E
30 June 2014 at 23:12
Two persons A and B were joint holders in the property in Himachal Pradesh. B died a few years ago.A got property mutated in the name of B widow and his two major children. My query is can wife of B a widow relinquish her own share to A who is the real brother of B in the joint parental property? If not what is the way she can transfer her share to A .
Rajesh Tandon
30 June 2014 at 22:55
1. It is a case which I'm discussing about one of my relative Mrs A who was employed with one of the Indian private companies who had a tie up with one of the US company i.e US-based client. Mrs A was hired by the Indian company and was on the payroll of the Indian company but was reporting to the Indian companies US-based client.
2. The US-based client had closed down its operations in India and accordingly the Indian private company terminated the employment of Mrs A.
3. She was verbally told that the client has terminated the contract with the said Indian private company. The said Indian private company subsequently sent her email that her services have been terminated on the grounds of her poor performance. When she asked them for e-mails, warnings or proofs substantiating her poor performance, the said Indian company replied back that company is under no liability to give her the proofs.
4. When she was hired by the said Indian company, she was never told that she is being hired for the said US company and that when they would quit their work in India, she would have to leave.
5. Incidentally, on being hired, in the terms of contract it was written that your services can be terminated in the probation period without any notice and pay. She signed the contract as this is the standard language of the contracts. If one goes into each and every nitty-gritty of the contract agreement there may be a couple of grey areas which are objectionable and if you start objecting to every terms and conditions then one can never pick up a job with most of the companies. She was working very hard and sincerely.
6. The said US company gave her a mail ID, login ID and password to operate. Subsequently she changed her own password as we all do and continued to work. In fact there were certain other candidates who were also selected but subsequently left the US company. At one such occasion the US company offered her to take on additional responsibility and promised that she would be promoted subsequently. She took on the additional responsibility but was never promoted.
7. Subsequently on the closure of operations of the company in India, her all the mail correspondence through the company mail ID was blocked. She could not access the mail ID. It seems to be a clear-cut case of hacking under information technology act 2000 since she was using her own password & therefore without hacking how can somebody block the account.
8. Now on one side the Indian company is talking of poor performance without substantiating its claims of poor performance by providing any proof in writing or by e-mail. On the other hand all the evidence of e-mail correspondence with US company whereby she could prove her performance is not accessible to her because the e-mail ID being blocked.
9. In fact, the terms of contract as mentioned in para 5 above had been unfair and extremely unreasonable. Further, it seems to be a case of Unconscionable Bargaining Power under Unconscionable contract whereby she could not comprehend the consequences of signing the contract.
10. The Honourable Supreme Court of India in Central Inland Water Transport Corporation Limited vs. Brojo Nath Ganguly held that an unfair or an unreasonable contract entered between the parties of unequal bargaining power was void as unconscionable, u/s 23 of the Contract Act. The Supreme Court held that a printed form contract was void on grounds of coercion, where the parties had unequal bargaining powers.
11. The said judgement mentions that the word unconscionable means showing no regard for conscience, irreconcilable with what is right or reasonable. The fact that there was not only inequality in the bargaining power together with the terms unreasonably favourable to the stronger party i.e the Indian company , it indicated that the transactions involved element of deception i.e the Indian company already had in the mind that if there was the need to terminate the services of the employee they should be able to terminate without notice and may be that accordingly they drafted the contract. My relative Mrs A had no meaningful choice, no real alternative or did not in fact assent or appear to assent to the unfair terms. In fact my relative Mrs A, being the weaker party had only option to obtain this job upon the terms imposed by the stronger party or go without them.
12. In the meantime, Mrs A has been advised by me to keep the Labour Commissioner in loop
13. My querries to the lawyer:-
(a) What are the chances of court taking the stand of Mrs A, noticing the unreasonable element of the contract and awarding the whole contract as unconscionable contract so that it is treated void.
(b) Would such interpretation of Unconscionable Contract can be drawn by labour court or high court?
(c) If the contract is treated void under Unconscionable Contract what are the implications ?
(d) Can she still seek her two months salary since the contract would be void, her termination does not have any application? Actually I am in doubt on this issue since the very fact that if court treats this contract as void then as per the legal meaning of void the status is as if no contract ever existed. So why should she get her dues? So again win win situation for employer despite making unfair contract?
(e) What are the chances that court treats this case as case of illegal termination since all the three essential ingredients/Cardinal principles of natural justice which is basis of of any legal or administrative proceedings have been violated and the actions of the company have been arbitrary as under:-
(i) The first principle of natural justice of giving hearing to the other party has been violated and before even giving a hearing to the party a unilateral decision to terminate her services has been taken. In fact no warning or counselling has been carried out where in she could have represented her case and she would have been given a hearing.
(ii) The second principal of natural justice that judge cannot be biased has been violated since she has not got any satisfactory reply from the MD of the company.
