Contract Labour

or

Outsourcing?

 

Contract Labour Act has not defined either the terms “Contract Labour” or “outsourcing” and hence attributing a meaning or comparison based on that is not so easy. However, on an analysis, it could be seen that intention of both the terms appears same. The coinage of the term “outsourcing” has been done intelligently to create confusion between these two terms.

In general, “Contract Labour” is a term which is applied to man power engaged by somebody else to produce a given result to principal employer where this man power has no direct relationship of employer-employee with the principal employer. In a case where the contractor is not involved in specified activity this would mean simple supply of manpower to principal employer by contractor.

However, “Outsourcing” conveys more or less same meaning when an employer engages somebody else to deliver a specified result where employer is not involved with the man power engagement or supervision or control activity over such man power.

 

 

At the same time, if any activity which is outsourced to someone and carried outside the premises of the principal employer, such manpower engaged will not be termed as “workman” under Contractor Labour Act.

However, a specified work inside the factory or premises of principal employer is assigned to a contractor who brings contract labour and does the work through them; then such outsourcing also falls into the scope of contract labour.

The major difference here could be that while a principal employer is unconcerned about the labour deployed outside his premises in a case of outsourcing; in all cases of outsourcing of a job within the premises the principal employer would be fully liable for all statutory compliances with respect to the labour engaged by the contractor for the work inside.

It is not the definition of the term which is important, but the real intent to decide whether a contract is for Contract Labour supply or outsourcing. While contract labour reflects manpower; outsourcing reflects the job or the activity.

Bombay High Court in the case of Sudhir Kondiram Jadhav (2002 I CLR 97) has held that workers employed by agencies will be the Contract Labour under the Act irrespective you call it contract labour or outsourcing.

It is now well settled that when the jobs and services are outsourced and are carried out in some other premises not being premises under controlled and management of the principal employer, Contract Labour (Regulation and Abolition) Act will not apply. For all other jobs and services outsourced which are carried out in the premises of the principal employer will be covered under the Contract Labour Act.

“Perennial” and “Permanent”

There are occasions where we hear do not engage contract labour on “perennial” and “permanent” jobs. These terms are also not defined under the Act. However, what it means by “perennial” has been clarified under sec. 10(2)(b) where it is said that if the job exists for sufficient duration will be considered as of “perennial” nature. Still, the act nowhere prohibits engagement of contract labour on any job or activity or service unless it is prohibited by the Appropriate Govt. under the provisions of the Act. Certain state governments like of Andhra Pradesh has amended the CL Act in 2003 and clarified the jobs / activities on which contract labour can be deployed but under central law clarity on this point is still missing.

At present, in strict legal sense, due to this lack of clarity, contract labour can be engaged on any permanent nature of job. But, it should be avoided as this may become a valid basis for the Govt. to prohibit employment of contract labour on that particular job / activity / service in the industry.

Alike, till the time it is not prohibited by Government, permanent employees and contract labour working side by side on the same job also has no taboo under Contract Labour Laws. However, the risk could be that in such cases the law prescribes that the wages paid to contract labourers shall be equal and similar to that of permanent employees.

Rules framed under Contract Labour Act by Central Govt. as well as State Govts. carry a specific condition [central rule 25 (2) (v)(a) & (b)] that where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by principal employer of this establishment on the same or similar kind of work. However, in case of dispute regarding whether a work is similar type of work, the same shall be left to be decided by the concerned labour commissioner.

Although Madhya Pradesh High Court in the case of Steel Authority of India Ltd. case (2007 LLR 79) has held that the workers through contractor under CL Act will be entitled to equal wages which were being paid to regular employees, Supreme Court in the case of U.P. Rajya Vidyut Utpadan Board case (2010 LLR 453) however, has clarified that nature of work, duties and responsibilities, attached to the job of permanent workmen and contract labour are relevant in comparing and evaluating as to whether the workmen employed through contractor perform the same or similar kind of work as the workmen directly employed by the principal employer.

