Annual Leave with Wage: Section 79 of the Factories Act

Annual leave with wages as provided under Section 79 of the Factories Act, 1948. The provision with an explanation for an understanding the law.

Read more

Screen Shot 2017-08-05 at 11.29.21 PM

Snippets on Labour Law

Factories Act states about the annual leave with wages.

Section 79. Annual leave with wages

(1) Every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of:

(i) if an adult, one day for every twenty days of work performed by him during the previous calendar year;

(ii) If a child, one day for every fifteen days of work performed by him during the previous calendar year.

Snippets on Labour Law of ILW

Explanation 1:For the purposes of this subsection:

a. any days of lay-off; by agreement or contract or as permissible under the standing orders;

b. in the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and

c. the leave earned in the year prior to that in which the leave is enjoyed; shall be deemed to be days on which the worker has worked in a factory for the purpose of computation of the period of 240 days or more, but he shall not earn leave for these days.

Explanation 2: The leave admissible under this subsection shall be exclusive of all holidays whether occurring during or at either end of the period of leave.

(2) A worker whose service commences otherwise than on the first day of January shall be entitled to leave with wages at the rate laid in clause (i) or, as the case may be, clause (ii) of sub-section (1) if he has worked for two-thirds of the total number of days in the remainder of the calendar year.

(3) If a worker is discharged or dismissed from service or quits his employment or is superannuated or dies while in service, during the course of the calendar year, he or his heir or nominee, as the case may be, shall be entitled to wages in lieu of the quantum of leave to which he was entitled immediately before the discharge, dismissal, quitting of employment, superannuating or death calculated at the rates specified in sub-section (1), even if he had not worked for the entire period specified in sub- section(1) or sub-section(2) making him eligible to avail of such leave, and such payment shall be made:

(i) where the worker is discharged or dismissed or quits employment, before the expiry of the second working day from the date of such discharge, dismissal or quitting; and

(ii) where the worker is superannuated or dies while in service, before the expiry of two months from the date of such superannuating or death.]

(4) In calculating leave under this section, a fraction of leave of half a day or more shall be treated as one full day’s leave and the fraction of less than a half a day shall be omitted.

(5) If a worker does not in any one calendar year take the whole of the leave allowed to him under sub-section (1) or sub-section (2), as the case may be, and leave not taken by him shall be added to the leave to be allowed to him in the succeeding calendar year :

Provided that the total number of days of leave that may be carried forward to a succeeding year shall not exceed thirty in the case of an adult or forty in the case of a child:

Provided further that a worker, who has applied for leave with wages but has not been given such leave in accordance with any scheme laid down in subsections (8) and (9) or in contravention of sub-section (10)] shall be entitled to carry forward the leave refused without any limit.

Snippets for Labour Law

(6) A worker may at any time apply in writing to the manager of a factory not less than fifteen days before the date on which he wishes his leave to begin, to take all the leave or any portion thereof allowable to him during the calendar year:

Provided that the application shall be made not less than thirty days before the date on which the worker wishes his leave to begin if he is employed in a public utility service as defined in clause (n) of section 2 of the Industrial Disputes Act, 1947 (XIV of 1947):

Provided further that the number of times in which leave may be taken during any year shall not exceed three.

Snippets for Labour Law

(7) If a worker wants to avail himself of the leave with wages due to him to cover a period of illness, he shall be granted such leave even if the application for leave is not made within the time specified in sub-section (6); and in such a case wages as admissible under section 81 shall be paid not later than fifteen days, or in the case of a public utility service not later than thirty days from the date of the application for leave.

(8) For the purpose of ensuring the continuity of work, the occupier or manager of the factory, in agreement with the Works Committee of the factory constituted under section 3 of the Industrial Disputed Act, 1947 (XIV of 1947), or a similar Committee under any other Act or if there is no such Works Committee or a similar Committee in the factory, in agreement with the representatives of the workers therein chosen in the prescribed manner, may lodge with Chief Inspector a scheme in writing whereby the grant of the leave allowable under this section may be regulated.

Screen Shot 2017-11-17 at 12.03.15 PM

(9) A scheme lodged under sub-section (8) shall be displayed at some conspicuous and convenient places in the factory and shall be in force for a period of twelve months from the date on which it comes into force, and may thereafter be renewed with or without modification for a further period of twelve months at a time, by the manager in agreement with the Works Committee or a similar Committee, or as the case may be, in agreement with the representatives of the workers as specified in sub-section (8), and a notice of renewal shall be sent to the Chief Inspector before it is renewed.

(10) An application for leave which does not contravene the provisions of sub-section (6) shall not be refused, unless refusal is in accordance with the scheme for the time being in operation under sub-sections (8) and (9).

(11) If the employment of a worker who is entitled to leave under sub-section (1) or sub-section (2), as the case may be, is terminated by the occupier before he has taken the entire leave to which he is entitled, or if having applied for and having not been granted such leave, the worker quits his employment before he has taken the leave, the occupier of the factory shall pay him the amount payable under section 80 in respect of the leave not taken, and such payment shall be made, where the employment of the worker is terminated by the occupier, before the expiry of the second working day after such termination, and where a worker who quits his employment, on or before the next pay day.

(12) The availed leave of a worker shall not be taken into consideration in computing the period of any notice required to be given before discharge or dismissal.

South India Corporation And Ors. vs. All Kerala Cashewnut Factory

[Kerala High Court;09 September 1959]

[AIR 1960 Ker 208, (1960) IILLJ 103 Ker]

Justice T Joseph

“Section 79 of the Factories Act is not similar to Section 25 A of the Industrial Disputes Act. All that Section 79 provides is that a worker who has worked for a period of 240 days or more during a calendar year shall be allowed, during the subsequent calendar year, leave with wages at the rate of one day for 20 days in the case of an adult and one day for 15 days in the case of a child. Every employer is thus bound to grant such leave with wages but there is no provision either in Section 79 or any other section of the Factories Act which operates as a bar to the grant of leave with wages for workers in seasonal industries which from their nature cannot be carried on for 240 days in a year. It cannot, therefore, be held that the Tribunal had no jurisdiction to grant leave with wages irrespective of the total number of working days in a calendar year.”

Ambulance Workers warned against Strike: Madras High Court

Madras High Court warns the 108 Ambulance employees of the state to refrain on going to November 18 , 2017 strike.

Read more

Lex Resonance

Ambulance Workers warned against Strike in Tamil Nadu by Madras High Court

[October 13, 2017]

The Interim Orders

The petitioner S Patrick, an advocate, as per information obtained by him under the RTI Act, 2005, said that the union proposes to go on a 24-hours from 8 pm on October 17 till 8 pm on October 18. The Madras High Court warned the ambulance workers union in Tamil Nadu of contempt action if goes ahead with a proposed 24-hour strike from November 17 evening. Passing interim orders restraining the ‘108’ Ambulance Workers Union and its members from taking recourse to strike, the first bench comprising Chief Justice Indira Banerjee and Justice M Sundar said no member of the union shall stay away from duty. The court held that trade union has announced an indefinite stir will do so at their own risk of consequences thereof including penalizing for gross contempt of court. Any member refraining to drive the ambulance and perform duty in case of emergency either on October 17 or 18, they The bench also orally observed, “If they go on strike, terminate them.

Contempt of Court Act, 1971

The contempt proceedings take place under the Contempt of Court Act, 1971. It extends to the whole of India and not to State of Jammu and Kashmir except to the extent it involves the contempt of the Supreme Court of India. Contempt of court includes both civil and criminal contempt under Indian law.

Right to Strike

In T.K. Rangarajan vs. Government of Tamil Nadu and Others (the Tamil Nadu Government Employees Case), Justice M.B. Shah, speaking for a Bench of the Supreme Court consisting of himself and Justice A.R. Lakshmanan, said, “Now coming to the question of right to strike — whether fundamental, statutory or equitable moral right to strike — in our view no such right exists with the government employee.” In 1961, the Supreme Court held that even a very liberal interpretation of Article 19 (1)(c) cannot lead to the conclusion that the trade unions have a guaranteed right to strike as part of collective bargaining or otherwise [1962 (3) SCR 269]. The Supreme Court in the instant case also referred to Kameswar Prasad vs. the State of Bihar (1962) Supplement 3 SCR 369 in holding there is no fundamental right to strike. The Supreme Court following its earlier judgments said that there is no fundamental right to strike. The Supreme Court goes further and says that there is no moral or equitable justification to go on strike. 

