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Lesson 14
Industrial Disputes Act 1947
Introduction
The Employers and Workmen’s (Disputes) Act, 1880 was the first law dealing with
industrial disputes in India,
The Trade Disputes Act, 1929, replaced this Act.
The Industrial Disputes Act, 1947 came in place of the 1929 Act to give more coverage
to the industries disputes in the country.
The Act came into force on the 01.04.1947.
The Act extends to the whole of lndia.
It applies to all industries whether owned by private owners or by the Government
Objectives
Workman of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate, AIR
(1958) SC 353 . The Supreme Court laid down the following principal objectives of the Act:
Promotion of measures for securing and preserving amity and good relations between the
employer and workmen.
Investigation and settlement of industrial disputes between employers and employers,
employers and workmen, or workmen and workmen.
Prevention of illegal strikes and lock-outs.
Relief to workmen in the matter of lay-off and retrenchment.
Promotion of collective bargaining.
Providing machinery or authority for settlement of industrial disputes.
Relief to workmen in case of transfer and closure of undertaking.
Improving service conditions of labor.
Any person (including an apprentice) employed in any industry to do any manual, unskilled,
skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms
of employment is express or implied.
For the purposes of any proceeding under the Act. Workmen includes any such person who has
been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute
or whose dismissal, discharge or retrenchment has led to that dispute.
Any person who is subject to the Air Force Act, 1950,0r the Army Act, 1950, or the Navy
Act, 1957.
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Any person who is employed in the police service or as an officer or other employee of a
prison.
Any person who is employed mainly in a managerial or administrative capacity.
Any person who, being employed in a supervisory capacity, draws wages exceeding
10,000 p. m Any person who exercises functions mainly of a managerial nature.
Wages means all remuneration capable of being expressed in terms of money, which would, if
the terms of employment, expressed or implied, were fulfilled, be payable to a workman in
respect of his employment or of work done in such employment.
Allowances (including dearness allowance) as the workman is for the time being entitled
to.
The value of any house accommodation or of supply of light, water, medical attendance
or other amenity or of any service or of any concessional supply of food-grains or other
articles.
Any travelling concession.
Any commission payable on the promotion of sales or business or both.
Industry means any business, trade, undertaking, manufacture or calling of employers and
includes any calling, service, employment, handicraft, or industrial occupation or evocation of
workmen.
Case Laws; Bangalore Water Supply v. A Rajappa (1978) 2 SCC 213 [Triple Test]
A bench of the Supreme Court consisting of seven judges exclusively considered the scope of
industry and laid down that "Where there is
systematic activity,
organised by co-operation between employer and employee,
for the production and/or distribution of goods and services calculated to satisfy human
wants and wishes,
prima facie, there is an "industry" in that enterprise." This is known as the ‘Triple Test’ for
defining an enterprise as industry.
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An industrial dispute may be individual dispute or collective dispute. Any dispute between an
individual worker and the management is an individual dispute.
Where any dispute relates to the overall workers like dispute relating to hours of work, leave,
wages, retrenchment, closure etc., these are collective disputes.
Case Laws : Workmen v. Cotton Greaves Co. Ltd. (1971) An industrial dispute can be raised
for non-workmen.
Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an
individual Workman, the dispute or difference between that workman and his employer shall be
deemed to be an industrial dispute even when no other workman nor any union of workmen is a
party to the dispute.
In case of any industrial establishment in which 100 or more workmen are employed or
have been employee; on any day in the preceding 12 months, the appropriate Government
may order the employer to constitute a Works Committee.
The Committee shall consist of representatives of the employer and workmen engaged in
the establishment.
To promote measures for securing and preserving amity and good relations between the
employer anq workmen.
To comment upon matters of their common interest.
To endeavour to compose any material difference of opinion in respect of any matters.
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The conciliation officer may enter the premises of any establishment to which the dispute
relates after giving reasonable notice for holding conciliation proceeding.
The conciliation officer may enforce the attendance of any person for the purpose of
examination of such person
The conciliation officer may call for and inspect any documents which are relevant to the
industrial dispute or for verifying the implementation of any award or carrying out any
other duty.
Where any industrial dispute exists or is apprehended, the conciliation officer may hold
conciliation proceedings to settle the dispute.
Where the dispute relates to a public utility service and a notice has been given, the
conciliation officer shall hold conciliation proceedings to settle the dispute.
The conciliation officer shall investigate the dispute and may do all such things as he
thinks ht for the purpose of inducing the parties to come to a fair and amicable
settlement.
A report shall be submitted within 14 days of the commencement of the conciliation
proceedings or within such shorter period as may be fixed by the appropriate
Government. The time may be extended by such period as may be agreed upon in writing
by all the parties to the dispute.
Duties of Court
A Court shall inquire into the matters referred to it and report thereon to the appropriate
government ordinarily within a period of six months from the commencement of its
inquiry.
Every report of a Court together with any minute of dissent shall, within a period of 30
days from the date of its receipt by the appropriate government, be published in such
manner as the appropriate government thinks tit.
The award so published shall be final and shall not be called in question by any Court.
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A member of a Labour Court may, after giving reasonable notice, enter the premises
occupied by any establishment to which the dispute relates for the purpose of inquiry.
The Court shall have the same powers as are vested in a Civil Court,.
A Labour Court may appoint one or more persons having special knowledge of the matter
under consideration as assessor to advise it.
The Labour Court shall have full power to determine by and to whom and to what extent
and subject to what conditions, if any, such costs are to be paid.
Where an industrial dispute relating to the discharge or dismissal of a workman has been
referred to a Labour Court, and if it is satisfied that the order of discharge or dismissal
was not justihed, it may set aside the order of discharge or dismissal and direct
reinstatement of the workman on such terms and conditions as it thinks tit.
The Labour Court shall rely only on the materials on record and shall not take any fresh
evidence in relation to the matter.
Where the appropriate government is of opinion that any industrial dispute exists or is
apprehended, it may refer the dispute to different adjudication authorities as under for
adjudication:
1. The propriety or legality of an order passed by an employer under the standing orders; 2. The
application and interpretation of standing orders;
3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen
wrongfully dismissed;
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Where any industrial dispute exists or is apprehended and the employer and the workmen
agree to refer the dispute to arbitration, they may, at any time before the dispute has been
referred to a Labour Court or Tribunal or National Tribunal, by a written agreement refer
the dispute to arbitration.
Award
As per Section 2(b), award means an interim or a final determination of any industrial
dispute or of any question relating thereto by any Labour Court, industrial Tribunal or
National Industrial Tribunal. It includes an arbitration award. The report of a Board or
Court shall be in writing and shall be signed by all the members of the Board or Court
The award of a Labour Court or Tribunal or National Tribunal shall be in writing and
shall be signed by its presiding officer. ‘
Every report of a Board or Court together with any minute of dissent, every arbitration
award and every award of a Labour Court, Tribunal or National Tribunal shall, within 30
days from the date of its receipt by the appropriate Government, be published in such
manner as the appropriate Government thinks fit.
The award published shall be final and shall not be called in question by any Court.
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It includes a written agreement between the employer and workmen arrived at otherwise
than in the course of conciliation proceeding.
The agreement has to be signed by the parties.
A Copy the agreement has to be sent to an officer authorised in this behalf by the
appropriate Government and to the conciliation officer.
Such settlement shall be binding for such period as is agreed upon by the parties.
If no such period is agreed upon, it shall be binding for a period of six months from the
date on which the memorandum of settlement is signed by the parties to the dispute.
An employer, who proposes to effect any change in the conditions of service in respect of
any matter specified in the Fourth Schedule, shall not effect such change without giving
to the workmen a notice of the nature of the change proposed.
Such change shall not be effective within 21 days of giving such notice.
No employer or workman or a trade union shall commit any unfair labour practice.
Any person who commits any unfair labour practice shall be punishable with
imprisonment up to six months or with fine up to 1000 or with both.
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Strike means cessation of work by a body of persons employed in any industry acting in
combination, or a concerted refusal, or a refusal under a common understanding of any number
of persons who are so employed to continue to work or to accept employment.
During the pendency of conciliation proceedings before a Board and within 7 days after
the conclusion of such proceedings.
During the pendency of proceedings before a Labour Court, Tribunal or National
Tribunal and two months after the conclusion of such proceedings.
During the pendency of arbitration proceedings before an arbitrator and two months after
the conclusion of such proceedings.
During any period in which a settlement or award is in operation, in respect of any of the
matters covered by the settlement or award.
The workmen shall be entitled to wages for the period of strike, where it is found that the
strike is neither illegal nor unjustified.
A strike is legal if it does not violate any provision of the law.
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And a strike cannot be said to be unjustified unless the reasons for it are entirely perverse
or unreasonable.
In this connection, it is pertinent to note that in the case of Bank of indie Vs T.S. Kelawala and
Dre. the Supreme Court had observed that the workmen are not entitled to wages for the strike
period. irrespective of whether the strike is legal or illegal. However, a larger bench of the
Supreme Court had earlier upheld the claim for wages for the strike period, where the strike was
held to be neither illegal nor unjustified. And. where there are two pronouncements of the
Supreme Court, suggesting or indicating contrary views, the ruling of the decision rendered by
the larger Bench should be adopted.
Without giving notice of strike to the employer six weeks before striking; or
Within fourteen days of giving such notice ; or
Before the expiry of the date of strike specified in any such notice
During the pendency of any conciliation proceedings and 7 days after the conclusion of
such proceedings.
If an employer receives any such notice he shall within five days report to the appropriate
Government
During the pendency of conciliation proceedings before a Board and 7 days after the
conclusion of Such proceedings;
During the pendency of proceedings before a Labour Court. Tribunal or National
Tribunal and two months. after the conclusion of such proceedings;
During the pendency of arbitration proceedings before an arbitrator and two months after
the conclusion of such proceedings; or
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During any period in which a settlement or award is in operation, in respect of any of the
matters covered by the settlement or award.
Lay -Off
As defined in Section 2(kkk), lay-off with its grammatical variations and cognate expressions
means the failure, refusal or inability of an employer on account of shortage of coal, power or
raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity
or for any other reason to give employment to a workman whose name is borne on the muster
rolls of his industrial establishment.
Whenever a workman (other than a badli workman or a casual workman) whose name is
borne on the muster rolls and has completed one year of continuous service is laid-off, he
shall be paid for all days during which he is so laid-off except for weekly holidays.
The compensation shall be equal to 50% of the total of basic wages and dearness
allowance.
If during any period of twelve months, a workman is laid-off for more than 45 days, no
such compensation shall be payable in excess of the first 45 days if there is an agreement
between the workman and the employer.
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Where the workman of a mine has been laid off, the employer shall, within a period of 30
days from the date of commencement of such lay-off, apply to the appropriate
Government for permission to continue the lay-off.
Retrenchment
As defined in Section 2(oo), retrenchment means the termination of the service of a workman by
the employer for any reason whatsoever otherwise than as a punishment inflicted by way of
disciplinary action.
A workman who has been in continuous service for not less than one year under an employer
shall not be retrenched by the employer under the following circumstances :
Until the workman has been given one month's notice in writing indicating the reasons
for retrenchment or the workman has been paid wages in lieu of such notice.
Until the workman has been paid compensation equivalent to 15 days' average pay for
every completed year of continuous service or any part thereof in excess of six months.
Until notice is served on the appropriate Government.
Where any workman is retrenched and the employer proposes to employ any persons, he
shall give an opportunity to the retrenched workmen who are citizens of india for re-
employment.
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Such retrenched workmen who offer themselves for re-employment shall have preference
over other persons.
Closure of Undertaking
As defined in Section 2(cc) ‘closure’ means the permanent closing down of a place of
employment or part thereof.
Section 25FFA of the Act provides that an employer who intends to close down an
undertaking shall serve a notice on the appropriate Government stating clearly the
reasons for the closure at least 60 days before the date of the intended closure.
Where an undertaking is closed, every workman who has been in continuous service for
not less than one year in that undertaking immediately before such closure shall be
entitled to notice and compensation as if the workman had been retrenched.
Where the undertaking is closed down on account of unavoidable circumstances beyond
the control of the employer, the compensation shall not exceed average pay for 3
months.
Penalties
An employer shall be liable to the following penalties for offences under the Act:
Lay-off without previous permission " [Section 25Q] Imprisonment for a term up to
one month or with fine up to 1000, or with both.
Closure without permission [Section 25R] Imprisonment for a term up to six months or
with fine up to 5000 or with both.
Illegal strikes and lock-outs [Section 26] Imprisonment up to one month, or with fine
up to 50, or with both.
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Instigating strike etc. [Section 27] Imprisonment up to six months, or with up to 1000,
or with both.
Giving financial aid to illegal strikes and lock-outs [Section 28] Imprisonment up to
six months, or with fine up to 1000, or with both.
Closure without notice [Section 30A] Imprisonment up to six months, or with fine up to
5000, or with both.
Other offences -[Section 31] Any employer who contravenes the provisions for
changing conditions of service, etc. during pendency of proceedings, shall be punishable
with imprisonment up to six months, or with fine up to 1000, or with both. Where no
penalty is provided by the Act for any contravention fine up to 100.
Offence by companies, etc [Section 32] Where company commits an offence, every
director, manager, secretary, or other officer or person concerned with the management
thereof shall, unless he proves that the offence was committed without his knowledge or
consent, be deemed to be guilty of such offence.
