Liturgical Dramatization of Adjudication

(By Fr. Xavier Kudiamssery, LLM, Banglore)

Religion and law are mutually complimentary. Law without religion loses its sanctity and its inspiration. So also religion without law loses its social and historical character and becomes purely personal mystique. It is noteable that there is a mutual attempt to moralize legality and to legalize morality.

It is worth noting that in appearance and in application of law, a religious ceremonial phenomenon is consciously or unconsciously adopted. Harold J. Berman in his f amour book titled "The Interaction of Law and Religion" (London: SCM Press Ltd. 1974) gives us a good treatise on the subject. The religion exists mainly through the dramatisation of the sal vific event through rituals. In the same way law adopts a solemn dramatisation of long cherished values of humanity for co-existence and well being. In religious sphere, there is an altar to perform liturgical sacrifices. The priests and other officials appear in their special vestments. The court room is also arranged like an alter and the Judges, lawyers and other participants appear in their special garments. Symbols of the office of the Judge, the robes, the furniture and so on are arranged symbolically, as in religion to impress not only the Judge, but also all other participants in the proceedings and indeed the society as a whole. It indicates that the Judge as well as all other participants should put aside their personal interests and prejudices and participate in the solemn and holy sacramental function of adoration of justice. The lawyers the parties, the witnesses and others involved in a trial are given their respective roles by the ceremonious opening in which all stand up and bow in adoration of justice and in mutual respect. The strict order of appearance, the oaths, the forms of address and the like rituals dramatise the adjudication process with full ceremonial display.

This dramatisation both in law and in religion is intended to induce people to reflect on the values therein, as well as to induce on emotional belief in all the participants. Through this dramatisation all are invited to share the emotional imperative on a common sense of rights, an aversion to inconsistency, a passion for equality of treatment, an abhorrence of illegality and a commitment to legality. It also highlights the fundamental postulate of all legal systems, even the most rudimentary, that 'like cases should be decided alike'. The rituals raise that postulate from a matter of intellectual perception and moral duty to a matter of collective faith, aiming at gaining faithfulness to law. This is essentially the same kind of dramatic response to the sacred, to the ultimate purpose of life, that is characteristic of religious faith. In fact, as in religion, it is this processual dramatization that gives existence to the value content of law.

Ultimately all the rituals are an appeal to go to the inner self for an examination and to get strengthened in conscience. This again calls for a principle of conscience in adjudication. That is the Judge must judge himself before he may judge the accused. He must identify himself with the accused, since thereby he will know more about the crime than the criminal himself. Appeal to conscience being essential part of adjudication certain procedural and ceremonial, and of course, substantive systems are envisaged. The right to legal representation by professional lawyers and the procedure for interrogation and so on are based on this principle of conscience. It is also associated with the idea of equality of the law, since in conscience all litigants are equal.

In the result, the dramatization inspires that all trials should be educative and not vindicative. It should cloth man with divinity and dignity. It is better to delay the proceedings than to ridicule a defendant. It is better that he goes free than the court should do an ignoble thing. A trial should provide a catharsis and not a new assault upon the dignity. Cooked up stories, crooked steps and calculated lies shall not prevail in the court procedure, because the legal procedure is a sacred one and it applies to the innermost conscience of all participants of the dramatisation of the liturgy of litigation. From the Court the litigants shall not inhale vengeance and venomous feelings, instead a spiritual fragrance should always be there. They should go back with a spiritual mind searching truth and justice and definitely reconciled.

Late Shri. S. Narayanan Poti - Reminiscences of a Junior

(By Hon'ble Mr. Justice S. Sankara Subban)

"Tis all the Chequer - board of Nights and days,

Where destiny with Men for Pieces plays,

Higher and thither moves, and matter and stays,

And one by one back in the closet lays,"

- OMAR KHAYYAM

It was on the 3rd December. 1971 that I joined the office of Sri. S. Narayanan Poti, as a junior. Before that I was practising at Trivandrum. It was my father's wish that I join the office of Shri. Poti. My father knew Sri. Poti while Sri. Poti was practising at Trivandrum. but the contact was little after Sri. Poti shifted to Ernakulam. Even though I had heard of Sri. Poti, I had never met him. It was in the month of September, 1971 that I first met him expressing my desire to join in his office. After talking to me for some time, he asked me to come two days' later. When I met him again, he gave me green signal to join his office. Subsequently, I came to know that Sri. Poti had enquired about me with some of my friends in the High Court Bar and only after he was satisfied that I would be serious in the profession that he invited me to join his office.

2. On the first day of my joining, he told me that there was no substitute for hardwork. He further advised me to read the decisions of the Court of Appeals and House of Lords. In fact, on the first day itself, he gave me a volume of the English Law Reports and asked to read the decisions contained therein. He also gave me a copy of Allen's "Law in the making" for reading. He used to enquire often regarding my reading of the decisions. He told me that whatever points an advocate may urge at the time of argument, they will not be accepted by the Judges unless they were supported by an authoritative pronouncement. The reasoning given by an advocate by using his commonsense may be correct. But mere ipse dixit will not be accepted. Reading of the judgments will help in shaping the thoughts in the proper way.