Dual Compensation: From Employer and under ESI Act

Whether the employee is entitled to receive compensation under any other route while he received benefit under ESI Act.

Read more

Screen Shot 2017-06-27 at 10.34.57 PM

A. Issue 

Western Indian Plywood Judgment

The sole question which arises for consideration in this appeal is whether the respondent, who is an employee of the appellant, can claim damages from the appellant on account of the injury suffered by him during the course of employment when he was already received the benefit under the provision of the Employees State Insurance Act 1948 (hereinafter referred to as the ‘ESI Act’.

B. Relevant Provisions

There are only three provisions of the ESI which are relevant for the present case.

Section 2 (8): Employment injury means perennial injury to an occupational disease arising out of and in the course of his Employment, being an insurable employment whether the accident occurs or the occupational diseases are contracted within or outside the territorial limits of India.

Section 53: Bar against receiving or recovery of compensation for damages under any other law:– An insured person or his dependents shall not be entitled to receive or recover whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen’s Compensation Act, 1923 (8 of 1923) of any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act.

Section 61: Bar of benefits under other enactments: – When a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment.

C. The Apex Court Verdict

Screen Shot 2017-06-22 at 10.15.19 AM

  • The position with regard to the claim of an employee against his employer on his suffering an employment injury now stands settled with the decision of this Court in Trehan Vs. Associated Electrical Agencies and Anr. [(1996) 4 SCC 255]. In that case, Trehan, who was an employee of the Respondent, received injuries on his face while he was carrying out repairs of a television in the course of his employment as a result of which he lost vision in the left eye. After receiving the benefit from the Employees’ State Insurance Corporation under the ESI Act he served a notice to the respondent demanding Rs. 7 lacs as compensation of Rs. 1,06,785/-. The employer objected to the maintainable of the same and relied upon Section 53 of the ESI Act. The Commissioner overruled the employer’s objection and followed the judgment of the Full Bench of the Kerala High Court in the present case and observed that ESI being a welfare legislation, the Parliament could not have intended to create a bar against the workmen claiming more advantageous benefit under the Workmen’s Compensation Act. The single judge of the High Court dismissed the writ petition filed by the employer but the Division Bench, in appeal, held that in view of the bar created by Section 53, the application for compensation filed by Trehan was not maintainable. The Court analyzed the provisions of Section 53 of the Act and observed at page 260 as follows:

In the background and context, we have to consider the effect of the bar created by Section 53 of the ESI Act. The bar is against receiving or recovering any compensation or damages under the Workmen’s Compensation Act or any other law for the time being in force or otherwise in respect of an employment injury. The bar is absolute as can be seen from the use of the word’s shall not be entitled to receive or recover, “whether from the employer of the insured person or from other person”, “any compensation or damages” and “under the Workmen’s Compensation Act, 1923 (8 of 1923) or, any other law for the time being in force or otherwise”. The words “employed by the legislature” are clear and unequivocal. When such a bar is created in clear and express terms it would neither be permissible nor proper to enter a different intention by referring to the previous history of the legislation. That would amount to bypassing the bar and defeating the object of the provision. In view of the clear language of the section, we find no justification in interpreting or constructing it as not taking away the right of the workman who is an insured person and an employee under the ESI Act to claim compensation under the Workmen’s Compensation Act. We are of the opinion that the High Court was right in holding that the view of the bar created by Section 53 of the application for compensation filed by the appellant under the Workmen’s Compensation Act was not maintainable.”

  • In view of the aforesaid observations in Trehan’s case, with which the court agreed, it is clear that the respondent could not make a claim for damages. Section 53 disentitles an employee who has suffered an employment injury from receiving compensation or damages under the Workmen’s Compensation Act or any other law for the time being in force or otherwise. The use of the expression “or Otherwise” would clearly indicate that this section is not limited to ousting the relief claimed only under any status but the workings of the section are such that an insured person would not be entitled to make a claim in Torts which has the force of law under the ESI Act. Even though the ESI Act is a beneficial legislation the Legislature had through it fit to prohibit an insured person from receiving or recovering compensation or damages under any other law, including Torts, in cases where the injury had been sustain by him is an employment injury.
  • The ESI Act has been enacted to provide certain benefits to the case of sickness, maternity and employment injury and make provisions in respect thereof. Under this Act, the contribution is made not only by the employee but also by the employer. The claim by the employer against the employer where the relationship of the employer and employee exists was meant to be governed by the ESI Act alone. It is precisely for this reason that the Madras High Court in Mangalamma’s case had observed that the object of Section 53 of the ESI Act was to save the employer from facing more than one claim in relation to the same accident. This, in the apex court opinion, is the correct reading of the said provision. This being so the claim of the ESI Act, the trial court was right in dismissing the application under Order 33 Rule 1 of the Code Of Civil Procedure.

D. Update on Trehan Case 

The settled position in Trehan Case supra was also relied upon in 2015 judgment Dhrupad Bai & Ors. vs. M/s Technocraft [Civil Appeal 8155 of 2014].

Notice for the12th Qualifying Examination for Indian Nationals Holding Foreign Law Degrees

Legal System Update:
NOTICE FOR THE 12TH QUALIFYING EXAMINATION FOR INDIAN NATIONALS HOLDING FOREIGN LAW DEGREES

Read more

Screen Shot 2017-05-30 at 9.23.52 AM

Date of Notification: 25/05/2017

The 12th qualifying examination for Indian nationals/citizens holding foreign law degrees is scheduled to be held from 26th June 2017 to 1st July 2017 at the premises of the Bar Council of India at 21, Rouse Avenue Institutional Area, New Delhi

It shall comprise 6 papers of 100 marks, containing subjective questions spread over three parts viz. A, B, and C

Part A will have six questions in which there will be an option to answer any five questions out of the six questions. Each question shall carry 5 marks for the correct answer. Thus Part A shall be of (5X5 marks); 25 marks in all.

Part B shall carry four questions, with an option to answer any three questions. Each question shall carry 15 marks for the correct answer. Thus Part B shall be of (15X3 marks); 45 marks in all.

Part C shall have two questions out of which any one question is required to be answered. Each question shall carry 30 marks for the correct answer. Thus Part C shall be of (1X30 marks).

The examination shall be held from 11.00 AM to 2.00 PM daily between 26/6/2017 to 01/07/2017.

The syllabus and schedule of papers is as follows:

DATES EXAM
26/6/ 2017 Constitution of India
27/6/ 2017 Contract Law & Negotiable Instruments Act
28/6/ 2017 Company Law
29/6/ 2017 Civil Procedure Code and Limitation Act
30/6/2017 Criminal Procedure Code
01/7/2017 Indian Legal Profession and Code of Ethics

Please Note: The hall/admit cards for the candidates giving the qualifying exam will be issued in due course with further relevant information.


Information Curtsey: Bar Council of India

Please Note: For any further information and confirmation of this notification only with the Bar Council of India Website. The information in this regard on Bar Council of India website will be treated as final. 

Legal News Update from Ministries 2017

Legal updates from various Ministries of India.

Read more

A. CABINET DECISIONS

1A. Cabinet approves Protocol amending the  Convention between India and Portugal for the avoidance of double taxation (April 19, 2017) The Union Cabinet chaired by Prime Minister of India has approved the signing of the Protocol for amending the Convention between India and Portugal for the avoidance of double taxation. The Protocol will also ensure prevention of fiscal evasion with respect to taxes on income.  It further said that once the protocol enters into force, both India and Portugal would be able to exchange tax-related information, which will help tax authorities of both countries to curb tax evasion.  This Convention was in force since April 30, 2000. The Convention was applying to following categories mentioned below. This Convention shall apply to taxes on income imposed on behalf of a Contracting State or of its political or administrative sub-divisions or local authorities, irrespective of the manner in which they are levied.

modi cabinet 2014

This Convention was in force since April 30, 2000. The Convention was applying to following categories mentioned below. This Convention shall apply to taxes on income imposed on behalf of a Contracting State or of its political or administrative sub-divisions or local authorities, irrespective of the manner in which they are levied.

(a) This Convention shall apply to taxes on income imposed on behalf of a Contracting State or of its political or administrative subdivisions or local authorities, irrespective of the manner in which they are levied.

(b) There shall be regarded as taxes on income all taxes imposed on total income or on elements of income, including taxes on gains from the alienation of movable or immovable property and taxes on the amounts of wages or salaries paid by enterprises.

