SUPREME COURT OF INDIA [bench of Justices Tarun Chatterjee and Surinder Singh Nijar] held on 03.12.09 as follows: -

Getting your job back after a long bitter legal battle with your employer hardly means he has to pay you the entire back wages FOR CONTRIBUTING LITTLE OR NOTHING to the establishment. Employers can decide on a case-to-case basis if they really have to pay full back wages to a staffer, who had been terminated from service but had gone to court and won his jpb back. The payment of back wages having a discretionary element involved in it, had to be dealt with in the circumstances of each case and no straight jacket formula can be evolved. The rationale for the pick and choose policy, the court said, is that an ousted employee ends up CONTRIBUTING LITTLE OR NOTHING to the employerduring the period of absence. Payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry. The court was deciding an appeal by a Kanpur based marble company against their oldf-time accountant.

[full text of the judgement will be placed in the website http://www.taxesinindia.com as soon as it is available for publication]

SUPREME COURT ORDER

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS DISCRETIONARY ELEMENT, FULL PAYMENT OF BACK WAGES, REINSTATEMENT

IN THE HIGH COURT OF DELHI, while dismissing the petition W.P.(C) No. 11460 & C.M. No. 11182 of 2009, decided on 30.10.2009, in re: MICROSOFT CORPORATION (INDIA) PVT. LTD vs COMMR. OF SERVICE TAX, it was observed as follows : -

QUOTE: We are afraid, the petitioner cannot pitch its case to that level as there are various thronging issues which are settled and cobwebs cleared. As per the respondents, in view of their submissions taken note of above, the case at hand is not that of plain and simple import of goods. The agreement makes it clear that MS provides services to the petitioner and the petitioner provides service to MS. The consumers are based in India, both destination and consumption is in India. Indian Consumers pay for services which go out to the owners, namely, the Holding Company and part of its comes back to India in the shape of commission. Economic and commercial activities also take place in India. On the basis of these features, it is the argument of the respondent that entire performance is is existed and becomes extinct in India. It is not the province of this Court, in these proceedings, to finally pronounce on these aspects and once we take the view that both sides have arguable case and final determination of these issues is to be done in the first instance by the Tribunal only, it would not be even wise to venture into that exercise. Insofar as the Tribunal is concerned, it has kept in mind all necessary parameters which are required to be gone into for deciding such applications for stay / waiver of pre-deposit and has passed an equitable order. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_del_wpc_11460]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS ARGUAQBLE CASE, ECONOMIC AND COMMERCIAL ACTIVITIES, EQUITABLE ORDER, SERVICE TAX, SERVICES