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44.'Malis' looking after the garden (c) The court enjoys power to consider and
attached to the bungalows provided decide any matter under the provisions of
this Act
by the employer to its officers and
(d) The period within which the report is to
directors are workmen even though be submitted is not mandatory and the report
their work Is not directly concerned may be submitted even beyond the period of
with the main work or operation of six months without affecting the legality of
the industry. This was held by the the inquiry. (CS EP June 2016)
Supreme Court of India in the case 47.Under the provisions of the
of Industrial Disputes Act, 1947,
which of the following is not a valid
(a) Piparaich Sugar Mills Ltd. v. Pipraich reason for an employer to declare
Sugar Mills Mazdoor Union lay-off -?
(b) J. K. Cotton Spinning and Weaving (a) Break-down of machinery
Mills Co. Ltd. v. L. A..T. (b) Financial stringency
(c) Both (A) and (B) above (c) Accumulation of stocks
(d) Neither (A) nor (B). (CS EP Dec. 2015) (d) Shortage of raw materials. (CS EP June
45.Under the industrial Disputes 2016)
Act, 1947 the factors which may 48.In the case of Workmen of
constitute the ground for ‘iay-off’ is Dimakuchi Tea Estate v.
refusal or inability to give Dimakuchi Tea Estate (1958), the
employment due to following Supreme Court laid down the
reasons : following objectives of the
(1) Shortage of coal, power, raw, Industrial Disputes Act, 1947:
materials (i) Promotion of measures for securing
(2) Breakdown of machinery and preserving amity and good relations
(3) Financial stringency between the employer and workmen
Which of the above is incorrect (ii) Investigation and settlement of
(a) Only (1) industries
(b) Only (2) (iii) Prevention of collective bargaining
(6) Only (3) (iv) Relief to workmen in the matters of
(d) None of the above (CS EP Dec. 2015) layoff and retrenchment
46.Which one of the following is Select the incorrect answer from the
true in relation to courts of inquiry option given below --
under section 6 of the ‘industrial (a) and (ii)
Disputes Act, 1947? (b) (ii) and (iii)
(a) The court of inquiry is constituted by the (c) (iii) and (iv)
State Government by notification in the (d) (iv) and (i) (cs EP June 2016)
official gazette . 49.Which one of the following
(b) The court always consists of five activities would fall under
independent persons and out of them one ‘industry’ under the industrial
person is appointed as Chairman Disputes Act, 1942?
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10. B
11. B
12. B
13. B
14. A
15. B
16. A
17. D
18. D
19. D
20. A
21. C
22. D
23. C
24. D
25. B
26. A
27. B
28. B
29. C
30. B
31. A
32. B
33. D
34. A
35. A
36. D
37. C
38. A
39. B
40. A
41. B
42. A
43. B
44. B
45. C
46. C
47. B
48. D
49. D
50. B
51. D
52. C
53. C
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Lesson 15
Trade Union Act 1926
objectives
Trade unions are essential for safeguarding the rights of labourers when there is a
struggle between the labourers and the management.
In order to regulate the trade union movement in India, the Trade Unions Act, 1926 was
enacted on the recommendation of the Royal Commission of Labour.
The Act came into force on 01.06.1927.
To secure fair wages for workers and improve their opportunities for promotion and
training. To safeguard security of tenure and improve their conditions of service.
To improve working and living conditions of workers.
To provide educational, cultural and recreational facilities.
To facilitate technological advancement by broadening the understanding of the workers.
To help them in improving levels of production, productivity, discipline and high
standard of living.
To promote individual and collective welfare and thus correlate the workers‘ interests
with that of their industry.
Trade union means any combination, whether temporary or permanent, formed primarily
for the purpose of regulating the relations between workmen and employers or between
workmen and workmen, or between employers and employers, or for imposing restrictive
conditions on the conduct of any trade or business.
It includes any federation of two or more Trade Unions.
Employees only engaged in business are eligible to form union.
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A registered Trade Union of Workmen shall at all times continue to have not less than 10% or
100 of the workmen whichever is less subject to a minimum of seven engaged or employed in an
establishment or industry with which it is connected as its members. [Sec9A]
Any person who has attained the age of 15 years, is eligible to be a member of a registered trade
union, subject to the rules of the union. [Sec -21]
At least seven members of a Trade Union may, apply to the Registrar of Trade Unions for
registration of the Trade Union
No Trade Union shall be registered unless at least 10% or 100 of the workmen,
whichever is less, engaged or employed in the establishment or industry with which it is
connected are the members of such Trade Union on the date of making of application.
At least 7 persons should be workmen engaged or employed in the establishment or
industry on the date of application.
The application shall not become invalid even if after the date of the application but before the
registration, half of the total applicants have ceased to be members of the Trade Union or have
given notice in writing to the Registrar dissociating themselves from the applications.
A registered trade union is a body corporate with perpetual succession and a common
seal.
it can acquire, hold, sell or transfer any movable or immovable property and can be a
party to contracts.
A registered trade union can sue and be sued, in its own name. [Sec -13]
No civil suit or legal proceeding can be initiated against a registered trade union in
respect of any act done in furtherance of a trade dispute under certain conditions. [Sec -
18]
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No agreement between the members of a registered trade union shall be void or voidable
merely on the ground that any of its objects is in restraint of trade. [Sec -19]
Offence Penalty
(1) if the registered trade union/its office- Fine upto 5 plus additional fine upto 5 per
bearers or members fail to give any notice or week in case of continuing offence. (Maximum
send any statement as required under the fine imposable 50)
Act[Sec -31(1)].
(2) if any person willfully makes any false Fine upto 500
entry in the annual statement of the union or its
rules. [Sec 31 (2)]
(3) if any person, with intent to deceive, gives Fine upto 200.
an incorrect copy of rules of the union to any
member or a prospective member. [Sec -32]
When a registered Trade Union is dissolved, notice of the dissolution signed by 7 members and
by the Secretary of the Trade Union shall, within 14 days of the dissolution, be sent to the
Registrar, for dissolution of the Trade Union.
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1. B
2. D
3. B
4. D
5. D
6. B
7. B
8. A
9. D
10. C
11. C
12. A
13. D
14. C
15. A
16. C
17. D
18. A
19. D
20. B
21. C
22. C
23. A
24. B
25. D
26. D
27. B
28. D
29. A
30. A
31. B
32. B
33. A
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Lesson 16
The Labour Laws (Exemption from Furnishing Returns
and Maintaining Register by Certain Establishments) Act
1988
Introduction
The Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by
certain Establishments) Amendment Act, 2014 passed by the Rajya Sabha on November
26, 2014; the Lok Sabha on November 28, 2014 and received the assent of the President
on the 9th December, 2014 amended the Labour Laws (Exemption from Furnishing
Returns and Maintaining Registers by certain Establishments) Act, 1988.
The Amendment Act now includes 7 more Labour Acts under the purview of the
Principal Act. Also, the coverage of Principal Act has been expanded from the
establishments employing upto 19 workers to 40 workers. The Amendment Act also
gives an option to maintain the registers electronically and to file the returns
electronically which leads to ease of compliance as well as better enforcement of the
labour laws.
Objectives
From time to time a number of labour laws have been enacted for regulating employment
and conditions of service of workers.
Whenever a new law was enacted, it prescribed certain registers to be maintained by the
employers and also for furnishing various returns by the employers to the authorities.
The Labour Laws (Exemption from Furnishing Returns and Maintaining Register by
Certain Establishments) Act, 1988 was enacted exempting from maintaining registers and
filing returns by some establishments.
Act also provides for the simplification of procedure for furnishing returns and
maintaining registers in relation to establishments employing a small number of persons
under certain labour laws.
The Act came into force on 27.09.1988.
Definitions
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Scheduled Act
Small establishment means an establishment in which not less than 10 and not more than 40
persons are employed or were employed on any day of the preceding twelve months
Very small establishment means an establishment in which not more than 9 persons are
employed or were employed on any day of the preceding twelve months.
Compliances
Section 4(1) of the Act provides that it shall not be necessary for an employer in relation
to any small establishment or very small establishment to which a Scheduled Act applies,
to furnish the returns or to maintain the registers required to be furnished or maintained
under that Scheduled Act.
It may be noted that such employer furnishes, in lieu of such returns, annual return in
Form I; and
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maintains at the work spot, in lieu of such registers,— (i) registers in Form II and Form
III, in the case of small establishments, and
a register in Form III, in the case of very small establishments,
Every such employer shall continue to issue wage slips in the Form prescribed in the
Minimum Wages (Central) Rules, 1950 made under sections 18 and 30 of the Minimum
Wages Act, 1948 and
slips relating to measurement of the amount of work done by piece-rated workers
required to be issued under the Payment of Wages (Mines) Rules, 1956 made under
sections 13A and 26 of the Payment of Wages Act, 1936; and
file returns relating to accidents under sections 88 and 88A of the Factories Act, 1948 and
sections 32A and 32B of the Plantations Labour Act, 1951.
Furnishing or maintaining of returns and registers in electronic
Penalty
Any employer who fails to comply with the provisions of the Act shall be punishable-
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1 c
2 c
3 d
4 a
5 d
6 d
7 d
8 a
9 a
10 a
11 d
12 d
13 a
14 c
15 a
16 c
17 a
18 b
19 d
20 c
21 d
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Lesson 17
Employment Exchange (Compulsory Notification of
Vacancies) Act 1959
Objectives
Unskilled office work means work done in an establishment by any of the following categories
of employees:
Daftri.
Jemadar, orderly and peon.
Dusting man or farash.
Bundle or record lifter.
Process server.
Watchman.
Sweeper.
Any other employee which the Central Government may declare to be unskilled office
work.
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Unless the Central Government otherwise directs by notification in the Official Gazette, the Act
shah not also apply in relation to the following:
Notification [Section 4]
The employer in every establishment in public sector shall, before filling up any vacancy
in any employment, notify the vacancy to the employment exchanges.
The appropriate Government may, by notification in the Official Gazette, require that the
employer it every establishment in private sector shall, before filling up any vacancy in
any employment, notify the vacancy to the employment exchanges and the employer
shall comply with such requisition.
There is, however, no obligation to recruit any person through the employment
exchanges.
Any authorized officer shall have access to any relevant record or document in the
possession of any employer required to furnish any information or returns.
He may enter at any reasonable time any premises where he believes such record or
document to be kept
He may also inspect or take copies of relevant records or documents or ask any question
necessary for obtaining any information.
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The Central Government for carrying out the purposes of the Act framed the Employment
Exchanges (Compulsory Notification of Vacancies) Rules, 1960, which came into force w. e. f.
1.5.1960.
Penalties
lf any employer fails to notify to the employment exchanges, he shall be punishable for the first
offence with hne up to t 500 and for every subsequent offence, with fine up to 111,000.
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(d) One hundred. (CS EP Dec. 2014) (1) Compulsory notification of vacancies
17.Under the Employment by the employers to employment
Exchanges (Compulsory exchanges
(2) Submission of employment returns by
Notification of Vacancies) Act, 1959
the employers in prescribed manner to
an establishment which is not an the employment exchanges
establishment in public sector and (3) Recruitment of persons through the
where ordinarily twenty-five or Employment exchanges only to fill any
more persons are employed to work vacancy
for remuneration is defined as-- Which of the above islare correct
(a) Employment exchange (a) Only (1) and (2)
(b) Establishment in public sector (b) Only (2) and (3)
(c) Establishment in private sector (c) Only (1) and (3)
(d) Public company (CS EP June 2015) (d) All of the above (CS EP Dec. 2015)
18.Who is responsible for giving 21.The Employment Exchanges
notification of vacancies to (Compulsory Notification of
employment exchanges under the Vacancies) Act, 1959 ~
(a) Provides for compulsory notification of
Employment Exchanges vacancies and submission of employment
(Compulsory Notification of returns by the employers to the employment
Vacancies) Act, 1959 -- exchange
(a) Employment exchange (b) Provides that the main activity of the
(b) The employer employment exchange is appointment of job
(c) The employee seekers in the establishments in the public
(d) Establishment in private sector (CS EP sector
June 2015) (c) Applies to all establishments in the
19.The Employment Exchanges private sector and establishments engaged in
(Compulsory Notification of agricultural activities
Vacancies) Act, 1959 does not apply (d) Applies to all establishments in the
private sector employing 250 or more
in relation to vacancies in following workers. (CS EP June 2016)
employment,’ 22.Consider the following
(1) In agriculture and horticulture in any
establishment in private sector statements under the Employment
(2) Where the period of employment is Exchanges (Compulsory
lessthan six months Notification of Vacancies) Act,
(3) In domestic services 1959:
Which of the above islare correct –?
(a) Only (1) and (2) (i) ‘Employer’ includes any person
(b) Only (1) and (3) entrusted with the supervision and
(c) Only (2) and (3) control. of employees in such
(d) All of the above (CS EP Dec. 2015) establishment
20.The Employment Exchanges (ii)Establishment in private sector means
(Compulsory Notification of an establishment which is not an
Vacancies) Act, 1959 provides for: ‘ establishment in public sector and where
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Lesson 18
Apprentice Act 1961
Obiectives
The Apprentices Act 1961 was enacted with the objective of regulating the programme of
training of apprentices in the industry by utilising the facilities available therein for
imparting on-the-job training.
The Act was amended in 1973 and 1986 to include training of graduates, technicians and
technician (vocational) apprentices respectively under its purview.
It was further amended in 1997 and 2007 to amend various sections of the Act as regards
definition of “establishment”, “worker”, number of apprentices for a designated trade and
reservation for candidates belonging to Other Backward Classes, etc.
