Legal doctrine of Occupied Field

Doctrine of Occupied Field is attracted in a variety of ways. For example if a special law covers a subject, general law stands automatically excluded because that field of law is already occupied.

Claim of Gratuity made  under Section 33-C(2) Industrial Disputes Act instead of Payment of Gratuity Act — Validity.

It was urged that the Payment of Gratuity Act is a self-contained code incorporating all the essential provisions relating to payment of gratuity which can be claimed under that Act, and its provisions impliedly exclude recourse to any other statute for that purpose.

Supreme Court accepted this contention in following words:

“A careful perusal of the relevant provisions of the Payment of Gratuity Act shows that Parliament has enacted a closely knit scheme providing for payment of gratuity. A controlling authority is appointed by the appropriate Government under section 3 and Parliament has made him responsible for the administration of the entire Act. In what event gratuity will become payable and how it will be quantified are detailed in section 4. Section 7(1) entitled a person eligible for payment of gratuity to apply in that behalf to the employer. Under section 72, the employer is obliged,as soon as gratuity becomes payable and whether an application has or has not been made for payment gratuity, to determine the amount of gratuity and inform the person to whom the gratuity is payable specifying the amount of gratuity so determined. He is obliged, by virtue of the same provision, to inform the controlling authority also, thus ensuring that the controlling authority is seized at all times of information in regard to gratuity as it becomes payable. If a dispute is raised in regard to the amount of gratuity payable or as to the admissibility of any claim to gratuity, or as to the person entitled to receive the gratuity, section 7(4) a requires the employer to deposit with the controlling authority such amount as he admits to be payable by him as gratuity. The controlling authority is empowered. under section 7(4)(b), to enter upon adjudication of the dispute, and after due inquiry, and after giving the parties to the dispute a reasonable opportunity of being heard, he is required to determine the amount of gratuity payable.

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Sanction for prosecution of Govt Servant in India

Sanction NOT required to Prosecute Police / Govt. or Public Servants for Criminal Offences:

(See Code of Criminal Procedure, 1973; Section 197)

The principles for granting sanction for prosecution of Government Servants are summarized hereunder :

I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.

III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.

IV. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.

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Sexual harassment in Supreme Court of India

First disciplinary order of Supreme Court in sexual harassment case.

Sexual harassment and gender sensitivity at work places is an issue which requires serious attention as this is seriously related to making work places safe for women however personal over sensitivity of an individual about these matters shall always be a matter of concern. India has already ratified United Nation’s Convention on the Elimination of all Forms of Discrimination against Women, on the 25th June, 1993.

The Supreme Court of India in their judgement in August, 1997, in the case of Vishaka v. State of Rajasthan, recognizing the International Conventions and Norms, interpreted gender equality of women, in relation to work and held that sexual harassment of women at the workplace, is against their dignity, and violative of Article 14, 15 (1) and 21 of the Constitution of India. It also held that it is the violation of the fundamental rights under Article 19 (1) (g) ‘to practice any profession or to carry out any occupation, trade or business.’ Therefore it laid down a binding guide lines in this regard.

Guidelines to prevent sexual harassment issued in Vishakha Case:

1. Duty of the Employer or other responsible persons in work places and other institutions: It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition: For this purpose,sexual harassment includes such unwelcome sexually determined behaviour (Whether directly or by implication) as:

a) Physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non – verbal conduct of sexual
nature.

Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or
when it creates a hostile work environment. Adverse consequences might by visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Step: All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action: Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism: Whether or not such conduct constitutions an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be heated by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:  Employees should be allowed to raise issues sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer – Employee Meetings.

9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines ( and appropriate legislation when enacted on the subject ) in a suitable manner.

10. Third Party Harassment: Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central / State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Again in AEPC v. AK Chopra, Supreme Court decided:

This was the question formulated by Supreme Court:

Does an action of the superior against a female employee which is against moral sanctions and does not withstand test of decency and modesty not amount to sexual harassment ? Is physical contact with the female employee an essential ingredient of such a charge ? Does the allegation that the superior ‘tried to molest’ a female employee at the place of work, not constitute an act unbecoming of good conduct and behaviour expected from the superior ?