Degree of skills and various dimensions of a given job have to be gone into to reach a conclusion that nature of duties of the workmen in two categories are on par or otherwise. Often the difference may of a degree. It is well settled now that nature of work can’t be judged by mere volume of work; there may be qualitative difference as regards reliability and responsibility.

A company with 100% contract labour

It’s a concern for many managements how much contract labour can be engaged or what should be the ratio between permanent and contact labour. The Act does not give any guidance regarding this. Many wonder whether a company can outsource 100% or operate without any permanent workers.  The concept of engagement of contract labour or giving job on contract basis originated to get the things done in a given time frame to be paid on the basis of net result and not on the number of manpower involved and this can always be applied to those areas of the industry where activities are such that they do

not require full time workers for the major portion of the working hours or any sudden increase of volume of work which needs to be accomplished in a specified time. So 100% contract labour can’t be engaged unless the whole industry is leased out to someone else, who ultimately becomes the principal employer for the manpower engaged by him. Hence ideal ratio of contract labour, to keep the healthy industrial relations should be around 70/30 (70% to be engaged by principal employer and 30% through contract labour) and not more.

But it needs to be remembered that once the job / services / activities are allocated to a contractor under proper contract/ agreement, principal employer should not have a say in number and selection of contract workmen, at least on documents. If the principal employer is selecting the contract labour, appointing them under the name of contractor, it is sufficient to establish the relationship employer-employee between the principal employer and the so called contract labour.

Do and Don’ts

Alike principal employer shall not transfer casuals/temporaries/workers on the rolls of contractor. Because, such transfer would establish that contract is sham and camouflage and the real control and supervision is of principal employer. Even if one wants to do this, better way would be to do it by proper documentation. In the whole process of such a thing, documentation is the key to establish whether the arrangements are genuine or fake and there has to be sufficient care to evade any complications.

Rotating contract labour and contractor for the same job / activity / service also may be held as unfair labour practice unless there are sound reasons and proper documentation exists in favour of principal employer as bona fide action.

In all cases of contract labour, Principal Employer is fully responsible in case of injury, illness, disability or death unless the contract labour is covered under ESI with his contractor employer. Hence as a matter of minimum prudence the employer shall see that ESI coverage exists for the contract labourers.

Another thing to be kept in the mind of a Principal Employer is that he shall not initiate any disciplinary action against contract labour.  As long as standing orders are not applicable to contract labour not Principal employer but Contractor as employer in relation to contract workman should take disciplinary action against such errant workman under the service rules of his organization / terms of employment. It has to be noted that Standing Orders are generally not applicable to contract labour as the definition of the workman under Industrial Employment Standing Order Act does not cover contract labour unless a certain Standing Orders specifically cover this category.

To be away from undesired consequences, Principal Employer shall not issue employment card/gate pass/identity card to contract labour. But at the same time Issue of employment card / identity card is an obligation under the provisions of contract labour act and rules and such Employment card / Gate pass / identity cards should be issued by and under the seal of contractor because he is their employer.

It is known that a contractor engaging less than 20 but together the contractors of an employer if engage more than 20  the provisions of registration and other statutory provisions do apply in such cases except  licensing of individual contractors having less than 20 workmen.  However, if a contractor happens to employ 20 persons on any day during the preceding 12 months, the act will apply in whole including obtaining license by the contractor.

Even if the license of the contractor is not renewed but continues to work, contractor labour can’t claim permanency with the principal employer merely on this ground. However contractor can be prosecuted for the violation of the provisions of the act for not getting his license renewed. Karnataka High Court in the case of Steel Authority of India Ltd. (1990) 64 FLR 573 has held that licensing is only a regulatory measure and it does not create any privilege. Bombay High Court in the case of General Labour Union (Red Flag) has held that the employees engaged by a contractor to run a canteen for a company does not become employees of the company if the contractor fails to register the contract with the appropriate authorities. Supreme Court in the case of Deena Nath (1992 LLR 46) has also held that consequence on non-compliance with the provisions related to registration and license is penal and will not result in grant of any privilege to the Contract Labour.