Comparing the size and rate of growth of economy of India, the performance of
Apprenticeship Training Scheme is not satisfactory and a large number of training
facilities available in the industry are going unutilised depriving unemployed youth to
avail the benefits of the Apprenticeship Training Scheme.
Employers are of the opinion that provisions of the Act are too rigid to encourage them to
engage apprentices and provision relating to penalty creates fear amongst them of
prosecution and they have suggested to modify the Apprentices Act suitably.
In order to make the apprenticeship more responsive to youth and industry, the
Apprentices Act, 1961 has been amended and brought into effect from 22nd December,
2014.
These amendments have been made with the objective of expanding the apprenticeship
opportunities for youth.
Non engineering graduates and diploma holders have been made eligible for
apprenticeship.
A portal is being setup to make all approvals transparent and time bound.
Apprenticeship can be taken up in new occupations also.
The Central Government has the powers to make rules, after consultations with the Central
Apprenticeship Council, for enforcement of the provisions of the Act.
Definitions
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Trade Apprentice means an apprentice who undergoes apprenticeship training in any designated
trade
Designated trade means any trade or occupation or any subject field in engineering or non-
engineering or technology or any vocational course which the Central Government, after
consultation with the Central Apprenticeship Council, may, by notification in the Official
Gazette, specify as a designated trade for the purposes of this Act.
Optional trade means any trade or occupation or any subject field in engineering or non-
engineering or technology or any vocational course as may be determined by the employer for
the purposes of this Act.
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A person shall not be qualified for being engaged as an apprentice to undergo apprenticeship
training -
in any designated trade, unless he is not less than 14 years of age, and
for designated trades related to hazardous industries, not less than 18 of age; and
satisfies such standards of education and physical fitness as may be prescribed:
Provided that different standards may be prescribed in relation to apprenticeship training
in different designated trades and for different categories of apprentices.
In the case of objection in the contract of apprenticeship, the Apprenticeship Adviser shall
convey the objection to the employer within fifteen days from the date of its receipt.
The Apprenticeship Adviser shall register the contract of apprenticeship within 30 days from the
date of its receipt.
As per section 6 the period of apprenticeship training, which shall be specified in the contract of
apprenticeship, shall be as follows-
In the case of trade apprentices who, having undergone institutional training in a school
or other institution recognised by the National Council, have passed the trade tests or
examinations conducted by that Council or by an institution recognised by that Council ,
the period of apprenticeship training shall be such as may be prescribed.
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In the case of trade apprentices who, having undergone institutional training in a school
or other institution affiliated to or recognised by a Board or State Council of Technical
Education or any other authority or courses approved under any scheme which the
Central Government may, by notification in the Official Gazette specify in this behalf,
have passed the trade tests or examinations conducted by that Board or State Council or
authority or by any other agency authorised by the Central Government, the period of
apprenticeship training shall be such as may be prescribed;
In the case of other trade apprentices , the period of apprenticeship training shall be such
as may be prescribed;
In the case of graduate or technician apprentices, technician (vocational) apprentices and
the period of apprenticeship training shall be such as may be prescribed.
Every employer shall make suitable arrangements in his workplace for imparting a course
of practical training to every apprentice engaged by him.
Any of the trade apprentices who have not undergone institutional training in a school or
other institution recognised by the National Council or any other institution affiliated to
or recognised by a Board or State Council of Technical Education or any other authority
which the Central Government may, by notification in the Official Gazette, specify in this
behalf, shall, before admission in the workplace for practical training, undergo a course
of basic training and the course of basic training shall be given to the trade apprentices in
any institute having adequate facilities.
Cost of training
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Obligation of Employers
To provide the apprentice with the training in his trade in accordance with the provisions
of the Act and the rules made thereunder.
if the employer is not himself qualified in the trade, he shall ensure that a person who
possesses the prescribed qualifications is placed in charge of the training of the
apprentice.
To provide adequate instructional staff, possessing prescribed qualifications for imparting
practical and theoretical training and facilities for trade test of apprentices.
To carry out his obligations under the contract of apprenticeship.
To learn his trade conscientiously and diligently and endeavour to qualify himself as a
skilled craftsman before the expiry of the period of training.
To attend practical and instructional classes regularly.
To carry out all lawful orders of his employer and superiors in the establishments.
To carry out his obligations under the contract of apprenticeship.
The weekly and daily hours of work of an apprentice while undergoing practical training
in a workplace shall be as determined by the employer subject to the compliance with the
training duration, if prescribed.
No apprentice shall be required or allowed to work overtime except with the approval of
the Apprenticeship Adviser who shall not grant such approval unless he is satisfied that
such overtime is in the interest of the training of the apprentice or in the public interest.
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An apprentice shall be entitled to such leave and holidays as are observed in the
establishment in which he is undergoing training
Every employer shall maintain records of the progress of training of each apprentice
undergoing apprenticeship training in his establishment in such form as may be
prescribed.
Until a portal-site is developed by the Central Government, every employer shall furnish
such information and return in such form as may be prescribed, to such authorities at such
intervals as may be prescribed.
Every employer shall also give trade-wise requirement and engagement of apprentices in
respect of apprenticeship training on portal-site developed by the Central Government in
this regard.
If any employer contravenes the provisions of the Act relating to the number of apprentices
which he is required to engage under those provisions, he shall be given a month’s notice in
writing, by an officer duly authorised in this behalf by the appropriate Government, for
explaining the reasons for such contravention.
In case the employer fails to reply the notice within the period specified under subsection or the
authorised officer, after giving him an opportunity of being heard, is not satisfied with the
reasons given by the employer, he shall be punishable with fine of five hundred rupees per
shortfall of apprenticeship month for first three months and thereafter one thousand rupees per
month till such number of seats are filled up.
If any employer or any other person-
(a) required to furnish any information or return-
(i) refuses or neglects to furnish such information or return, or
(ii) furnishes or causes to be furnished any information or return which is false and which is
either knows or believes to be false or does not believe to be true, or
(iii) refuses to answer, or give a false answer to any question necessary for obtaining any
information required to be furnished by him, or
(b) refuses or wilfully neglects to afford the Central or the State Apprenticeship Adviser or such
other person, not below the rank of an Assistant Apprenticeship Adviser, as may be authorised
by the central or the State Apprenticeship Adviser in writing in this behalf any reasonable facility
for making any entry, inspection, examination or inquiry authorised by or under this Act, or
(c) requires an apprentice to work overtime without the approval of the Apprenticeship Adviser,
or
(d) employs an apprentice on any work which is not connected with his training, or
(e) makes payment to an apprentice on the basis of piece-work, or
(f) requires an apprentice to take part in any output bonus or incentive scheme.
(g) engages as an apprentice a person who is not qualified for being so engaged, or
(h) fails to carry out the terms and conditions of a contract of apprenticeship he shall be
punishable with fine of one thousand rupees for every occurrence.
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(2A) The provisions of this section shall not apply to any establishment or industry which is
under the Board for Industrial and Financial Reconstruction established under the Sick Industrial
Companies (Special Provisions) Act, 1985.
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1. B
2. A
3. C
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Lesson 19
Audit Under Labour Legislations
Objectives
The legislatures have, from time to time enacted numerous laws and legislations to
protect the interest of labourers
Lack of legal awareness amongst the working population as well as the employers Is the
major impediment In proper compliance with the laws and regulations
Business corporations have recognized the importance of legal compliance of the
provisions of the labour laws.
For this purpose labour law audit is essential.
The scope of labour law audit includes in depth examination of various applicable laws,
company records, facilities, policies practices and procedures to ensure proper and
complete compliance with applicable labour laws
Labour law audit also suggests a remedial action if something Is in violation or not In line
with the provisions of the applicable labour laws '
Registration and licenses (eg Factory, Shops and Establishment, Contract Labour, P F,
E.S.l., etc)
Preparation and submission of various returns.) ' ‘
Updatation/maintenance of records and registers.
Display of notices and extracts of Acts.
Process of disciplinary action.
Handling audits and inspections.
Apprising of the corporations of any amendments and important judgments on various
labour laws for compliance
Engaging law practitioners to appear in any matter or disputes before the industrial and
labour court and . other authorities
Any other measures required under the special circumstances of your business.
The institute of Company Secretaries of indie has mooted the concept of audit of
compliance of labour laws‘.
The course content of the institute is such that qualified company secretaries are well
versed with the legal aspect in a broader way.
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It would be easy for the practicing company secretaries to have the labour law audit as
independent professionals.
Similar to compliance certificate under the Companies Act, compliance certificate can be
given the PCS to the government within specified time. *
The Companies Act, 2013 provides provisions for compliance of various laws and
empowers the Company Secretary to ensure that the company has made compliances
with the provisions of the Act, the rules made thereunder and other laws applicable to the
company.
To ensure this, complete check list is to be maintained by a Company Secretary.
This will serve some aspects. But for strict compliance, labour law audit is essential and
will support the Company Secretary to ensure strict compliances by various departments
of the company dealing with such compliances.
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Audit Under Labour (a) it will boost the moral of the labourer
(b) It will increase social security of the
Legislations labourer
(c) it will serve timely payment of wages
1.Lack of , amongst the working and other benefits to the labourer
population as well as the employers is the (d) All of the above
major impediment in proper compliance 7.Compliance with labour laws may bring
with the laws and regulations. the following benefit(s):
(a) legal awareness (a) No threat of legal action/industrial
(b) legal knowledge dispute which may damage the reputation.
(c) adequate courts image or goodwill of the establishment
(d) adequate professionals (b) No legal or administrative action against
2.The scope of ........... includes in depth the Directors, Board of Members or
examination of various applicable laws, Management of the establishment
company records, facilities, policies, responsible to manage day to day affairs for
practices and procedures to ensure non-compliance of labour laws
proper and complete compliance with (c) Smooth running of business
applicable labour laws. (d) All of the above
(a) labour law audit 8.Compliance with labour laws may bring
(b) inquiry the following benefit(s):
(c) investigation (a) Regular payment of dues/contributions
(d) search for the employees
3.................... suggests a remedial action if (b) Timely filing of returns helps in
something is in violation or not in line generating statistical data smoothly
with the provisions of the applicable (c) Compliance with rules and regulations
labour laws. increases the image of the government in
(a) labour law audit international forum
(b) inquiry (d) All of the above
(c) investigation
(d) search 9.By undertaking labour law audit, :3
4.Areas of labor law audit is/are............ Company Secretary can achieve the
(a) Registration and licences (e.g.) Factory, following:
Shops and Establishment, Contract ‘Labour. (a) Compliance with labour laws and
P.F., E.S.l.,Etc.) regulations
(b) Preparation and submission of various (b) Set up adequate internal control system
returns ' to minimize risks
(c) Updatation/maintenance of records and (c) Identify gaps and adequate measures to
registers rectify the same
(d) All of the above (d) All of the above
5.Areas of labor law audit is/are 10............. prevent lawsuits and penalties
(a) Display of notices and extracts of Acts for noncompliance.
(b) Process of disciplinary action (a) Labour law audit
(c) Handling audits and inspections (b) inquiry
(d) All of the above ' (c) investigation
6.Compliance with labour laws may bring (d) Search
the following benefit(s):
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11.Under the Factories Act. labour audit (b) Whether gratuity is paid as per rules
is to be done for: (c) Whether claims settled timely
(a) Whether the factory is registered or not (d) All of the above
(b) Whether manufacturing process is 18.Under the Employee Compensation
carried on Act, labour audit is to be done for:
(c) Whether any hazardous process is (a) Whether any occupational disease
carried on suffered by employees
(d) All of the above (b) Whether any fatal accident occurred
12.Under the Minimum Wages Act, (c) Whether compensation is paid timely
labour audit is to be done for: (d) All of the above
(a) Whether minimum wages if prescribed is 19.Under the Maternity Benefit Act,
paid . labour audit is to be done for:
(b) Whether proper records are being (a) Whether women employees are getting
maintained proper leave
(c) Certificate that all statutory requirements (b) Whether benefits are paid
are complied with (c) Whether ESl covered employees are
(d) All of the above getting benefits
13.Under the Payment of Wages Act, (d) All of the above
labour audit is to be done for: 20.Under the industrial Disputes Act Act,
(a) Number of employees employed labour audit is to be done for:
(b) What is the wage period? (a) Number of disputes referred to
(c) Whether proper records are maintained Arbitration
(d) All of the above (b) Number of protected workmen
14.Under the ESl Act, labour audit is to (c) Whether unfair labour practice followed
be done for: (d) All of the above
(a) Whether registration has been made 21.The benefits of ‘labour audit’ to the
(b) Whether contribution regularly paid labour are-
(c) Whether all eligible employees are (a) it increases their social security
covered (b) It inculcates in workers a sense of
(d) All of the above belongingness towards their employer
15.Under the EFF Act, labour audit is to (c) it secures timely payment of wages,
be done for: bonus, overtime and compensation, etc. of
(a) Whether contributions regularly paid workers
(b) Whether returns regularly filed (d) All of the above (CS EP Dec. 2015)
(c) Whether proper records are maintained 22.Labour audit provides benefits to the
(d) All of the above labour, to the employer and to the
16.Under the Payment of Bonus Act, government. Which one of the following is
labour audit is to be done for: not a benefit of labour audit to the labour
(a) Whether all eligible employees getting ~
bonus
(b) Whether bonus is paid within time (a) Labour audit boosts the morale of the
(c) Whether minimum bonus is paid workers
(d) All of the above (b) lt increases social security of the labour
17.Under the Payment of Gratuity Act, (c) it increases status of the employer in
labour audit is to be done for: society
(a) Whether trust is maintained
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1. A
2. A
3. A
4. D
5. D
6. D
7. D
8. D
9. D
10. A
11. D
12. D
13. D
14. D
15. D
16. D
17. D
18. D
19. D
20. D
21. D
22. c
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Lesson 20
CONSTITUTION OF INDIA
Introduction
Constitution is a document which provides a basic legal framework by which the entire country I
regulated. In the context of India, a constituent Assembly was set up in the year 1946 to frame the
Constitution of India, It appointed number of committees for suggesting recommendations in
framing the Constitution of India and finally the Constitution of India was adopted by Constituent
Assembly of 26th January 1950.
