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Article Published in the Express Magazine Dated
September 07, 2003
General Attorney : Rajiv K. Luthra
My friend had a net friend and while exchanging
friendly mails she sent him some of her scanned
photographs. Now this guy, who never disclosed his
real identity, is not only troubling her but is
also threatening her to fabricate her photographs
and float on the internet. We seek your help to
know that in case he defames my friend what remedy
do we have against him?
Neelam Singh, Jharkhand
If a person defames another, both criminal and
civil remedies are available. However, the problem
in this case arises from the fact that the
identity of the person responsible for the
defamation is not presently known. It is legally
possible to track the sender of an e-mail, using
highly specialised tools. This will be done by law
enforcement agencies, if a crime is reported to
them. Defamation is a crime under Section 499 of
the Indian Penal Code, and if it is of an obscene
nature, a conviction is also possible under
Section 67 of the Information Technology Act. Once
the culprit is located, civil action can also be
initiated against him, to recover damages for the
tort of defamation. Apart from an action against
the person who makes the defamatory statement, it
might be possible to bring action against the
Internet Service Provider as well.
In what is cited as a landmark judgement, the
Delhi High Court has recently granted an
injunction prohibiting an employee, who had sent
derogatory e-mail to his employer, from sending
any further such e-mail. As the identity of the
person was known, it was possible to take
preventive action against him.
We are manufacturers of copper wires and in
order to upgrade our technology and to expand our
business we want to hire some well-qualified
technical person. We seek your advise as to how it
can be ensured that our so hired employees do not
get lured by our competitors’ more attractive pay
packages etc. and terminate the employment
contract by leaving us in a disadvantageous
position. How can we prevent this from happening?
P R Dutta, Delhi
It is difficult for an employer to prevent
employees from leaving his service for better
opportunities elsewhere. According to Indian law,
every agreement by which anyone is restrained from
exercising a lawful profession, trade or business
of any kind is to that extent void. However, if a
restraint clause included in an agreement appears
reasonable to the court, regard being had to the
nature of the business and extent of restriction,
the same will not be considered as a restraint on
trade. Courts have generally upheld restrictions
on employment for short periods of time (say two
years) and within limited geographical areas.
Accordingly, employees cannot be retained in the
employment perpetually or by court injunction.
While refusing to grant injunction against
employees who had left the service of the employer
for better prospects, the courts in a recent case
upheld that an employee’s right to terminate the
service contract couldn’t be curtailed. The
rationale was that freedom in free market economy
has to be zealously protected in the larger
interest of free trade and business. The judgement
was obviously passed in the facts and
circumstances of that particular case, but unless
there are special circumstances which justify such
restrictions, the courts are unlikely to enforce
restrictive clauses in employment contracts.
What property rights are created by the entry
in an extract from village form no. 7/12? Is it
possible to challenge the right of the owner of
the property or his legal representatives on the
basis of this extract?
Sunil Shukla, Delhi
The extract of village form 7/12 is part of the
revenue record maintained by the administration
and relates to the possession of property. Such a
revenue record is not a document of title. In the
absence of other proofs of title, a 7/12 extract
may be used to show possession in a claim for
title, but it is not conclusive proof of title to
property.
Therefore, the presence of a person’s name in a
7/12 extract does not, by itself, grant title to
that person. Ownership will be determined by the
title documents of the property, such as duly
registered sale deeds.
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