Case BriefsForeign Courts

Supreme Court of United Kingdom: Full Bench of Lady Hale (President), Lord Reed (Deputy President), Lord Hodge, Lady Black and Lord Kitchin, JJ., examined the considerations to be taken into account when deciding whether it is appropriate to award compensation to an employee for an invention made during employment. The instant appeal was filed by Professor Ian Shank (appellant) for compensation under Section 40 of Patents Act, 1977 for an invention made by him in 1982 that was granted patent and which provided benefit to his employer Unilever UK Central Resource Ltd. (3rd respondent/ CRL).

Appellant was the inventor of technology used in glucose testing for diabetics while he was employed at CRL, a wholly-owned subsidiary of Unilever Plc. In October 1982, Shank built the first prototype and was known as ECFD. Appellant accepted that right of his invention belonged to CRL from Section 39(1) of Patents Act, 1977 later these rights were given to Universal Plc. Universal Plc filed for the patents application for both ECFD and FCFD technologies. Since Universal was not interested in developing business so they did little to develop ECFD. Appellant left Unilever in October 1986.

The appellant represented by Patrick Green submitted that court didn’t consider that CRL was appellant employer and the entire Unilever Group can’t be considered as CRL undertaking. The argument was made it is impossible for an employee to establish benefits from the patent of a business and it will also be unjust to employ employee inventors.

The respondent represented by Daniel Alexander submitted that CRL should not be considered as undertaking because it never generated any material revenue and was neither the beneficiary of royalties in question. It was merely a service company for Unilever Group.

The exact amount of the compensation is to be determined in accordance with Section 41 of the Patents Act, which requires that the employee is awarded a “fair share” of the benefit which the employer has derived (or may reasonably be expected to derive) from the invention and/or the patent. To determine what constitutes a “fair share”, Section 41(4) of the Act provides a number of matters that must be taken into account, including the nature of the employee’s duties and remuneration, the effort and skill which the employee has devoted to making the invention, the contribution of other employees (be they joint inventors or not) and the contribution of the employer to the making, developing and working of the invention by the provision of advice, facilities and other assistance, opportunities, and managerial and commercial skill.

The Court analysed overall profit and turnover of Unilever Group and found there was an extreme disparity in numerical terms between the amount that Unilever received and salary that appellant was paid. It opined that the correct approach is to determine the part played by the size and success of the employer’s business as a whole in securing the benefit from the invention. Shank patent had produced a very high rate of return and Unilever made a small effort to commercialise it. Unilever had generated benefits from Shank’s patent.

The appeal of Professor Shank was allowed and it was held that Universal and CRL had an outstanding benefit from the patents of Shank and fair share was not given to appellant. Professor Shanks was awarded £2m compensation, roughly a 5 per cent share of the £24m benefit derived by Unilever from the invention, uplifted from 1999 at an average inflation rate of 2.8 per cent. [Shanks v. Unilever Plc, [2019] UKSC 45, decided on 23-10-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Prabhat Kumar Jha, J. dismissed a civil writ petition claiming employment in lieu of acquisition of land on the ground that there was no policy of the Indian Railways for the same.

The instant petition sought a writ of mandamus directing the respondent to grant appointment to the petitioner in Group-C or Group-D post in the East Central Railway as per her educational qualification since her land had been acquired for construction of Neura Daniyama rail line.

The Court noted that petitioner was granted a compensation of Rs 5,26,687.92 after acquisition of her land. She never raised any objection or filed any petition before the concerned authority for providing her a job. Also, she had moved this court after long delay of more than ten years from the date of acquisition of her land without any plausible explanation. 

Reliance was placed on the judgment of Apex Court in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 where it was held that petitioner has no fundamental right to claim job in lieu of acquisition of his land for the purpose of completion of project, besides compensation for acquisition of the land. Admittedly, there was no policy for providing employment to the landlord whose lands had been acquired for completion of the aforesaid rail line project. In view thereof, it was held that the petitioner could not claim employment in lieu of acquisition of her land as a matter of right.[Neera Devi v. Union of India, 2018 SCC OnLine Pat 2328, decided on 05-12-2018]

Case BriefsHigh Courts

Allahabad High Court: The Bench of Ashwani Kumar Mishra, J. declared that employment cannot be denied to petitioner when it was previously extended to him on his merits multiple times.

This petition has been filed challenging the order of the Joint Director of Education which states the qualification for appointment to the post of part-time instructor that would be guided by the respondent as well as the letter of the Secretary of the Board. The petitioner through his counsel Jitendra Pal Singh Chauhan has contended that owing to the above-mentioned criteria he was being denied the concerned benefits. He stated that he was appointed in 1998 and has continued since then with continued extensions plus as per the rules his appointment shall operate prospectively. The respondent has contended that as his service term was fixed thus his claim shall not be accepted.