The constitution of India contains 395 Articles, which are divided into 22 Parts and 12 Schedules.
The Constitution deals with Structure of the Government, Right of the Citizens, Principles to be
followed by the State in the governance of the country, etc. Constitution of India is considered all
supreme and has the overriding effect over all the laws governing the various aspects of our system.
The Constitution of India is said to be mother of all laws i.e. all the laws have their origin in the
Constitution of India.
Preamble To Constitution of India
Preamble to the Constitution of India reads as:
WE THE PEOPLE OF INDIA. Having solemnly resolved to constitute India into a
SOVERIN, SOCIALIST, SECULAR, DEMOCRATIC AND EPUBLIC and to secure to all its
citizens:
JUSTICE, social, economic and political:
LIBERTY of thought, expression, belief, faith and worship:
EQUALITY of status and opportunity:
And to promote among them all
FRATERNITY assuring the dignity of the Individual and unity and integrity of the Nation.
Although Preamble does not contain any substantive law, yet it is considered to be the most sacred
part of the Constitution of India, if any provision of Constitution of India is ambiguous, then that
provision has to be interpreted in the light of the contents of Preamble. The Supreme Court, in
number of causes, has held that Constitution is to be read and interpreted in the light of visions and
values, pledges and sentiments expressed in the Preamble. The preamble truly represents the soul of
our Constitution.
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However, even our constitution has aforesaid federal features, in times of need, it becomes unitary
i.e., union has more powers than the state under the following circumstances:
The union list contains 97 entries out of which 96 have been specifically names and the 97th
item has bee left blank and is unknown as residuary item under which any new item which
has not found a place in any of the list can be included, This being in the union list, it
effectively means that on any new subject, only parliament can make a law.
Under state list, only state can pass law but Article 246 permits the Parliament to pass law on
state list matters under five circumstances, These circumstances are a matter of:
National Interest:
Emergency:
Dispute between two or more states:
To give effect to an international agreement: and
Breakdown of constitutional machinery in a state.
This parliament has more powers under these five circumstances ever in the state list.
Under concurrent list, if any law is pass on a particular matter by Union as well as State and
if there is an inconsistency between two laws then the union law will prevail over the state
law.
In India, we have a single citizenship system unlike in the case of USA where there is a
concept of dual citizenship.
Professor K.C.Wheare thus held that the Indian Constitution establish a system of government which
is at the most Quasi-Federal (not strictly federal). Jennings also characterized Indian constitution as
a federation with a strong centralized tendency.
FUNDAMENTAL RIGHTS
Introduction
A man, by birth, has certain rights which are universal and inalienable i.e., e can not be deprived of
them. It is the function of the State to recognize these rights and allow then of free play so that the
human liberty is preserved, human personality is developed and an effective cultured, social and
democratic life is promoted. The aforesaid rights are recognized in the form of fundamental rights in
Part III of the constitution of India.
Constitution of India guarantees six categories of fundamental rights. The are:
Right to equality ( Articles 14 to 18)
Right to freedom (Articles 19 to 22)
Right against exploitation (Articles 23 & 24)
Right to freedom of religion (Articles 25 to 28)
Cultural and educational right (Articles 29 & 30)
Right to constitutional remedies (Articles 32)
Concept of State
The term “State” a defined in Article 12 of the Constitution of India. As per this unless the context
otherwise provides, the term “state” includes:
The Government and Parliament of India
The Government and legislature of each of the state; and
All local or other authorities:
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Electricity authorities;
Universities;
Income tax Department, etc.
The expression ‘under the control of the Government of India’ covers into the definition of State,
not only every authority within the territory of India, but also those functioning outside India
provided such authorities are under the control of the Government. Of India.
The question, whether a corporation acting as instrumentality or agency of Government is ‘state’ or
not, was decided by the Supreme Court in the case of R.D.Shetty v. International Airport
Authority and later on followed in the case of Ajay Hasia v. Khalid Mujib. It was decided in the
aforesaid cases that in general a corporation acting as an instrumentality or agency of the
government is not a state within the meaning of Article 12 of the Constitution of India. However,
following are some the instance where a corporation acting as a instrumentality or agency of the
Government. Can be regarded as a State within the meaning of Articles 12 of Constitution of India:
If the entire share capital is held by the government
If the Government exercises deep and persuasive control over the corporation
Where the corporation enjoys monopoly status
If the function of the corporation are of public importance and closely relates to
Government functions.
If a department of Government is transferred to a corporation.
Where court exercises a judicial function, it can not be regarded as State as the expression ‘State’
covers only legislature and executive and executive and not judiciary. However, where a court
exercises non-judicial function, it can be considered as State {A. R. Antulay v. R .S. Nayak}
The significance of concept of ‘State’ in the context of fundamental rights is that generally the
fundamental rights are available against the State.
Justifiability/ amenability of Fundamental Rights
Article 13 of Constitution of India invalidates any pre or post constitutional law which is against the
fundamental rights. It also restricts the amenability of Fundamental Rights.
The question whether a fundamental right can be amended, abridge or taken away has been
examined in various cases and finally settled in the Golaknath case. In this case it was held that
fundamental rights can neither be abridged or amended nor taken away by the law and for this
purpose, the term law includes a Constitutional Amendment. Thus fundamental rights can’t be
affected ever by constitutional amendment.
The aforesaid decision was set aside by inserting a provision in Article 13 i.e., Article 13(4) which
ways that “Nothing in Article 13 shall apply to any amendment of this Constitution.
Further, the aforesaid provisions of Article 13(4) were challenged in the case of Keshavanand
Bharti v. State of Kerala, where the Supreme Court has dismissed the petition and upheld the
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validity of Article 13(4) and held that fundamental rights can be affected by a Constitutional
Amendment by the basic structure of the constitution can not be amended.
Article 13 came up from judicial review in number of cases and the courts have enclosed carious
doctrines like doctrine of severability, doctrine of eclipse, doctrine of waiver of right, etc of
interpreting the provisions of Article 13.
Doctrine of Severability:
It provides that only that part of the law will be declared invalid which is inconsistent with the
fundamental rights and the rest of the law will stand. However, invalid part of the law will be
severed only if it is severable, i.e., if after separating the invalid part, the valid part is capable of
giving effect to the legislature’s intent, then only it will survive otherwise the court shall declare the
entire law as invalid.
Doctrine of Eclipse :
It provides that a law made before the commencement of the constitution remains eclipsed or
dormant to be extent in comes under the shadow of fundamental rights i.e., is inconsistency brought
about by the fundamental rights is removed by the amendment to the Constitution of India.
Doctrine of Waiver of Right:
It provides that a person has the liberty to waive the enjoyment of such rights as are conferred on
him by the state, provide that such person must have the knowledge of his rights and the waiver
should be voluntarily, However, citizens cannot waive of any of the fundamental rights { Basheshar
Nath v. I T Commissioner}
RIGHT TO EQUALITY [ARTICLES 14 TO 18]
Right to equality is on of the basic fundamental human rights afforded by the constitution of modern
democratic states including India. The constitution of our country is espouses the principles of
equality of status and opportunity in its very Preamble and further gave a practical effect in Article
14 to 18, which are as follows:
Equality before the law (Article 14)
Prohibition of discrimination on grounds only of religion, race, caste, sex, place of
birth. (Article 15)
Equality of opportunity in matters of public employment (Article 16)
Abolition of untouchability (Article 17)
Abolition of Titles (Articles 18)
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o The distinction between those who are included and those who are left out
from the provisions of an Act should be clear and
o Such distinction should have a reasonable relationship with purpose of the
Act.
The classification may be founded on different basis, namely geographical or
according to the objects or occupation or the like.
Even a single individual may be treated as a class by himself on account of some
special circumstances or reasons applicable to him ad not applicable to other.
It is not necessary for the state to proof that the law provides equality but it is up to the
affected persons to prove whether equality is violated or not.
It may be noted that Article 14 applies to any person and is not limited to citizens alone. Thus, a
corporation, which is only on artificial person by not a citizen is also entitled to the benefit of this
Article.
Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth
Article 15 provides that the State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex or place of birth or any of them. Further no citizen shall be deprived of the
following right on ground only of religion, race, caste, sex, place of birth
Access to shop, public restaurants, hotels and places of public entertainment:
The use of wells, tanks bathing ghats, roads and places of resorts, maintained out of State
funds.
The significance of the word ‘only’ used in Article 15 is that if there are any grounds on
discrimination other than ground of religion, race, caste, sex, place of birth then such discrimination
is not prohibited [ Yusuf v. State of Bombay]
The rights guaranteed in Article 15 are subject to the following exceptions:
The State can make any special provision for women and children;
The State can make any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Schedule Castes and Schedule Tribes.
Abolition of untouchability
Article 17 provides that untouchability is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of untouchability shall be an offence punishable in
accordance with law.
Abolition of Titles
Articles 18 abolishes all the titles conferred on various Indian Citizens by British Government and
the use of those titles is prohibited as it results in creating superior and inferior classes of citizens.
However, Military titles, Academic titles or Titles recognizing merit or work of an extra-ordinary
nature can be conferred and used.
RIGHT TO FREEDOM [ARTICLS 19 TO 22]
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Article 19
It may be noted that the aforesaid rights are not absolute and hence reasonable restrictions may be
imposed on them. The phrase reasonable restrictions connotes that the limitation imposed upon a
person in the enjoyment of a right should not be arbitrary or of an excessive nature. In determining
the reasonableness of statute, the court would see both the nature of the restrictions and procedures
prescribed by the statute for enforcing the
Restrictions on the individual freedom. The reasonableness of restriction has to be determined in an
objective manner and from the point of view of the interest of the general public and not from the
point of view of the persons upon whom the restrictions are imposed. The court is required to
ascertain the reasonableness of the restrictions and not of the law which permits the restrictions.
The word ‘restriction’ also includes cases of prohibition and the state can establish that a law,
thought purporting to deprive a person of his fundamental right, under certain circumstances
amounts to a reasonable restriction only.
Right to freedom of Speech and Expression [Articles 19(1)(a)]: Freedom of speech and
expression is a very important aspect of democracy, The freedom of speech and expression means
the right to express one’s convictions and opinions freely by words of mouth, writing, printing,
pictures or any other mode.
The right speech and expression includes right to make good or bad speech. One may express
oneself even by sign. It also includes the expression of idea through dramatic performance,
cinematographic and any other mode of expression.
In Maneka Gandhi v. Union of India, it was decided that the freedom of speech and expression
includes the freedom of press and thus imposition of pre-censorship on publication of views, ideas,
analysis, etc is violative of freedom of speech and expression.
In the case of Bijoe Emmanuel v. State of Kerala, it was held that the right to freedom of speech
and expression also includes the right to remain silent. It was decided that a person can not be
compelled to sing a National Anthem of he does not want to do so because of some religious
objections.
Permissible restrictions
Sovereignty and integrity of India
Security of the state
Friendly relations with foreign States
Public order
Decency and morality
Contempt of court
Defamation
Incitement to an offence
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However reasonable restrictions may be imposed on this right in the interest of:
The sovereignty and integrity of India;
Public order.
Right to reside and settle in any part of territory of India [Article 19 (1)(e):
The right to freedom of residence is intended to remove internal barriers within the territory of India
to enable every citizen to travel freely and settle down in any part of the state or Union territory.
This freedom is also subject to reasonable restrictions which may be imposed:
In the interest of general public;
For the protection of interest of any scheduled tribe.
Right to practice any profession or carry on any trade, business or occupation [Article 19
(1)(g):
Article 19 (1)(g) provides that all citizens shall have the right to practice any profession or to carry
on any occupation, trade or business.
This right is also subject to reasonable restrictions which may be imposed:
In the interest of the general public;
To prescribe professional or technical qualification necessary for carrying on any profession,
trade or business;
To enable the State to carry on any trade or business to the exclusion of Private Citizens.
This means that the creation of State monopoly shall not be considered to deprive a citizen of
the freedom of trade and occupation.
Banking Business will be done only by the state and not by any private person was challenged
before the Supreme Court. However the Supreme Court rejected the petition and held that the law is
valid as State has got the power to create a monopoly in its favour, [ R.C.Cooper v. Union of
India]
Article 20
Article 20 guarantees to all persons, whether citizens or non-citizens, the three rights. They are as
follows:
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Protection against ex-post facto laws : Ex post facto laws are laws which punishes what
had been lawful when done. If a particular act was not an offence according to the law of the
land at the time when the person did that act, then he can not be convicted under a law which
with retrospective declares that act as a offence. Even the penalty for the commission of an
offence can not be increased with retrospective effect.
Thus the meaning of the above two provisions is that so far as criminal law creates a new offence or
increases the penalty, it shall be applicable only to those offences which are committed after its
coming into force and can not cover those offences which have already been committed in the past.