(c) The existing taxes to which this Convention shall apply are in particular:

In the case of Portuguese Republic:

S.NO CATEGORIES
(i ) Personal income-tax
(ii ) Corporate Income-tax ;
(iii ) Local surtax on corporate income-tax;

In the case of Republic of India, income tax including any surcharge thereon.

The Convention shall apply also to any identical or substantially similar taxes which are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes.

1B. An Agreement on Social Security (SSA) between India and Portugal was already signed on 4th March 2013 in New Delhi. On February 7,  2017, Portugal on completion of the relevant constitutional and legal formalities conveyed to the Indian side that it is ready to bring the SSA into force. Accordingly, the SSA between India and Portugal would come into force on 8th May 2017.

The SSA with Portugal will provide the following benefits to Indian nationals working in Portugal:

  • For short term contract, up to 5 years, no social security contribution would need to be paid under the Portuguese law by the detached workers provided they continue to make social security payments in India. The above benefits shall be available even when the Indian company sends its employees to the Republic of Portugal from a third country.
  • Indian workers shall be entitled to the export of the social security benefit if they relocate to India after the completion of their service in Portugal. Self-employed Indians in Portugal would also be entitled to the export of social security benefit on their relocation to India.
  • The period of contribution in one contracting state will be added to the period of contribution in the second contracting state for determining the eligibility for social security benefits.

1C. India and Tunisi

Screen Shot 2017-05-02 at 10.43.20 AM (1)


B. MINISTRY OF CORPORATE AFFAIRS

Screen Shot 2017-05-07 at 7.00.18 PMThe Ministry has provided for the incorporation of a company in one day with following features outlined.

REDUCTION IN PROCEDURES: Five Procedures for Starting a Business are now integrated and can be done simultaneously in One step. Using the newly launched integrated e-Form SPICe, stakeholders now apply for Company Name, Company Incorporation, DIN of the directors, PAN and TAN for the newly incorporated company, and avail all FIVE services simultaneously. The requirement of a company seal has also been removed vide Company (Amendment) Act, 2015.

REDUCTION IN COST/FEES: The fee for incorporation (of the integrated e-Form SPICe /INC-32) has been reduced from INR 2000 to INR 500. The cost incurred by a company for company seal is also eliminated, as the requirement for a company seal has been removed vide amendment to the Companies Act, 2013.

REDUCTION IN TIME: The time taken for processing company incorporation applications has been reduced drastically from between 5 to 15 working days in June 2014, to an average of 0.6 working days in March 2017. Similarly, the processing time for name availability applications has been brought down significantly from between 5 to 6 working days in June 2014, to an average of 0.4 days in March 2017. In addition, more than 90% applications are being approved within 1 working day.


C. MINISTRY OF CONSUMER AFFAIRS, FOOD & PUBLIC DISTRIBUTION

jagologo (1)Service Charge levied by Resturants: Clarification issued by Ministry. Payment of service charge with the hotel bills is not uncommon. Many complaints were raised related to it and hence the Ministry has issued following press release on the issue

13. MOCA


D. MINISTRY OF WATER RESOURCES, RIVER DEVELOPMENT, AND GANGA REJUVENATION

1.  Draft of National Water Framework Bill, 2016

Screen Shot 2017-05-03 at 8.01.15 AM

2. Model Bill for the Conservation, Protection, Regulation and Management of Groundwater, 2016: Comments and suggestions are invited by the Ministry.

Screen Shot 2017-05-03 at 7.57.14 AM


E. MINISTRY OF WOMEN AND CHILD DEVELOPMENT

1. Standard Operating Procedure for Missing Children: as provided on the Ministry of Women and Child Development Website is given below.

Screen Shot 2017-05-02 at 10.08.58 AMThe Hon’ble Supreme Court of India in Bachpan Bachao Andolan vs. Union of India (WP (Civil) 75 of 2012) on 10th May 2013 had directed formulation of a Standard Operating Procedure for cases of Missing Children. The Juvenile Justice (Care and Protection of Children) Act, 2015 under section 2 (14) (vii) includes a „Missing Child‟ as a „child in need of care of protection‟ and in Rule 92 of the “Juvenile Justice (Care and Protection of Children) Model Rules, 2016”, a procedure of inquiry regarding a missing child has been laid down.


F. DEPARTMENT OF EMPOWERMENT OF PEOPLE WITH DISABILITIES

The Department has issued notification dated March 10, 2017, for objections and suggestions on the Rights of Persons with Disabilities Rules, 2017

visual-ID-EN


G. MINISTRY OF TOURISM

Screen Shot 2017-05-06 at 3.31.33 PM


H. MINISTRY OF TEXTILE

Screen Shot 2017-05-06 at 3.40.45 PM


I. MINISTRY OF ROAD TRANSPORT AND HIGHWAYS

Screen Shot 2017-05-28 at 7.52.26 AM


References 

Website of the Ministries

Lex Resonance: New Round Up 2017

Important news capsule from Facebook page of @indianlawwatch.

Read more

Lex Resonance

A. CONSTITUTIONAL LAW UPDATE

indian-constitution

1. Power to Punish Contempt: The power to punish for contempt vested in a Court of Record under Article 215 does not, however, extend to punishing for the contempt of a superior court. Such a power has never been recognised as an attribute of a court of record nor has the same been specifically conferred upon the High Courts under Article 215. If Supreme Court does not, despite the availability of the power vested in it, invoke the same to punish for its contempt, there is no question of a Court subordinate to the Supreme Court doing so.

screen-shot-2017-01-16-at-8-40-29-am


B. CIVIL LAW UPDATE

1. No need to change the name in Passport for women on Marriage and Divorce:

indian-passport-renewal-or-re-issue-documents-list

The Prime Minister Narendra Modi has said that there was no need for a woman to change her name on the passport after marriage or divorce and that she could get the travel document by giving the names of either of her parents. There has been an important change in passport rules.  It will be up to her to have either the name of her father or mother on the passport.

2. Supreme Court declined urgent hearing in a request for a SIT Probe in Saharanpur Case (May 26, 2017): 

03

The Supreme Court on Friday refused an urgent hearing on a plea seeking a probe by a Special Investigation Team (SIT) into the recent incidents of caste violence in Uttar Pradesh’s Saharanpur district. A vacation bench comprising Justices L. Nageswara Rao and Navin Sinha said there was no urgency and the petition may be heard after the court’s summer break.


C. CRIMINAL LAW UPDATE

1. Nirbhyay Case: 

download

The Supreme Court upheld the death sentences of four convicts of the brutal gang-rape and murder of 23-year-old physiotherapy student. Terming the crime as brutal, barbaric and diabolic, the court said the incident shook the conscience of humanity and they deserved the extreme punishment. A bench headed by Justice Dipak Misra, while upholding the death sentence awarded to the four convicts—Pawan Kumar Gupta, Vinay Sharma, Mukesh and Akshay Kumar Singh—observed that the DNA profile developed from the blood stains obtained from the iron rods was consistent with the DNA of the victim.

2. article-2146026-13252D5E000005DC-541_224x423Three men to be sentenced for an attempt to murder charge against the Judges of Delhi Higher Judiciary: The three men were found guilty by a Delhi Court of attempting to murder three judges by hurling bricks at them in an alleged incident of road rage in 2012. The court observed that the judges while testifying, had remained unchallenged. Testimony of material witnesses of the prosecution shows that the accused became angry after seeing the sticker of ‘judge. On May 17, 2012, around 5 pm, three judges, Inderjeet Singh, Manoj Nagpal and Ajay Garg, were traveling in an official car. Two men on a bike hit it and fell, and when the driver of the car tried to talk, they got into a scuffle with him and abused him. The two men were identified as Anil Raj and Rohit, who were accused of passing threats and asking two more men to join them. The four men, it was further alleged, picked up bricks from a nearby pile and started hurling at the car, breaking its windshield. The three judges supported the testimony of the driver. While one of the judges, Garg, was hurt on his head and bled in the melee, Singh was “dragged” out of the car.  While one accused is on the run, Anil, Rohit, and Prashant were convicted on charges of attempt to murder. Anil and Rohit were also charged with offenses such as assault and causing hurt to a public servant. The court is yet to decide on the quantum of their punishment.


D. FAMILY & PROPERTY LAW UPDATE

Paper cutout family with divorce related messages

1.  Commercial Surrogacy: Commercial surrogacy has been legal in India since 2002. In 2008, the Supreme Court of India in the Manji’s case (Japanese Baby) has held that commercial surrogacy is permitted in India with a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. At present, the Surrogacy Contract between the parties and the Assisted Reproductive Technique (ART) Clinics guidelines are the guiding force. The Law Commission of India has specifically reviewed the Surrogacy Law keeping in mind that in India that India is an International Surrogacy destination.

