Can Single Bench Override Division Bench

(By Shahul Hameed Moopan, Advocate, Ernakulam)

1. Myself being a junior member of Bar, first of all beg pardon of respectful readers for the mistakes likely to be crept-in in this attempt. I was quiet astonished to read the judgment in O.P. No.2882 of Kerala High Court, reported in 1995 (2) KLT page 794 (Abdul Rahiman v. Hameed Hassan Peruvad & Ors.). By the said judgment learned Single Judge expressed his view inter-alia that S. 5 of the Limitation Act is applicable in considering a belated application for setting aside exparte order passed by the Rent Control Court under Kerala Buildings (Lease & Rent Control) Act 1965 (hereinafter referred to as Act). The learned Single Judge was substantially relying on a Supreme Court Decision reported in 1995 (2) KLT 205 (Gopalan v. Aboobacker) in order to arrive at the above conclusion.

2. I am very much reluctant to observe that, while concluding his views apropos the application of Limitation Act before Rent Control Court, a Division Bench ruling of this Hon'ble High Court, happened to escape the notice of the learned single Judge i.e., the ruling in Selvi v. Nataraja Mudaliar (1994 (1) KLT 82).

3. In Abdul Rahiman v. Hameed Hassan Peruvad & Ors. (supra) the learned Single Judge had adopted the principles laid down by Hon'ble Supreme Court in Gopalan v. Aboobacker (supra) to arrive at the conclusion that the Presiding Officer of a Rent Control Court is not a 'persona designata' and that S.5 of the Limitation Act will help the Rent Control Court to entertain a belated application u/r. 13(3) of Kerala Buildings (Lease and Rent Control) Rules 1979. On the other hand, Supreme Court in Gopalan v. Aboobacker (supra) found that Appellate Authority under the Act is not a 'persona designata' and provisions of Limitation Act will apply to belated Appeals filed under the Act in appropriate cases.

4. Before proceeding further, let me place before the respected readers the following provisions of the Act:

Section 3(1): The Government may by notification in the Gazette appoint a person who is or is qualified to be appointed, a Munsiff to be the Rent Control Court for such local areas as may be specified therein.

Section 18(1)(2): The Government may, by general or special order notified in Gazette confer on such officers and authorities not below the rank of a Subordinate Judge the power of Appellate Authorities for the purpose of this Act in such areas or in such classes as may be specified in the order.

5. A comparative analysis of the above provisions will make it clear that only Sub-Judges and above are competent to be appointed as Appellate Authorities, but Munsiffs and persons qualified to be appointed as Munsiffs could be appointed as Presiding Officers of a Rent Control Court. According to me, even persons other than Munsiffs, but qualified to be appointed as Munsiffs could be appointed in Rent Control Court. The recent constitution of 3 independent Rent Control Courts in our State doesn't rule out the appointment of persons other than Munsiffs, but equally qualified hands from Bar as Presiding Officers of Rent Control Court. The respectful observations of our Hon'ble High Court in Sahadevan v. Sreedharan reported in 1996 (1) KLT 42 will, I think, support my reasoning. Here learned Single Judge was analysing the provisions of Consumer Protection Act, 1986. S.10(1) a of Consumer Protection Act prescribes the qualifications for the President of the "District Forum" as, a person who is, or has been, or is qualified to be a District Judge. In that case, in para.7, the learned Single Judge observes that, the argument of learned counsel for the petitioner that the person qualified to be a District Judge is normally confined to Advocates with sufficient standing who are complete to be appointed as District Judge cannot be brushed aside as untenable. Accordingly the Presiding Officer of a Rent Control Court can be described as an individual and the need not necessarily be a member of a Class (Munsiff). The observation of the learned Single Judge in Abdul Rahiman v. Hameed Hassan P. (Supra), that Rent Control Court is not a persona designata, as the decision rendered by Rent Control Court has finality and authoritativeness between landlord and tenant, and it has power to give a definite judgment, does not appear to be wholly correct. I am sure that quasi -judicial bodies and persona designata's constituted under other Acts, are equally competent to pass final orders and decisions in so far they are competent to pass such orders/decisions, unless they are varied or modified by Appellate or Revisional Authorities, if any.

As the Division Bench ruling in Selvi v. Nataraja Mudaliar (supra) is neither expressly nor impliedly overruled by Supreme Court in Gopalan v. Aboobacker (supra), my observation is that our High Court's view in the above matter is that S.5 of the Limitation Act cannot be made applicable to Rent Control Court for considering a petition to set aside exparte order filed beyond the time prescribed by the rules. Of course, before Appellate Authority application of Limitation Act will govern by Gopalan v. Aboobacker (supra).

Judicial Sympathy or Benevolent Despotism [1]

   (By Salim Kambisseri, Asst. Public Prosecutor, Changanacherry)

Scene is Fort Kochi the Queen of Arabian Sea. It was a peaceful town during the British Rule. Gradually, Commerce and Industry developed. This over populated city witnessed crimes of theft, robbery, dacoity and smugglers and habitual offenders. Even professional killers marred its peace and tranquility. Many crimes are reported as undetected. Despite, police hand cuffed a few criminals. Recently, a lady Magistrate was quietly engaged in Roll Call. An accused who is alleged to have committed theft was produced from jail before her. He, as of right, sought for bail on personal bond. The Magistrate allowed bail subject to the condition that he should produce two sureties. Accused got angry. To the dismay of all - Court Staff, Police, Witnesses and clients -he jumped on the dias. He throttled the Magistrate, attacked her and broke her neck chain. At last, a Constable came to her rescue, hand cuffed him and registered a case of attempt to commit murder. If my memory is correct, an accused, pelted stone against a Magistrate two decades ago. The new flashed and all the public lamented in favour of the Magistrate and asked a poignant question".....If a Magistrate has to suffer such attack, do we get protection?". Incidents which I narrated above are likely to occur in future in view of the recent Supreme Court decision in Common Cause: A Registered Society v. Union of India & Orders [2].