Exceptions:
Protection under this Article is available only for offences and their punishments under
criminal law and not for any civil liability, where retrospective law can be passed.
Article 20 prohibits the conviction under ex-post facto law only in respect of substantive
law but not in respect of procedural law as no one has vested right in procedure [ Shiv
Bhadur Singh v. State of Vindhya Pradesh]
Protection against double jeopardy : No person can be prosecuted and punished for the
same offence more than once, However if a person has been let off after prosecution,
without being punished, he can be prosecuted again.
Article 21
Article 1 of the constitution confers on every person the fundamental right to life and personal
liberty. It says that “No person shall be deprived of his life or personal liberty except according to
the procedure established by law”
Thus Article 21 seeks to prevent encroachment upon personal liberty by the executive except in
accordance with law and in conformity with the provisions of the law. The scope, application and
effect of Article 21 may be well understood through the following important judicial decisions.
In Philips Alfred Malvin v. Y.J. Gonsalvis, it was held that right to life includes those things
which make life meaningful. For instance, the right of a couple to adopt a son.
In one of the leading cases, “life” has been interpreted as a decent life in a democratic society.
In A.K.Gopalan v. State of Madras, a very narrow meaning was given to the expression personal
liberty confining it to the liberty of the persons i.e., of the body of a person. It was held that only if
the person’s otherwise his personal liberty would be restricted in any way without violating Article
21.
That the expression “personal liberty” is not limited to bodily restraint or to confinement to prison
only is well illustrated by Kharak Singh v. State of U.P. In this case, the question raised was of
the validity of the police regulation authorizing the police to conduct what are called domiciliary
visits against bad characters and to have surveillance over them. The court held that such visits were
an invasion on the part of the police, of the sanctity of a man’s house and intrusion into his personal
security and his right to sleep, and therefore violative of personal liberty of the individual, unless
authorized by a valid law.
In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi. It was held that right to
travel abroad is included within the expression ‘personal liberty’ and therefore, no person can be
deprived of his right to travel except according to the procedure established by law. Since a passport
is essential for the enjoyment of this right, the denial of a passport amounts to deprivation of
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personal liberty. The view of this case was reiterated in Meanka Gandhi v. Union of India by the
Supreme Court.
At present, personal liberty includes various other liberties like right to bail, public interest,
litigation, right to free legal aid, right to speedy trial, etc.
The expression “procedures establish law” means procedure laid down by statute or prescribed by
the law of the State.
Article 22
Article 22 lays down certain specific safeguards against arbitrary arrest and detention.
These safeguards are:
A person who is arrested cannot be detained in custody, unless he has been informed of the
grounds for such arrest;
Such person shall have the right to consult and to be defended by lawyer of his choice. Such
person must be produced before the nearest Magistrate within 24 hours of arrest, excluding
the time of journey; and
Such person shall not be detained in custody beyond 24 hours without the authority of the
Magistrate.
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Article 27
It provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular religion or
religious denomination.
Article 28
It provides that no religious instructions shall be provided in any educational institution wholly
maintained out of State funds. However, this prohibition shall not apply to any educational
institution which is administered by the State by has been established under any endowment or trust
which requires that religious instruction shall be imparted in such institution.
CULTURAL AND EDUCATIONAL RIGHT [ARTICLES 29 & 30]
Articles 29
It provides the following:
Any section of the citizens residing in the territory of India having distinct language. Script
or culture of its own shall have the right to conserve the same; and
No citizen shall be denied admission into any educational institution maintained by the state
on grounds only of religion, race, cast, language or any of them.
Article 30
It provides the following:
1. All minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice; and
2. The state shall not in granting aid to educational institution, discriminate any educational
institutions, discriminate any educational institution on the ground that it is under the
management of the minority whether based on religion or language.
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The State shall endeavour to secure the citizens a uniform civil code through out the territory
of India.
The State shall endeavour to protect and improve the environment and to safeguard the forest
and wildlife of the country.
The State shall take steps to separate the judiciary from the executive.
The State shall endeavour to promote international peace and security.
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The President has powers to pass ordinance on the matters on which the Parliament has
powers.
The Councils of Ministers should suggest the passing of an ordinance on such matters.
The President himself should be satisfied about the need for the ordinance and he cannot be
compelled.
Once an ordinance is passed, it should be placed before both the Houses of Parliament and
approved by then within six weeks of their respective dates of reassembly.
The ordinance lapses if it is not approved within the aforesaid six weeks or if it is rejected
earlier or if the President himself withdraws the ordinance.
The ordinance cannot be challenged except on the limited grounds of mala fide intention in
passing the ordinance. [Cooper’s Case]
WRITS
Writs are extra ordinary remedies in cases where there is either no remedy available under the
ordinary law or the remedy available is inadequate.
Articles 32 and 226 of our Constitution empower anyone, whose rights are violated, to seek writs,
Under Article 32; the Supreme Court can be moved for enforcement of fundamental right only.
However, under Article 226. High Court can be moved for enforcement of any right including
fundamental right.
Depending upon circumstance, the various types of merits can be issued. Which are discussed below
Writ of Habeas Corpus
The words ‘habeas corpus’ literally means ‘to have body. It is a remedy available to a person who is
confined without legal justification. Through this writ, the court let it know the reasons for detention
of the person and if there is no justification, order the authority concerned to se the person free. The
writ of hebeas corpus, thus, entails the authority to produce the person before the court. The
applicant of this writ may be the prisoner or any person on his behalf to safeguard his liberty. It
seeks immediate relief from unlawful detention whether in prison or private custody.
Writ of Mandamus
Mandamus literally means a command. This writ of command is issued by the Supreme Court of
High court when any government, court, corporation or any public authority has to do a public duty
but fail to do so. To invoke the performance of such duty this writ of mandamus is issued, It should
be noted that it should not be discretionary duty of the authority which is challenged. It should be a
compulsory one; the applicant too should have a legal right to enforce such performance. It may
further be noted that this writ can not be issued against President or the Governor.
Writ of Prohibition
Writ of Prohibition is issued by a superior court to subordinate court preventing latter from usurping
the jurisdiction which is legally not vested in it. The writ lies in both for access of jurisdiction or
absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of
the proceeding but before the order is made. It may be noted that this writ is available against
judicial and quasi-judicial body.
Writ of Certiorari
If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the effected party
can move this writ for a direction against such lower court or tribunal to ignore such decisions based
on wrong jurisdiction. The writ of certiorari issued to subordinate judicial or quasi- judicial body
when they act:
Without or in excess of jurisdiction;
In violation of the prescribed procedure;
In contravention of principles of natural justice;
Resulting in an error of law apparent on the face of record.
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The writs of prohibition and certiorari are of the same nature, the only difference being that the writ
of prohibition is issued at an earlier stage, before the order is made and the writ of certiorari is
available on a later stage i.e. after the order has been passed.
Writ of Quo Warranto
The term ‘Quo Warranto’ means “What is your authority”. Whenever any public office is held by
any one not qualified to hold it, it can be challenged by this writ by any person. An order issued by
the court to such an authority to explain under what valid grounds he is holding such a post. It is
found on investigation that he is not entitled to be office; the court may restrain him from acting in
the office and declare the office to be Vacant. The writ of quo-warranto to issue when:
The office is public and of substantive nature;
The office is created by the State or by the Constitution itself; and
The respondent must have asserted his claim to the office.
It may be noted that Parliament has exclusive powers to make any law with respect to any matter
which is not covered in any of three lists. This is known as residuary powers of legislature.
Power of the Parliament to make Laws on State List Matters
Normally the state legislature has the exclusive powers to make laws with respect to subjects
enumerated in the state list. But Article 246 of our constitution empowers Parliament to make laws
even on state list matters under the following five circumstances;
In the National Interest (Article 249) : National Interest has been defined but whenever
parliament feels that it is necessary to pass laws on state list matters in public interest, it is
covered under this Article.
During proclamation of emergency (Article 250) : While proclamation of emergency is in
operation, Parliament shall have the power to make laws for whole or any part of the territory
of India on any matter in the state list. Here emergency includes period of internal
disturbances and external aggression etc.
On request of two or more states (Article 252) : If there is a dispute between two or more
states and they pass a resolution in their assemblies to refer the matter to Parliament for any
law on state list matters concerning them, the Parliament can pass law.
Legislation for enforcing international agreements (Article 253) : If there is any
international agreement between foreign country and India, and to give effect to such
agreement if a law is to be passed, the Parliament can pass the law ever if the matter is
contained in state list.
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The rule of pith and substance is applied when a law dealing with a subject in one list also touches a
subject in another list. In such cases the pith and substance of the legislation i.e., the true object of
legislation is to be determined. If on such examination, it is found that the legislation in its existence
is within the legislative competent of the legislature which enacted it, it is valid even if it
accidentally encroached on a subject in another list.
Colourabe legislation
The theory being this concept is “you cannot do indirectly what you cannot do directly”. The object
of distribution of legislative powers to different legislatures is that they ought to act within their
respective boundaries marked by the specific entries, The are some cases where the legislature
passes an Act which outwardly purports to be dealing with a subject within its legislative
competence but in substance it covers a subject not within its powers, Such type of law is called
colorable legislation and it will be struck down by the Court.
Delegated Legislation
It refer to all law making which take place outside the legislature and is generally expressed as rules,
regulations, orders, by-law etc. In other words, when an instrument of a legislative nature is made
by an authority in exercise of poser delegated by the legislature, it is called the delegated legislation.
The three relevant justifications for delegated legislation are:
The limits of the time of the legislature:
The limits of the amplitude of legislature; and
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The need of some weapon for copying with situation created by emergency.
Lesson 21
INTERPRETATION OF STATUTES
GENERAL PRINCIPLES/RULES OF INTERPRETATIONS
According to this rule, the words phrases and sentences of a statute are ordinarily to be understood in
their natural, ordinary or popular and grammatical meaning unless such a construction leads to an
absurdity or the content or object of the statute suggests a different meaning.
The objectives natures, ordinary and popular are used interchangeably. They mean the grammatical
or literal meaning, except when the words are technical because technical words have technical
meanings.
In simple words, this rule means to give simple straightforward and fair meaning to the provision of
law. It is also known as golden or primary rule of interpretation.
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Numbers of laws are made to cure a mischief. The mischief rule of interpretation is based on this
reason and it states that interpretation should be made in such way that it is able to cure that mischief
for which the law had been made. Thus, law should be interpreted in such a way so that it
suppresses the mischief and advances the remedy.
It may be noted that mischief rule is applicable only when a particular rule is ambiguous and capable
of different meanings. In such a case, the meaning which can suppress the mischief and advance the
remedy should be taken and other meaning should be discarded. Thus where a law is clear and can
have only one meaning, this rule shall not apply. [CIT v. Sodra Devil]
Harmonious construction
When a different section is an enactment is to be interpreted, they should be done in such a way that
the Act as a whole serves a useful purpose. It may be possible that different sections may appear to
mean contrary to each other or contradicting each other. Under such circumstances, an attempt
should be made to reconcile the provisions of the Act and an effect should be made to give the effect
to both the apparently contradictory provisions. Thereby a head on clash between sections of the
Act is avoided. This is known as harmonious construction.
That effect should be given to both the law, is the very essence of the rule of harmonious
construction. Thus a construction that reduces one of the provisions to a dead letter is not
harmonious construction.
Rule of Ejusdem Generis
The literal meaning of the term ejusdem generic is “of the same kind or species”. If any general
words such a ‘like’,’ so on’. etc follow specific words, the general words should include only those
meaning which can be given to the specific words. For example, printing, bleaching, dying, etc.
The rule requires that where specific words are all of one genius, meaning of the general words shall
be restricted to that genus only, unless there is something to show that a wider meaning was
intended.
The rule of ejusdem generic applies only when the following conditions are satisfied:
The statute contains an enumeration of specific words;
The members of enumeration constitute a class or category;
The class/ category is not exhausted by the enumeration;
The general term follows the enumeration; and
There is no indication of different legislative intent.
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Noscitur a sociis
The rule literally means that a word is known by its associates. In other words, the meaning of the
word is to be judged by the company it keeps. When two or more words having the analogous
meaning are coupled together, they are understood in their cognate sense. They take their colour
from each other.
The Supreme Court, while interpreting the expression “powers, privilege or immunities of a House
of the State Legislature”, held that the word ‘powers’ must take its colour from the words in
immediate connection with it and that it should be construed to refer not to legislative posers but to
powers of House which are necessary for the conduct of its business. [State of Karnataka v. Union
of India]
Strict and Liberal Construction
The words of a statute are to be constructed in the manner in which they are stated in the Act. The
state is not to be regarded as including any thing which is not within its letter and its spirit and which
is not clearly and manifestly described in the words of the statute itself. It may be noted that the
words of a Penal Statute which creates an offence or prescribes punishment are construed very
strictly.
Where the usual meaning of the words falls short of the object of the legislature, a more extended
meaning may be attributed to them. It has been held in many cases that it is the duty of the judge to
make such construction of a statute as shall suppress the mischief and advance the remedy or which
fulfills the objective thought behind in enactment of that law.
AIDS OF INTERPRETATION
There are two kinds of aids of interpretation i.e., internal & External aids of Interpretation.
Internal aids of interpretation
Title : The long title is set out at the head of the statute and gives a fairly full description of
the general purpose, object and scope of the Act. It is now settled that the long title of an Act
is the part of the Act and it is legitimate to use it for the purpose of interpreting the Act as a
whole.