3. Sri. Poti stood as a different class by himself in his relationship with his clients and juniors. His preparation and presentation of cases were unique. He was a person who used to master the facts and the law points arising in a case. I had seen him reading the entire depositions of the witnesses himself and underlining the relevant portions. He had an extraordinary power of memory. Regarding the questions of law, he would not be satisfied with the decisions of the Supreme Court of the High Courts. He will make a complete research by reading the relevant text books. Russel on Arbitration, Paget on Banking, Spencer Bower on Res judicata, Lewin on Trust, Megarry on Damages, Woodfall on Landlord and Tenant, De Smith on Administrative Law were his constant companions. It was always rewarding to hear his arguments. Built in a frail frame, to begin with his arguments will be in a very low tone. Subsequently, the pitch of the tone will be increased and he will move his legal points dexterously. His presentation was very simple. He will never play to the gallery nor utter any word wounding the opposite lawyer. When a junior lawyer appears against him, he used to act very co-operative with him. He will never refuse when a junior lawyer wants an adjournment of the case. He used to advise us not to use strong words in the pleadings. Even while denying a fact in a counter affidavit he used to advise us not to use the word 'false' but to use the word 'not true'.

4. I had the opportunity to assist Sri. Poti in many important cases. Before finalising his argument, he used to devote much thoughts as to the interpretation of the clause in a document or in a statute. He will argue only when the preparations are completed. One important case is the one reported in 1973 KLT 701. He appeared on behalf of the declarants in a ceiling case. The declarants owned lands described as kayal lands and they sold the kayal lands between 15.9.1963 and 1.1.1970. The kayal lands were exempted from the ceiling provisions by the Kerala Land Reforms Act. But by Act 35/69 exemption was taken away. The question was whether the alienated land can be included in the ceiling area. The State opposed vehemently. But the Division Bench accepted the contention of Sri. Poti that the lands once exempted from the provisions of the ceiling law, at the time of sale, would not be taken into account. The State took the matter in appeal to the Supreme Court, but without success.

5. Another important case was C. W. Engineer v. Eapen Varghese - 1977 KLT 1019. It was under the Arbitration Act. No less a person that Sri. K. Parasaran, then Advocate General of Madras appeared for the appellant. The award was attacked on the ground of misconduct and error apparent on the face of the files. I remember, Sri. Poti purchasing a new edition of Russel on Arbitration for the purpose of the case. He studied the book as a student was preparing for the examination. The decision in Chamsey Bara's case was studied in such a way that he could locate the relevant passages without looking into the same. The case was argued for a number of days and ultimately, the appeal was dismissed. The work done by Sri. Poti in the above case would be described as 'without parallel'. After the arguments were over Sri. Parasaran met Sri. Poti and told him that he was very much impressed by his erudition and forensic ability and sought his blessings. Sri. Poti had contributed very much for the development of Arbitration Law. Many reported decisions stand testimony to tlus. The crowning glory was achieved by Sri. Poti when he appeared as Advocate General in Stale of Kerala v. Aboobaker - 1995 (1) KLT 850. There, he succeeded in setting aside the awards on the ground of misconduct. In paragraph 28 of the judgment, Thomas, J. (as he then was) speaking for the Bench said: "Of course credit must certainly go to the octogenerian Advocate General for winching up all such odious scum to the surface."

6. Another field where Sri. Poti excelled was in the field of Election Law. After every general election, one can find politicians frequently visiting Sri. Poti's office. He would be engaged either for the petitioner of for the respondent in the majority of the election petitions. One of the important cases was A.C. Jose's case (A.C. Jose v. Sivan Pillai - 1982 KLT 876). The contention in that case was with regard to the use of voting machines. The contention raised by Sri. Poti was that the Election Commission had no jurisdiction to issue directions regarding the use of voting machines as the Commission had to act in accordance with law made by the Parliament. In this case, Sri. Poti was ready to argue the case even when he prepared the election petition. Justice Kochu Thommen who heard the election petition dismissed the election petition. One could discern in the mind of Justice Kochu Thommen the feeling that injustice would be caused to elected representative if his election was set aside for no fault of his. The matter was taken in appeal to the Supreme Court and the Supreme Court declared the direction of Election Commission to use the voting machines as illegal and unseated the returned candidate. Re-election was ordered and Mr. Jose won in the reelection. Another case is George Mascrene v. Neelalohitha Dasan Nadar. Here, the contention taken was that certain voters, whose names had been wrongly included in the electoral rolls of more than one polling station in a constituency, had dishonestly voted in both the polling stations and one of the issues was whether the principle of secrecy of ballot paper was absolute. It was held that the principle of secrecy should yield to the purity of election in the larger public interest. After recounting, Mr. Mascrene was declared elected. Another important case where Sri. Poti appeared is the Church case. I remember, he used to be away from his house in order to study the case without disturbance. He always liked arguing civil cases than service matters.

