and extending the patent monopoly post-expiration runs counter to the policy and purpose of the patent
laws regardless of the legal device employed. Mention also needs to be made here of Smithkline Beecham Corporation v. Apotex Corp.wherein the Court concluded that it would be a ‘ travesty of equity’ to permit the plaintiff an extension of its patent beyond the patent term.

Is patent misuse the only patent doctrine concerned with competition?

The answer is in the negative. For instance, Courts use patent exhaustion to prevent patentees from leveraging their patents to control downstream commerce. Similarly, judge-made doctrines such as experimental use and inequitable conduct circumscribe the extent to which patentees can interfere with third party activities and extinguish conferred rights. More broadly, doctrines such as functionality in trademark law illustrate how IP policy endogenously incorporates competition concerns.

Can patent misuse be misused?

Like every tool, patent misuse may itself be misused. Its flexibility can devolve into debilitating uncertainty. Its overlap with antitrust law can become a flimsy cantilever and as its distinct mission to safeguard patent policy vanishes, so will it. Punitively applied, it will realize its detractors’ worst fears. Prudently applied, it may yet prove itself to be a keen and incisive scalpel capable of complementing the rougher cuts of the antitrust laws. In fact, the validity of patent misuse ultimately depends on those it was created by and for -- the judges themselves.16Patent misuse should not degenerate into a free-floating ‘get out of jail frr’ card. The discretionary nature of misuse often results in a jumbled mix of platitudes and reprimands and results in lack of coherence and predictability.

A few situations where application of patent misuse doctrine is appropriate

Grant-back licenses often call for scrutiny under the doctrine of misuse. These refer to imposition of a licensing restriction wherein the patentee requires the licensee to grant its rights to any improvement patents or other new technology that the licensee develops while using the patented technology. Needless to say, grant backs may have both
pro-competitive and anticompetitive consequences depending on the circumstances. However grant backs in a patent pool context create disincentives to innovate by licensees and hence bear directly on patent policy making it an appropriate arena for scrutiny under misuse doctrine.

Another area worth mentioning here is coercive package licensing wherein a firm with a large patent portfolio offers to license patents in a single package. The US Supreme Court has held in Zenith Radio Corp.v. Haseltine Research Inc 17that mandatory package licensing may contract patent misuse.

A third scenario where the doctrine of patent misuse is pertinent is the realm of standard setting arrangements. Technical standards (such as file formats or interface protocols), it must be mentioned here, are extremely important in software and other “network industries”18
Consumer market standards that ensure interoperability of products enhances their utility and hence the need of the hour is that patent law policy should encourage development of reliable open standards while retaining incentives for innovation. Robert Merges and Jeffrey Khun have argued that ¹⁹patent misuse is not entirely suitable to remedy abusive practices in standard-setting context – it having been traditionally applied in cases of antitrust-like abuses – and proposes the use of a standards estoppels doctrine to fill the gap. But the reality is that what they propose is only a subset of patent misuse.

Relevance of the doctrine in the years to come

The general view today is that courts should retain at least some form of the doctrine, given the fact that a patent is a privilege that is conditioned by the public purpose of promoting innovation. It is very much needed to provide a modest means to level the litigation playing field currently skewed in favour of the patentee. In 1957, the Ninth Circuit observed that patent misuse was one of the most important and unsettled aspects of patent law. And that sentiment continues to echo even today. Judges could leverage a colourable misuse case to push parties towards settlement by making risk adverse patentees choose to settle on terms it has more control over and the risk of losing on appeal. At the same time, finding misuse expansively will diminish the value of patent rights and discourage investment in innovation.  Misuse defence is not to be taken as dogmatic and its application automatic.²⁰

As novel techniques emerge in the areas of patent accumulation and licensing, there is a need for a broad equitable doctrine -- one that can evolve with the times- to curtail forms of patentee behaviour that abuse the patent system. As the number of issued patents increase, companies anxious to avoid these patent thickets²¹will contribute to a higher frequency of licensing agreements and therefore increase the likelihood that misuse might result. Patent misuse may find its second wind in the wake of controversial practices by PAEs (Patent Assertion Entities) such as Innovatio IP Ventures who sued customers to “hold-up”  manufacturers providing devices complying with the Wi- Fi Standard.  Another prominent PAE is Intellectual Ventures which was accused of targeting the market for technology enabling business processes common throughout the commercial banking industry in the US. Owners of standard essential patents who transfer their portfolios to PAEs to avoid licensing commitments should also expect to face sanctions under patent misuse.