Preamble: A preamble may afford useful light as to what a statute intends to achieve. It may
be noted that the preamble can be taken s an aid in interpretation of law only if that law is not
clear and ambiguous in nature, otherwise not.
Headings : The headings prefix to sections, chapters and parts of statute can be used in
constructing the provision of an Act, but only in cases where the enacting words are
ambiguous.
Marginal Notes : Marginal notes are often found printed at the side of the sections in an Act.
They purport to summaries the effect of the section and have sometimes be used as an aid to
interpretation.
Interpretation Clause : Interpretation clause consists of definitions of various words which
are frequently used throughout the Act. Whenever a word has been defined in interpretation
clause, prima facie that definition governs whenever that word is used in the body of the
statute. However, if in a particular context, different meaning of a word is given, then the
different meaning will be used and general meanings will be discarded for the purpose of
interpretation.
Provisos : Provisos are the various conditions appended to a section in an Act. A particular
section will be applicable only if the conditions specified in its provisio are satisfied.
Illustrations: Illustrations attached to sections are part of the statute and they are useful so
far as they furnish some information which helps in interpretation.
Explanation : An explanation is, at times, appended to a section to explain the meaning of
words contained in the section. It becomes the part and parcel of an enactment.
Schedules : The schedules form a part of the statute and must be read together with it for the
purpose construction.
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Statement of Objects and Reasons: The fact that Parliament has passed the provisions of
the statement of objects given sanction to them and thus they are a valid aid in the
interpretation of provisions.
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Lesson 22
Section-I
SPECIFIC RELIEF ACT 1963
INTRODUCTION
The term ‘relief’ means the remedy granted for some wrong or injury.
There are two types of remedies:
Remedy by which the aggrieved party obtains the same thing to which he is entitled.
Remedy by which the aggrieved party does not obtain the very thing to which he is entitled
but compensation for the loss.
The first remedy is to “Specific Relief”. While the second remedy is the “Compensatory Relief’s
Thus, specific relief is a relief in specie which aims at the “exact” fulfillment of an obligation. It is
also known as equitable relief.
The concept of specific relief is governed by various provision of Specific Relief Act, 1963.
PRINCIPLES UPON WHICH SPECIFIC RELIEF IS GRANTED
Following are the principles upon which remedy of specific relief is granted:
Damages is not an adequate remedy: Where damages in money are not an adequate
remedy or relief, the court grants the remedy of specific relief.
Dissertation of the Court: An aggrieved party can always apply for the specific relief but
whether specific relief will be granted or not it depends upon the discretion of the court. But
this discretion of the court is not arbitrary, depending upon the will and pleasure of the court.
It has to be exercised on sound and established principles of equity.
Specific relief granted only for enforcing individual and civil rights and no for
enforcing Panel laws: Specific relief can be granted only for the purpose of enforcing
individual civil rights. Thus, enforcement of Penal law is not possible, except where
enforcement of a panel law is merely incidental to the grant of specific relief.
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A person may sometimes be dispossessed without his consent of immovable property otherwise than
in due course of law. Such a person may file a suit, within six months from the date of
dispossession, for the recovery of possession of such property.
Following are the important points in this regard:
Plaintiff was disposed without his consent and otherwise than in due course of law.
A suit can be instituted even against the rightful owner of the property.
No suit under section 6 can be brought against the government.
No appeal and no review of he order or decree passed under section 6 is allowed.
Section 8: This section deals with the liability of a person having the possession of a movable
property of which he is not a legal owner.
To apply Section 8, following conditions must be satisfied:
a) The defendant have the possession or control of the movable property;
b) The defendant is not the owner of the movable property; and
c) Plaintiff have the right to the immediate possession of the movable property
If the above conditions are satisfied, the defendant can be compelled to deliver the property to
the plaintiff in the following cases:
1) When the property or thing is held by defendant as an agent or trustee of the plaintiff.
2) When the compensation in money is not adequate for the property.
3) When it is not possible to ascertain the damage suffered from the loss of article.
4) When the possession of thing or article has been wrongly transferred from the plaintiff.
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Section 10 further provides that, until and unless the contrary is proved, the court shall presume the
following:
In case of breach of contract of transfer of immovable property, the compensation in
money is not an adequate relief.
In case of breach of contract of transfer of movable property, the compensation in money
is an adequate relief. However in the following cases, the court shall presume that the
compensation in money is not an adequate relief:
When compensation in money is not an adequate relief.
When the property is of special value or interest to the plaintiff.
Where the property consists of goods which are not easily available in the market.
Where the property is held by the defendant as the agent/ trustee of the plaintiff.
Section 11: Specific performance of the contract may be enforced when the act agreed to be done is
the performance of a trust.
Specific performance of part of contract [Section 12]:
The general rule is that the court normally does not grant the specific performance of only a part of a
contract. However, the court may direct the specific performance of a part of a contract in the
following cases:
Part left underperformed proportionately small and can be compensated in money.
Part left unperformed considerably large, if the plaintiff relinquishes all claim to further
performance and all rights to compensation.
Separate and independent part.
Contract to sell or let property by one who has no title [Section 17]:
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A contract to sell or let any immovable property cannot be specifically enforced in the following
cases where
A seller or a lesser does not have any title to the property;
Where the seller or lesser cannot give the purchases/ lessee a free title at the time fixed by the
parties or court.
Section 20:
In the following cases, the court can use its discretion and may reject the specific relief:
Contract giving unfair advantages to the plaintiff.
Performance involving hardships on the dependant.
When the enforcement makes it inequitable.
Section 14(3):
It lays down the exceptions where the court may enforce the specific performance in the following
cases:
Where the suit is for the enforcement of a contract to execute a mortgage or furnish a security
for securing the repayment of a loan which the borrower is not willing to repay.
Where the suit is for the performance/ enforcement of a contract to take up and pay for the
debentures of a company.
Where the suit is for the executing the formal deed of partnership and the parties have
commenced the business OR purchasing of shares of parties in a firm,
Where the suite is for the performance of contract for the construction of any building or the
execution of any other work on land provided the following conditions are satisfied:
The building or other work is described sufficiently in the contract:
The plaintiff has substantial interest in the performance of a contract:
Compensation in money is not an adequate relief for the non-performance of contract;
and
The defendant has obtained the possession of land where the work is to be done.
For example. A sues B to compel specific performance of contract in writing to buy a house. B
proved that he assumed that the contract included house and adjoining garage and a contract was so
framed as to leave it doubtful weather the garage was included or not. The court will refuse to
enforce the contract except with the variations set up by B,
Delay or laches:
If time is the essence of the contract and there is failure on the part of the plaintiff to perform his part
of the contract, then the defendant can take a defence to an action for specific performance of
contract,
Parties to an action for specific performance
The law on the parties to an action may be discussed under the following two heads:
A. Persons who may obtain specific performance; and
B. Persons against whom contracts maybe specifically enforced.
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However in the following case, a specific performance of a contract cannot be enforced against a
person. [Section 16]:
A person who would not to be entitled to recover compensation for its breach.
A person who has become incapable of performing.
A person who violates any essential terms of contract.
A person who act in a fraudulent manner.
A person who varies the terms and conditions of the contract in a wrongful manner.
A person who fails to perform his part of the contract or fails to prove that he is willing to
perform his part of the contract.
For example, A, a tenant for life of the property, with remainder to B, in due exercise of the power
conferred by the settlement under which he is tenant for life; contract to sell the property C, who has
notice of the settlement. Before the sale is completed, A dies, C may enforce specific performance of
a contract against B
DECLARATORY DECREE
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The declaration asked for is for legal character or right to property only;
The plaintiff is not able to claim further relief other then declaration: and
The court is satisfies that the relief is proper.
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Lesson 22
Section II
LAW RELATING TO TORTS
INTRODUCTION
The word ‘tort’ is a French equivalent of English word ‘wrong’. The word tort is derived
from Latin language from the word Tortum. Thus, simply stated ‘tort’ means wrong. But
every wrong or wrongful act is not a tort. Tort is really a kind of civil wrong as opposed to
criminal wrong. Wrongs, in law, are either public or private.
Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not
exclusively a breach of contract or breach of trust.”
GENERAL CONDITIONS OF LIABILITY FOR A TORT
Wrongful act:
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The act complained of, should under the circumstances, be legally wrongful as regards the party
complaining. In other words, it should prejudicially affect any of the above mentioned interests, and
protected by law. Eg. right of reputation, right of bodily safety and freedom, and right to property are
violated without legal excuse, has a right of action against the person who violated them, whether
loss results from such violation or not.
Legal damages:
As was stated in Ashby v. White, (1703) 2 Ld. Raym. 938 legal damage is neither identical with
actual damage nor is it necessarily pecuniary. Two maxims, namely :
The third condition of liability for a tort is legal remedy. This means that to constitute a tort,
the wrongful act must come under the law. The main remedy for a tort is an action for
unliquidated damages, although some other remedies, e.g., injunction, may be obtained in
addition to damages or specific restitution may be claimed in an action for the detention of a
chattel.
For example, if “A” finds a drunken stranger in his room who has no business to be there in
it, and is thus a trespass, he (A) is entitled to get rid of him, if possible without force but if
that be not possible with such force as the circumstances of the case may warrant.
Mens Rea
The General principle lies in the maxim “actus non facit reum nisi mens sit rea” i.e. the act
itself creates no guilt in the absence of a guilty mind.
It does not mean that for the law or Torts, the act must be done with an evil motive, but
simply means that mind must concur in the Act, the act must be done either with wrongful
intention or negligence.
For example, under criminal law, mens rea must be proved. However, to this principle cases
of absolute or strict liability are exceptions.
KINDS OF TORTIOUS LIABILITY
The following types of tortuous liability may be noted:
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If the harm has been caused due to the act of a stranger, who is neither defendant’s servant
nor agent nor the defendant has any control over him, the defendant will not be liable. Thus,
in Box v. Jubh (1879) 4 Ex. D. 76, the overflow from the defendant’s reservoir was caused
by the blocking of a drain by stranger, the defendant was held not liable. But if the act of the
stranger, is or can be foreseen by the defendant and the damage can be prevented, the
defendant must, by due care prevent the damage. Failure on his part to avoid such damage
will make him liable.
Statutory Authority
Sometimes, public bodies storing water, gas, electricity and the like are by statute, exempted
from liability so long as they have taken reasonable care. This is based on the principle that
they act in public interest.
Act of God
If an escape is caused, through natural causes and without human intervention circumstances
which no human foresight can provide against and of which human prudence is not bound to
recognize the possibility, there is then said to exist the defence of Act of God.
Escape due to plaintiff’s own Default
Damage by escape due to the plaintiff’s own default was considered to be good defence in
Rylands v. Fletcher itself. Also, if the plaintiff suffers damage by his own intrusion into the
defendant’s property, he cannot complain for the damage so caused.
VICARIOUS LIABILITY
Normally, the tortfeasor is liable for his tort. But in some cases a person may be held liable for the
tort committed by another. A master is vicariously liable for the tort of his servant, principal for the
tort of his agent and partners for the tort of a partner. This is know as vicarious liability in tort. The
common examples of such a liability are:
Principal and Agent [Specific authority]
Partners
Master and Servant [Authority by relation]
Employer and Independent Contractor
Where Employer is Liable for the acts of Independent Contractor
Where Employer is not Liable for the acts of an Independent Contractor
Liability for the acts of Servants
TORTS OR WRONGS TO PERSONAL SAFETY AND FREEDOM
An action for damages lies in the following kinds of wrongs which are styled as injuries to the
person of an individual:
Battery
Any direct application of force to the person of another individual without his consent or lawful
justification is a wrong of battery. To constitute a tort of battery, therefore, two things are necessary:
use of force, however, trivial it may be without the plaintiff’s consent, and
without any lawful justification.
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Even though the force used is very trivial and does not cause any harm, the wrong is committed.
Thus, even to touch a person in anger or without any lawful justification is battery.
Assault
Assault is any act of the defendant which directly causes the plaintiff immediately to apprehend a
contact with his person.
Thus, when the defendant by his act creates an apprehension in the mind of the plaintiff that he is
going to commit battery against him, the tort of assault is committed.
The law of assault is substantially the same as that of battery except that apprehension of contact, not
the contact itself has to be established.
Usually when there is a battery, there will also be assault, but not for instance, when a person is hit
from behind.
To point a loaded gun at the plaintiff, or
to shake fist under his nose, or
to curse him in a threatening manner, or
to aim a blow at him which is intercepted, or
to surround him with a display of force
is to assault him clearly if the defendant by his act intends to commit a battery and the plaintiff
apprehends it, is an assault.
Bodily Harm
A willful act (or statement) of defendant, calculated to cause physical harm to the plaintiff and in
fact causing physical harm to him, is a tort.
False Imprisonment
False imprisonment consists in the imposition of a total restraint for some period, however short,
upon the liberty of another, without sufficient lawful justification. It means unauthorized restraint on
a person’s body.
What happens in false imprisonment is that a person is confined within certain limits so that he
cannot move about and so his personal liberty is infringed.
Malicious Prosecution
Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another,
maliciously and without reasonable and probable cause, which terminate in favour of that other and
which results in damage to his reputation, personal freedom or property.
The following are the essential elements of this tort: There must have been a prosecution of the
plaintiff by the defendant.
There must have been want of reasonable and probable cause for that prosecution.
The defendant must have acted maliciously (i.e. with an improper motive and not to further
the end of justice).