Crimes on the enhance

Yester year's India is not today's India and it will not be in future. Crimes of various types are on the enhance. Modus operandi is scientifically and technically changed by clever up criminals. Now it is a herculean task of the Investigating Agency to book the criminals. Many charge sheeted cases end in acquittal. Accused persons are on the safer side. Criminals, antisocial elements and law breaking persons can freely walk.

Learned Palkivala in his book "We The People" says [3] "Our legal system has made life too easy for criminals and too difficult for law abiding citizens". He is cent per cent correct. He continues [4] "We forget that crime is not a problem for the police only but for the whole society".

TO DISSECT "COMMON CAUSE"

The guidelines given by the Supreme Court are capsulated in a tabular column :

Exceptions

The above guidelines are not applicable to offences under the following offences (a) Corruption, misappropriation of public funds, cheating whether under IPC, Prevention of Corruption Act, or any other statute, (b) Smuggling, Foreign Exchange violation, offences under Narcotic Drugs and Psychotropic Substances Act. (c) E.C. Act, PFA Act, Acts dealing with Environment or other economic offences (d) Anus Act, Explosive Substances Act, Terrorists and Disruptive Activities Act. (e) Army, Navy and Air Force Act. (f) Offences against public tranquility (g) Relating to public servants (h) Relating to coins and Govt., stamp (i) Elections (j) Relating to giving false evidence and against Public Justice (k) Against the State (1) under taxing statutes (m) Defamation under S. 499 IPC.

Calculation of pendency

As per the decision pendency of criminal cases shall be calculated from the date the accused are summoned to appear. This will create another problem. A complainant in a cheque case presented the complaint, his sworn statement is recorded and the court issued summons to the accused to appear on a particular day. Pendency has to be calculated from that date onwards. If he avoids summons the accused will be discharged on the expiry of one year. A dishonest accused can borrow ten lakhs and reside in an unknown place for one year and then he can seek for discharge. He can continue the same behaviour in future.

The decision opens Pandora's box [5]

(i) Sections 379,384,385,376 A, 353 etc will come under category No.1. If a thief is released on bond without sureties will it not saddle additional burden on Police to re-arrest him provided he is absconding.

(ii) Sections 365, 363, 369 etc will come under items 2 and 3. What will be the consequence if they are released on self bond.

(iii) If the accused charged under Ss. 279, 337, 338 and 304 A IPC evades summons and the prosecution is incapable of effecting summons for two years or if the charge witnesses and investigating officers could not be procured for reasons beyond its control and the case is pending for two years the accused has to be acquitted. Will it sound to justifiable reason or is it logically sustainable?

(iv) In India, at least 90% cases pending before criminal courts accused persons having long purses by winning over police can get acquitted or discharged or cases closed.

(v) In private complaints coming under Ss.323, 341,447.448 accused persons can easily and freely go out of the clutches of law.

(vi) A clever Police Officer can ward off the decision of the Supreme Court if he charges five or more accused persons tor offences under Ss.323, 341, 447 etc in case lie incorporates Ss.143, 145, 147, 148 r/w 149 IPC because these incorporated offences deal with public tranquility and these offences come under exempted classes.

(vii) Those who commit offences relating to weights and measures can cheat the public and wriggle out of punishment since sentence prescribed is imprisonment of one year or fine or with both.

(viii) Any one can commit offences against religions, which in turn will create hartals, destruction of properties and panic against the public by aggrieved person and can very easily go out since the punishment for such offences does not exceed three years.

(ix) One can easily commit adultery and avoid summons and warrants since it arises out of private complaint and law prescribes burdensome procedure. Whereas in those who face defamation trial takes a long time and this offence is exempted.

(x) Cases of hapless complainants in dud cheques under S.138 of the Negotiable Instruments Act are apparently pitiable. The maximum term of imprisonment is one year. Before taking cognizance complainant has to be examined. The accused can avoid summons or warrants before the trial is over within a year.

(xi) For the mounting up of pendency reasons are a many. Absence of accused, Avoidance of Summons, Evading of warrants, cumbersome Procedure prescribed by law, absence of Magistrates, Public Prosecutor or defence counsel are some of the instances. Cases on dishonoured cheques are spiralling up.

Commencement of trial: A legal Conundrum

Excepting traffic offences the guide lines issued by the Supreme Court will apply if trials have not commenced. The question is: when does trial commence? In the old code 'trial' was defined. In the Code of Criminal Procedure, 1974 Dr. Nand Lal says [6]:

"The Indian Legislature has always maintained a distinction between an enquiry and a trial. The 'trial' as used in the Code pre-supposes die commission of an offence but an inquiry may cover inquiries into matters other than offences.

............the proceedings before a magistrate in a warrant case........is only an inquiry until a charge is framed. It becomes a trial only after a charge is framed. Though the law dispenses with the necessity of framing charges in a summons case, it is incumbent upon the Magistrate to state to the accused the particulars of the offence....." [7]

His Lordship Justice K.T. Thomas of the Kerala High Court as he then was and now seated in the apex court of the country in Nagarajan v. Khader: [8] observed

"All steps which a criminal court adopts subsequent to the framing charge and until die pronouncement of judgment can be treated as trial proceedings".