Punjab & Haryana High Court in the case of Food Corporation of India (2008 LLR 391) has held that when the contractor does not possess valid license only penal provisions would be attracted and it is nowhere provided that such contract labour would become the employees of principal employer.

Award of contract

Compliance to Statutory requirements and taking necessary precautions in awarding contract for safeguarding managements interests. Principal Employer for this should execute well drafted agreement and other documents to establish the relationship of principal employer and contractor. Principal employer should not establish the supervision and control over the contract labour for carrying out any activity. It is advisable to have the expert services for this whole process. Because any minute lacunae in drafting of various documents may land principal employer and the organization in trouble in case of dispute. the growing habit of copy paste exercise normally concerned managers do while engaging contractor for their organization in terms of various documents has to be strongly discouraged because each organization has its own specifications, limitations, nature of work and requirements etc. and the contract should be realistic and shall have all terms essential in the context and ambit of the matter.

The situation where contractor is changing but contract labour remain same may be viewed against the principal employer as it reflects against the spirit of the act unless the shift of labour from one contractor to other is properly documented. This may lead to declaration of sham contract. Supreme Court in R.K. Panda case (1994 LLR 634) has held that workers working under different contractors for last 10 years shall be absorbed by the principal employer for the proven sham nature of the contract and contract labour deployemnt.

As per law, the moment, contract is terminated or closed, the workers employed by such contractor looses the right to enter into the premises of the principal employer to work as it is the responsibility of the contractor to either keep such labour under his employment or clear their accounts. If principal employer allows such contract labour to work in the premises without any tag / identification, in all probabilities such contract labour will be deemed as the workmen of the principal employer and this should be essentially avoided.

Principal employer should not become a party to any settlement executed between the contractor and his workman so as to see that he never binds himself to any covenants with contract labourers. A settlement is a mutual matter between the contractor as employer and his workman and management of principal employer has no role there to play.

However, it is the responsibility of Principal Employer and he is under legal obligation to pay wages to the workmen employed by contractor in the premises in case contractor refuses to pay as per section 21 (4) of the Act.

Kerala High Court in the case of Cominco Binani Zinc Ltd. case (1989 LLR 123) has also held that if the contractor fails to pay wages to his employees engaged by him, principal employer will be liable to pay the same.

By any means Principal Employer is prohibited to engage contract labour on such job / activity / service which is abolished by the Appropriate Govt. In such situation principal employer should not engage contract labour for such job / activity / service. If he does so, such contract labour would be deemed as the employees of the principal employer. But Management can challenge the decision of the Appropriate Govt. regarding abolition of jobs in High Court through writ. Still it is advisable not to engage the contract labourers in the abolished work during the pendency of the case unless management gets a stay on the operation of abolition order.

Reforms

Industrial Disputes Act was amended recently with reference to definition to workman, introduction of grievance redressal committee, right of workman to approach labour court directly in case of individual dispute etc.

Govt. is also considering amending Contract Labour Act which is in terms of providing clear cut equal benefits and wages to contract labour with regular workman but such considerations are at very preliminary stage and no one knows whether it takes shape or not.

In case if so required, there would be a time we have to consider reduction of outsourcing and in such case we should start doing it by first identifying those perennial or permanent job and then extending it to other jobs by downsizing or recruiting more permanent employees.

• •

Service Tax

TRANSFERRING OF SERVICE TAX LIABILITY

UNDER A CONTRACT

 

 

An assessee can certainly enter into a contract to shift his liability of tax and no law prohibits this despite casting a responsibility of tax under reverse charge mechanism.  In a tendered contract, it is the responsibility of a contractor to estimate such liability by himself while participating in the bidding process and even he is enabled to seek clarification on this to employer while doing so.

This applies to any indirect tax laws. For example, it is open to a seller, under his contract with the buyer, to recover the Sales Tax from the buyer, and to pass on the tax burden to him and this is a fully legal and valid contract term.