The plaintiff must have suffered damages as a result of the prosecution.
The prosecution must have terminated in favour of the plaintiff.
Nervous Shock
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This branch of law is comparatively of recent origin. It provides relief when a person may get
physical injury not by an impact, e.g., by stick, bullet or sword but merely by the nervous shock
through what he has seen or heard.
Causing of nervous shock itself is not enough to make it an actionable tort, some injury or illness
must take place as a result of the emotional disturbance, fear or sorrow.
Defamation
Defamation is an attack on the reputation of a person. It means that something is said or done by a
person which affects the reputation of another. It is defined as follows:
“Defamation is the publication of a statement which tends to lower a person in the estimation of
right thinking members of society generally; or which tends to make them shun or avoid that
person.
Defamation may be classified into two heads: Libel and Slander.
Libel is a representation made in some permanent form, e.g. written words, pictures,
caricatures, cinema films, effigy, statue and recorded words. In a cinema films both the
photographic part of it and the speech which is synchronized with it amount to tort.
Slander is the publication of a defamatory statement in a transient form; statement of
temporary nature such as spoken words, or gestures.
REMEDIES IN TORTS
Judicial Remedies
Three types of judicial remedies are available to the plaintiff in an action for tort namely:
Damages or Compensation,
Injunction, and
Specific Restitution of Property.
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It is neither a crime nor a tort for a person entitled to possession of a chattel to take it either
peacefully or by the use of a reasonable force from one who has wrongly taken it or wrongfully
detained it.
Abatement of Nuisance
The occupier of land may lawfully abate (i.e. terminate by his own act), any nuisance injuriously
affecting it. Thus, he may cut overhanging branches as spreading roots from his neighbour’s trees,
but
upon giving notice;
by choosing the least mischievous method;
avoiding unnecessary damage.
Distress Damage Feasant
An occupier may lawfully seize any cattle or any chattel which are unlawfully on his land doing
damage there and detain them until compensation is paid for the damage. The right is known as that
of distress damage feasant-to distrain things which are doing damage. It is a legal seizure and
detention of cattle or chattel till compensation is paid for the damage.
Lesson 22
Section III
Limitation Act, 1963
Introduction:
The object of the Limitation Act, 1963 is to prescribe the period within existing rights can be
enforced in courts of law.
The principal in which the law of limitation is base is “vigilantibus non dormientibus leges
subvenient” i.e. the, law aids the diligent and not the indolent. This is because with passage of time
all evidence of the facts may be lost.
Limitation Bars Remedy But does not Extinguish right:
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The law of limitation only bars the remedy by way of the suit i.e., if the period of limitation expires,
the party entitled to file a suit for the enforcement of a right is debarred from doing so. However, the
original right on which the suit was to base is not barred. Thus, limitation only bars the judicial
remedy but it does not extinguish the right.
For example, where the recovery of a debt has become time barred by the lapse of the prescribed
period limitation, the right to the debt is not extinguished. If the debtor, without being aware of the
bar of time, pays the debt he cannot sue the creditor to refund the money to him on the ground that
his claims for the recovery of the debt had become time barred.
It may be noted that there is one exception to the aforesaid rule which is contained in Section 27 of
the Limitation Act, 1963. It provides that where a person’s right to institute the suit for the
possession of any property has become barred by limitation his riht to the property itself shall be
extinguished.
Limitation is the Statute of Repose, Peace and Justice:
The statutes of limitation are statute of repose because they extinguish stale demands and quite titles.
They lay, at rest; claims which might otherwise have disturbed the peace of community. They
secure peace by ensuring security of rights and secure justice as by lapse of time evidence may have
been destroyed.
In S.C. Parashar v.Vasant Sen, the Supreme Court has rightly observed that the statute of
limitation is a statute of repose, peace and justice.
The intention of the law of limitation is not to give a right where there is not one, but to interpose a
bas after certain period to a suit to impose an existing right. The object is to compel the litigant to be
diligent in seeking remedies in court of law.
Concept of Time Barred [Section3]
Concept of time barred is incorporated in Section 3 of Limitation Act, 1963. According to this
section, every suit must be instituted, appeal must be preferred and application must be made within
the period of limitation as specified in the schedule II of Limitation Act.
The provisions of this section are absolute and mandatory. The court will not proceed with the suit;
application made beyond prescribed period of limitation and is liable to be dismissed when the suit,
appeal or application has become time barred.
Doctrine of Sufficient Cause for Extension of Time or Condonation of Delay [Section 5]
The general rule is that the suit, appeal or application must be made within the prescribed period of
limitation. However, there is an exception to this general rule which provides that the court may
admit an application or appeal even after the expiry of prescribed period of limitation, if it is
satisfied that the applicant or the appellant has been prevented by some sufficient cause, from not
making the application or preferring the appeal within the prescribed period of limitation.
It may be noted that doctrine of sufficient cause is not applicable in the following cases:
Application made under any of the provisions of Order XXI of CPC, 1908 and
Suits.
The expression ‘sufficient cause’ had not been defined under the limitation Act, 1963. However, a
cause in order to be sufficient cause must be a cause which is beyond the control of the party
invoking this section.
For example, illness of the party, mistake of the counsel, mistake o law, and not ignorance of law,
etc. are some of the instance of sufficient cause.
The burden to prove sufficient cause for delay in filling an application or appeal lies on the party
applying for condonation of delay under section 5. However, it is the discretion of the court to grant
extension of time or not.
Period of Limitation in the case of Persons Under Legal Disability [Sec 6,7 & 8]
The period of limitation starts from the date on which the cause of action has arisen but in the case of
persons suffering from some legal disability, the period of limitation runs from the date of the
cessation of disability. The rules to this effect are contained in section 6, 7 and 8.
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Section 6
Section 6 provides that a person is under a legal disability if such person is a minor, (the term minor
includes child in the womb) insane and idiot. In such cases, the persons will be entitled to fresh
starting point of limitation from the date on which the legal disability ceases to exist subject to the
following conditions:
Such a legal disability must be existing at the time from which the period of
limitation is to be commenced; and
The person under legal disability must be entitled to institute the suit or make an
application.
Section 6 further provides the following:
If a person is affected by several disability at one point of time, then the person may institute
o suit or make an application after all disabilities have ceased.
If one legal disability is followed by another legal disability, then the person may institute a
suit or make an application after all disabilities have ceased.
If the legal disabilities continue up to the death of the person under such disability, then his
legal representative may institute the suit or make the application within the same period
after the death, as would otherwise have been allowed from the time specified in the schedule
to the Act.
It may be noted that section 6 does not apply to appeals.
Section 7
Section 7 is applicable where several persons are jointly entitled to institute the suit or make an
application for execution of a decree and out of the several persons, one or some of them are affected
by ‘ legal disability’.
The period of limitation in such a case is to be reckoned, depending upon whether discharge can be
made with or without the consent of the person under legal disability. If the discharge can be given
with the consent of such person, he period of limitation will start only after the disability is removed.
On the other hand, where consent of the person under legal disability is not required time will run
against them all.
I may be noted that section 7 is not applicable to appeals.
Section 8
Section 8 is an exception to section 6 and 7 controls both these sections. According to Section 8, the
period of limitation can not extend beyond three years from the date of cessation of legal disability.
However, if the ordinary period of limitation computed from the original accrual of the cause of
action expires more than 3 years after the cessation disability, such period will be allowed.
Continuous running of Time [Section 9]
Section 9 of the Limitation Act, 1963 provides that where the limitation period has started, no
subsequent disability or inability to institute a suit or make an application can stop it. The section
embodies the principle that once the time for filing suit or an application starts running, it will
continue to run till it has exhausted the full prescribed period. The running process can only be
stopped or suspended by express statutory exceptions.
‘Disability’ connotes legal disability. It is want of legal qualification to act i.e., want of capacity to
act. It is the state of being minor, insane and idiot. ‘Inability’, on the other hand, connotes want of
physical power to act. Illness, poverty, ignorance, etc. are some of the instances of inability.
It may be noted that section 9 is applicable only to suit and application. It does not apply to appeals.
Exclusion of Time in Legal Proceedings [Section 12]
Following period shall be excluded in computing the period of limitation for various proceedings
mentioned:
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In computing the period of limitation prescribed for a suit, the day on which the time begins
to run shall be excluded.
In computing the period of limitation prescribed for an appeal the following periods shall be
excluded:
In computing the period of limitation prescribed for an application for revision or review or
leave to appeal, the following shall be excluded:
In computing the period of limitation prescribed for an application to set aside an award, the
following period shall be excluded:
In computing the period prescribed for any other application, only the day on which the time
begins to run shall be excluded.
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payment on account of the debt or of interest on a legacy is made before the expiration of the
prescribed period, by the person liable to pay the debt or legacy or by his agent duly authorized in
his behalf. A fresh period of limitation shall be computed from the time when the payment was
made. Further part payment of the principal amount or payment of interest money is also required to
be acknowledged and such acknowledgement must appear either in the hands writing of the person
making the payment or must appear in a writing signed by the person making the payment.
It may be noted that where mortgaged land is in the possession of the mortgagee, the receipt of the
rent or produce of such land shall be deemed to be a payment.
Thus according to this section, a fresh period of limitation become available to the creditor when
part payment of debt or payment of interest is made by the debtor before the expiration of the period
of limitation.
Important Limitation Periods:
Suit for money payable or money lent – 3 years from the time when the loan is made.
Suit for specific performance of contract – 3 years from the date fixed for performance. In
case where no such date is fixed, 3 years shall be calculated from the date when the plaintiff
has notice that the performance is refused.
Appeal against the sentence of death passed by the Session Court or by the High court in
exercise or its original jurisdiction – 3- days.
Suits relating to Contract – 3 years.
Suit relating to movable property – 3 years.
Suit relating to possession of immovable property mortgaged – 12 years.
Suit for arrears of rent – 3 years.
Suits for an account and a share out of profits of a partnership firm – 3 years.
Suit in respect of wages due to seamen – 3 years.
Suit in respect of wages due to other employees – 3 years.
Suit in respect of price of food or drink sold by a hotel, restaurant, lodging house etc. – 3
years.
Suit in respect of compensation for false imprisonment – 1 year.
Suit in respect of compensation for malicious prosecution – 1 year.
Suit to enforce payment of money secured by a mortgage – 12 years.
Suit for possession of immovable property – 30 years.
Suit for leave/ permission to appear and defend a suit under summary procedure – 10 days.
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Lesson22
Section IV
Indian Evidence Act, 1892
Introduction
Indian Evidence Act, 1872 contains the general rules of evidence, which are applicable both in
civil as well as in criminal mattes.
Section 3 of the Act recognizes the two categories of evidence i.e., oral evidence and
documentary evidence. Oral evidence means and includes all statements which the Court
permits or required to be made before it by witnesses, in relation to matters of fact under enquiry.
Documentary evidence means and includes all documents, produced for the inspection of the
Court.
For the purpose of evidence, facts are divided into the following two categories:
Fact of Issue: The facts which are constituent of a litigated right, liability, or disability are called
facts in issue.
Relevant Fact: In order to prove the existence or non-existence of facts in issue, certain other
inter-connected fact may be given in evidence. They are called relevant facts.
Relevancy of Facts:
Meaning of ResGestae
The term Res Gestae means surrounding or accompanying circumstances which are inseparable
from the fact in issue and are necessary to explain the nature of the main act.
They includes acts or declaration accompanying or explaining the transaction or fact in issue.
The area of events covered by Res Gestae depends upon circumstances of each case.
Relevancy of Facts Forming Part of the same Transaction Section 6
Section 6 lays down the requirement that the inter-connation between facts in issue and other
connected facts must be such that they form part of the same transaction. A transaction may be
defined as a group of facts so connected together so as to referred to by a single legal name as a
crime or a contract or a wrong or any other subject of enquiry which may be in issue.
In Rattan v. Queen, a man was prosecuted for murder of his wife. His defence was that the bullet
went off accidentally. There was evidence to the extent that he deceased, before her death,
telephoned to telephone operator and said “Get the police please”. Before the operator could
have connected the call to the police, the lady had given the address and the call suddenly ended.
Thereafter the police, the lady had given the address and the call suddenly ended. Thereafter the
police came to the house and found the dead body of the lady. Her call and the words she had
spoken to the telephone operator were held to be relevant as the part of the same transaction.
Motive, Preparation and Conduct [Section8]
Every crime can be divided into the following three stages i.e., Motive, Preparation and Conduct.
Motive: Motive is that part which induces or moves a Peron to act in a certain way. It is the
emotion supposed to have led to the act. There can be no action without a motive, which must
exist for every voluntary act.
The mere existence of the motive is by itself not an incriminating circumstance. In Tara Devi v.
State of U.P., it was held that motive of a woman to get rid of her husband was not enough to
convict particularly when her paramour was acquitted.
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Preparation: Preparation means the means and measures necessary for the commission of any
offence.
Conduct: Conduct means attempt to commit the crime and actual commission of the crime.
Inconsistent Fact [Section 11]
Section 11 provides that the fact which ordinarily have nothing to do with the fact of the case,
become relevant because of the reasons that they are consistent with the fact in issue.
Admission and Confession
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Admissions are a genus of which confession are a specie. Confession is a special from of
admission. The main points of difference between them are as follows.
Admission Confession
1. Admission may be oral Confession even it is oral, it is
Recorded in writing and signed by
The parties.