The above view is seemingly correct. But the Hon'ble Supreme Court in Union of India and Others [9] speaking through a Bench of three Judges observed with respect to trial under the Code of Criminal Procedure as follows:

"It is settled law that under the said Code trial commences the moment cognizance of the offence is taken and process is issued to the accused of his appearance etc. Equally at a sessions trial, the court considers the committal order under S.209 by the Magistrate and proceeds further......The trial begins with the taking of cognizance of the offence and taking further steps to conduct the trial" [10]. Eventhough the above decision was under the Army Act the fore-extracted observation was made after taking anxious consideration of Ss. 190 to 210, 225 to 235 of the Cr. P.C. The law declared by the Supreme Court is binding on the Courts below even if it is wrong or its correctness is doubtful. The decision under study is rendered by two Hon'ble Judges, but the just cited decision is given by a bench consisting of three Judges. Therefore, the author is of opinion that the guide lines given by the Supreme Court in Common Causes case is unworkable and no discharge, and acquittal can be made by criminal courts and cases cannot be closed if cognizance of the offence is taken and summons is issued for the appearance of the accused. If a cornucopia disposal of criminal cases is made on the basis of Common Cause decision that will be against the law declared by the Supreme Court in the Union of India's case just cited supra.

Traffic Offences

According to the guidelines, where criminal proceedings are pending regarding traffic offences for more than two years on account of non-serving of summons to the accused or for any other reasons what so ever, the court may discharge the accused and close the case. It is not made clear where the offences under Ss. 279,337,338 and 304A of IPC will come within the expression "traffic offences". If it is answered in the positive a lot of offenders can make their escape by winning over the police and see that service of summons is not completed. In such a case, culpable drivers who cause death of several persons can escape from the clutches of law. This point is not made clear in the decision under study.

Offences against the State:

Such offences come under the exempted classes. But what is the offences against the State? All crimes under the sun, except those exempted, are against the State. That is the reason why all cognizable offences are investigated and charge sheeted at the expense of the Slate. In most of the cases, the State is represented by either the Police Officer or by Public Prosecutors. If this concept is not over looked the guidelines issued by the Supreme Court are seemingly unworkable.

Robbing Peter to pay Paul

The decision under study will, it is respectfully submitted, surely release habitual offenders, open pathway for criminals to escape from the hands of law and afford opportunity to defraud bonafide creditors. On the other hand, it will cause pain and agony to the complainants and victims of crimes. Number of crimes will shoot up. The decision in effect, is robbing Peter to pay Paul.

"Delayed trial" is not a panacea

In the United States the right to a speedy trial is a constitutionally guaranteed right and the denial of a speedy trial has been held to entitle an accused person to the dismissal of the indictment. Art.3 of the European Convention of Human Rights provides that every one arrested or denied shall be entitled to trial within a reasonable time or to release pending trial. In India it is implicit in Art.21 of the Constitution of India. [11]In State of Maharashtra v. Champalal [12]the Supreme Court repelled the contention that there was delayed trial and therefore, there is violation of fundamental right to life and liberty under Art.21 of the Constitution. In this case, it was found that the accused himself was responsible for the delay and he was not prejudiced by the delay.

Conclusions and Suggestions

Courts must show sympathy to the criminals. The accused are summoned to appear. But too much sympathy is a negation of rule of law. Are not the complainants in cheque cases, adultery matters, assault, hurt, criminal trespass citizens of India? Can the Prosecuting Agency be held responsible for non-service of summons, non availability of doctors on account of their present employment abroad, and Investigator's transfer to distant places?

So, I make the following suggestions:

(i) The Hon'ble Supreme Court is respectfully invited to intervene and render the above decision otiose.

(ii) An appeal is made to Parliament to repeal S.138 of the Negotiable Instruments Act so as to reduce pendency of cases or to constitute adequate Special Courts to try these cases.

(iii) The State is requested to create a group of efficient and honest Police Constables of high integrity to serve summons and arrest the accused persons at the earliest.

(iv) Prevent doctors who issued wound Certificates and Post mortem certificates from going abroad till they are examined.

These suggestions are made and conclusion is reached so that public may not lose confidence in the Judiciary, which alone can protect them.

____________________________________________________________________

Footnotes:

1. In this article the author's attempt is to highlight practical difficulties which bona fide clients and Prosecuting agency have to face on account of the decision of the Hon'ble Supreme Court in Common Cause : A Regd. Society v. Union of India & Ors. (1996 (2) KLT SN 9 = 1996 (2) KLJ 110).

2. 1996 (2) KLT SN 9 = 1996 (2) KLJ 110.

3. Page 3.

4.Page 4.

5."Pandora's box" arises from the myth that the first woman Pandora came to a man with a box which was not to be opened, but she opened out of curiosity and thereby revealed all that is evil to mankind. In English it means a source of many unexpected troubles. The author means only unexpected troubles.

6.2nd Edn. Vol. 1 at page 89.

7.The learned author relied on T. Shriramalu v. K. Veeresalingam I.L.R. 38, Mad. 585.

8.1989(1) K LT 664. The Supreme Court in B.C.D. and CM. Union's case A.l.R. 1867 S.C. 389 the words "trial" and "tried" have no universal meaning and a meaning must be given according to the context.

9.A.I.R. 1996 S.C. 1340 (Union of India v. Madanlal Yadav).