 

It is in this connection, if there are clauses for shifting of tax liability and inclusion of service tax liability to this, as observed by Supreme Court in Laghu Udyog Bharati v Union of India (AIR 1999 SC 2596), service tax being an indirect tax, it is possible that it may be passed on.

 

Therefore, there cannot be any difficulty in accepting that the liability of a service recipient can be shifted to the provider and vice versa through a contract for the purpose. The provisions concerning service tax are relevant only as between the Assessee under the statute and the tax authorities. The statutory provisions under Finance Act or Service Tax Rules can be of no relevance to determine the rights and liabilities between the contracting parties as agreed in the contract between two of them. To reiterate, there is nothing in law to prevent one party  from entering into an agreement with the contractor that the burden of any tax arising out of obligations of such party under the contract would be borne by the contractor.

 

If there are clauses in contract meaning that a particular party only would be liable to honour its tax liabilities under this contract as per law, and not as per the obligations under the contract, there was no need to make such a provision in a bilateral commercial document executed by the parties, since such party would be otherwise also liable for the same. Therefore, these clauses forming indispensable part of a contract will have to be read as incorporated only with a view to provide for contractor’s acceptance of the tax liability arising out of his obligations under the contract.

 

It is very much a conventional and accepted commercial practice adopted by many organisations to shift such liability to the contractor. In the case of Numaligarh Refinery Ltd. vs. Daelim Industrial Co. Ltd., reported in 2007 (8) SCC 466 the Supreme Court itself has held that by virtue of a clause “All taxes and duties in respect of job mentioned in the aforesaid contracts shall be the entire responsibility of the contractor…” the contractor was liable to pay and bear the ‘countervailing duty’ on the imports though this duty came into force subsequent to the relevant contract. This demonstrates that similar clause in contract will bind the contractor of all tax liabilities including service tax, even if it is on reverse charge basis.

 

In the circumstance, it is felt that there is no manner of doubt left that when there is a clause to that effect, all the taxes and levies shall be borne by the designated party including the service tax portion to be paid by the other (being the recipient of services).

BACK WAGES TO A

 

REINSTATED WORKMAN

In a judgment of March 2009 again Hon’ble Supreme Court has been held that even if services of the workman is terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages. The court has followed a series of cases on this subject.

The appeal in hand was directed against the judgment and order passed by the High Court of Judicature at Allahabad in Civil Miscellaneous Writ Petition No. 32250 of 1990 dated 21.5.2007. The facts in nutshell are as follows: Mahendra Ram, was recruited on casual basis sometime in the year 1981 in M/s P.V.K. Distillery Ltd. (now rechristened as Lords Distillery Ltd.). On 14.8.1982 he was shifted to bottling section as a permanent workman by the orders of the General Manager. On 9.1.1985 his services were terminated by an oral order from the employer. Aggrieved by the said order, he went before the Labour Court inter-alia alleging that he was employed in the establishment of the employer and that his services were terminated orally in an unjustifiable and illegal manner.

The employer on the other hand contended, that, he was engaged by Gaya Singh Yadav, contractor and therefore he was never in their employment and thus master-servant relationship never existed between them.

Labour Court after considering and appreciating the oral and documentary evidence on record, has come to the conclusion, that, Mahendra Ram, was in the continuous employment of the establishment since 1980 and the employer unjustifiably and illegally terminated workman’s services from 19.1.1985. The labour court also came to the conclusion that the workman has worked for more than 240 days in a calendar year, as required by section 25B(2) (a) of Industrial Disputes Act, 1947, and therefore he is entitled for reinstatement with continuity of service and full employment benefits and back wages.

In the interregnum, the factory remained closed for years together and ultimately it was declared as a sick unit. Management of the company was substituted with the present management for its rehabilitation/ reconstruction. The Company then went before the High Court challenging the validity and legality of the award by which the workman has been reinstated with continuity of service and full employment benefits and back wages. By the impugned order, the High Court has stated that there is no reason to doubt the findings given by the Labour Court and declined to interfere with the award passed by the Labour Court in Adj. Case N0. 32/87. Aggrieved by the said order, employer approached the Supreme Court by this special leave petition.