And it answered the question in these words:

Any action or gesture, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment.

Though the Supreme Court in it’s previous decision in the case of Vishakha v. State of Rajasthan had given directions (in the year 1997 !) for formation of Committees at work places to look into the grievances of sexual harassment, it took no step to form such committee in it’s own establishment. With a view to redress such grivances in the premises of Supreme Court of India, itself, on 21st September 2013 SCI promulgated:

THE GENDER SENSITISATION & SEXUAL HARASSMENT OF WOMEN AT THE SUPREME COURT OF INDIA(PREVENTION, PROHIBITION AND REDRESSAL) REGULATIONS, 2013.

The complaint about sexual harassment:

A complaint of indecent behaviour bordering on sexual harassment was made against a practicing lawyer. The Committee under aforesaid Regulations of 2013 inquired into the matter and recommended that the said Advocate Mr. C.S. Nagesh, be barred from the premises of Supreme Court for a period of one year.

The Chief Justice of India, however did not accept the recommendation in entirety and barred the concerned advocate/lawyer for a period of six months only.

The relevant order dated 15th March, 2014, stated to have been passed under Regulation 15(c) can be reached here.

Comment: This is a new branch of discipline being developed. There are many new questions being raised by this order:

  1. In the absence of any law, does the order passed by Chief Justice of India, on administrative side, has sanction of law, especially when regulations do not provide for any punishment?
  2. Does this order serve a precedent to rusticate a person or to transfer out a person for minimum 6 months?
  3. The order of rustication being passed by Chief Justice of India himself, what are the judicial remedies against it?
  4. Would any court in the country, judicially review order passed by Chief Justice of India?

Public Auction: Definition.

Public auction means public sale:

Earliest definition of public auction:

This appears to be earliest case (Privy Council) defining the definition of public Auction.

“There is no definition in the Act of the words “public auction” and their Lordships are of opinion that there can be no doubt that they must bear the meaning which is ordinarily given to them in the English language. The words mean a public sale at which each bidder offers an increase upon the price offered by the preceding bidder, the article put up being sold to the highest bidder. This involves the auction being held in public, all members of the public having a right to attend, and a valuable element being the competition between the persons who are openly bidding for the subject matter of the sale. This is of importance not only to the Railway Company, but also to the owner of the goods, the competition being calculated to produce the highest price.”

[Source: Secy. of State v. Sunderji, AIR 1938 PC 12.]
The public auction means that it is being held in public, all members of the public having a right to attend, and a valuable element being the competition between the persons who are openly bidding for the subject matter of the sale.

[Source: Vishal Builders (P) Ltd. Vs. Delhi Development Authority ILR (1977) 1 Delhi 724.]

E-auction is also a public Auction:

 

By the process of e-auction, none of the intending bidder is forbidden to participate in the process of sale. Instead of a physical auction at the spot, it is virtual auction in the electronic format. The advantage of e- auction is that every bid is recorded within a specified slot and is free from the errors, which may be committed by the court auctioneer. Therefore, we find that e-auction is another form of the public auction.
[Source: Dr. Mandeep Sethi vs Union Bank Of India (P&H)]

 

Judicial Review of Discretion

Judicial review of administrative discretion:

Principles of judicial review:

Every administrative decision by Executive is subject to Judicial Review. There is no such thing as absolute discretion. However Judicial Review is not an appeal. The earliest reported case in this regard is Associated Provincial Pictures (also called Wednesbury’s case) which laid down the law relating to scope of Judicial Review. It is more concerned with the decision making process rather than the merits of decision. Following extract clinches the issue:

 It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another………

The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.(By Lord Greene)

[Source: Associated Provincial Pictures ]

Judicial review of judgement of Tribunal; Scope of.

Finality assigned to the decision of Tribunal:

Judicial review of error of law committed by a tribunal:

Visitor of a university acting as a judge has exclusive jurisdiction and that his decision is final in all matters within his jurisdiction. The common law courts have through three centuries consistently resisted all attempts to appeal decisions of the visitor. The courts have however been prepared to confine the visitor to his proper role as a judge of the internal
affairs of the foundation by the use of the writs of prohibition and mandamus.