7. Sri. Poti used to be selective in accepting the briefs. He used to discourage clients from unnecessary litigations. He always welcomed parties compromising matter and would not hesitate to tell his client if he was unreasonable. He had been engaged by many local authorities and he charged them only regulation fees. He had never tolerated unjust or illegal means. Once he had filed an appeal on behalf of a local authority. Subsequently, the local authority wanted to withdraw the appeal apparently due to pressure from the opposite side. Sri. Poti opined that it was a good case for the local authority and that he would not withdraw the appeal unless the local authority passed a resolution to that effect. The local authority did not pass the resolution and finally the appeal was allowed resulting in great monetary benefit to the local authority. As Advocate General also he exhibited the same sternness.

8. Sri. Poti treated his juniors well. He paid them handsomely. One could clear away the doubts any time. He gave a free hand to the junior to argue the case. The office room and the library were always open to the juniors. Many lawyers would give senior engagements to Sri. Poti. In such cases, he always saw that such lawyers get their share of fees also. It is true that Sri. Poti used to charge high fees. But ultimately when one sees the work done by him one will agree that the fees charged were not exorbitant.

9. Sri. Poti was very humorous in his conversation. It was very pleasing to hear his anecdotes. He used to recount his experience when he entered the profession. Shri. Poti's father was a Pleader at Attingal. Sri. Poti started his practice independently in Trivandrum. Initially he did not have any work. He used to ask adjournments on behalf of other lawyers. One day, a client (judgment debtor) engaged him to get the sale adjourned. The advocate for the decree holder opposed. The Presiding Officer said that since Sri. Poti was getting adjournment for other lawyers it was in the fitness of things to grant adjournment in his own case. At the time when Sri. Poti was enrolled, the financial condition in his family was not good. He had told us that it was with borrowed money that he was enrolled. One of his father's friends agreed to give the necessary fees for enrolment and for buying the black coat. When he went to the friend's house, the friend's wife asked him doesn't he want money for buying the gown. He always remembered the couple.

10. Sri. Poti was a good sportsman and he used to enjoy Karnatic music. After coming from Court, he will go to the badminton Court. He will have no appointments with the clients between 4.30 pm and 6.30 pm. As a principle he had consultation with his clients in the office only. I know one instance when the President of a multinational company wanted to consult Sri. Poti at the office of the company. Sri. Poti flatly refused.

11. Sri. Poti was of a helping disposition. He used to help many persons, who were in need of money. I personally know many instances, where Sri. Poti had given financial assistance for the education of the children. He never indulged in luxury. He was very simple in his habits and always was clad in white clothes. I had never found him losing his temper. He was very humble, very tolerant and acted as per his conscience. He used to contribute liberally for social and charitable causes. He was not member of any club. But he had a large circle of friends. He was part time Lecturer in the Ernakulam Law College for about three years. He was very friendly with his students. His notes on Constitutional law was famous. Many of his juniors had occupied prominent places in life. Among them Sri. P. Subramonian Poti, former Chief Justice of Kerala. Many of his students later became Judges of the High Court of Kerala.

12. As a student, he was good at studies. In those days, there was a system of studying optional subjects in the High School Class. Since Sri. Poti was proficient in Science and Mathematics, his class teacher recommended him to take the first group. But his father wanted to groom Sri. Poti as a lawyer and wanted him to opt for the art subjects. When this was put to the class teacher, he wanted the matter to be reconsidered. But there was no change and Sri. Poti opted for the art subjects. He got scholarship in view of the high marks secured by him in the school final examination. He graduated in law with high second class.

13. As it is said, behind the success of every man, there is a woman. Smt. Poti is a very gracious lady. The couple thought alike and Prem Nivas was always brimming with acts of kindness and generosity.

14. Just two hours before the death, I went to see Sri. Poti in the IC Unit. He scribbled on a piece of paper that he wanted a copy of my Uncle Sri. Krishnamoorthy Iyer's speech made on the occasion of the donation of his library. I came home, took a copy of the speech and sent the same to be handed over to him. But by that time, he had attained eternal peace.

"The heights of great men reached and kept

Were not attained by sudden flight,

But they, while their companions slept,

Were toiling upward in the night".

Art of Distinguishing Case Law

(Varghese T. Abraham, B. A., LL. M., (District Judge) Presiding Officer, Labour Court, Ernakulam.)

Not a Story - Believe Me or Not

Scene was a moffusil Court in Middle - Travancore. There was a pleader. He is no more. He was subscriber to Travancore Law Journal (T.L.J.) Though a veteran cross examiner he was a poor student of quick grasping. One day he went through a Judgment - not in its entirety - which appeared in the Journal. The Editorial Note of that Judgment ran as follows:-

"Theft – 380 I.P.C. - A member of a Hindu Joint Family cannot commit theft".

Facts of that case would show that a member of a Joint Hindu Family committed theft of family property. In that context, the then apex court of the State held that a member of a Hindu Joint Family has moiety of share over the family property, he is entitled to have share over every inch of the property and the remedy of the aggrieved party is to sue for partition, claim the share of the stolen property and not to launch a criminal prosecution.