In the supreme court it was ascertained that, the Labour Court on appreciation of evidence on record has rendered a finding that there exists a master-servant relationship between the employer and Mahendra Ram. Section 11A of Industrial Disputes Act gives power to the Labour Courts to give appropriate relief in case of discharge and dismissal of a workman in exceptional circumstances. Labour Court after appreciating the facts and evidence on record rightly held that his services have been unjustifiably and illegally terminated by the employer without complying with the procedure and accordingly directed his reinstatement in service with all other service and monetary benefits.

The only question which required consideration by supreme court in the appeal was whether the Labour Court was justified in awarding full back wages, while directing the employer to re-instate the workman in service.

Learned counsel for the employer contended that the High Court has acted erroneously by declining to interfere with the award of the Labour Court and that the grant of relief of reinstatement and back wages is not automatic in all matters arising under the provisions of Industrial Disputes Act. and also urged that the employer will suffer irreparable loss and injury, if it has to employ a contractor’s  workman on its rolls with full back wages even for the period when the establishment was closed.

Although it was argued that his services were terminated in the year 1985 and since then the case is pending for the last two decades in different courts the court found it as having no relevance, since he had approached the court within a reasonable time and it is not his fault that the case was pending before the court for long period. it was observed that these grounds could not be held against him for denying the relief of back wages otherwise he would suffer double jeopardy of losing back wages and delay in getting the reinstatement for no fault of his. Therefore, the court further observed that it would have been more enlightening, had the High Court reasoned out as to why the appellant should reinstate the respondent with full employment benefits and should pay full back wages to him for nothing in return from him in terms of work, production etc.

Giving a realistic approach to the matter and in spite of all these circumstances the supreme court restricting itself to the question of 50% of the total back wages, held that although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages. The matter was viewed in the context of the fact that the factory has been taken over by a new management altogether and by asking the management to pay full back wages for the long interregnum would be unfair and unjust.

Therefore, the court finally held that, it would be unreasonable to put a huge burden on the employer by directing them to reinstate respondent with continuity of service and with full back wages, because the factory had been declared sick and remained closed for many years and has been assigned to a new management in order to rehabilitate/reconstruct it. In view of this the honble court opined that it would be fair and reasonable to direct the employer to deposit 50% of back wages by way of arrears of back wages, instead of full wages awarded by the Labour Court.

Accordingly, the judgment and order of the Labour Court and the High Court were set aside and it was declared that the Mahendra Ram shall be entitled to 50% of the total back wages payable during the aforesaid period and the employer was directed to calculate 50% of the total back wages payable during the aforesaid period and to deposit the same in the Labour Court within 6 weeks from the date of the order. Labour Court, was further directed to deposit the said amount in a fixed deposit in a nationalized bank within two weeks thereafter. If for any reason, Mahendra Ram claims the said amount within two years from the date of deposit of the said amount in the Labour Court, the Labour Court is directed to take effective steps to ascertain the identity of him and on determining the same; the said amount shall be disbursed to the him with interest. If for any reason, he does not claim the said amount within two years from the date of deposit of the said amount in the Labour Court, the same should be handed over to the District Legal Service Authority with interest.

 

ANALYSIS

In the back drop of this case, it would be interesting to analyze some of the case laws on the issue of back wages to a reinstated workman.

We will start with the land mark decision of Supreme Court in Western India Match Co. Ltd. v. Third Industrial Tribunal, West Bengal, 1978 Lab IC 179 (SC). In this case considering the claim of workman it was held that “in deciding the question, as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement.

 

But in Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80, the Court held that the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. However this was only an enabling order not a mandatory order to be followed. Therefore, it  did not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law.

When it came to the case of Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443, the Court further observed that the plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But the court however clearly spelt out that there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement with full back wages. For instance the court cited that in an industry which is closed down or in severe financial doldrums; and where the workmen concerned have secured better or other employment elsewhere and so on, the court may even deny reinstatement where reinstatement is impossible because the industry has closed down. It was hence held that there shall be a vestige of discretion left in the court to make appropriate consequential orders in such cases. It was also held that the court in its discretion can deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief keeping the facts of the case and circumstances in to consideration.