International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved and thus, give due regard to the concerns and in order to prevent the commercialization of the Human Reproductive system, exploitation of women and the commodification of Children, the law commission has submitted its report with the relevant suggestion.

The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY. The following observations had been made by the Law Commission: –

(a)  Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

(b) A surrogacy arrangement should provide for financial support for a surrogate child in the event of the death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

(c)  A surrogacy contract should necessarily take care of life insurance cover for a surrogate mother.

(d) One of the intended parents should be a donor as well because the bond of love and affection with a child primarily emanates from the biological relationship. Also, the chances of various kinds of child abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

(e) The legislation itself should recognise a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

(f) The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

(g) The right to privacy of donor as well as a surrogate mother should be protected.

(h) Sex-selective surrogacy should be prohibited.

(i) Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Law Commission has strongly recommended against Commercial Surrogacy. However, this is a great step forward to the present situation.  Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state.

Present Law Related to Surrogacy surrogacy-law

There is a proposed legislation that aims at proper regulation and supervision of ART clinics and banks in the country. Some of the important developments include:

The government has proposed that surrogacy for foreigners in India shall not be allowed but surrogacy shall only be permissible to overseas citizens of India (OCIs), people of Indian origin (PIOs), non-resident Indians (NRIs) and any foreigner married to an Indian citizen. The eligible couple will have to produce a duly notarized agreement with the prospective Indian surrogate mother. Further, they have to produce an undertaking that they would take care of the child/children born through surrogacy.

For foreigners married to an Indian because there are other conditions to do so. The Bill makes it mandatory for the couple to be married with the marriage sustaining for at least two years. They will further need to submit a certificate, attested by the appropriate government authority of that country, conveying that the woman is unable to conceive.

The government has also said that the child born to a foreigner married to an Indian citizen by sperm or egg donation, or surrogacy in India, then the child will not be an Indian citizen, despite being born in India, and will be entitled to Overseas Citizenship of India under Section 7A of the Citizenship Act, 1955.

The ART Bill also has stern rules for surrogates. It says that any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act, including unprotected sex that may harm the foetus during pregnancy and the child after birth, until the time the child is handed over to the designated commissioning couple.


E. BANKING & FINANCE LAW UPDATE

finance

1. Privacy Issue on Mobile Payments: There’s been a surge in transactions through the mobile payment channel. But are mobile payments secure? A study by the Centre for Software and IT Management (CSITM) at IIM Bangalore (IIM-B) raises significant questions on the risks associated with mobile phone-based payment systems.

The study evaluated the apps on the following six key security principles for electronic banking transactions: the potential for confidentiality breaches; the management of the transactions for subsequent repudiation; the strength of the authentication process; the data and transaction integrity procedures; the extent of access and availability of services; and the procedures for maintaining privacy of customer information.

CONCERNS

The study found serious privacy concerns with all the services. For instance, while in many apps like Freecharge, the wallets are not directly linked to third-party vendors (such as Uber or BigBasket), apps such as Paytm allow for automatic linkage with the vendors and they can deduct amounts without the explicit consent of the user. Potential for confidentiality breaches was a problem observed in all the mobile payment methods, except USSD. A recurring security concern was that many of the apps do not automatically log the users out, and anyone having access to the phone can make financial transactions through these apps. This risk is highest if the user loses or misplaces her/his mobile phone, and higher still if the phone is unlocked or unprotected. However, apps such as iMobile, BHIM have auto-logout/session time-out features.


2. Whistleblower’s Identity: Barclays has reprimanded Chief Executive Jes Staley and will cut his bonus for attempting to uncover a whistleblower’s identity, the British bank said on Monday, dealing a blow to a man who has been in the role little over 15 months.  Barclays grants whistleblowers anonymity to prevent any retribution for their actions — in keeping with normal UK practice.  The board, which said it accepted Staley’s explanation that he was trying to protect a colleague from what he believed to be an unfair attack, will back his reappointment at the annual shareholder meeting on May 10.  Barclays’ board first heard of Staley’s attempt to identify the author of the letter in early 2017, after the issue was raised by an employee, Barclays said.


3. Insurance cover for Mental Illness: The Mental Healthcare Bill 2016, which got Lok Sabha’s nod last week, will become law once it receives Presidential assent. The Bill makes it mandatory for insurers to provide insurance to the mentally ill. Health insurers are gearing up to bring mental illness, such as depression and anxiety, under insurance cover. The progressive provision, however, may result in more expensive insurance products. While estimate shows that 5-6 percent of the population suffers from some mental health concern, a recent survey conducted by the National Institute of Mental Health and Neuro Sciences (NIMHANS) puts the figure at a much higher 13.7 percent of the adult population, of which, at least 150 million need immediate medical intervention. This vast number is likely to put pressure on the health insurance providers.


3. FDI Policy in Multi Brand:  The government today said there is no proposal under its consideration to review the foreign direct investment (FDI) policy in the multi-brand retail sector. The current foreign direct investment policy permits overseas players to hold 51 percent stake in an Indian retail company. So far, only one foreign player, Tesco, has received approval for opening stores under the multi-brand retail policy.


4. Income Tax Declaration for loan and credit card bills: All cash payments of over Rs 2 lakh for paying loans and credit card bills during the 50-day period post demonetization will have to be disclosed in the new one-page Income Tax return form. The tax department a few days back notified new Income Tax Return (ITR) forms for filing of returns for the Assessment Year 2017-18 (the financial year 2016-17). Besides providing for declaring income, exemption claimed and tax paid, the forms have a new column providing for declaration for any deposit of over Rs 2 lakh in bank accounts made during 9 November and 30 December 2016 after the old 500 and 1,000 rupee notes were demonetized. This column is also to be used for declaring cash payments in excess of Rs 2 lakh for repayment of any loan or settlement of credit card bills during this 50-day period. “The column is an attempt to match the cash deposits made post demonetisation with the annual income,” he said. While all credit cards are linked to permanent account number (PAN) of the holder, almost all loans by scheduled banks are also provided on furnishing of PAN.


5.  Lenders to Reliance Communications (RCom) has placed telecom company under a strategic debt restructuring exercise (SDR).

reliance_communications

An SDR is a debt-recovery programme under which lenders convert debt to equity and sell the business to new owners. Reserve Bank of India (RBI) rules require that banks get control of at least 51% shares in the company through debt conversion and sell the business within 18 months of initiation of SDR. However, RCom’s lenders have agreed to wait until seven months before they convert debt to equity. RCom has debts of over Rs 45,700 crore on its books and it intends to reduce this by Rs 25,000 crore through a merger of its mobile services unit with Aircel and a sale of its interest in the telecom tower business to Canada’s Brookfield. The company’s current market capitalisation is Rs 5,139 crore. This will be the largest-ever debt reduction by a company in the history of India.


F. INTERNATIONAL LAW UPDATE

globe

1. WTO Negotiations on E-commerce: India has joined forces with Cuba to resist pressure from other members of the World Trade Organization to start negotiations on e-commerce rules. Australia, the EU, Norway, and China have stepped up their campaign to include e-commerce in the agenda for the year-end Ministerial meeting in Buenos Aires, and New Delhi is reaching out to countries that share its opposition to the move. At a recent meeting of the WTO’s goods council, India and Cuba took the stand that it was premature to discuss multilateral rule-making in e-commerce, given the digital divide among members. Several other members such as Australia, Switzerland, Norway, Brazil and Argentina, however, said that an agreement on e-commerce was necessary for the WTO to demonstrate its continued relevance.

Enormous pressure

“There is a pressure from both developed and developing countries to bring e-commerce formally on the agenda of the WTO negotiations,” the official said. “India opposes it because once discussions begin, members could try to include a lot of aspects into it, including market access. It, therefore, has to work together with like-minded countries like Cuba.” Cuba particularly took issue with suggestions to negotiate liberalization and market access in e-commerce and emphasized that there was no basis for doing so, he added. Electronic commerce was made a part of the WTO in 1998 but in a limited way. Members had agreed to give a temporary moratorium on import duties on digital transmissions. This moratorium is extended every two years. It was also decided to hold discussions on various aspects of e-commerce, but there was no understanding on negotiating rules.