2. Admission may be under compulsion also. Confession has to be voluntary.
3. Admission may be made by anybody Confession shall be by accused only.
Confession has to be done by self
Only.
5. It doesn’t arise in case of admission Confession can bind even the co
Accused.
6. Admission is allowed in civil & criminal cases. Generally it is available only in
Criminal cases.
7. All admissions need not be confessions. All confessions are admissions
Hearsay Evidence
Section 59 of Indian Evidence Act provides that except content of documents, all other facts may
be proved by oral evidence.
Section 60 further provides that the oral evidence must be direct and it should not be indirect or
hearsay. Thus it can be sated that in all cases the evidence has to be that of a person who himself
witnessed the happening of a fact. Such a witness is called eye witness. Therefore, it is normally
said ‘hearsay evidence is no evidence’
However, there are certain exceptions to the aforesaid rule that hearsay evidence is no evidence.
They are as under:
1. Res Gestae: As per this provision, statement of person may be proved through another
person who appears as a witness, if the statement is a part of transaction issue.
3. Dying Declaration: As per Section 32, statements are proved through testimony of the
witness to whom such statement has been made. This provision covers the testimony
related to dying declaration as well as the statements relating to a person under disability.
It may be noted that where a person making a declaration survives then the statement
made by him can’t used as dying declaration.
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Lesson23
Civil Procedure Code, 1908
Introduction
Civil Procedure Code is the general law relating to civil suits.
The Code consists of two divisions. The first division, containing 158 Section, is the substantive
law i.e., the law which determines the rights and obligation of the parties to a dispute. The
second division, containing 51 Orders, each of which contains several Rules, is the procedural
law i.e., the law which prescribes the procedure for the enforcement of rights and obligation of
the parties to the disputes.
The first division, containing substantive law, can be amended only be the Parliament whereas
the second division, containing procedural law, can be amended only by the High Courts.
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Decree
The term ‘decree’ has been defined u/s 2(2) of Civil Procedure Code, 1908. It means the formal
expression of an adjudication which conclusively determines the rights of the parties with regard
to all or any of the matter in controversy in the suit.
A decree may be either preliminary or final. A decree is preliminary when a further procedure
has to be taken before the suit can be completely disposed off. It is final when such adjudication
completely disposes of the suit.
It may be noted that the term ‘decree’ doesn’t include the following:
Any adjudication from which an appeal lies as an appeal from an order.
Any order or decision of the dismissal of the suit for default.
Order
The term ‘Order’ has been defined u/s 2 (14) of the Civil Procedure Code. It means the formal
expression of any decision of the Civil Court which is not a decree.
Judgment
The term judgment has bee defined u/s 2 (9) of the Civil Procedure Code. It means the statement
given by the Judge on the grounds of a Decree or Order. Thus a judgment sets out the ground
and the reason for the Judge to have arrived at the decision.
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Section 15
Every suit shall be instituted in the court of lowest grade.
Section 16
Suits regarding immovable property are instituted in the court within whose jurisdiction, the
Immovable property is situated.
Section 17
Where immovable property is situated in the jurisdiction of different courts, the suit may be filed
in any of such courts.
Section 18
Where there is apparent uncertainty regarding the jurisdiction of the court, the suit may be filed
in any of such courts.
Section 19
Suit with regards to the compensation for wrongs done to the persons or suit pertaining to
movable property can be filed in the court having the jurisdiction over the place where the wrong
was committed or where the defendant resides.
Section 20
Where above section i.e., Section 16, 17, 18 and 19 are not applicable, such suits may be filed in
the court having jurisdiction over the place where the defendant resides or where the cause of
action has arisen.
For instance, A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at
Varanasi; B and C make a joint promissory note payable on demand , and deliver it to A. A may
sue B and C at Varanasi, where cause of action arose. He may also sue them at Calcutta where B
resides or at Delhi where C resides, but in each cases, if the non-resident defendant objects, the
suit can’t be proceeded without the leave of the Court.
Section 20 further provides that in the case of a Company, the suit may be filed at any of the
following places:
Place where the Principal office or the Head office of the Company is situated.
Place where the cause of action has arisen, subject to the condition that the company
has a Branch office at such place.
Important Point
In the leading case of Hakam Singh v. Gammon (India) Limited, the Supreme Court held that
the parties, by an agreement, can not confer jurisdiction on a Court which it doesn’t possess
under the law. However, the parties can agree that only a particular Court will try a suit, where
the two courts have jurisdiction to try a suit.
Important Doctrines
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Suit in Foreign Court doesn’t bat the courts in India from trying a suit founded on the same cause
of action.
For the application of the doctrine of res sub-judice, the following conditions must be satisfied:
A previously instituted suit is pending in a Court;
The matter in issue in second suit is also directly and substantially the same as in the
previous suit;
The previously instituted suit is still pending in same court or any other court in India;
The parties in two suits are same; and
The court in which previous suit is pending has the jurisdiction to try such suit.
Section 10 is enacted to prevent courts of concurrent jurisdiction from simultaneously trying two
parallel suits in respect of same matter in issue.
A suit was instituted by the plaintiff company alleging infringement by the defendant company
by using trade name o medicine and selling the same in wrapper and carton of identical design
with same color combination etc. as that of plaintiff company. A subsequent suit was instituted
in different court by the defendant company against the plaintiff company with the same
allegation. The Court held that subsequent suit should be stayed as simultaneous trial of the suits
in different courts might result in conflicting decisions as issue involved in two suits was totally
identical.
[Wings Pharmaceuticals v. Swan Pharmaceuticals]
The application of this doctrine is based on the public policy so that the patties would not be
harassed again and again on the same issue already decided. The court’s time will also not get
vested on matter already decided.
It may be noted the Sect. 11 will not be applicable in those circumstances where the first suit
have been dismissed on technical ground and has not been decided on merit of the case.
Concept of set off, Equitable Set off and Counter Claim
Set Off
Order 8, Rule 6 deals with set off which is a reciprocal acquittal of debts between the plaintiff
and he defendant. It has the effect of extinguishing the plaintiff’s climbs to the extent of the
amount claimed by the defendant.
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Where in a suit for the recovery of money, the defendant’s claims to set off against the plaintiff’s
demand, any ascertained sum of money legally recoverable by him from the plaintiff, the
defendant may present a written statement containing the particulars of the debt sought to be set
off.
Appeals
Appeal is an application by which a party requests an appellate court to set aside or modify the
decision of the subordinate court.
The Civil Procedure Code provides for following four kinds of appeals:
Appeals from original decree
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Appeals from original decrees may be preferred from any decree, passed by any court exercising
original jurisdiction, to the court authorized the hear appeals from the decision of such courts on
point of law as well as on points of facts. In this case, there is always a right to appeal, until
unless there is a specific prohibition to such a right.
Second appeals
Second appeals lies to the High Court from any decree passed in appeal by any court subordinate
to the High Court, if the High Court is satisfied that the case involves a substantial question of
law.
Appeals against the orders
In general, appeals against the order are not allowed. However, if it is specifically permitted
under the provisions of law, appeal can be filed against the order on ground of defects or
irregularity of law.
Appeal to Supreme Court
An Appeal can be filed to the Supreme Court in respect of those decrees which have been passed
by High Court in their original jurisdiction.
Injunction
An injunction is a judicial process by which one, that has invaded or threatened to invade the
rights of another, is restrained form continuing or commencing such wrongful acts. This is a
preventive relief granted as discretion of court.
An Injunction may be a temporary or a perpetual Injunction. Temporary Injunction is regulated
by Order 39 of Civil Procedure Code whereas Perpetual Injunction is regulated by Section 38 of
Specific Relief Act, 1963.
A temporary injunction is such as is to continue until a specified time or until the further orders
of the court. It may be granted at any stage of the suit.
A perpetual injunction can only be granted by a decree made under hearing and upon the merits
of the case. In case of a perpetual injunction the defendant is permanently restrained from doing
any act which is against the right of the plaintiff.
Summary Procedure
Order 37 of Civil Procedure Code provides for a summary procedure in respect of certain suits.
The essence of the summary suit is that the defendant is not, as in an ordinary suit entitled to
defend the suit. The object underlying the summary procedure is to prevent unreasonable
obstructions by defendant who has no defence.
Summary suit can be filed in the following cases:
Suits relating to Promissory Notes, Bill of Exchange Cheques, Hundis.
Suit in which the plaintiff seeks only to recover a debt.
In summary suit, the defendant is not entitled to defend the suit until he enters appearance and
makes an application for leave to defend the suit, within 10 days from the date of summons leave
to defend may be granted to him unconditionally or upon such terms and conditions as the courts
thinks fit. However, leave to defend the suit shall not b granted in the following cases:
Where the defence of the defendant is frivolous or vexations.
Where part of the amount claimed by the plaintiff and accepted by the defendant has
not been deposited by the defendant in the court.
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Order 32 of Civil Procedure Code deals with the provision relating to suits by or against minor.
The basic rule as regard suits by or against minor is that the law protects minors against their
immaturity and inexperience and also against the matured and experienced person.
Every suit by a minor shall be instituted in his name by a person who in such suit shall be
Called the next friend of the minor. Where a suit is instituted by minor without the next friend,
then the defendant may apply for dismissal of the suit. Where the defendant is a minor, the court
shall appoint a proper person to be a guardian for the suit of such minor.
A minor plaintiff, on attaining majority, shall elect whether he will or will not proceed with the
suit. Where he elects to proceed with the suit, he shall apply for an order discharging the next
friend and for leave to proceed in his own name. Where he elects to abundant the suit, he shall
apply for an order to dismiss the suit, on repayment of the costs incurred by the defendant.
Section 12
Section 12 of Civil Procedure Code provides that abatement of suit or its dismissal, for not
bringing the legal representative on record, bars further suit.
Lesson 24
Criminal Procedure Code, 1973
Introduction
The Criminal Procedure Code, 1973 is the general law relating to criminal procedures. The
Code prescribes the procedure for the trial of offences specified in the Indian Panel Code, 1860.
Thus, the main object of Criminal Procedure Code is to supplement the substantive law
contained in Indian Penal Code, by prescribing the suitable procedure.
Important Concepts
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Inquiry [Sec. 2(g)] : According to Criminal Procedure Code, inquiry is always conducted by
the Magistrate or by the court. An inquiry before trial to ascertain whether any offence has been
committed and whether he should be put upon the trial.
Trial: The word ‘trial’ has not been defined under Criminal Procedure Code. It means the
judicial process in accordance with law, whereby the question of guilt or innocence of the person
accused of an offence is determined. Thus a trial ends either in conviction or acquittal.
Mens Rea
Mens Rea is one of the principles o criminal law that a crime is not committed if the mind of the
person doing the act in question is innocent. It is said that “ACTUS NON FACIT TEAM HISI
MENS SIT REA’ i.e., the intention and act must both concur to constitute the crime and that is
why it is said that guilty mind is necessary for liability in Criminal law. The general rule to be
stated is “there must be a mind at fault before there can be a crime”
Summons Cases and Warrant Cases [Section 2 (w) and 2(x)
Warrant case means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding 2 years. Summons case means a case relating to an offence
and not being a warrant case.
Thus, it can be seen that the distinction between two terms is based on the quantum of the
Punishment that can be awarded. In other words, cases which are punishable with imprisonment
up to 2 years are summons cases and the rest are all warrant cases.
Further in a summons case, the court order is directly issued to a person to produce himself
before the court, whereas in a warrant case, the court order is issued to the police to produce the
person concerned before the court.
Summary Trial [Section 260]
Summary trial means speedy disposal of cases.
Sec.260 provides that summary trial can be conducted in respect of those offences which are not
punishable with death or imprisonment for life or imprisonment exceeding 2 years. In simple
words, we can say summary trial can be conducted only in respect of those offences which are
punishable with imprisonment for a term not exceeding two years.
Further, summary trials can be conducted only in respect of those offences in which the value of
property does not exceed Rs.200/-.
It may be noted that Summary Trial can be conducted only by a Chief Judicial Magistrate.
Section 262 provides that if in a summary trial the accused is found to be guilty, he shall not be
sentenced to imprisonment for a period exceeding 3 months.
Information to the Police
Section 154
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Any person aware of any cognizable offence may give information to the police. The
information so received shall be recorded in the manner prescribed under CrPC. The information
so recorded u/s 154 is known as First Information Report (FIR).
Where the concerned Police Officer doesn’t record the aforesaid information, then the person
giving the information can do the following:
Inform the Superintendent of Police regarding the refusal of the concerned police officer.
In such a case, the Superintendent of Police himself shall record the information and
investigate the mater.
Inform the concerned Magistrate which, in turn, will take the action against the
concerned Police officer.
Section 155
If any person gives information to an Officer-in-Charge of the concerned police station of the
commission of a non-cognizable offence, the Officer shall enter the substance of such
information in a particular book prescribed by the State Government. The Officer, thereafter,
shall refer the information to the Magistrate for appropriate direction.
Sec. 155 (2) Provides that no Police Officer shall investigate a non-cognizable case without the
order of Magistrate having the power to try such offence.
Sec. 155 (4) Provides that where a case relates to two or more offences and one of them is
cognizable, the case shall be deemed to be a cognizable offence irrespective of the fact that other
offences are non-cognizable.
Arrest of a Person
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For whose arrest any requisition, whether written or oral, has been received from another
Police officer, provided that the requisition specifies the person to be arrested and the
offence or other causes for which the arrest is to be made it appears there from that the
person might lawfully be arrested without a warrant by the officer who issues the
requisition.
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