The doctrine can never be without use because at the very least it would be a way of punishing patentees who engage in egregiously bad behaviour that might not be covered by all the other defences like invalidity or inequitable conduct. In fact, it gives the Court one more instrument for preventing serious injustice or abuse. There is no way that rules- whether derived from case law or statute -- can cover every factual situation. And that is the value of equity-based doctrines like patent misuse. For, the role of equity was noted long ago that “ a country can put up with laws that are harsh or unjust so long as they are administered by just judges who can mitigate their harshness or alleviate their unfairness.²²
In fact, equity acts as a fair arbiter.

Conclusion

The need of the hour is a more thoughtful framework for patent misuse that draws upon the strengths of  its roots in patent policy and its interface with antitrust policy. To put it a bit differently, the doctrine is not dead or totally redundant of antitrust case law , but it is hard to have any sense of how much vigor it might have beyond antitrust case law. This should be coupled with the observation that patent policy remains a rich untapped vein in patent misuse despite its Supreme Court pedigree in Morton Salt. If reinvigoration of patent misuse takes place, it will in all likelihood be a compromise balancing innovation and fairness in dealing with competitors and consumers with commercial certainty and robust exclusionary rights and thus encourage the continued production and exploitation of inventions that enrich our daily lives. If it is well tried with evidentiary support, it will be taken seriously. It is entirely the choice and ability of the litigators. But unfortunately misuse is routinely and carelessly alleged and then not seriously pursued. This situation needs to change. Litigators should also be mindful of forum selection. A forum which recognizes that patentees are self-interested individuals and that acknowledges the limited capabilities of the Patent Office will be more receptive to expanding patent misuse. Through debate, experimentation and refinement innate in the common law, future cases can craft pieces that will form a coherent analytical framework for the interface between patent and antitrust laws. These efforts must be supported by clear-headed constituents who look beyond the rhetoric and translate economic insights into workable legal rules.

YEH DIL MAANGE MORE

A Senior Bank Manager wanted more despite receiving Rs.1,07,73,736

By Advocate H.L. Kumar

The desire is unending. The more one gets, the more one desires. This is a human weakness. It is very aptly said that ‘Yeh Dil Maange More’ (This heart desires more). It does not mean that any curb should be imposed on the wings of the human ambitions to soar high. In fact, it is the vision grounded on the reality that has been mainly responsible for achieving the lofty goals. Our Industrial jurisprudence may really sound strange to most of the people, wherein a senior manager of a bank getting salary of Rs.58,339 per month has been held to be a ‘workman’ under section 2(s) of the Industrial Disputes Act, 1947, and the management had to even pay Rs. 1,07,73,736/- by way of the compensation. Thus, it becomes clear that any procedural lapse on the part of the Human Resource Managers results in heavy costs to the organisation. Such lapses generally occur mainly due to wrong legal advice. Therefore, it is imperative on the part of the Managements that they follow the expert legal procedures.

The concept of ‘workman is central to the concept of an industrial dispute as an industrial dispute can be raised either by a ‘workman’ or an ‘employer.’ Since the Industrial Disputes Act, 1947 is a piece of beneficial legislation, the courts have enlarged the scope and applicability of this Act by giving a wide interpretation to the term ‘workman’.  Section 2(s) defines workman as any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, terms of employment are express or implied and include any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of the dispute. The amounts of money to be paid as wages have now become almost irrelevant.