10.Ibid. Para 27 P. 1349 (See also 1996 Crl. L.J. 2885 S.C).

11. For a detailed discussion see Khatoon v. State of Bihar A.I.R. 1979 S.C. 1360, Maneka Gandhi v. Union of India A.I.R. 1978 S.C. 597.

12. A.I.R. 1981 S.C. 1675.

'HIPPY-HALLET'

(V.K. Babu Prakash, Judl. I Class Magistrate-Ill, Thiruvananthapuram)

The title of the article is gathered from one of the land mark cases Jones v. National Coal Board decided by His Lordship Alfred Thompson Denning. His Lordship is illustriously known in his abbreviated name, Lord Denning. Denning is the family's name. The case stated above is narrated by his Lordship in his book 'Due process of Law' published by Butterworths.

Lord Denning was retired as the Master of Rolls. Who is the master of rolls? In India we do not have such a title either in the High Courts or in the Supreme Court.

The Master of Rolls is the Presiding head of the civil division of the court of appeal. The criminal division is presided over by the Lord Chief Justice. The court of the master of rolls is the court of record.

Lord Denning was retired in 1982, after along judicial career of Thirty eight cars. He had been the master of rolls for twenty years.

Precisely speaking, Lord Denning did not retire attaining his superannuation. But retired on voluntary motion of his own due to some unhappy incidents.

He had delivered a judgment in ‘Bristol riot case' which had a black history in his career as master of rolls. That was a case in which Lord Denning had to make some observations against some black jury members.

Trial by jury dominated the administration of justice in England upto the end of 19th century. Jurors were selected from the common people. They are not selected at random. They were chosen from a select band of the middle classes. They were responsible heads of households, who came without any pay, not so much even as their expenses. Never was any one of them challenged. Each was worthy representative of the reasonable man so well respected by the law.

The observation of Lord Denning resulted a hue and cry among the black community. They said it was an observation against the black as a race. The Times, Observer, and Guardian the mighty press of England gave vide exaltations against Lord Denning.

The period was a turmoil in his mind. His Lordship never foresaw the implications and its after math. The sad melancholy in his mind precipitated from the observation, later his Lordship chalks out in the book "The closing chapter'. It was written after the retirement. Lord Denning confesses in it that he had never intended the implications as had been promulgated by the press as well as the black community.

After deep thinking and burning the midnight soil in his candle Lordship came out with his decision to spill the beans. He decided to retire voluntarily. The decision was sent to the Lord Chancellor. Lord Chancellor accepted it but proposed a date. Thus Lord Denning retired on 29-9-1982 after his eloquent and exquisite career as the Master of Rolls.

Now come to the case decided by Lord Denning as the appeal lord which has given rise to the tide of the article.

There was a judge named Sir Hugh Imbert Periaim Hallet in the county court. The initials of his long name gave rise to the nickname 'Hippy Hallet'. Before his elevation he took start as a junior at the Bar. Later he got silk in his early career which made him to appear in the privy council. Lord Maugham appreciated his talent so he became the judge.

There was one difficulty with Sir Hallet. He talked too much. He was a sort of loquacious. He got interested in every case which came up before him, so that he divided deep into every details of it. He asked too many questions. Of witnesses in the box. Of counsel in their submissions.

One day, a widow, named Mrs. Jones knocked at his court. She had a brief. That, the roof of a coal-mine had fallen in. The minor child of the widow crushed under it. She came with a writ for damages. The case is known as Jones v. National Coal Board.

During the trial Sir Hallet let off his enthusiasm. He made cross cuts in the smooth flow of examinations and submissions with interruptions one after another. At last the widow's claim was rejected. Probably the National Coal Board would be happy since the plaintiff was non suited with, their cost.

Mrs. Jones preferred appeal. Curiously the board also made a cross appeal. One may wonder what for? The appeal and cross appeal con fined on a common point. That, the Judge's interruptions' were like putting the cart before the running horse, or the interruptions prevented a fair trial.

Eminent jurists came on each side. For the widow Mr. Gerald Gardiner who later became the Lord Chancellor. He was a shrewd lawyer famous for his clarity in submissions. For the respondent board, Mr. Edmund Davies who later became Lord Edmund Davies. He was also a resourceful lawyer. Arguments took at length.

Lord Denning delivered the judgment for the whole court. It laid land mark propositions and self restraints which the judges should keep in the bench.

His lordship said "we much regret that it has fallen to our lot to consider such a complaint against one of her Majesty's judges. No one can doubt that the judge, in intervening as he did, was actuated by best motives. He was anxious to-understand the details and asked questions to get them clear in his mind. All those are worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries.

Nevertheless, we are quite clear that the interventions taken together, were far more than they should have been. In the system of trial, the judge sits to hear and determine the issues-raised, not to conduct an investigation or examination on behalf of society at large. However a judge is not a mere umpire to answer the question "How's that". His task is to find out the truth to do justice.

Lord Denning quotes Lord Eldon to say' that truth is best discovered by powerful statements on both sides of the question'.

Again quotes, Lord Greene the master of rolls to say that justice is best done by a judge who holds the balance between the contending parties without himself taking part in it. If a judge himself conducts examinations, he descends into the arena and is liable to have his vision clouded by the dust of conflict.

Yes, he must keep his vision unclouded. It is all very well to point justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth and the less dust there is about the better. Let the advocates one after another put the weights into the scales. But the judges at the end decides which way the balance tilts.