The stakes in India

The e-commerce sector is extremely sensitive in India as the move to allow foreign investment into the e-retail sector has, so far, been strongly resisted by the owners of small stores who argue that it will disrupt their livelihoods. Allowing multilateral rule-making in the area could lead to political destabilization. The African countries and the least developed countries (LDCs) have not opposed discussions on e-commerce, but they insist that the focus is on the development dimension. Uganda, on behalf of the LDC Group, said that most of the proposals on the table fall outside the scope of the work program on e-commerce and that development should be the focus of e-commerce talks. South Africa, speaking on behalf of the African Group, similarly said it would like the Goods Council to take up issues that place the needs of developing countries and LDCs at its core.


2. Israel has appointed the first-ever female judge to serve in the country’s sharia court system.

israel-woman-judge

The unanimous appointment of Hana Khatib, hailed by some Arab lawmakers as “historic,” was carried out by the Committee to Elect sharia judges, known as qadis, which is headed by Justice Minister Ayelet Shaked. Sharia courts in Israel deal with personal status issues for the Muslim community, such as marriage, divorce, conversion, inheritance and prevention of domestic violence. They have existed in what is now Israel since early Ottoman times and through the British Mandate and were recognized by the State of Israel upon its founding in 1948.


3. Filipino lawyer Jude Sabio filed a complaint against Filipino President Rodrigo Duterte accusing him of extrajudicial killings during his nationwide anti-drugs crackdown.

rodrigo-duterte_F688F305FEF44CDD81AFD75A733335ED

The complaint was filed before the International Criminal Court (ICC) and asks the court to prosecute Duterte over his involvement in the Davao Death Squad. In an accompanying statement, Sabio accused the Duterte of “repeatedly, unchangingly and continuously” committing extrajudicial executions from his term as Mayor of Davao City through to his current presidency. Sabio is asking the ICC to charge Duterte and 11 senior government officials with crimes against humanity and to issue an arrest warrant for them. Over 8,000 people have been killed since Duterte took office last year over drug-related offenses.


4. Roman Seleznev, the son of a member of the Russian Parliament, was sentenced for hacking into more than 500 US businesses, stealing then selling millions of credit card numbers. Seleznev was sentenced to 27 years, the longest-ever sentence for such a crime, and ordered to pay nearly $170 million in restitution. US District Judge Richard Jones took no leniency on Seleznev, despite Seleznev’s pleas for mercy.

271767851  


5.The Alabama Supreme Court upheld the September 2016 Court of the Judiciary decision to suspend Chief Justice Roy Moore for violation of the Cannons of Judicial Ethics by issuing orders contradicting the US Supreme Court’s recognition of same-sex marriage.

Screen Shot 2017-04-30 at 9.15.11 PM


6. A federal judge in Houston has overturned the county’s bail system for people charged with low-level crimes after finding that it disproportionately affected indigent residents and violated the Constitution.

30BAIL-master768

The judge, Lee H. Rosenthal of Federal District Court, ordered Harris County to stop keeping people who have been arrested on misdemeanor charges in jail because they cannot pay bail


7.H1 B Visa:

1-aV9VrlcyFIbKFXGVA_T46w 

U.S. President Donald Trump signed an executive order for tightening the rules of the H-1B visa program to stop “visa abuses.” The executive order also called upon the Departments of Labour, Justice, Homeland Security, and State to take action “against fraud and abuse of our visa programs. H1 B Visa is a non-immigrant visa in the USA under the Immigration and Nationality Act Section 101 (a) 17 (H). A bill has now been re-introduced in the House of Representatives that seeks an exemption for foreign-born persons with an American Ph.D. in science, technology, engineering or mathematics from the limits on the number of employment-based green cards and H-1B visas awarded annually.


G. TRANSPORT & INFRASTRUCTURE LAW UPDATE

1. Proposed Motor Vehicle Amendment Bill doubles penalty:

cars-india_story_647_040617022230_041017041023

Lok Sabha has approved a bill for radical reforms in transport sector that will usher in multi-fold hike in fine for traffic violations, compensation of Rs. 5 lakh for grave injuries, and check bogus licences and vehicle theft. The bill, which seeks to amend nearly 30-year-old Motor Vehicle Act 1988, also calls for 100

a) The bill calls for 100 percent e-governance and will cap maximum liability for third party insurance at Rs. 10 lakh in case of death in a motor accident. The bill proposes a compensation of Rs. 5 lakh. This is not the upper limit. After getting this amount (the affected family) can withdraw the case or appeal. This (Rs 5 lakh) is being done to ensure that there are fewer court cases and immediate compensation is given. The minister also said that it would not be possible to increase the compensation in case of death to Rs.20 lakh as it would entail substantial hike in insurance premium. In the case of death in hit-and-run accidents, the bill provides for an eight-fold increase in compensation to Rs. 2 lakh.

b) The bill seeks to make services like issuance of licenses totally transparent and online and provides for punitive action against officials in case of delay in issuance of the document to eligible applicants. Under the new system, everyone will have to go to the licence issuing authority under a uniform procedure and if the licence is not issued in three days, the RTO will have to face action. A learner’s licence can be availed online sitting at home.

c) The government, he said, has already 786 black spots across the country, which are accident prone.

d) There is a provision in the bill under which if holes are found on roads, DPR designer and contractor would be held accountable.

e) The minister said that the proposal is on strengthening the network of trauma centres has also been received.

f) Euro VI emission norms, Gadkari added, would be made mandatory from April 1, 2020.

g)The bill provides for linking of driving licence and vehicle registration with Adhaar—based platform and heavy penalties for traffic violations.

h) The bill also provides for Aadhaar-based verification for grant of online services including learner’s licence. This would ensure integration of online services and also stop the creation of duplicate licences.

i) Stricter penalties have been proposed for high-risk offenses such as drunken driving, dangerous driving, overloading, non-adherence to safety norms by drivers (such as the use of seat belt, helmets).

j) The bill aims to provide for a national database of vehicles and driving licences that would help in safety and security and avoid malpractices.

k) It also provides specific timelines for processing of insurance claims. A ten-fold increase has been made in the amount of compensation awarded under a simplified process of claims disbursal wherein the family of an accident victim would get compensation of Rs. 5 lakh as a settlement within four months of the accident. Presently it takes at least four to five years for an award.


Understanding Umadevi Judgment on Temporary Public Employment

Sometimes the process of the Constitutional scheme of public employment is by-passed when different issues arise and one of them is a regularisation of the employees. Read more about the settled law on the subject in Umadevi’s case.

Read more

Introduction

Public employment i.e. jobs controlled by the government sector in a sovereign socialist secular democratic republic has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequal are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme. Umadevi judgment is a hallmark on the subject and the article discusses its takeaways in details.

A. Definitions

(a) Irregular Appointments: The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post.

B. Take Aways of Uma Devi Judgment

1. Regularisation cannot be a mode of recruitment. To accede to such a proposition would mean the introduction of the new head off appointment in defiance of rules or it might have an effect of setting nought the rules.

2. Regularisation vs. Permanence: Something that is irregular for want of compliance with one of the element in the process of selection which does not go at the root of the process can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation.

3. Right of Regularization with Court and Executive: Executive and the court in appropriate cases would have right to regularise an appointment made after following the due procedure in a scheme of public employment even though the non-fundamental process or procedure is not followed.

4. Continued Adhoc Appointment: Where a temporary or Adhoc appointment is continued for long the court presumes that there are a need and warrant for regular post.

5Adhoc Appointment only in Contingency: The regular recruitment should be insisted upon, only in a contingency, an Adhoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointment to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.

6. Adherence to the rule of equality in public employment is a basic feature of our Constitution: Since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment.

7. No automatic absorption for Temporary Employment: It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.

8. The power of the High Court under Article 226 on an issue of Temporary Employment: It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment do not acquire any right. High Courts acting under article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.

9.  No Fundamental Right to those Employed under Daily Wages: There is no fundamental right in those who have been employed on daily wages or temporarily or on a contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequal’s as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.

10. One-Time Measure and Cut-off Date: There may be cases where irregular appointments (not illegal appointments) of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require being filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.

C. Judgments Relied

1. State of Haryana Vs. Piara Singh and Others [1992) 3 SCR 826]. There the apex court in para 45 of this judgment laid

The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an Adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an Adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.

Secondly, another ad hoc or temporary employee should not replace an ad hoc or temporary employee; only a regularly selected employee must replace him. This is necessary to avoid arbitrary action on the part of the appointing authority.

 Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. An unqualified person ought to be appointed only when qualified persons are not available through the above processes. If for any reason, an Adhoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. 

With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent — the distinction between regularisation and making permanent, was not emphasised here — can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) is to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all Adhoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.”

2. In Director, Institute of Management Development, U.P. Vs. Pushpa Srivastava (Smt.) (1992 (3) SCR 712), the apex Court held that since the appointment was on purely contractual and Adhoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service. This Court noticed that when the appointment was purely on ad hoc and contractual basis for a limited period, on the expiry of the period, the right to remain in the post came to an end. This Court stated that the view they were taking was the only view possible and set aside the judgment of the High Court, which had given relief to the appointee.

3. In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and Others [AIR 1994 SC 1638], a three-judge bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.

4. In State of Himachal Pradesh Vs. Suresh Kumar Verma (1996 (1) SCR 972), a three-Judge Bench of this Court held that a person appointed on daily wage basis was not an appointee to a post according to Rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. This Court said: “It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post, the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules.” Their Lordships cautioned that if directions are given to re-engage such persons in any other work or appoint them against existing vacancies, “the judicial process would become another mode of recruitment dehors the rules.”

5. In Umarani vs. Registrar, Cooperative Societies and Others (2004 (7) SCC 112), a three-judge bench held that the State could not invoke its power under Article 162 of the Constitution to regularise such appointments. This Court also held that regularisation is not and cannot be a mode of recruitment by any State within the meaning of Article 12of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. Regularisation furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularization.

This decision kept in mind the distinction between ‘regularisation’ and ‘permanency’ and laid down that regularisation is not and cannot be the mode of recruitment by any State. It also held that regularisation couldn’t give permanence to an employee whose services are ad hoc in nature.

D. Other Connected Judgments

This Court  in State of Rajasthan & Ors. v. Daya Lal & Ors.,  AIR  2011 SC 1193,  has considered the scope of regularisation of  irregular or part-time appointments in all possible eventualities and  laid down well-settled principles relating to regularisation and parity  in  pay relevant in the context of the issues involved therein. The same are as under: 

“The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption  or  permanent continuance,  unless the employees claiming regularisation had been appointed  in  pursuance  of  a regular recruitment in accordance with relevant rules in an open  competitive  process, against  sanctioned  vacant  posts.   The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee, which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which do not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

 Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious  employment”.  Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation if he is not working against a sanctioned post.  Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

“Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.

Part-time employees are not entitled to seek regularisation, as they are not working against any sanctioned posts.  There cannot be a direction for absorption, regularisation   or permanent continuance of part-time temporary employees.

Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.” (Emphasis added)

In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR 937], the apex court clearly held that the words “regular” or “regularisation” do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasised that when rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented to by the apex Court and on principle and there is no reason not to accept the proposition as enunciated in the above decisions.

State of Karnataka vs. M.L.Kesari [SLP (C) No. 15774 of 2006]: The one-time exercise should consider all daily-wage/ad-hoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 of Umadevi, are so considered.

The object behind the said direction in para 53 of Umadevi is two- fold.

First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularisation in view of their long service.

Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi as a one-time measure.

Conclusions

Uma Devi’s Case: The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require being filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.The guidelines laid down in various judgments  are:

  • Regularisation cannot be a mode of recruitment.
  • The concept of regularisation and permanent employment is different.The Supreme Court held to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection can be regularised but a grant of the permanence of employment is a totally different concept and cannot be equated with regularisation.
  • Right of Regularization vests with Court and Executive.
  • Where a temporary or ad-hoc appointment is continued for long period, the court presumes that there are a need and warrant for regular post.
  • If a temporary employee gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
  • Another ad hoc or temporary employee should not replace an ad hoc or temporary employee;
  • If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
  • Since the appointment was on purely contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service.
  • If the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.
  • Rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly.
  • If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment.
  • High Courts acting under article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.
  • Illegal appointments are a nullity in law only irregular appointments can be regularised.

The following conclusions flow from M. L. Kesari Judgment (SupraThe fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi as a one-time measure.

Cooperation for Domestic Workers Recruitment: Saudi Arabia and India

Liberalisation of economy and migration of workers to different countries is common phenomenon however, protection of their rights is a matter of grave concern. The article focusses on Domestic workers moving to Saudi Arabia and the recent agreement with India on the issues concerning them.

Read more

Introduction

The Ministry of Labour is interested in enhancing cooperation between India and Saudi Arabia on the issue of Domestic Service Workers (“DSW”) to secure their rights in both the countries and hence the recently concluded agreement (“Agreement”) between the countries. Saudi Arabia is facing acute shortage of maids. The agreement signed between two countries would remain in force for five years. There are 2.8 million Indian workers in Saudi Arabia and Indians form the largest expatriate community in the Kingdom. Of the around 500,000 domestic workers, mostly working as maids, helpers, drivers and cleaners, around 10 per cent are women. This was the first time India has entered into a labour cooperation pact with Saudi Arabia. A committee of senior officials from both countries will monitor the implementation of the pact to straighten out any difficulties. The agreement also includes putting specific conditions for accepting domestic workers, the report said. The article focusses on the agreement signed and the additional information related to expatriates to the country.

A. Emigration Act

The Emigration Act, 1983 (“Emigration Act”), seeks to safeguard the interests and ensure the welfare of emigrants. Only the recruiting agents registered with the Ministry of External Affairs are eligible as per the Act to conduct the business of recruitment for overseas employment and they are required to obtain proper Registration Certificates (RC) from the Protector General of Emigrants. As per section 8 of the Emigration Act, Protector General of the Emigrants or officials higher than the Protector of the Emigrants to be the registering authority for the purpose. The Ministry of External Affairs, administers the Emigration Act through the eight offices of Protector of Emigrants (POEs). The offices are located at Delhi, Mumbai, Kolkata, Chennai, Chandigarh, Cochin, Hyderabad and Thiruvananthapuram. Additionally, no recruiting agent shall collect from the worker the service charges more than the equivalent of his wages for forty-five days as offered under the employment contract, subject to a maximum of twenty thousand rupees, in respect of the services provided and shall issue a receipt to that worker for the amount collected in this regard.

B. Documentation for Emigration

Documents required for Semi-Skilled Workers

Semi-skilled individuals who seek emigration clearance directly from the Protectors of Emigrants (and not through Recruiting Agents) are required to produce the following documents in original for scrutiny and return:

1) Passport valid for a minimum period of six months with valid visa.

2) Employment contract from foreign employer duly attested by the Indian Mission.

3) Challan towards deposit of prescribed fee.

4) Valid Pravasi Bharatiya Bima Policy

Documents required for Unskilled Workers

Unskilled workers and women (not below 30 years of age) seeking employment abroad as housemaids/ domestic workers shall continue to furnish (in original) the following documents at the time of obtaining emigration clearance:

1) Passport valid for a minimum period of six months with valid Visa.

2) Work agreement from the foreign employer duly attested by the Indian Mission and signed by employer and employee or Permission letter from the concerned Indian Mission/ Post.

3) Challan towards deposit of prescribed fee.

4) Valid Pravasi Bharatiya Bima Policy

5) Approval of the Ministry, if the female worker is below 30 years of age.

C. The Terms of the Agreement

The Indian and Saudi Arabian governmental counterparts  have agreed on following important terms to govern the labour relationship of DSW on the subject:

vbk-02-Saudi_1707477f

Image Source:http://www.thehindu.com/news/national/india-signs-labour-pact-with-saudi-arabia/article5530528.ece

(1) Definition of Domestic Service Workers: As the employees whose job is wholly or mainly to do domestic work in a dwelling that a household uses mainly to live in and will include-gardener, drivers of motor vehicles and people to take care of children, aged, sick and the disabled. The definition is not exhaustive.

(2) Recruitment cost and agencies: Only licensed recruitment agencies registered with respective governments or offices in the companies are allowed to do such recruitment. Recruitment cost should be controlled.

(3) Employment through Standard Contracts: Adoption of a standard contract for DSW and the same shall be binding on the –employer, domestic workers and Saudi and Indian recruiting agencies.

(4) Right to recourse to competent Authorities: Agreement includes granting the said terms to the parties in case of any contractual dispute. It also includes taking legal recourse against recruitment agencies or violation of laws in either country.

(5) No unauthorized Deductions from Salary: Such deductions are not permissible. 