(iii) The third principle of natural justice of passing speaking order is also violated that is the company says that it is not binding on the company to give the proof of her poor performance. The order should be such that it speaks for itself about the justness of the order.
(f) What are the chances that she can seek damages on account of illegal termination as brought out in the case of Central Inland Water Transport Corporation Limited vs. Brojo Nath Ganguly.
(g) What role has the labour commissioner got as an adjudicating authority in such matter?
(h) After labour commissioner office, should the next step should be to go for labour Court?
(i) Can Mrs A lodge a complaint with the secretary of information technology of the state, being the adjudicating authority under the IT ACT 2000 for the offences committed by Indian company, under section66 Of the IT Act for hacking, though the e-mail ID which has been blocked and hacked was provided by the US company but who knows that Indian company might be acting on the orders of US company and might itself would have blocked the e-mail ID so as to destroy all the evidences of the e-mail correspondence between Mrs A and the US client.
(j) How is the jurisdiction extended and exercised over a US company as far as offence of hacking is concerned, since IT secretary of the state will have only jurisdiction over the companies or offences is committed within the area of jurisdiction of the particular state in India?
Gaurav
30 June 2014 at 21:08
Hi,
Please tell me the procedure to remove mobile tower erected near my house?
on what basis i can challenge the mobile companies for the same?
please provide me information if any order passed by HC /SC of india
rajsinghkadyan
30 June 2014 at 20:14
the ownership/khawat of 20 acres agriculture land is in the name of 5 persons and I am the owner of the half of the total land now I want to separte the khawat / ownership in my name for half of my holding . please explain the procedure and also tell can I apply for the change online on internet . my above said property is in Teh. Ganaur Distt. Sonepat,Haryana
rajsinghkadyan
30 June 2014 at 20:04
weather additional tax u/s 7A of HVAT Act 2003 is levy able on BKO"S( Brick kiln owner's ). pl also explain weather the BKO"S( Brick kiln owner's ) is an retailer or wholesale dealer
mihir
30 June 2014 at 19:27
I am a SY B com student from mumbai and I want to do law after graduation. But i dont want to take typical lawyer related cases. Can i start legal consultancy for real estate??? If yes then what type of and how much scope I would have for the same????
Member (Account Deleted)
30 June 2014 at 18:56
Hi, to all
We had got married on Nov 28th 2012
Every think was going very good after married, she was quite happy and as well as my whole family was happy with her work and all. (I m the only son and having 2 small sisters) She was very ladli bahu of the parents.
Very soon (after 6 months) we got good news that she is expecting we all got double happiness. At the end of 7th month she went to her mom place for Delivery. (Her Maika is 10 min distance to my house) And in January we got baby girl, but after that her mom and she sudden start to blaming to me as well as my parents, and this how its 5 months complete to my daughter and 7 months complete to my wife is leaving to her mom place, In between my parents had visited and asked for the reason`s but no any solution, Even I had gone lots of time to there and asked by wife to come back but all time new blaming and new subject arise.. THIS THAT…. All Bull shit...
And now its 7.6 months completed and now they had keep 3 condition`s..to me
1st opt: Give me in writing and signature done by my all the family member that, it would be repeat what happen, and if anything happen to my daughter ( my wife) then we very blame for it.
2nd opt: Leave your Parents place and Separation with them.
3 rd opt: You both get Separate ... From each other.
In that conditions What should I do.. My mind had stop working, Please anybody helps me out.
Arka Foundation
30 June 2014 at 18:47
Dear Members,
We would like to Compile (into a BOOK) whole episode
of a selected feature(non-fiction i.e. interviews)
which had been published in a local daily news paper
three years back.
This was authored by a single author.
Is it infringement of copyright?
Do we have to face any delinquencies in this regard?
Please enlighten us in this regard.
gangesh
30 June 2014 at 18:43
HI sir,
I am from amethi district of uttar pradesh .I have a land on wich a tin shed is located for tethering cattles and other agricultural purposes in front of my house.My grandfather has made that tin shed(madaha)and we are using it from previous 30 years.
Now Two months ago,one of my neighbour has demolished the boundary wall of my house and encroached the tin shed.I have made the complaint to police authorities but I didn't get any help.
So what s the leagal procedure to get that land and tin shed back.
Can I directly appeal in district court or do I have to appeal first at SDM court of my tehsil?
What is the hiearchy that i have to follow so that I can file a case?
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Regarding community certificate
Sirs,
I have one problem regarding community certificate.
My client is SC community in Karnataka state. His origin is karnataka. Now he is shifted his family to Tamilnadu and live for the past 25 years. now he apply community certificate for his children at Tamilnadu. but as per Tamilnadu govt. record there is no people in his community, hence Tashildar did not issue the community certificate.
Now the problem is how my client get community certificate in SC category for his children. help me?
Thank you for all.