If a judge goes beyond the limit he dropes the mantle of a judge and assumes the robe of an advocate.

To quote Francis Becon the Lord Chancellor, patience and gravity of hearing is an essential part of justice, and on over speaking judge is no well turned symbol.

On the conclusion, Lord Denning allowed both the appeal and cross appeal and granted a New Trial.

But the interesting part is that Sir Hallet resigned his judgeship soon after the verdict.

By the decision Lord Denning reminds the lesson.' Beware too much intervention from the bench'.

A Note on 'Velukutty Achary - v. - H.M.Ltd. :

1992 (2) K.L.T. 622'

(By H.B. Shenoy & Ashok B. Shenoy, Advocates, Ernakulam)

Who is an "employee" under the Payment of Gratuity Act 1972? The Kerala High Court propounds its dicta on this particular question in the recent decision in "Velukutty Achary v. H.M. Ltd. (1992 (2) KLT 622)", rendered by a Division Bench. Here, the Hon'ble Court held that a person must be employed as an employee as stated in S.2(e) upon a particular salary per mensem. It also went on to say that a person is an ‘employee' who is supposed to work under the terms of the employment continuously from day to day and further held that a person who is offered work whenever available is not an "employee". In short, according to the dicta in Velukutty Achary's case (supra), any person to be an "employee" under the Payment of Gratuity Act, 1972 must be employed on a monthly salary and he must be supposed to work continuously from day to day. Thereby, the temporary employees and casual employees would not fall within the ambit of the term "employee" under the Act and they will not be able to claim gratuity. This view of the Kerala High Court seems rather confusing and inconsistent with the express provisions of the Act.

Admittedly, S.2(e) of the Act defines the term "employee" for the purpose of the Act. No doubt, a person should be an "employee" as defined thereunder to claim the gratuity under the Act. Therefore, the answer to the question as to who is an employee, is to be gathered on an interpretation of S.2(e). S.2(e) of the Act reads as under.

"Employee means any person (other than an apprentice) employed on wages, not exceeding two thousand and live hundred rupees per mensum, or such higher amount as the Central Government may, having regard to the general level of wages, by notification specify, in any establishment, factory, mine, oilfield, plantation, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity."

From the above words it can be seen that the definition of "employee" in the section falls in two main parts. The first part of the definition gives the statutory meaning of the "employee". This part of the definition determines an employee by reference to a person (other than an apprentice) employed on wages, not exceeding two thousand and five hundred rupees per mensum or such higher amount as the Central Government may specify, in any establishment, factory, mine, oilfield, plantation, railway company or. shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work. This part determines who an "employee" means. For that one should be employed on wages; wages should not exceed the specified amount; and must be employed in any of the specified nature of work in any establishment, factory, mine, oilfield, plantation, railway company or shop. This is the signification or denotation of the word or what the word, "employee" denotes. The second part of the definition specifically excludes the categories of persons who hold a post under the Central Government or a State Government governed by any other Act or rules providing for payment of gratuity. No doubt, the first part of the definition brings in the concept of contract of employment between the employer of an industrial establishment and the employee. Unless there is a contract of employment between the two or, in other words there is a relationship of employer and employee between them, the definition "employee" will not come into play. But once the relationship of employment is established, its duration would not be material. Even a temporary or casual employee would fall within the ambit of this part of the definition of employee. The definition does not state that a person, in order to be employed should be employed in a substantive capacity or continuously from day to day. Nowhere in the Section or any provisions of the Act is it expressly or impliedly stated that a person should be employed continuously from day to day or should be employed as permanent employee, to be an "employee" thereunder and to claim the gratuity under the Act. There is no warrant whatever to restrict the scope of the term "employee" by deliberately reading into it a limitation that the person to be an employee should be employed continuously from day to day. Such an interpretation which would amount to addition into the Section, words which are not there and which are not contemplated by the legislature has to be avoided particularly in the matter of construction of a piece of social legislation intended to confer retiral benefits in favour of employees. In fact, a reading of S.2A(2) of the Act would lead us to the conclusion that the legislature intended to bring under the purview of the Act those employees also who are not required to work continuously from day to day for the entire 365 days in a year viz., the temporary and casual employees. S.2A(2) brings in a deeming provision whereby an employee who is not employed for the entire 365 days and who is actually employed during a period of 12 calendar months only for 190 days in a mine or in an establishment which works for less than 6 days in a week or 240 days in any other establishments, is deemed to have put in one completed years of service. This deeming provision would clearly show that the legislature intended to bring under the ambit of the Act, those employees also who are not employed continuously from day to day. The thrust of this deeming provision is that an employee need not be in employment or service under the employer continuously from day to day for a whole period of 12 months and that appears to be the plain meaning without gloss from any source. In short, it is not essential that a person should be supposed to work continuously from day to day under an employer, so as to be an "employee" under the Payment of Gratuity Act, 1972. Any "employee" irrespective of the fact whether he is temporary or casual or employed intermittently, would be entitled to gratuity under the Payment of Gratuity Act, provided, of course he satisfies the conditions in S.4 read with S.2A. It can be seen that there is not even a slightest implication either in the definition clause or other provisions of the Act, to support the contrary view upheld by the Hon'ble Kerala High Court in Velukutty Achary's case (supra). In fact, the very implication in S.2A(2) seems to contradict the dicta of the Hon'ble High Court. In short, the view upheld by the High Court that a person who is supposed to work under the terms of the employment continuously from day to day alone is an "employee", it is respectfully submitted, is incorrect.