D. Saudi Arabia obligations under the Agreement

(1) Authenticity of the Employment Contract: Saudi Arabia would ensure the authenticity of the employment contract, which would provide among other things the rights and obligations of the employer and DSW and the terms of the employment. Additionally, also ensure the implementation of employment contract.

(2) Dispute Resolution: The Saudi Arabia counterpart would assist in speedier dispute resolution of the matter before appropriate authorities.

(3) Opening of Bank Account: The Saudi Arabia counterpart would facilitate the opening of the bank account and expedite the process to enable the employer to put the monthly salary in bank account.

(4) 24 Hour helpline: Domestic workers to get access to 24 hour helpline.

(5) Exit visas: Ensure the issuance of exit visas in the following cases:

  • Emergency
  • Completion of contract
  • As the need arises

E. Obligations of India under the Agreement

The second party i.e. Saudi Arabia to ensure the following:

(1) Health Requirement: The Indian counterpart would ensure that the DSW recruited are of fir medical condition by getting them examined by reliable medical centers in India. There is an explicit mention of absence of communicable diseases.

(2) Clean background: Indian authorities to ensure that the recruited DSW does not have derogatory or criminal background. India would ensure verification of the employment contract entered by the parties through its Indian Embassy.

(3) Observation of Ethics and Regulations: DSW will abide by the Saudi Laws, moral, ethics and customs while residing in Kingdom of Saudi Arabia.

The dispute arising of this Agreement is to be settled through diplomatic channels. The Agreement between the countries can be terminated by two months notice prior to expiry.

Conclusion

Every year hundreds of thousands of Indians emigrate in search of job. The effect of economic liberalization in India is visible on labour migration too. One of the striking features of labour migration from India is that more than 90 percent of the total outflow is to the Middle East. The said Agreement is a welcome move for the vulnerable section and tends to protect their rights as well as protect their interest by providing for speedy dispute resolution and concerns such as issuance of visa in case of dire need to return to home country.

Source of Information on Documentation & Emigration: http://www.indianembassy.org.sa/Content.aspx?ID=783

Laws to Prevent Sexual Harassment of Women at Work Place

Sexual harassment of women at workplace not only affect her performance but also prevent her from working and also infringes her fundamental right. The article understand present law on the sensitive issue.

Read more

Introduction (1)

Introduction

Sexual harassment of a woman is an attack on her dignity and equality. Every woman should be guaranteed a safe work place to enable her lead a life of her choice and work with dignity and equality. The legal right guaranteed to women for safe work was ratified by the Indian government way back in the year 1993 vide UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW) adopted by UN General Assembly (1979). Today, as per prevailing law, all work place have legal mandate to provide safe environment to work to every women without the an element of sexual harassment. The history of the legislation vest in Bhawari Devi case who in the year 1992 was appointed as an agent of change to curb child marriages when she met with resentment and harassment from the men in the community and seeking justice for her invoked filing of PIL titled Vishaka vs. State of Rajasthan[1] which provided legally binding guidelines for three fold actions- prohibition, prevention and redressal for an act of sexual harassment at workplace which later on was transformed into an Act- Sexual Harassment of Women at Work Place (Prevention, Prohibition & Redressal) Act, 2013 (“Act”). The Act was enforced from December 9, 2013. The article focuses on understanding the ground implications of the Act from the perspective of an organization, individual and women.

A. Statistics for Understanding effective Law Enforcement

In most of the research work, it is stated that the root of the act of sexual harassment lies in patriarchy and the fact of mindset that men are superior to women and so some form of violence against women are acceptable. The mindset for such an act of sexual harassment and fear to suffer from inaction or non-disclosure has physical, physiological impact on individuality of a women and is beyond visualization of an offending gender or society at large. This vulnerability towards women in general is also an infringement to her right to equality besides attacking her dignity. The stigma is of immense dimension and especially because women were not coming out in open due to numerous reasons which includes:

  • Consequences from harasser
  • Loosing one’s livelihood
  • Impact on reputation

There is a need to curb the offence by giving the required legal support to enable her take the harasser to task for committing an unlawful act.

Statistically if we examine, it is a glaring reality that 93% women are employed in informal sector and they need protection under law from any such act, which prevents them from coming forward to work. The Preamble of the Act itself highlights that sexual harassment is violation of fundamental rights of women equality guaranteed under article 14[2], article 15[3] and article 21[4]. The government has said that 526 cases of sexual harassment of women at workplace were reported in the year 2014. In a written reply in Lok Sabha, Women and Child Development Minister Maneka Gandhi has said that 57 cases were reported at office premises and 469 cases were registered at other places related to work during 2014.The National Crime Records Bureau (NCRB) has started collecting data under insult to the modesty of women (section 509 of IPC) at office premises and other place related to work since 2014. The Ministry had issued advisories to all States/Union territories on December 23, 2013 and 27 October 2014 to ensure effective implementation of the Act. The ministries/departments in government have also been advised to ensure the compliance of the Act time to time. The ministry has also taken up the matter with the Ministry of Corporate Affairs for the constitution of Internal Complaints Committee in the accordance with the Act as a mandatory disclosure under Companies Act, 2013.

B. Basic Understanding about the Law

In 2013, Government of India notified the Act, which was consistent with the Vishaka guidelines issued by the Supreme Court of India. Since the Act focuses on workplace and the issue of sexual harassment, it is important to understand the definitions related to the subject.

(a) Workplace: The Act extending to whole of India defines workplace as any place visited by the employees arising out or during the course of employment including transportation provided by the employer for undertaking such a journey.

Workplace (1)

As per definition it covers both organized and unorganized sector. Unorganised sector in relation to the workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

 (b) Sexual Harassment: The Supreme Court in the aforesaid guidelines defined the act of sexual harassment as:

  • Unwelcome and Sexually determined
  • Physical, verbal or non-verbal conduct
  • A demand or request for sexual favors
  • Showing pornography
  • Any unwelcome conduct of sexual nature

Sexual Harassment as defined under section 2(n) of the Act includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:

  1. Physical contact and advances; or
  2. A demand or request for sexual favours; or
  3. Making sexually coloured remarks; or
  4. Showing pornography; or
  5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Examples of behavior that constitute sexual harassment at Workplace as outlined in Ministry of Women & Child Development’s handbook:

  • Making sexually suggestive remarks or overtones.
  • Serious repeated offensive remarks or such as teasing related to persons body or appearance.
  • Offensive comments or jokes
  • In appropriate questions, suggestions or remarks about persons sex life
  • Displaying sexiest or other offensive pictures, sms, mms or posters, whatsapp or e-mails.
  • Intimidation, threat, blackmail around sexual favours
  • Threat, intimidation or retaliation about employees who speak against the harassment.
  • Unwelcome social invitations, flirtings.
  • Unwelcome advances with promises or threats explicit or implicit.
  • Physical contact such as touching and pinching.
  • Careassing, kissing and fondling against the will
  • Persistently asking someone out.
  • Stalking, abuse of authority or power.
  • Falsely accusing or undermining person behind close doors for sexual favours
  • Controlling the person’s reputation by rumor mongering about private life.

Examples of behavior that indicate workplace sexual harassment and merit inquiry as outlined in Ministries handbook:

  • Criticizing, blaming, reprimanding or condemning an employee in public
  • Exclusion from group activities or assignment without valid reason.
  • Statement damaging person’s reputation and career
  • Removing areas of responsibility unjustifiably.
  • Inappropriately giving too little or too much work.
  • Constantly over-ruling authority without a just cause
  • Blaming an individual with a just cause.
  • Repeatedly singling out employee by giving her demeaning jobs, which are not her regular jobs.
  • Insults or humiliations or repeated attempts to exclude or isolate the person.
  • Arbitrarily taking disciplinary actions against the employee.
  • Controlling the person by withholding the resources
  • Systematically interfering with normal work conditions.

C. Redressal Mechanism under the Act

(1) Internal Complaint Committee

To understand do’s and don’ts of an Internal Complaint Committee (“ICC”), it is important to reflect upon the definition of an employer.

Employer

The employer is required by an order in writing to constitute the Internal Complaint committee. If the administrative unit or the offices is located in different places, at division and sub-divisional level then the ICC would be formed at all administrative units or offices. The Composition of ICC consist of the Women Presiding Officer (preferably Women employed at Senior Level at Workplace, if not available then presiding officer shall be nominated from other offices or units of the workplace, any other workplace of same employer or other department or organization), two members from the employees committed to cause of women or have social work or have legal knowledge and one member committed to cause of women or person familiar with issues relating to sexual harassment which includes NGO and associations. One half of the total membership would be women.