The aforesaid Pleader had a theft case with him. In that case, one Parameswaran Pillai committed theft of the property of his neighbour Mathew, a Christian. When Mathew stood in the box, the Head Constable, as he could .then, brought out the necessary facts in the examination in chief. The Pleader stood up and put only one question in cross-examination. "Mr. Mathew do you agree that my client is a member of a Joint Hindu Family?"

Mathew replied, "Yes".

The Pleader sat on chair. He did not put any question to other witnesses also. The Magistrate was surprised and the Pleader solaced the Magistrate saying he has a decision with him to support his client's case. When the case reached the stage of argument, the Pleader relying on the above said decision submitted. "My client is admittedly a member of a Hindu Joint Family and as per this decision he cannot commit theft". Pleader's innocence and ignorance ended in conviction of his client.

A Prolegomenon

The above incident happens in the bar and verdicts daily. The law declared and laid down by the Supreme Court binds all the Courts below it including the High Courts. The law laid down by the High Court binds all the subordinate Courts of that State. In the absence of any decision of the High Court to which the subordinate courts of that State function, the decisions of other High Courts can be looked into and accepted atleast as a persuasive piece of legal principle. Eventhough the decision of the High Court or Supreme Court is incorrect, unpalatable, the subordinate courts have to follow it, unless the decision is per incurium [1]. This is the constitutional mandate. It is also necessary for maintaining judicial discipline. Yet another reason is that better wisdom of the Courts below must yield to the higher wisdom of the Courts above.

Doctrine of Stare Decisis [2]

It is a basic principle of administration of justice that like cases should be decided like. Law declared by the highest courts have binding force because of the principle of stare decisis. It is a maxim of practical universal application.

Legal principles are often laid down by judges in the interpretative process. Legislature while enacting laws cannot anticipate everything that may arise in future. Though it is said that Court cannot fill up lacuna or loop holes in statutes it often does so in the course of dispute settlement. Judges cannot fold their hands by saying that casus ommisus is to be filled by the Legislature and it is not the court's duty to do so. But in usual practice Judges fill up the lacuna so as to alter the law to meet social situations or urgent necessity. This is called by Lord Denning [3] as "ironing out of creases". But he cautions "a Judge shall not alter the material of which the Act is woven....." His Lordship Justice V.R. Krishna Iyer [4] puts it in another sarcastic form:" Statutory construction is not petrified process and the old bottle to the extent language and realism permits, be filled with new wine. Of course, the bottle should not break or lose shape". According to Cardozo.J. "Judges make law by evolution rather than by revolution" [5]. "Judges do and must legislate...." said Holmes. J.

Judicial Activism

Law is an instrument of social ends. A dynamic society requires a dynamic legal system. A Judge legislates only between gaps. He fills the open space in the law. As Justice Holmes asserted, "Judges really make the law, because they are motivated by the considerations as is the legislator". A Judge must be active. He shall not be a passive on looker. If the legislature fails or omits to intervene Judges must wear the rob of legislator. Judiciary is the back bone of Indian Democracy. Might, muscle and money shall not exploit the unorganised class or the down trodden [6]. Recently a Division Bench of Calcutta High Court in Basant Kumar v. Gopal Chokhany [7] exhibited judicial activism. In that case a guardian was appointed for the benefits of children of land lord who lost mental balance. The High Court increased rate of rent in the interest of social justice and rejected the tenant's plea that his case is governed by, Rent legislation. The concept of social justice weighed the mind of court. The Supreme Court in Sadhuram v. PidiaBehari [8] had already adopted a similar approach. In that case when the property was sold by auction by the Official Receiver a few persons unauthorisedly trespassed into property and put up hutmunts for their residence. The Supreme Court accepted their offer to pay substantial amount even though they were trespassers.

Take care of the calf and threw away the placenta

A cow delvers a calf and also a placenta. Look after the calf and throw away the placenta. It is the principle of law laid down by a Judge in a given set of facts that binds the Courts below. "It is not everything said by a Judge that constitutes a precedent. The dispute is solely concerned with facts except on questions of law [9]". Rupert Cross says [10]:

"If the Judge in a later case is bound by the precedent according to English doctrine of stare decisis, he must apply the earlier ratio decidendi, however much he disapproves of it, unless to use the words of Lord Reid, he considers that the two cases are reasonably distinguishable".

Casual observation

Suppose the question before the court is "whether B. Ed. degree is a post graduate degree". In the verdict the Judge says "Like an LL. B. degree B. Ed. degree is not a post graduate degree". Here, "Like an LL. B. degree" is an unnecessary or casuaI observation. It is obiter dicta; just like a placenta. "B. Ed. degree is not a post graduate degree" is the principle of law or ratio decidendi, it is the calf. Take care of, and nurse it.

Ratio decidendi and Obiter Dicta-Distinction

The distinction between ratio decidendi and obiter dicta is an old one. As long as 1673 Vaughun C.J. said :

"An opinion given in court, if not necessary to the judgment given of record, but that it might have been as well given if no such or a contrary had been broached is no judicial opinion, but a mere gratis dictum [11]. Austin said [12]: "Such general proposition, occurring in the course of a decision, as have not this implication with the specific peculiarities of the case, are commonly styled as extrajudicial, and commonly have no authority".