Further, the Hon'ble High Court seems to have gone wrong w line holding that a person must be employed as an employee as slated in S.2(e) upon a particular salary per mensum. Of course, no doubt, the person should be an employee as stated in S. 2(e). Also, there can be no doubt that he should be employed on wages. But should he be employed on monthly wages itself to be an "employee" under S.2(e). Does the Section insist so? The Hon'ble High Court has answered it in the affirmative on the strength of the words, "per mensem" appearing in the Section.

Let us examine the definition clause. The opening words, ".......... any person (other than an apprentice) employed on wages ..." reveal that the person should be employed on wages. Thus, once the employment of a person on wages is established, the definition clause strikes into action. However, it is not material that the wages should be monthly based. The basis or the system of payment of wages does not find a place in the definition. It does not contemplate that the wages should be on monthly basis or weekly basis or daily basis or piece rated basis. Of course, it is true that it lays down a limitation as to the quantum of wages payable at Rs.2,500/- per mensem or such higher amount as the Central Government may specify. That is brought in only to exclude employees drawing higher amount of wages. The exclusionary words, "...... not exceeding two thousand and five hundred rupees per mensem,..." brought in' for the aforesaid purpose, does not seem to give even a slightest implication that the employee should be employed on monthly wages. It escaped the attention of the Hon'ble High Court that the opening words and exclusionary words form two distinct parts. Here it is pertinent to note the presence of a comma just after the word, "wages" and just before the exclusionary words begin. It is also worth considering that the first proviso to S.4(2) of the Act lays down the mode of calculating the daily wages of a piece-rated employee for the purpose of calculating the gratuity payable to him the rounder. This proviso which also escaped the attention of the Hon'ble High Court, no doubt, leads to an irresistible conclusion that all persons employed on wages irrespective of whether they are monthly rated, daily rated, weekly rated or piece-rated are "employees" under the Act. As could be gathered from S.2(e), it is not necessary that a person should be employed on monthly wages itself to be an "employee" thereunder. He could be a monthly rated, daily rated, weekly rated or piece-rated employee. The only restriction is that his wages should not exceed Rs.2,500/- per mensem or such higher amount as may be notified. By holding otherwise, the Hon'ble High Court has legislated and amended the opening words,"... employed on wages ...." to "employed on monthly wages".

Though the legal points upheld by the Hon’ble Kerala High Court in Velukutty Achary's case (supra) does not enunciate the correct position of law, the dismissal of the appeal thereto seems to be right on the facts of the case. The Hon'ble High Court went wrong in holding that Shri. Velukutty Achary was not an employee on the pretext that he was called by the employer only whenever there is work and paid wages; that he is not subject to any contract of employment and therefore he cannot comeunder S.2-A(1). Simply because he was called and employed intermittently by the employer only whenever there is work would not result in his ceasing to be an employee. In such case also there is contract of employment for a fixed tenure or period. No doubt, he may be a casual or temporary employee. But still he is an "employee" under S.2(c) which does not make any distinction between temporary, casual or permanent employees and thereby he would also be entitled to the benefit of S.2-A of the Act. However, from the facts it can be seen that Shri Velukutty did not satisfy the conditions in S.2-A read with S.4 of .the Act inasmuch as he does not have five years continuous, service under the employer as was rightly held by the Controlling Authority and Appellate Authority . under the Act and it is on this count, the appeal deserved to be dismissed. In short, the diet as laid down on the legal points in the instant case, it is respectfully submitted, require reconsideration.

The Art of Distinguishing

(By C.M. Abraham, Advocate, Ernakulam)

Whether the authorised officer as mentioned in the N.D.P.S. Act, on getting information that a person is selling ganja at a particular place and immediately proceeding with police party to that place of alleged sale of ganja and finding a person standing there and arresting him is an arrest under S.41(2) of the Act or not is the substantial question of law.

In AIR 1995 SC 244, Alimusthafa v. State of Kerala our  Supreme Court held that in view of the law laid down in Balbir Singh's case, AIR 1994 SC 1872, there has been violation of S.50 of the Act and consequently the conviction of the appellant cannot be sustained. The appeal was allowed and the conviction and sentence was set aside. It agreed with the finding in AIR 1994 SC 1872 in the real spirit.

In AIR 1994 SC 1872, State of Punjab v. Balbir Singh, our Hon'ble Supreme Court held that S.41(1), (2), and 42(1) are mandatory in nature. It also held that on prior information the empowered officer acting under S.41(2) or S.42 should comply with the provisions of S.50 and that the provisions of S.50 are mandatory. In sub-para.5 of para.26, it was observed that:— "on prior information the empowered officer or authorised officer while acting under Ss.41(2) or 42 should comply with the provisions of S.50 before the search of the person is made and such person should be informed that if he so requires he shall be produced before a gazetted officer or the magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched and if such person so requires fails to take him to the gazetted officer or the magistrate would amount to non compliance of S.50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed such person opted for such a course or not would be a question of fact".

It was also held that (para.17):— "It must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so desires to be searched before a gazetted officer or a magistrate. To us it appears that this is a valuable right given to the person to be searched in the presence of a gazetted officer or a magistrate, if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused, to afford such an opportunity to the person to searched he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right".