In the case of P.G.I. of M.E. and Research, Chandigarh v. Raj Kumar, (2001) 2 SCC 54, the court held that the payment of back wages having a discretionary element involved in it, has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having regard to the facts and circumstances of the matter in the issue, upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. There exists an obligation on the part of the High Court to record in the judgment, the reasoning before however denouncing a judgment of an inferior Tribunal, in the absence of which, the judgment cannot stand the scrutiny of otherwise being reasonable.

In the case of Hindustan Motors v. T. K. Bhattacharya, (2002) 6 SCC 41, the Supreme Court stated that section 11-A of Industrial Dispute Act 1947 as amended in 1971, is couched in wide and comprehensive terms. It vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows, that, the Tribunal is duty-bound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent. Court also held that Industrial Tribunal and Division Bench of High Court erred in proceeding on the assumption that quashment of dismissal order should be followed by reinstatement with full back wages as a matter of course. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, the court  viewed that in the context of the facts of this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement.

In Allahabad Jal Sansthan v. Daya Shankar Rai, (2005) 5 SCC 124,the Supreme Court has observed that “ A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration.

 

In Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan, (2005) 3 SCC 193, the quantum of back wages was confined to 50%, stating: It is an undisputed fact that the workman had since attained the age of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retiral benefits like gratuity, etc. and accepting the statement of the learned Senior Counsel for the appellant Mills that it is undergoing a financial crisis, on the facts of this case we think it appropriate that the full back  wages granted by the Labour Court be reduced to 50% of the back wages.”

 

In U.P. State Brassware Corp. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479, it was observed by the Supreme Court that the person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.

 

In the case of Haryana Urban Development Authority v. Om Pal, (2007) 5 SCC 742, it was stated by the Supreme Court that, it is also well-settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be  lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors; one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any.

 

As a concluding remark, now it can be understood based on the consistent and confirming decisions of the Supreme Court continuously during these years that the back wages and even reinstatement is not a sine qua non** for any illegal or unjustifiable retrenchment, removal, dismissal etc of a workman from service and the facts and circumstance would only determine the effect and consequence of such an act of the management, on a case to case basis.

*ratio decidendi = the reasoning for a judgment which, later other courts are bound to follow

 

* sine qua non = an essential condition or a prerequisite

 

International Day of Differently Abled Persons

Today, 03rd of December is regarded as the International Day of Persons with Disabilities.

Its so nice to think about them at least a day around the year.

They are sometimes disabled not only physically or mentally but socially and legally also.

Hence our constitution like many other countries' have made certain special provisions granting them certain privileges.

One amongst is regarding a little reservation for job and for education.

We have now considered them not as disabled but some one who does things using available limited provisions and differently than others.

So this differently-abled now get certain jobs to certain extent on some reservation, but were denied such reservation in promotions.

In recent times there were landmark decisions of Hon'ble Supreme Court and High Courts in this matter.

One of them was Union of India v/s. National Federation of the Blind & ors., decided by Supreme Court on 8th October 2013.

In this case the court gave the following guidelines to the Government of India in the matter of reservation for disabled(in gist):

(i) Modify the OM dated 29-12-2005 for mandating computation of 3% reservation on total number of vacancies in the cadre strength and the subsequent OMs consistent with this Court's Order

(ii) “Appropriate Government” shall compute the number of vacancies available in all the “establishments” and further identify the posts for disabled persons and implement reservation to fill in such vacancies without default.

(iii) Government shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non observance of the scheme of reservation for persons with disabilities should be considered as an act of non-obedience and Nodal Officer in department/public sector undertakings/Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default.”

The Supreme Court observed that the provisions of reservation in jobs establishes vividly the intention of the legislature viz., reservation of 3% for differently abled persons has to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts.