Don't forget

A Judge decides a case on the set of facts presented before him. The Supreme Court in Prakash Amich v. State of Gujarat [13] said:

"Hence, while applying the decision to a later case, the court which is dealing with it should carefully try to ascertain the true principle laid down by the previous decision. A decision often takes its colour from the questions involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation....."                                                                       (emphasis supplied)

The Supreme Court, again, in C.I.T. v. Sun Engineering Works [14] observed: "It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this court divorced from the context of the question under consideration and treat it to be the complete law declared by this Court. Judgment must be read as whole and the observations from the judgment have to be considered in the light of questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered..... [15]”

Foot Notes:

1. A decision against the statutes or in ignorance of law or binding principle is called decision per incurium

2. This doctrine means "keep to what has been decided previously."

3. Seafood Court Estates Ltd. v. Asher 1949 All. E.R.155.

4. Bangalore Water Supply case, 1978 Lab. I.C.467.

5.Nature of Judicial Process. P.169.

6. Recently a Division Bench of our Kerala High Court declared unconstitutional the provisions relating to fair rent in the Kerala Buildings (Lease and Rent Control) Act 1965 enacted three decades ago. This is judicial activism since the court felt that "all Land Lords are not rich and all the tenants are not poor."

7. A.I.R. 1994 Cal. III.

8. AIR. 1984 SC.1471.

9.Rupert Cross. "Precedent in English Law" second Edn, P.36.

10.Ibid pp 36-37.

11. Quoted in "Precedent in English Law" " Ibid p.37.

12. Jurisprudence. 5th Edn. P.622. Salmond.

13. A.I.R. 1986 S.C.468.

14.A.I.R. 1993 S.C.43.

15. See also Madhav Rao v. Union of India A.I.R. 1971 S.C.530.

A Judgment to be hailed on Labour Contract Abolition

(Advocate Thampan Thomas, Ex-M.P.)

"The only ostensible purpose in engaging the contract labour instead of the direct employees is the monetary advantage by reducing the expenditure. Apart from the fact that it is an unfair labour practice, it is also an economically short-sighted and unsound policy, both from the point of view of the undertaking concerned and the country as a whole. The economic growth is not to be measured only in terms of production and profits. It has to be gauged primarily in terms of employment and earnings of the people. Man has to be the focal point of development".

Justice P.B. Sawant and Justice S.B. Majmudar of the Hon'ble Supreme Court of India made the above observation in the case of Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat v. Hind Mazdoor Sabha and others (JT 1995 (4) SC 264). This is a landmark judgment in the matter of abolition of contract labour system in lndia. They have referred 18 other major cases, in which the Hon'ble Supreme Court have given their verdict from 1958 onwards. The cases referred are,

1. R.K. Panda & Ors. v. Steel Authority of India Ltd. JT 1994 (4) SC 151 - 1994 (S) SCC 304. (Para.37)

2. Dena Nath & Ors. v. National Fertilisers Ltd. & Ors. JT 1991 (4) SC 413 -1992 (1) SCC 695 - Relied. (Para.31)

3. Gurmail Singh & Ors. v. State of Panjab & Ors. JT 1991 (1) SC 351 - 1991 (1) SCC 189. (Para.58)

4. Catering Cleaners of Southern Railway etc. v. Union of India & Ors. etc. JT 1987 (1) SC 3765 1987 (2) SCR 164 - Relied. (Para.30)

5. Food Corporation of India Loading and unloading Workers Union v. Food Corporation of India, 1987 (1) LU 407 (Para.7)

6. Krishna Kurup v. General Manager, Gujarat Refinery Baroda, JT 1986 SC 461 -1986 (4) SCC 375 (Para.58)

7. Bhagwati Prasad Dixit Ghorewala v. Rajeev Gandhi 1986 (4) SCC 78, (Para.40)

8. B.H.E.L Worker's Association Hardwar & Ors. etc. v. Union of India & Ors. etc. 1985 (2) SCR 611 (Para.28)

9. The Workmen of Best & Cromption Industries Ltd. v. The Management of Best & Cromption Engineering Ltd., Madras & Ors. 1985 (1) LU 492 (Para.7)

10. State of U.P. v. Abdul Rashid & Ors., 1984 Supp. SCC 347 (para 40)

11. Hussainbhai, Calicut v. The Alath Factory Thozilali Union, Kozhikode & Ors. 1978 (4) SCC 257, (Para.36).

12. Vegolis Pvt. Ltd. v. The Workmen, 1972 (1) SCR 673-Explained and relied. (Para.26).

13. Sanghi Jeevaraj Ghewar Chand & Ors. v, Secretary, Madras Chillies, Grains Kirana Merchants Workers Union and Anr. 1969 (1) SCR 366 (Para 64)

14. Indian General Navigation and Railway Company Ltd. & Anr. v. Their Workmen, 1966 (1) LU 735 (Para.58)

15. Mohmd. Ayub Khanl v. Commissioner of Police, Madras and Anr. 1965 (2) SCR 884 (Para.40)

16. Akbar Khan Alam Khan & Anr. v. The Union of lndia & Ors. 1962 (1) SCR 779 (Para.40)

17. Standard Vaccum Refining Co. of India Ltd. v. Its Workmen & Ors. 1960 (3) SCR 466 (Para.30)

18. Workmen of Dirnakuchi Tea Estate v. The Management of Dirnakuchi Tea Estate 1958 SCR 1156- Explained and relied. (Para 46)