The Court was of the view that the appointment of petitioner cannot be treated to be a fresh appointment for the purposes of determining his qualification when his employment has been extended multiple times which shall be considered of him having the requisite qualifications. Thus the Court ordered that the required consideration be made. [Vineet Kumar Kaushik v. State of U.P., 2018 SCC OnLine All 3353, decided on 05-12-2018]

Case BriefsForeign Courts

United Kingdom Supreme Court: A Five Judge Bench comprising of Lord Wilson, Lord Carnwath, Lord Hughes, Lady Black and Lord Lloyd-Jones, JJ. inferred the meaning of financially independent which means “not financially dependent upon the state”.

The appellant was residing in United Kingdom with her friend who she took care of due to medical conditions in lieu of which the appellant was provided free boarding and lodging. She resided there with leave as a student for three months and was granted further leave on 12 occasions some of which were made after the previous leave expired. After her final grant failed, the appellant applied twice but failed.

She pleaded on the context of Article 8 of the European Convention on Human Rights requesting the court to respect her private life that she has now established in the UK. Her plea was rejected due to the fact that her life was established in the UK even when she knew that her continued stay would be dependent upon a further grant of leave also it was against the public interest that she was financially dependent upon her friend and father. Hence, she preferred the appeal.

The Supreme Court questioned the fact as to why would the financial dependence of the appellant be against the interests of the economic well-being of the United Kingdom and that in case of a cessation of a person’s employment the consequences would be more or less the same. Plus if consequently under Article 8 the claimant loses the financial independence then public interest may help to justify the interference with their right to respect for their private or family life in the UK. Accordingly, the appeal was allowed.[Rhuppiah v. Secretary of State for the Home Department, [2018] 1 WLR 5536, decided on 14-11-2018]

Case BriefsSupreme Court

“Judicial service is very different from other services and the yardstick of suitability that may apply to other services, may not be the same for judicial service.”

Supreme Court: The 3-Judge Bench comprising of Kurian Joseph, Sanjay Kishan Kaul and Navin Sinha, JJ., while allowing an appeal filed by a successful judicial services candidate stated that, “the consideration and candidature in the present case of the appellant are afflicted by a myopic vision, blurred by the spectacle of moral turpitude, reflecting inadequate appreciation and application of facts.”

The factual matrix of the case presents a picture in which it is stated that the appellant being a successful aspirant for judicial service was aggrieved from cancellation of his selection for appointment due to the character verification report.

The contention of the appellant by his learned counsel was that he had honestly and truthfully disclosed his prosecution and acquittal. It has been stated that appellant was being subjected to arbitrary and hostile discrimination by placing reliance of Joginder Singh v. State (UT of Chandigarh), 2015 (2) SCC 377. Counsel for the respondents stated that acquittal because prosecutrix turned hostile cannot come to the aid of the appellant and fact that he had disclosed the same earlier does not exempts his conduct involving moral turpitude.

Therefore, the Supreme Court on the observance and analysis of the facts and circumstances of the case stated that “Employment opportunities are a scarce commodity in our country.” In furtherance to the stated analysis, the Court added that “every individual deserves an opportunity to improve.” Also, the Apex Court concluded by stating that no reasonable person on the basis of materials placed before us can come to the conclusion that the antecedents and character of the appellant are such that he is unfit to be appointed as a judicial officer.

Hence, the respondents were directed to reconsider the candidature of the appellant and an appropriate decision shall be taken in light of the present discussion. The appeal was allowed. [Mohammed Imran v. State of Maharashtra,2018 SCC OnLine SC 1943, decided on 12-10-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Shekher Dhawan, J., dealt with a petition filed under Article 226 and 227 of the Constitution of India in nature of certiorari for modification of award passed by Industrial Tribunal where petitioner was denied continuity of services though reinstated.

Facts of the case are that petitioner’s services were terminated orally and no show cause notice was provided to petitioner or was paid any retrenchment compensation thereby violating Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947. An industrial dispute was referred to Tribunal.

Petitioner contended that he was accepted to be employed under respondent and was a workman under Section 2(s) of the Act who has duly completed 240 days of service. Whereas respondent argued that petitioner was not entitled to reinstatement as he was not a workman under the relevant provision and that 240 days in service was not completed.

The High Court was of the view that Tribunal was right in reinstating petitioner and not continuing the service as petitioner himself failed to show his employment for a continuous period of 240 days. Tribunal has rightly exercised its discretion, therefore, no merit in writ petition was found and the same was dismissed. [Jaibir v. Industrial Tribunal,2018 SCC OnLine P&H 1359, decided on 21-09-2018]

Case BriefsHigh Courts

Hyderabad High Court: A Division Bench comprising of Sanjay Kumar and M. Ganga Rao, JJ., dismissed a writ petition against denying candidature on the ground of developing medical conditions in the future.