The Supreme Court analyzed the provisions of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and arrived at the following conclusion:“ Thus, after thoughtful consideration, we are of the view that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., “computing 3% reservation on total number of vacancies in the cadre strength” which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29 December 2005, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new Office Memorandum(s) in consistent with the decision rendered by this Court.” (emphasis supplied)

Following this in a more recent (Public Interest Litigation) case of National Confederation for Development of Disabled and another v/s. Union of India and others decided on 04.12.2013, the Bombay High Court further held that " In view of the aforesaid decision of the Supreme Court, it is clear that reservation has to be computed with reference to total number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion."

This decision of the Bombay High Court which related to Indian Administrative Service was attempted to be challenged in  Supreme Court by the Government of India. However, the Hon'ble Supreme Court on 13th September this year (2014), dismissed the Petition for Special Leave to Appeal filed by Government has confirmed the Order of Bombay High Court.

With this the clarity has been brought out in the matter of reservation for disabled and has been rendered further justice to such class.

It is a tenet of theory of distributive justice that in the absence of reservations the requirements of justice and fairness will not be met.

The famous Jurist John Rawls (A Theory of Justice -Rawls, 1971, p. 302; revised edition, p. 47) explains that Social and economic inequalities are to be arranged so that :

(a) they are to be of the greatest benefit to the least-advantaged members of society, consistent with the just savings principle (the difference principle).

(b) offices and positions must be open to everyone under conditions of fair equality of opportunity.

While we all stand for our own prosperity, kindly think of them who are disabled not for their fault at least today and also think what can you do not being disabled for their welfare and status equal to you in this society!

A PASSAGE INTO

THE HIGH COURT OF KARNATAKA

 

Influenced by the Aurangazeb’s style of administration Mysore ruler Chikkadevaraja Wodeyar, distributed the governance into 18 departments in 1701. Since then the Hindi name “Att’ haara” (eighteen) was coined to denote Mysore Governance. That was in this connection our Karnataka High Court building first came to be known as “Attara Kacheri” denoting government offices. Prior to the installation of ‘Vidhana Soudha’- the massive landmark of Bangalore which became almost Bangalore’s logo, it was this majestic red building which housed the government offices of Mysore State.

Karnataka High Court building then known to be ‘attara kacheri’, as such is a museum telling you a lot of the history of Karnataka and its administration. You would recall that it was ‘Mysore State’ before ‘Karnataka’ came to be in being in 1973 through Mysore State (Alteration of Name) Act, 1973. If you observe closely, the emblem on the central wing of this building is slightly different from the Karnataka’s State Emblem. If you further see you would realise, beneath it is a simple heading that says ‘Offices of the Mysore Government’.

Little more to history.

In 1799, Tipu Sultan died fighting the British in the fourth Anglo-Mysore war. Srirangapatnam was finally conquered by the British and then they recognized the claim of Krishnaraja Wodeyar III, son of Chamaraja Wodeyar to the throne of the State. Thence, administration, initially run from Tipu’s Palace at Srirangapatnam got shifted to Mysore. However, this did not last long. In 1831, the Governor-General of India - Bentick issued proclamation that Raja was incapable of handling the affairs of the State and assumed administration of Mysore for East India Company. Yet again in 1881, after the death of Krishnaraja Wodeyar III, the British restored the throne to his adopted son Chamarajendra Wodeyar but abolished the post of Diwan and appointed a British as “Resident” who was overall in charge of the administration.

This system continued till the Maharaja executed the instrument of accession to the Dominion of India on 24-9-1947 about a month after Indian Independence. Under the Constitution of India, Mysore State was one of the 8 Part ‘B’ States with the Maharaja designated as the ‘RAJPRAMUKH’ till part B was omitted by the Constitution (Seventh Amendment) Act, 1956.

 

 

Attara Kacheri

It was in 1862, Levin Bentham Bowring, who succeeded Lord Cubbon, was keen on relocating the public offices to Bangalore as it was nearer to the Madras presidency. The British had already setup a well-functioning military barrack near Halasur Village (present Ulsoor) since 1809. So, Bowring decided to construct the present High Court building to accommodate all revenue offices of the state in the leafy environs of Meade’s park, later renamed as Cubbon Park.