The learned Judges also have severely criticised the public sector undertakings indulging in unfair labour practice by engaging contract labour when workmen can be employed directly even according to the test laid down by S.10(2) of the Contract Abolition Act. They pointed out that the altitude adopted by them are inconsistent with the need to reduce unemployment and the Government policy declared from time to time to give jobs to the unemployed. They made it clear that these are part of the mandate contained in the directive principles in Arts.38, 39, 41, 42, 43 &47 of our Constitution. While concluding the judgment, therefore, they specifically recommended three things, viz.,

(a) all undertakings which are employing the contract labour system in any process, operation or work which satisfies the factors mentioned in clauses (a) to (d) of S.10(2) of the Act, should on their own, discontinue the contract labour and absorb as many of the labour as is feasible as their direct employees;

(b) both the Central and the State Governments should appoint a Committee to investigate the establishments in which the contract labour is engaged and where on the basis of the criteria laid down in clauses (a) to (d) of S.10(2) of the Act, the contract labour system can be abolished and direct employment can be given to the contract labour. The appropriate Government on its own should take initiative to abolish the labour contracts in the establishments concerned by following the procedure laid down under the Act.

(c) the Central Government should amend the Act by incorporating a suitable provision to refer to the industrial adjudicator the question of the direct employment of the workers of the ex-contractor in the principal establishment, when the appropriate Government abolishes the contract labour.

The directive principles contained in Chapter IV of the Constitution of India are the guidelines to the State and are fundamental in the governance of the country and State have a duty to apply the principles in making the laws, though it cannot be enforceable by any court. During the discussion of the directive principles in the Constituent Assembly, some of the veteran leaders at that time like Sibanlal Saxena and others were of the opinion that the directive principles is to be equated with fundamental rights and they pressed to include them among the fundamental rights. But Dr. Ambedkar, the framer of our Constitution assured the Constituent Assembly that the directive principles are not less important and they are to be considered as sanctions prescribed in 1935 Government of India Act, which leads the nation. He also assured that separate laws will be enunciated for implementing directive principles.

The Contract Labour (Regulation and Abolition) Act 1970 was brought in the Parliament as a measure to achieve the aims and objectives mentioned in the directive principles. Human beings are exploited by persons unscrupulously practising the labour contract system. The commodity and raw-materials involved in a labour contract system are human beings. A contractor, when enters into a contract to supply labour is trading with human beings. His income and profits entirely and fully depend upon the other human beings whom he supplied. It is not the sweat and work of a contractor that gives him the profit. This is the naked form of absolute exploitation. Directive principles of the constitution lays down the principles to secure social order for the promotion of welfare of the people. In Art.38, which reads,

"(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institution of the national life.

(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations".

The policies which are to be followed are laid down in Article 39:

The state shall, in particular, direct its policy towards securing –

(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment".

Right to work is prescribed in Art.41, which reads:

"The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want".

Art.42 prescribes the provision for just and human conditions of work and maternity relief. Art.43 deals with the living wages for the workers. In a contract labour system, the above mentioned principles may or may not be followed. A contractor who supply the labour need not look into the condition of work. Those are the circumstances which are to be provided by the principal employer. The principal employer has not entered into any direct contract with the actual worker and the worker may not be entitled to get such rights from him. These are nothing but exploitation.

The government were aware about such exploitations, even during the period of 2nd Five Year Plan. Planning Commissions made recommendations for study of the problem of contract labour and suggested progressive abolition of the system. After careful examination of the grave problem, the Government found it necessary to abolish labour contract system in certain spheres and to regulate the very system if it is found needed to continue. With these objective, the Contract Labour (Regulation and Abolition) Act, 1970, was brought before the Parliament. The Preamble of the new Act itself states the purpose of the Act, viz., (1) It is to regulate the contract labour wherever it is necessary. (2) To abolish contract labour in certain circumstances. S.10 of the Act prohibits employment of contract labour. S.10 reads as follows:

"10. Prohibition of employment of contract labour.

(1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the General Board or as the case may be, a State Board, prohibit by notification in the Official Gazette employment of contract labour in any process, operation or other work in any establishment.

(2) Before issuing any notification under sub-s.(l) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as-

(a) whether the process, operation other work is incidental to or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment:

(b) Whether it is of perennial nature that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment:

(c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar there to:

(d) whether it is sufficient to employ considerable number of whole-time workmen.

Explanation: If a question arises whether any process or operation or other work is of perennial nature the decision of the appropriate Government thereon shall be final".

According to sub clause (1) of S.10, the Government have got the right to abolish the contract labour after consulting the Board by publication in the official gazette.