Now the crucial thing is the way in which these decisions are followed or distinguished by our Hon'ble High Court, In 1995 (1) KLT24 the decision in Balbir Singh's case has been relied on following that acting under S.41(2) or 42 of the Act the empowered officer or the authorised officer should comply with the provisions of S.50, before the search of the person is made, and such person should be informed that if he so requires, he would be produced before a gazetted officer or a Magistrate as provided thereunder. But in the same decision, the decision in Alimusthafa v. State of Kerala has been distinguished by holding that in the case of a seizure under S.43 of the Act, the conditions prescribed in S.50 cannot be said to be mandatory, and that the authorised officer or the empowered officer has to comply with the provisions contained in S.50 of the Act only if the person makes a request and oh such request being made, he shall be produced before a gazetted officer or a magistrate as provided thereunder. Going away from the decision in Alimusthafa's case to the extend that if the arrest is under S.43, it is not obligatory on the part of the officer to inform the person of his right under S.50 of the Act, as if it was an arrest under S.43.

In paragraph 12 it is observed as follows:— "Counsel for the appellant has drawn attention to the decision of the supreme Court reported Ali Muthafa Rahman Moosa v. State of Kerala, 1994 (2) KLT 864 = 1994 (6) SC 326). There in the Supreme Court agreed with the observations contained in para.17 of Balbir Singh's case. At the same time, the request made by the counsel for the State of Kerala for a reconsideration of the decision in Balbir Singh's case was turned down by observing that there are no compelling reasons advanced by counsel for the State of Kerala for reconsideration of that decision. It may be that the Supreme Court in that case was considering the mandatory nature of the requirement in S .50 of the Act in case of a seizure under S.43 of the Act, the seizure made from the first class waiting room of the railway station. But the Supreme Court in mat case had followed the law laid down in Balbir Singh's case and has also refused to reconsider that decision. It therefore follows that the principles laid down by the Supreme court in the conclusions set out in para.26 of the decision in Balbir Singh's case are to be followed while considering the mandatory nature of S.50 vis-a-vis Ss.41, 42 and 43. The decision in 1994 (2) KLT 864 = JT1994 (6) SC 326 is therefore of no assistance to appellant".

In 1995 (1) KLJ 456, Suresh v. State, it was again held that in the case of arrest under S! 43 of the Act, the conditions prescribed under S.50 are not mandatory.

Now the crucial point is to classify arrest into arrest under Ss.41,42 and 43. The test to check whether an arrest is under Ss.41,42 or 43 is the understanding of the sections and facts and circumstances of the cases. Now before carefully referring to the sections, let us try to watch the facts of the cases.

AIR 1995 SC 244

On 12-10-1988 at about 11.15 p.m. the accused was found in possession of 780 Gms. of charas in the first class wailing room, of the railway station, Quilon. PW6, S.I. had got reliable information about it. He went there, met PW 1, constable who was on patrol duty. Both went to the first class wailing room, accused was found sitting there with a bag, questioned him, seized the contraband - mahazar prepared and the accused was arrested. (According to me it is an arrest under S.41(2) as the authorised officer proceeded and arrested on getting prior information). The Hon'ble Supreme Court was pleased to set aside the conviction as S.50 was violated.

1995 (1) KLT 24.

While the C.I. of Police, Perinthalmanna and other police officials were on patrol duty at 5 a.m. on 9-12-1990, they found the accused standing with a bag on the north-eastern corner of the verandah of the K.S.R.T.C. bus stand at Perinthalmanna. On suspicion seized the bag, found 1.2 kgs. of ganja. Mahazar was prepared and the contraband article was taken into custody. (According to me it is an arrest under S.43 as the C.I. had no prior information).

1995 (1) KLJ 456

S.I. of Kozhikode City Detective Crime Records Bureau found the accused near the bus stop of Pottammal possessing 3.500 gms. of brown sugar in a packet kept inside a wills cigarette packet kept in the girdle knot of his mundu. The S.I. had received information at about 7.40 p.m. on 31-10-1990, that brown sugar was being sold near the bus stop. In pursuance to that information, the S.I. went to the spot and saw the accused standing near the bus stop. Mahazar prepared article seized-accused arrested. (According to me it is an arrest under S.41(2) and is identical to the case of Ali Musthafa v. State of Kerala).

Now, let us see what the sections say. Chapter V of the Act deals with the procedure of detection, arrest and investigation of offences punishable under the Act. Ss.41 to 68 clearly set out the mode in which investigation is to be carried out. Ss.41, 42, 43 and 44 clearly describe the mode of effecting arrest of persons and seizing the contraband. S.50 clearly state how a search should be made. The express provisions of law made by the legislature has to be taken in tune with the intention of the legislature.

The mere fact dial the place happened to be a public .place alone cannot be the criteria to hold that it is an arrest under S .43. The circumstances and the particular features are also relevant. To let the cat out of the bag, the word "place" used in S.41, 42, and 43 is to be understood. The word "place" should be well defined and explained. In S.42 the word place is supported by an adjective "enclosed". In S.43, the word place is supported by the adjective "public". In S.41 only the word place is used. I feel that in S.41, the word place means and includes both enclosed as well as public place.

A heading "POWER TO ISSUE WARRANT AND AUTHORISATION", has been given to S.41. Heading is given for easy catch of mind as-to what the section is intended for. When a heading is given to a Section the words used in the heading will not and need not necessarily convey the whole meaning or idea contained in that Section. It will contain only the main point.

Hence it cannot be felt that as the heading is ‘power to issue warrant and authorisation', the section doesn't or can't go beyond the scope of the heading, especially when there is clear cause in the section itself.