Can Courts judicially review such decision?

per Lord Browne (Lord Kieth concurring) (Majority decision): The court has no jurisdiction to review the decision of a visitor made within his jurisdiction.
per Lord Grriffith: It is in my opinion important to keep the purpose of judicial review clearly in mind. The purpose is to ensure that those bodies that are susceptible to judicial review have carried out their public duties in the way it was intended they should. In the case of bodies other than courts, in so far as they are required to apply the law they are required to apply the law correctly. If they apply the law incorrectly they have not performed their duty
correctly and judicial review is available to correct their error of law so that they may make their decision upon a proper understanding of the law.

In the case of inferior courts, that is courts, of a lower status than the High  Court, such as the Justices of the Peace, it was recognised that their learning and understanding of the law might sometimes be imperfect and require correction by the High Court and so the rule evolved that certiorari was available to correct an error of law of an inferior court. At first it was confined to an error on the face of the record but it is now available to correct any error of law made by an inferior court. But despite this general rule Parliament can if it wishes confine a decision on a question of law to a particular inferior court and provide that the decision shall be final so that it is not to be challenged either by appeal or by judicial review.

 per Lord Slynn (Lord Mustill, concurring) (Minority view): With deference to the contrary view of the majority of your Lordships, in my opinion if certiorari can go to a particular tribunal it is available on all the grounds which have been judicially recognised. I can see no reasons in principle for limiting the availability of certiorari to a patent excess of power (as where
a Visitor has decided something which was not within his remit) and excluding review on other grounds recognised by the law. If it is accepted, as I believe it should be accepted, that certiorari goes not only for such an excess or abuse of power but also for a breach of the rules of natural justice there is even less reason in principle for excluding other established grounds. If therefore certiorari is generally available for error of law not involving abuse of power (as on the basis of Lord Diplock’s speeches I consider that it is so available) then it should be available also in respect of a decision of a Visitor. 
I am not persuaded that the jurisdiction of the Visitor involves such exceptional considerations that this principle should be departed from and that some grounds be accepted and others held not to be available for the purposes of judicial review.
[Source: Regina v. Lord President of the Privy Council  ex. p. ]

Abuse of power is not mere error of law.

Error of law is not abuse of power:

Abuse of power by subordinate Tribunal:

What is abuse of power? Inability to apply law properly? Exercise of power in excess of what was intended? Exercise of power for a collateral purpose? These question however have to wait till decided in appropriate case. Presently the view of Lord Griffiths is that mere error of law is not abuse of power. In his own words:

The common law has ever since the decision in Philips v.Bury (1694) Holt K.B. 715 recognised that the visitor acting as a judge has exclusive jurisdiction and that his decision is final in all matters within his jurisdiction. The common law courts have through three centuries consistently resisted all attempts to appeal decisions of the visitor. The courts have however been prepared to confine the visitor to his proper role as a judge of the internal affairs of the foundation by the use of the writs of prohibition and mandamus. When I said in Thomas v. University of Bradford [1987] A.C. 795:

“I have myself no doubt in the light of the modern development of administrative law, the High Court would have power, upon an application for judicial review, to quash a decision of the visitor which amounted to an abuse of his powers”

I used the words “an abuse of his powers” advisedly. I do not regard a judge who makes what an Appellate Court later regards as a mistake of law as abusing his powers. In such a case the judge is not abusing his powers; he is exercising them to the best of his ability albeit some other court thinks he was mistaken. I used the phrase “abuse of his powers” to connote some form of misbehaviour that was wholly incompatible with the judicial role that the judge was expected to perform. I did not intend it to include a mere error of law.
[Source: Regina v. Lord President of the Privy Council ex. p. Page (per Griffiths J.)]

Ban on Solar Fims by Supreme Court of India

The supreme court of india. Taken about 170 m ...

Short analysis of Supreme Court’s unreasonable decision
to ban the use of solar films on cars in India.