 

The Attara Kacheri building was designed by Major Gen Richard Hieram Sankey, the Chief Engineer of the Mysore Government, after whom present Sankey Tank and Sankey Road are named. Sankey designed an arcade red building in the Graeco-Roman style. Wallace and Company, a British firm was the construction contractor who sub-contracted it to Arcot Narayanswamy Mudaliar and Rai Bahadur Bansilal Ramnathan. The building got completed in 1869 at a cost of Rs.4,27,980. The public offices initially housed here included the revenue and the secretariat and other offices including the judiciary.

In 1864 when the High Court got established, as it was for the then State of Mysore it came to be known as Mysore High Court. It was then in 1956, finally the legislature was shifted to the bigger Vidhana Soudha and the Mysore High Court occupied the entire Attara Kacheri building. After the name change of the state in 1973, the court was also renamed as ‘High Court of Karnataka’.                                                          

As can be seen here, the original building consisted of only half of the existing building and with fewer wings. There was an annexe built on the north-east corner in 1917 and an extension of entire building in 1995 that spanned across an area of 2,40,508 square feet, built in the same style of architecture.

There was a plan for the government to demolish the old building- Attara Kachery and to make a fully new building. However, there was a Public Interest Litigation (PIL) in which the Court directed the government to protect the building as a heritage and most ironically, this was also the first PIL (Public Interest Litigation)to be submitted in our High Court. The court hence survived that demolition scare and for this we have to thank those heritage concerned citizens who filed those PILs.

The new extension building got constructed in 1995 behind the old one reflects a similar architecture and it is hard to identify the old from the new. Presently all the court halls are housed in the newer building and only the offices of the judges are in the old. There are 37 court halls in operation and 37 judges at present, though the sanctioned strength is 41.

The courts today have digitized boards or LCD display that provide information on the case and stage of hearing, and computerised offices. The police guarding this Highest Court of the state remain polite while lawyers rush across the passages in their flowing black gowns.

 

 

The High Court Museum

 

It is to open these treasures of historic information and to show case the rich heritage of Karnataka and its High Court the Museum of Karnataka High Court is opened in the High Court premises. It was an idea of former Chief Justice Hon’ble Mr. Cyriac Joseph to open such museum which is now housed in an attractive room decorated with ancient chandeliers and colourful paintings on the ceilings, typical of any European palace. The museum houses certain artefacts which are very unique and antique. Some of the exhibits here include –

·       A 1933 handmade chair by the then Karawara

   (Uttara Kannada) District Judge, Honourable RBH Davies.  It is said that the Judge always sat in this

    chair to pass the verdict.

 

 

 

 

 

 

 

 

 

·       A 1902 wall-clock named ‘Ansonia’ that adorned the wall of Munsiff Court of Karkala. Shaped like the grandfather clocks of yore, it still is in good working condition and shows not only the time but also the date!

·       A stamp paper for two and a half annas bearing the Maharaja’s face issued during the Mysore Governance

·        Old bells, locks and brass seals of the Nizam Period.

 

 

 

 

 

 

 

 

 

 

 

·       The heavy brass seals etched with Urdu lettering were worn as badges by the peons in those days.

 

 

·       The locks shaped as a lion’s head with its mouth as the keyhole

 

·       Badges for Peons during Nizam's rule

 

 

 

 

 

 

•   A letter from Sir Viswewaraya to the Maharaja’s secretary advising on the ideal site for an annexe building to the Public Offices.

 

·      A copy of Indian Constitution of 1949

 

 

Across the walls are photographs of Chief Justices of all eras, the history and making of Attara Kacheri, the eighteen kacheris of Mysore government and a huge canvas that displays the signatures of all the members of the initial draft committee of the Constitution.

 

 

Nevertheless to say, the entry to this museum is restricted as it is the seat of Honourable High Court of Karnataka which is the final asylum for justice seeker within the state!

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