The appointment of the respondent for Work Assistant at Nuclear Fuel Complex (NFC) was rejected by the petitioner on the grounds that he was medically unfit in view of his morbid obesity, uncontrolled hypertension and sleep disorder as opined by the Medical Committee.

The matter went up to the Central Administrative Tribunal where the order of cancellation was rejected by stating that that a candidate could not be declared unfit for a particular post merely on the ground that he suffered from a disease or disorder without a clear finding that he could not perform the duties and responsibilities attached to that particular post and also the mere apprehension that he may develop complications in future cannot be accepted.

The order was challenged, following which the Court stated that the nature of the work was not so onerous or strenuous that only a person in the pink of health could do it plus no specific standard of physical fitness other than visual acuity was required for appointment of a non-technical staff. Consequently, the fundamental level of the respondent was not impaired by his hypertension or being overweight.

The Court concluded by saying that the authorities seem to have gone on a witch-hunt to come up with new diseases/disorders so as to show the respondent the door and hence being utterly devoid of merit the writ petition was dismissed and the employment of the respondent was allowed as per the orders of the tribunal. [Union of India v. Nenavath Suresh,2018 SCC OnLine Hyd 294, order dated 31-08-2018]

Case BriefsInternational Courts

General Court of European Union : The General Court confirmed the decision of the European Parliament to recover from Marine Le Pen almost €300,000 for the employment of a parliamentary assistant, on the ground that she did not prove the effectiveness of that assistant’s work.

Ms Marion ‘Marine’ Le Pen was a Member of the European Parliament (MEP) from 2009 to 2017. By decision of 5 December 2016,  Parliament decided that, for the period between December 2010 and February 2016, an amount of €298,497.87 had been unduly paid to Ms Le Pen in respect of parliamentary assistance and had to be recovered from her. That amount corresponds to the payments made by Parliament for a staff member engaged by her as a local parliamentary assistant from 2010 to 2016. Parliament complained that she did not provide evidence of the existence of an activity of the local assistant linked actually, directly and exclusively to her mandate.

Ms Le Pen requested the General Court to annul the decision taken by Parliament. General Court took the following view while confirming Parliament’s recovery decision and rejecting in entirety Ms Le Pen’s arguments:

1. That the Secretary-General of Parliament is competent to adopt decisions to recover sums unduly paid pursuant to the Implementing Measures for the Statute of the MEPs and such decision by Parliament does not undermine the independence of MEPs;

2. That she was given due opportunity to argue her point of view, such that her rights of defence were not breached;

3. That it is for MEPs and not for Parliament to prove that amounts received have been used to cover expenses actually incurred and arising wholly and exclusively from the employment of their assistants;

4. That Ms Le Pen has not been able to prove that her assistant performed actual work for her; and

5. That she was not the subject of discriminatory treatment in view of the fact that she provided no evidence establishing that only MEPs of the Front National have, in the past or at present, been the subject of similar proceedings initiated by Parliament. [Marion Le Pen v. European Parliament, Case T-86/17, order dated 19-06-2018]

Case BriefsHigh Courts

High Court of Jharkhand: The Single Judge Bench comprising of S.N.Pathak, J., recently addressed a petition wherein the petitioner prayed for the payment of her deceased husband’s retiral benefits including gratuity and leave encashment, arising out of 23 years of service. The petitioner also prayed to the Court for directing the respondents to provide appointment to her son on compassionate grounds, owing to her husband’s death.

The petitioner had initially filed a petition for addressing her grievances which was disposed of by directing the initial respondents to make necessary payments to the petitioner. Despite the order, in the absence of the respondents complying with it, the petitioner filed another petition which was rejected by the respondents consequent to which the petitioner filed the present petition. Counsel for the petitioner argued that the respondents had not adhered to the Full Bench judgment of this Court in Ram Prasad Singh v. State of Jharkhand, 2005 SCC OnLine Jhar 553 despite the deceased being a work-charge employee and so being entitled to retiral benefits. The opposite party contended that since the deceased was not a regularized employee, he wouldn’t be given the retiral benefits, the wife contends she should be entitled to.

The Court held that the issue had been addressed in the case mentioned by the petitioner wherein it was held, “the work-charged employees, who have completed more than five years of continuous service against one post in the work-charged establishment and otherwise eligible, have a right of consideration of their cases for taking over their services in the permanent (regular) establishment” and “The dependents of work charged employees are not entitled to claim appointment on compassionate ground”.

Hence, the Court directed the respondents to pay the entire retiral benefits and quashed the plea for employment of the petitioner’s son on compassionate grounds. [Meera Devi v. State of Jharkhand, 2017 SCC OnLine Jhar 2690, order dated 18.8.2017]