It is very rare for judges to reach out of their Ivory Tower and express about the ground realities of life. In one such rare occasion, a Supreme Court of India’s judge G S Singhvi speaking at a seminar observed:

“It is sad to say that my generation has failed the nation. In a country where 700 million people live below the poverty line, we tend to talk about justice. We talk about our fundamental rights being trampled upon but what about those people who do not get two square meals a day, have no right to education, shelter, clothing and other basic amenities. The country is divided into rural and urban and the idea about equality and fraternity needs to be pondered about and the entire process of development had taken place at the cost of rural people ……….. I feel guilty when I read about equality and fraternity and think about the labourers and farmers who have made our lives comfortable and easy. The ‘jan sevaks’ (Public Servants) are fast becoming our masters, the first citizens followed by the rich and the poor only as third class citizens.”

[Source: http://m.timesofindia.com/Young-lawyers-facing-multiple-challenges-Supreme-Court-judge/articleshow/13112646.cms]

Constitutionalism in India means that people’s sovereignty is supreme and unlimited and the constituents of the state have limited powers.”

[Source: http://articles.timesofindia.indiatimes.com/2012-02-26/nagpur/31100894_1_culture-guest-lecture-justa-causa]

The VIP class problems:

The problem is that we all know about the failures. But what will take it to put into practice? What about the class called VIP’s? Who are they and why they are VIP’s? Problem is that only thing we see in focus is MONEY and DOMINATION. All we have to do is to do our own work diligently, even if some time, the reciprocation is not fair. It is not easy but practice can make anyone perfect. I will misquote Gandhi: ‘When you do something, remember the face of the poorest of poor’.

Constitutionalism and judicial fiats:

As regards the second part, it is another story. While Constitutionalism means Rule of law and not Fiats issued at Will; another decision of Supreme Court nearly rubs it on wrong way. Following direction has been given by Supreme Court:

We have no hesitation in holding that use of black films or any other material upon safety glass, windscreen and side windows is impermissible. In terms of Rule 100(2), 70 per cent and 50 per cent VLT standard are relatable to the manufacture of the safety glasses for the windshields (front and rear) and the side windows respectively. Use of films or any other material upon the windscreen or the side windows is impermissible in law. It is the VLT of the safety glass without any additional material being pasted upon the safety glasses which must conform with manufacture specifications. ….. The competent officer of the traffic police or any other authorized person shall challan such vehicles for violating Rules 92 and 100 of the Rules with effect from the specified date and thereupon shall also remove the black films from the offending vehicles. (Full judgment is here.)

Natural justice not followed:

By one stroke of pen, an entire industry has been struck off. I wonder if they were a party to it. If not then it is violative of principles of natural justice. It beyond logical comprehension that if Manufacturer does not apply tinted glasses, I can not apply solar film to it? Off course it must meet statutory standard. Merely because law enforcement agency do not have technical equipment, all films are to be removed. By same logic why not every person be kept in lock and key at night as most crimes are committed at night. Curfew will be even better. Passes can be issued to VIP’s to wander at night, under Rules. Yes ban the liquor/Alcohol. A large number crime are committed under its influence. Licenses can be issued to VIP’s for that as well.

Consideration of irrelevant facts:

Judgment relies upon the practice of not using films in countries where the maximum temperature never exceeds 25 degrees. Here it touches 48 degrees centigrade every summer. In fact the word ‘weather’ does not even occurs in the judgment. The very basis of applying solar films is missing. Thus the judgment shall be hit by Wednesbury’s arbitrariness as it excludes an important and relevant fact from consideration while deciding an issue and therefore is not a reasonable judgment. Those interested in full judgment of Wednesbury’s case, can find it here. Some other arguments have been raised by another Gentleman here and therefore are not repeated.

Hypocrisy of Supreme Court in entertaining direct petition:

Another legal issue is that this order has been passed under article 32 of Constitution and is purported to enforce article 21 of Constitution in a Public Interest Litigation (PIL). Article 21 guarantees right to life to every citizen. If today a Habeas Corpus petition is filed in Supreme Court saying that life of a girl is in danger, Supreme Court will not entertain that petition and ask the party to go to respective High Court. Was solar film matter so important that Supreme Court could not have waited for the opinion of High Courts?

Photo credit: Wikipedia