(2) Local Complaint Committee

The effort to provide hassle free environment for women in unorganized sector or small establishment to work in environment free from sexual harassment has been provided under the Act by constitution of Local Complaint Committee (“LCC”). The LCC is for establishment less than 10 workers or which hears the complaint against the employer or from domestic workers. The District Officer under the Act discharges the functions for LCC who are notified by appropriate government and who are ADM/DM/Collector or Deputy Collector. The District Officer will appoint one Nodal Officer for Block/Taluka and Tehsil level for rural and tribal area and for ward and municipality in urban area.

Fig. 1: From Handbook on Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal), 2013 by Ministry of Women & Child Development, GOI.

D. Filing a Complaint of Sexual Harassment at Workplace

In order to make a complaint before the ICC or LCC as the case may be, the following ingredients/actions are required:

  • Aggrieved women
  • Complaint to be given in writing
  • Complaint filed within a period of three months or within a period of three months of last incident, if it is arising out of series of incident.
  • If the complaint cannot be made in writing then all possible assistance by LCC/ICC for the purpose of same.
  • Extension of time be given, if the woman was unable to approach within that time.

The mode of hearing the dispute is conciliation proceedings and the initiative would be made for settlement of the same without any monetary compensation. The settlement arrived at by ICC or LCC as the case may be is then forwarded to the Employer or District Officer respectively. If no settlement is arrived the employer may proceed to make enquiry on the basis of service rules applicable to the Respondent. In case of domestic worker, if a prima facie case is made out, then the District Officer may forward the complaint to police officer for registration of case against the person under section 509 IPC[5]. If there is non-compliance of the settlement arrived at between the parties, then ICC or LCC as the case may be has power to send the complaint to the police. Where both the parties are employees they should be given a copy of the findings to enable them to make representation before appropriate court. During the period of enquiry the aggrieved women can request for transfer, leave.

E. Preventive & Prohibitive Mechanism & Role of Employer

(i) Primary responsibility: To provide safe working environment.

DISPLAY AT WORK PLACE

(ii) Secure attendance of the Respondent & Witness when enquiry is initiated.

(iii) To provide assistance to women, if she chooses to file complaint under IPC.

REPORTING

(iii) On completion of Enquiry: Enquiry report must be shared within 10 days of completion with the employer. On the basis of enquiry report would share the recommendations with the employer. If the charges were proved against the respondent the following actions would be taken:

  • As prescribed in the service rules
  • If no such rules exist, in such manner as may be prescribed
  • Deduction from salary or wages as the case may be too be paid to aggrieved women.
  • If the perpetrator of the crime is not an employer, help her file the complaint under IPC.

 If the employer fails to form the Internal Complaint Committee or fails to take actions under section 13, 14 or 22 of the Act or contravenes or abets to contravene the provisions of the Act is liable for punishment under the Act for each failed attempt and even license to practice or carry business can be cancelled. The offence under the Act are non-cognizable.

(iv) Treat sexual harassment as misconduct under service rules.

F. Important Cases

Few of the cases that caught everyone’s attention in media reporting’s on the sensitive issue are mentioned below to understand the sensitivity of the issue. Delhi Police registered a case against Former Chief of the Energy and Resource Institute (TERI), R K Pachauri, the probe agency has charge sheeted the scientist for allegedly sexually harassing and outraging the modesty of a former woman colleague. In 2010, a few members of Indian Women’s Hockey team complained of being sexually harassed by the then chief coach Maharaj Krishan Kaushik. In yet another incident of sexual harassment, gymnastics coach Manoj Rana and gymnast Chandan Pathak were booked for allegedly sexually harassing a female gymnast at the Indira Gandhi Indoor Stadium while attending a national camp for the Asian Games 2014. A budding talent who could have made India proud in the boxing ring like Mary Kom chose to end her life following the continuous onslaught of harassment by her coach. Twenty-one-year-old S Amaravathi consumed poison at Hyderabad’s Lal Bahadur Stadium for not being able to cope with constant altercations with her coach Omkar Yadav. Former Supreme Court Justice (Retd) AK Ganguly, accused in a sexual harassment case involving a law intern decided to resign as West Bengal Human Rights Commission chairman. A woman Additional District and Sessions Judge of Gwalior, Madhya Pradesh alleged sexual harassment. The issues are sensitive, if proved and disproved both, has dimensions of occurrence across different workplace and there is a need to handle them sensitively. Few important judgments need mention.

In Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997 the Hon’ble Apex court mentioned:

“3. Preventive Steps: All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.”

 The Hon’ble Apex court in Apparel Export Promotion Council vs A.K. Chopra  on 20 January, 1999 held that:

“………….In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression molestation. They must examine the entire material to determine the genuineness of the complaint. The statement of the victim must be appreciated in the background of the entire case. Where the evidence of the victim inspires confidence, as is the position in the instant case, the courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance……….. Any lenient action in such a case is bound to have demoralizing effect on working women. Sympathy in such cases is uncalled for and mercy is misplaced. Thus, for what we have said above the impugned order of the High Court is set aside and the punishment as imposed by the Disciplinary Authority and upheld by the Departmental Appellate Authority of removal of the respondent from service is upheld and restored. The, appeals, thus succeed and are allowed.”

G. IPC  & Other Law on the issues of Harassment of Women

There are now specific law relating to Sexual Harassment at workplace but there are certain sections in the Indian Penal Code (IPC) and certain other Acts that protect the women’s from sexual harassment at workplace and they are as follows.

 (a) IPC: Section 354 IPC deals with assault or criminal force to a woman with the intent to outrage her modesty and lays down that: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or both. In cases where the accused sexually harasses or insults the modesty of a woman by way of either- obscene acts or songs or- by means of words, gesture, or acts intended to insult the modesty of a woman, he shall be punished under Sections.294 and 509 respectively.  Under Sec.294 IPC the obscene act or song must cause annoyance. Though annoyance is an important ingredient of this offence, it being associated with the mental condition, has often to be inferred from proved facts. However, another important ingredient of this offence is that the obscene acts or songs must be committed or sung in or near any public place. Section 509, IPC deals with word, gesture or act intended to insult the modesty of a woman.

(b) Civil Remedy: Civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment.

(c) Indecent Representation of Women (Prohibition) Act (1987): The section 3 provides for prohibition of advertisements containing indecent representation of women. Under this no person shall publish, or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement, which contains indecent representation of women in any form. Further section 4 provides for prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women. The provision says that no person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form subject to exceptions.

Penalty-Any person who contravenes the provisions of section 3 or section 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees.

Section 7 (Offenses by Companies) holds companies where there has been “indecent representation of women” (such as the display of pornography) on the premises guilty of offenses under this act, with a minimum sentence of 2 years.

Conclusions

In India, there is a growing incidence of sexual harassment of women at workplace. With increasing presence of women at work place and a taboo for not being able to report the same for various reasons is a serious concern of giving liberty to perpetrators of crime. The following take aways of the article are mentioned below.

SAY NO TO SEXUAL HARASSMENT AT WORKPLACE

  • India is signatory to Convention on the Elimination of all forms of Discrimination  Against Women (CEDAW), adopted by UN General Assembly in 1979.
  • Sexual harassment of women at work place is violation of fundamental rights guaranteed under  the article 14, 19 of the Indian Constitution.
  • There is a legal mandate now to provide safe working environment free from sexual harassment to women.
  • An aggrieved woman is the one who is working, visiting a work place or is a student.
  • Workplace includes dwelling house and transport.
  • Sexual harassment generally include unwelcome sexually determined behaviour -physical contact and advances; a demand or request for sexual favours; or making sexually coloured remarks; or showing pornography; or, any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
  • Complaint against the act of sexual harassment is in writing and is filed within three months of incident or last incident and delay condoned with reasons.
  • Employer has an important role in discharge of the compliances under the Act.
  • Reporting the incident in the annual report is important part of the Act. Although teeth can be added to this part for better enforcement of law.
  • Help should given, if the aggrieved person wants to file complaint under the Indian Penal Code.
  • Settlement for the complaint cannot be done by monetary compensation.
  • Regular Sensitization and awareness programmes and Display of contraventions of the Act are under preventive measures.

[1] AIR 1997 SC 3011

[2] 14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

[3] Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or

(b)the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this article shall prevent the State from making any special provision for women and children

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

[4] 21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

[5] 509. Word, gesture or act intended to insult the modesty of a woman-Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.