It has been, all the while, the accepted position up to the judgment, of the Hon'ble Supreme Court in Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat v. Hind Mazdoor Sabha & Others, that the Act is intended only for abolition of the contract system and never to regularise or absorb the contract labourers by the principal employer. The above judgment specifically recommends the absorption of the labourers, where contract labour system is in practice, having the conditions stipulated in S.10(2) of the Contract Abolition Act 1970. The contract labour system practised in such conditions are to be treated as sham contract and workers are entitled to raise disputes regarding the very existences of such practice and ask for their regularisation. In such circumstances those workers can also raise an industrial dispute and the Industrial Tribunal or any other forum bestowed with the powers of adjudication can decide the dispute. In the cases, Vegolis Pvt. Ltd v. The Workmen (1972 (1) SCR 673) and in case B.H.E.L Worker's Association Hardwar & Ors. Etc. v. Union of India & Ors. etc. (1985 (2) SCR 611) and in Dena Nath & Ors. v. National Fertilisers Ltd. & Ors. (1992 (1) SCC 695) the Supreme Court had directed the respective governments to take action for abolition of the contract system. In the case relating to the Catering Cleaners of Southern Railway etc. v. Union of India & Ors. (1987 (2) SCR 164) the Supreme Court directed the railway to pay wages and conditions at work to the contract employees, doing the same type of job done by the employees appointed by the Southern Railway. In the case, Hussainbhai, Calicut v. The Alath Factory Thozhilali Union, Kozhikode & Others 1978 (4) SCC 257) the Supreme Court defined the relationship of a principal employer and the workers engaged through contractors in the perennial process of production, as an integral part of an industry. In the case, Stand-Vacuum Refining Company of India Ltd. v. Its workmen and Others (1960 (3) SCR 466) classified the work of permanent nature, wherein contract could not be given and where the company has an obligation to select them as permanent employees and also gave the right for Industrial Tribunal to decide these factors even prior to enactment of the Contract Abolition Act, 1970. Relying on this judgment Justice Sawant have indicated that the Industrial Adjudicator have the jurisdiction to determine the status of the workers of erstwhile contractor.

One of the main question in the matter of Abolition of Contract Labour System is whether contract employees are employed in the work which is to be done by permanent workers. In such cases, the permanent workers can raise an Industrial dispute with regard to the absorption of the workers. As law stands on today, the contract workers themselves cannot raise that issue. The Supreme Court in this recent judgment directs the government to bring suitable amendments in this respect. After considering all the aspects of the case in detail, Justice Sawant and Justice Majmudar have given their conclusion on the important question as follows:-

(i) In view of the provisions of S.10 of the Act, it is only the appropriate Government which has the authority to abolish genuine labour contract in accordance with the provisions of the said Section. No Court including the industrial adjudicator has jurisdiction to do so.

(ii) If the contract is sham or not genuine, the workmen of the so called contractor can raise an industrial dispute for declaring that they were always the employees of the principal employer and for claiming the appropriate service conditions. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence the provisions of S.10 of the Act will not bar either the raising or the adjudication of the dispute. When such dispute is raised, the industrial adjudicator has to decide whether the contract is sham or genuine. It is only if the adjudicator comes to the conclusion that the contract is sham, that he will have jurisdiction to adjudicate the dispute. If, however, he comes to the conclusion that the contract is genuine, he may refer the workmen to the appropriate Government for abolition of (the contract labour under S.10 of the Act and keep the dispute pending. However, he can do so if the dispute is espoused by the direct workmen of the principal employer. If the workmen of the principal employer have not espoused the dispute, the adjudicator, after coming to the conclusion that the contract is genuine, has to reject the reference, the dispute being not an industrial dispute within the meaning of S.2(k) of the ID Act. He will not be competent to give any relief to the workmen of the erstwhile contractor even if the labour contract is abolished by the appropriate Government under S.10 of the Act.

(iii) If the labour contract is genuine, a composite industrial dispute can still be raised for abolition of the contract labour and their absorption. However, the dispute will have to be raised invariably by the direct employees of the principal employer. The industrial adjudicator, after receipt of die reference of such dispute will have first to direct the workmen to approach the appropriate Government for abolition of the contract labour under S.10 of the Act and keep the reference pending. If pursuant to such reference, the contract labour is abolished by the appropriate Government, the industrial adjudicator will have to give opportunity to the parties to place the necessary material before him to decide whether the workmen of the erstwhile contractor should be directed to be absorbed by die principal employer, how many of diem and on what terms. If, however, the contract labour is not abolished, the industrial adjudicator has to reject the reference.

(iv) Even after the contract labour system is abolished, the direct employees of the principal employer can raise an industrial dispute for absorption of the ex-contractor's workmen and the adjudicator on the material placed before him can decide as to who and how many of the workmen should be absorbed and on what terms.