The Courts have interpreted this definition and have identified various determining factors to know whether a person is a ‘workman’ or not. The factors which should be considered are - (a) whether there is a Master-Servant relationship’, (b) when a person is performing various functions which overlap in their characteristics, the nature of the main function for which the claimant is employed should be considered. (c) work is either manual, skilled, unskilled, technical operational, clerical or supervisory in nature, the mere fact that it does not fall within the exception would not render a person to be workman, and hence the following factors must be taken into consideration.

The Delhi High Court by an order dated 12.10.2021 has directed the All-India Institute of Medical Sciences to pay a driver Rs.50 lac as salary in addition to Rs.19,900 per month toward monthly pension besides directing the AIIMS to deposit Rs.30,000 as a lifetime validation amount for being enrolled under the Employees and Health Scheme to a driver whose services were terminated in Dec. 1998.  It is unbelievable an able-bodied person, that too, an experienced driver can remain unemployed for such a long period provided he was willing to work.  A driver can easily find a job or ply a bus, truck, taxi, three-wheeler auto, e-rickshaw etc. etc.  

In this context it is pertinent to refer to a judgment Delhi High Court¹ wherein it has been held as under :

“The fact that the respondent/workman was working as a Driver with the petitioner/management and therefore was a skilled person, it is hard to believe that even this long period from 14th September, 1990 till the award having been passed on 2nd December, 2003, he would have remained idle, especially when there is great demand of the drivers to drive the vehicle especially in big cities.  Therefore, it is safe and reasonable to presume that the respondent/workman must have been gainfully employed as a Driver even during this period and he cannot be permitted to take advantage of the pendency of the proceedings before the Court and get a substantial amount of public money without having worked.  No work no pay should be the rule”.

Offenders Usually Bend or Break Laws

There are a large number of cases where the workers are absent or keep away from work and do not report for work despite offers made by the employers. On the contrary, they approach the Labour authorities and allege that their services have been dispensed with and seek reinstatement with back wages by abusing the process of law. Now in successive judgments, the Courts have held that such a workman cannot reap the benefits of his own fault.

The Industrial Disputes Act is the pivot of the labour laws. It has undergone comprehensive changes from time to time. It mainly stands on to fulcrums of dispute resolution and adjudication. However, the undercurrent is to dispense justice and prevent misuse of its benign provisions. Hence the Industrial Disputes Act provides the mechanism of the dispute resolutions supported with necessary infrastructure so that the energies of partners in production may not be dissipated in counterproductive battles and assurance of industrial justice may create a climate of goodwill. The emergence of the concept of welfare state implies an end to the exploitation of workmen and as a corollary to that collective bargaining came into its own and lest the conflicting interests of workmen and employer disturb the industrial peace and harmony, machinery for adjustment of such conflicting interests became the felt need of time. Because if the disputes are not settled, they would result in a strike or lockout, and dislocation of business essential to the life of the community. At the same time, the provisions of the Act are meant to help the needy, and as such these provisions are not to be invoked by a person who is greedy.² The Bombay High Court has also observed that labour laws are not meant to harass the employer but to get the injustice undone. The machinery of the Act cannot be exploited to extract money from the employers in an unjust way.³

There is a catena of cases where the courts have ruled that the protective umbrella of the labour laws should not be used as a weapon against the management for subserving their vested interests. In one case, as decided by the Madras High Court, it has been made clear that the termination of a workman for his habitual absence and not joining his duties despite letters and reminders to this effect will be legal and justified and when no enquiry has been held by the management.⁴ The conspectus of the case was that the petitioner was working as the ‘office boy’ in the Corporate Office of the respondent Company. The petitioner applied for leave on the ground of sickness from 22nd April 1991 to 23rd May 1991. On 27th May 1991, he applied for leave for one day on 28th May 1991. His leave application was submitted in the corporate office and the same was approved. Thereafter, the petitioner remained absent. On 27th August 1991, a final reminder was sent stating that if the petitioner did not report for duty within 48 hours, he would be deemed to have left the service. Finally, on 13th September 1991, the petitioner was informed that in view of his continuous absence without leave application and without any information, he was treated as having left the service of the company with effect from 28th May 1991. The letter sent by registered post with acknowledgement due was returned with an endorsement ‘refused by the petitioner’. The publication was made in “Daily Thanthi”, dated 22nd September 1991.