The words 'or himself arrest a person or search a building conveyance or place' has been included in S.41(2) so as to enable the authorised officers to arrest a person who has committed an offence punishable under Chapter IV of the Act, on and only on getting information given by any person or if he has reason to believe from personal knowledge. Of course, S.41 is intended to serve the purpose also of enabling the authorised officers to an authorise his subordinate officers to arrest a person or search a building, conveyance or place. When the authorised officer is unable to do it himself, due to some reasons, he can authorise his subordinate officers to that end. S.42 is intended to arrest a person and seize the contraband article from any building conveyance or enclosed place, without warrant. S.43 is to enable the authorised officer to check suspected persons and arrest if required on occasions other than contemplated in Ss.41 and 42. The words "or on information given by any person and taken down in writing" is seen omitted in S.43. The intention of the legislature to omit these words in S.43 is to enable an authorised officer to detain, search and arrest a person if he has reason to believe that an offence punishable under Chapter IV has been committed. It gives the power to an authorised officer to check suspected persons which very often happen during patrol or during the investigation in other crimes. In cases where he has information from any person then he should take it down in writing and should proceed only in accordance with S.41(2). In cases where the authorised officer deposes that he got information and proceeded and arrested, it should be taken as an arrest under S.41(2).

Suppose a magistrate comes to know that a person is selling ganja on a public road and dial the authorised officers are not arresting him, won't the magistrate issue warrant to arrest him? Or will he hold mat as it is a public place, it comes under S.43 and so only the authorised officers should take steps?

In this context, it is pertinent to note the lay of certain words put in Ss.41, 42 and 43. In S.41 - arrest first, then search. In S.42 - enter, search, seize and arrest. In S.43 - detain, search and arrest. So when you have prior information, you arrest first then search; whereas when you have no prior information, but have suspicion, you detain a person, search him, seize the contraband and arrest him. The in tendon of the Legislature is very clear, or as the Supreme Court said I would say that the language is very clear.

Now the difficulty is this:— If an authorised officer wants to trap a person, he can arrest him and produce him before a magistrate and say that the arrest is under S.43. He will be in trouble. The present law cannot save him, even if he innocent. This is not what the legislature intended. Even if thousand accused are set free, an innocent should not be punished. Are we anywhere near this principle in the context of the present posidon of law as interpreted and established now?

It is pertinent to note the facts in Crl. Appeal 328 of 1994 (decided on 16-2-1995) (not reported). On 29-12-90, at 17.30 p.m. on information that sale of ganja is being conducted on the southern side of the railway gate, near Meenchanda, Kozhikode, PW. 1, the C.I. of Police Kasaba and party proceeded to the place and found both the accused standing there on the roadside at 17-40 pm; conducted search, recovered 70 gms. of ganja from CM. Mammu (died pending trial) and 60 gms. of ganja from the accused (Raveendran), kept in the waist of their cloth, seized - arrested.

The learned I. A. Asst. Sessions Judge, Calicut, held on the mandatory section, S.50 as follows:— "Under S.50 for seizing the material, the accused should be produced before a gazetted officer or to the nearest Magistrate. PW.1 deposed drat he is a gazetted officer. Since he is a gazetted officer, the above provision is complied with. "PW1, the C.I. who seized the contraband admitted that as he is a gazetted officer, he did not ask the accused whether he should be taken before a gazetted officer or magistrate. In Crl. A. 328/94, at the time of final hearing, it was pointed out that the gazetted officer contemplated in S.50 is a gazetted officer other than the authorised officer who seizes the contraband. Of course everybody knows that. There it was held that the place was a public place and so S.50 is not mandatory. If it was an arrest under S.43, PW, 1 should not have uttered in the witness box that he got information that two persons were selling ganja at the place of offence and" it should not have been shown in the first information statement. In such a case where he deposes that he got prior information, the presumption must be that it was an arrest under S.41(2). When there is evidence to show that the arrest was under S.41(2) it becomes his obligation to inform the accused of his right under S.50, which he admits that he did not.

In 1995 (1) KLT 57, Mohanan v. State of Kerala, in para.7 it is observed as follows:— "The prosecution has no case that the provisions of S.50 had been complied with. True no request might have been made by the accused that he should be produced before the nearest gazetted officer or the nearest magistrate. But in view of the law laid down in Balbir Singh's case, it is obligatory on the part of PW4 to inform the accused of his right to be searched in the presence of a gazetted officer or a magistrate. Nothing is seen spoken to by him on this aspect. The requirement of S.50 having been held to be mandatory, the non-compliance vitiates the trial. For that reason the conviction entered against the appellant has to be set aside."

This very finding of the very same learned Judge was also pointed out at the time of final hearing of Crl. A. 328/94, in which PW .1 the authorised officer himself deposed that the did not inform the accused as to his right to be searched in the presence of a gazetted officer or magistrate. However, in Crl. A. 328/94; the conviction was upheld though the sentence of Rs.2000 fine or imprisonment for one year was reduced to Rs.2000/- fine or imprisonment for 3 months.

It seems to my little sense that the law laid down in 1995 (1) KLJ 456 (Suresh v. State) and the decision in Crl. A. No.328/94 requires reconsideration, as they are in conflict with the decision laid down in State of Punjab v. Balbir Singh, AIR 1994 SC1872 and Ali Musthafa v. State of Kerala, AIR 1995 SC 244. The decision in 1995 (1) KLT 24, though strange from the above said findings of the Hon'ble Supreme Court, as it was an arrest under S.43, from a public place and as there was no prior information could be correct to that extend, to which it is distinguished. But a mere reading of S.50 shows that the intention of the legislature in safeguarding the interest of the individual is taken away.