In view of the finding of the Supreme Court in sub clause (ii), the existing practices of supply of labour by contractors for the jobs which are connected with the production and perennial nature can be treated as an industrial dispute and the Industrial Tribunal can give award to consider them as permanent workers and give them wages as that of the permanent workers doing similar jobs. The employer can have a case that he may not require all the workers employed by the contractor and also he may have a different criteria for appointing the permanent workers. Taking into account, all these contentions the Court can also go into that question of fact and decide it in accordance with merit. The points raised in the above case with regard to competency of the Industrial Tribunal to make recruitment and create contract against third parties was not accepted by the Supreme Court. They have upheld the right of the Industrial Adjudicator to direct the principal employer to engage ex-contractor's workmen as direct employees. To avoid further complications the Hon'ble Supreme Court has given three specific recommendations mentioned earlier, such as directing the public undertakings to discontinue the contract labour, and to absorb as many of the employees as feasible as there are direct employers and (2) the Central Government to appoint a committee to investigate into the labour contract system and (3) to amend the Act with suitable provisions to refer industrial dispute of contract workers to the Adjudicator.

Wits from the Bench and Bar

(Compiled by V.K. Babu Prakash, Judl. I Class Magistrate III, Thiruvananthapuram

Two lawyers got into a wrangle before the judge of a county Court. At last one of the lawyers losing control over his emotions, exclaimed to his opponent "Sir, you are the biggest fool that I have ever had the misfortune to set eyes on". "Order, order" said the judge gravely "you seem to forget that I am in the room".

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A Judge decided that a certain evidence was inadmissible. The lawyer took strong exception to the ruling and insisted that it was admissible. "I knew, your Honour" said he warmly "that it is proper evidence. Here I have been practicing for forty years and now I want to know if I am a fool". The judge quietly replied "That is a question of fact and not of law, so I won't pass any opinion".

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A celebrated lawyer was prosecuting in a case against a burglar. The burglar's wife was in the witness box and the lawyer was conducting a vigorous cross-examination. "I understand, Madam" said he 'that you are the wife of this man. "Yes" said she. "You knew he was a burglar when you married him, a man who at nights robbing respectable people of their hard earned things", “I did” replied the woman.

"How did you come to contract such a marriage?"

"Well Sir", said the lady sorrowfully "I was getting old and plain and had to choose between a lawyer and a burglar and .............." The counsel sat abruptly without further questions.

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Once, a fresh junior lawyer was presenting his brief before a magistrate. He was too nervous to present the matter. "My lord, my unfortunate client.........." he began and in middle of the submission stammered and got tongue tied. Again he started 'My Lord, my unfortunate client, my lord" again he got lost in the wilderness of anxiety. Once again he started "My Lord, my unfortunate client" then paused again whereupon the witty magistrate remarked "Well gentleman now I got why is your client unfortunate".

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Mr. Justice Darling was a wittish and lively Judge. Once in his court a counsel famous for his loquacious tongue was examining a lady witness. He was very diffuse and wasted many time beating the bush around. At last the witty judge thought to intervene. The counsel asked an irrelevant question to the lady. "Well young lady, how many children have you"? Justice Darling soon made his remark "when you began the question she had three".

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Once, in one of the High Courts of England Justice Maule had to face an arrogant witness. As he asserted an answer which the lawyer again questioned with emphasis, the witness still pompously asserted "My lord, you may believe me or not, but I have been wedded to truth from infancy". Justice Maule quietly remarked "Yes Sir, but the question is how long have you been a widower"?

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Once heady Railway Officer was giving testimony before a magistrate. He was a pompous witness who showed much about his authority.

                       Lawyer: "So Mr. Witness who is A"

                       Rly. Officer: "Oh, he is the S.S."

                       Lawyer: "What do you mean by S.S."

                       Rly. Officer:"Don't you know, he is the Station Superintendent".

                       Lawyer: "Then who are you"?

                       Rly. Officer. (Dignifiedly) "I am his Assistant"

                       Then the Magistrate quickly made a witty remark

                       "Oh, I see the ASS".

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During the hearing of a case, the judge rebuked a man for making noise.

"Your Honour" was the reply "I have lost my over coat and I am looking about to find it".

"Well sir" said the Judge. "People often lose their whole suit here without making so much noise".

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In a trial for bigamy the lawyer from the prosecution side dramatically passed a question to catch the attention of the accused so as to alarm him.

"Your Honour, our penal law provides the heaviest penalty for bigamy".

The witty Judge out lashed "Two mothers in law".

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Once a barrister famous for muddle headedness was moving a brief to set aside a calculation in a pleading. It was in the court of Judge Russel who was famous for his humours.

"But on what ground do you move" asked the judge.

"The calculation is unintelligible"

"Not to me" objected the judge "It appears clear to me".

"My lord, if your lordship bears with me a while, I confidently undertake to make it as unintelligible to your lordship as it is to myself. The lawyer snapped.

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Once a lawyer was vehemently defending a divorce suit.

"Is insanity a cause for divorce", My Lord"?

The lawyer asked fervently.

"No it is the cause of marriage" was the swift answer from the bench.

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Once a lawyer was arguing at greater length than was necessary. When the judge mildly remonstrated the lawyer drew himself up and claimed mat some latitude should be shown to the client. Thereupon the judge replied "Mr. Lawyer, I am not complaining about the latitude but only of the longitude".

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A man was found guilty for the charge of rape by a judge. He read out the sentencing part of his judgment as follows: "You are sentenced to undergo rigorous imprisonment for causing hurt with a deadly weapon, an offence within this jurisdiction."