On 22nd February 1993, the petitioner raised an industrial dispute challenging the order of termination of employment. The Labour Court did not give any relief to the workman and hence the validity of the order was challenged in the writ petition.

The petitioner contended that there has been a total violation of the principles of natural justice in passing an order of termination. The High Court said that even with regard to the contention that non-conduction of the enquiry would vitiate the whole proceedings, the petitioner’s contention has also been correctly rejected by the Labour Court because the letters sent by the management, which have been marked as documents, would make it clear that the workman was required to join duty, failing which he would be deemed to have been terminated from service. For those letters, there was no response from the workman and the letters were returned with the endorsement “refused”.

Reference is also made to a case by Delhi High Court holding that the Industrial Tribunal erred in granting reinstatement with full back-wages to the bank employee since he was not interested to be posted at a branch of the bank when he specifically wrote that he will not work unless he is posted at the place of his choice.⁵

In yet another case, the Bombay High Court has said that a workman cannot reap the benefit of his own fault when he fails to respond to the offer of the employer to join duties more particularly when such offer was reiterated before the conciliation officer.⁶ The High Court further said that it will not set aside the award of the Labour Court in holding that the workman, who failed to comply with the repeated offers to resume his duties after alleged termination, has abandoned the job of his own accord and as such he will not be entitled to reinstatement with back wages.

In this case, the workman joined the company as a clerk sometime in the year 1985 and filed a complaint that his services were illegally terminated orally from November 16, 1995, without any justifiable reason.  Quoting from Sonale Garments vs. Trimbak Shankar Karve,⁷ the Bombay High Court has stated that “Whenever the employer offers to reinstate the workman at any stage of the dispute or proceedings and if the workman does not accept the offer even without prejudice to his rights and contentions, he will not be entitled to continue his claim for reinstatement in the proceedings and he will also be not entitled to claim any back wages from the date of such offer, conditional or unconditional”.

The Bombay High Court while denying the back wages as claimed by a workman had observed that the materials on record apparently disclose that “the petitioners in their written statement had clearly stated that the workman was at liberty to report to duty without prejudice to the company’s right to take disciplinary action against him and the said statement was made as long back as on 23.3.1992 and yet the workman had not reported to duty nor any explanation in that regard was placed on record by the respondent. In the circumstances considering the fact that the workman failed to avail the opportunity offered by the petitioners the workman would not be entitled to saddle the employer with back wages for his own fault and own failure to report to the duties in spite of the unconditional offer being made by the employer”.⁸

No back-wages are to be granted when the workman has neither pleaded nor stated in evidence hence mere answer to a question in cross-examination about unemployment will not be justified for back-wages to workman as held by the Delhi High Court.⁹  Also back-wages are rightly denied if workman made no efforts to secure employment during interregnum.¹⁰

In another case, when the workman failed to make compliance to the offer made by the management before the Conciliation Officer to resume his duties but he failed to report for duty, the Labour Court held in granting reinstatement with 75% back-wages., the High Court set aside the Award.¹¹

It is also pertinent to note that when the workman not join duty despite repeated call letters sent or opportunity given, by the management, it will be appropriate to consider that he has abandoned the job himself. When the Award is neither perverse nor improper or based on evidence, the writ Court has no jurisdiction to entertain the same.¹²

Also, the Karnataka High Court has held that back-wages on reinstatement as awarded by the Labour Court could not be awarded by the High Court in a writ petition filed by the petitioner when on the date of hearing the respondent was absent and the High Court has affirmed the order dated 22.3.2014 that he will be entitled to wages only from the date he reports for duty and, as such, the order passed by the Labour Court under section 33C(2) of the Industrial Disputes Act has been set aside.¹³

In the absence of documentary evidence, merely filing affidavit or self-serving statements would not suffice.¹⁴

An employee, who has been repeatedly offered the opportunity to join the services by the employer, when fails to take benefit of such an offer, cannot thereafter insist for the relief of reinstatement or for back wages. It would amount to ordering a grant of premium for the mischief played by the workman himself. Being so, once the materials on record clearly disclose that in spite of repeated offers by the respondent company, the workman had failed to report to his duty, there was no fault on the part of the Labour Court in refusing the relief of back wages. Once it had been the consistent case of the company and having been established with the materials on record that there was no termination of services, but it was a case of abandonment of services by the employee without any justifiable reason, the question of ordering reinstatement also cannot arise viewed from this angle, therefore, there was no case for interference in the impugned order by this Court in its writ jurisdiction.

1.   Delhi Transport Corporation vs. Sh. Ram Kishan (Ex-Driver), 2010 LLR 394 (Del. HC).

2.   MukeshKhanna vs. Chandigarh Administration, Chandigarh, 2000 LLR 168 (P&H HC).

3.   M/s. Purofil Engineers Pune vs. Shaikh Anwar Abdul Raman, 2000 LLR 268 (Bom. HC).

4.   P. Krishnan vs. Management, Jonas Woodhead& Sons (India) Ltd. Madras and Presiding Officer, Second Addl. Labour Court, Madras, 2003 LLR 852 (Mad. HC).

5.   Syndicate Bank vs. Sh. B.N. Pandey & Anr., 2010 LLR 903 (Del. HC).

6.   Raju Shankar Poojary vs. Chambur Warehouse Company and Another, 2003 LLR 1150 (Bom.HC).

7.   Writ Petition No.836 of 1996 decided on 29th August 2002.

8.   Suja Agencies vs. Uday Singh B. Rawat and Another, 2004 LLR 20 (Bom. HC)

9.   All India Institute of Medical Sciences vs. Raj Singh, 2007 LLR 852 (Del. HC).

10.  GopalNandkishor Sharma vs. Manager, Nanavati Associates, 2007 LLR 1164 (Guj. HC).

11.  Management of M/s. Amazone Exports Pvt. Ltd. vs. Secretary Labour & Anr., 2013 LLR 312 (Del. HC).

12.  Jamil A. Adhikari, Mumbai vs. Oberoi Towers, Mumbai, 2016 LLR 901 (Bom.HC).

13.  Bangalore Metropolitan Transport Corporation vs. B. Ningappa, 2016 LLR 384 (Karn. HC).

14.  Badal Prasad vs. The State (NCT of Delhi) & Anr., 2012 LLR 1125 (Del. HC).

Law and Morality

(By Ananthika Basant, Vth Semester, B.A. LL.B., Bharata Mata School of Legal Studies)

Law and Morality has their own perceptions of what is right and wrong. In some cases they agree with one another whereas in other cases they don’t. Before when law was codified and introduced to the world, morality was considered as the rule of the country. Morality differs from one place to another on the basis of custom, culture etc. These morals were converted into law, which became codified. There is a huge discussion whether to incorporate morality into law. Law as we know are legal rights and duties that are protected and enforced by the state. If one disobeys the law of the state, he is punished. Whereas morality identifies human behaviour as right or wrong. One does not conform to moral standards of society, cannot be penalised by law. He will only be looked down upon by society. Morality is a very subjective concept, as mentioned before it varies from place to place and from person to person. Morality controls both internal and external behaviours and law only interferes with external.

In my opinion, law must not take morality as a whole into consideration. But morality should have an influence in law. What is right for one group need not be right for another group. An example to explain this can be the LGBTQ+ community, there is still a huge group of people who are against this community. With their moral codes held close to their heart, it is a wrong for them. Whereas the other group who has a more open minded moral ideas, accept this community and treat them like any other normal human being. The point I would like to specify is that, morality shouldnt be incorporated into law instead it should have an influence over law. Marital rape is something that is still not considered as an offence. But our morality opens our eyes and shows us that it is something wrong and should be penalised under law. In this we can see how morality can be helpful in influencing law. Not all moral values should be considered for this. There might be the ones which are more generally accepted among the different communities and people, those values should be the ones that have to be taken into account to influence the law. Also as we move from one generation to the other, moral values changes and becomes more open minded. This factor should also be considered when morality is taken to influence the law.