Commissioners

(By V.M. Balakrishnan Nambisan, Advocate, Taliparamba)

In Civil Suits, where the subject matter is immovable property, identification of the property is a must (See Order 7 Rule 3 of C.P.C.) Courts can issue a Commission for this purpose, “ to such person as it thinks fit”, directing him to make a local investigation, survey the property, take measurements, identify it, prepare a plan and report and submit it to the Court (See Order 26 Rule 9 of the Code).

Court can of course issue the Commission to any person (not necessarily an advocate) as it thinks fit. In practice, however, advocates, in most cases juniors, are appointed as Commissioners. When they get it they get puzzled. Because, unfortunately, advocates are not trained in this field. As such, they seek the help of either Village Assistants or Private Surveyors. This causes more expense for the litigants apart from delay in getting the help of Surveyors.

If advocates are trained to do the surveying, there are two advantages; firstly they themselves can do the surveying and prepare the plan and report to their satisfaction. Further, by getting practical training during their early days, they can equip themselves to conduct their own title suits effectively and efficiently.

I would therefore suggest to include land survey as one of the subjects for the law students in their curriculum and request the concerned authorities to give due consideration for this suggestion.

taking cognizance of an offence - the dissillusionment continues

(By V. Ramkumar, Former Judge, High Court of Kerala)

The essential facts discernible from a nascent verdict of the Supreme Court of India in Crl. Appeal No. 844 of 2015 ( 2015 (3) KLT 382 (SC)- S.R. Sukumar v.S. Sunaad Raghuram) handed down (as reportable) on 2.7.2015, are as follows:-

 9.5.2007:    A complaint was filed by one Sunaad Raghuram before the Addl.

                     Chief Metropolitan Magistrate against one Sukumar (A1) and his mother

                     (A2) alleging the commission of offences punishable under sections120B,

                     499 and 500 I.P.C.

18.5.2007:  The Magistrate took cognizance of the offences under Section 200 Cr.P.C. and

                     recorded in part the sworn statement of the complainant and adjourned the

                     case to 23.5.2007 for want of time. The above proceedings were recorded by

                     the Magistrate in the proceedings sheet.

23.5.2007:  Recording of the sworn statement of the complainant was completed. The

                     matter was then adjourned to 24.5.2007 on request.

24.5.2007:  The complainant filed an application for amendment of the complaint by

                     introducing a subsequent event constituting a new cause of action by seeking

                     to incorporate 2 more paragraphs in the complaint.

24.5.2007:  The Magistrate allowed the application for amendment holding that he had not

                     taken cognizance of the offences earlier. He then took cognizance of the

                     offences.

26.6.2007:  The Magistrate permitted the complainant to carry out the amendment and

                     directed the issue of process against A1 alone.

2007:           Aggrieved by the above order A1 approached the High Court by filing a petition

                     (presumably under Section 482 Cr.P.C.) praying for quashing the order dated

                     21.6.2007 passed by the Magistrate contending, inter alia, that there was no

                     provision in the CrPC for amendment of the complaint and that, at any rate, the

                     Magistrate went wrong in allowing the application after he had already taken

                     cognizance of the offence.

21.1.2012:  The High Court dismissed the petition holding that-

                     i)  before allowing the amendment, the Magistrate had not taken cognizance of

                     the offence.

                     ii) no prejudice was caused to the accused.

                     iii) if the amendment was not allowed, then it would have resulted in multiplicity

                     of proceedings between the parties.

2012:           A1 preferred S.L.P. (Crl.) No.4813/2012 before the Hon’ble Supreme Court.

                     Leave was granted and the appeal was numbered as Crl. A. No.   844/2015. :

5.1.15          A two - Judge Bench of the Supreme Court (2015 (3) KLT 382 (SC)) dismissed

                     the criminal Appeal. The following propositions of law/observations made by

                     the Apex Court have surprised the author:-

A)       “Merely because the complainant was examined that does not mean that

the Magistrate has taken cognizance of the offence” (Paragraph 8).

B)       “Only upon examination of the complainant, the Magistrate will proceed to

apply the judicial mind whether to take cognizance of the offence or not

(Paragraph 11).

C)       “Under Section 200 Cr.P.C., when the complainant is examined, the

Magistrate cannot be said to have ipso facto taken cognizant, when the

Magistrate was merely gathering the material on the basis of which he will

decide whether aprima facie case is made out for taking cognizance of

the offence or not” (Paragraph 11).

D)       “It is wrong to contend that the Magistrate has taken cognizance of the

case even on 18.5.2007 when the Magistrate has recorded the statement

of complainant/respondent in part and even when the Magistrate has not

applied his judicial mind” (Paragraph 16).

E)       “Even though the order dated 18-5-2007 reads “cognizance taken under

Section 200 Cr.P.C.”,the same is not grounded in reality and actual

cognizance was taken only later” (Paragraph 16).

2. For the sake of argument we will assume that it is permissible to allow amendment of the averments in a complaint so long as the amendment does not change the character of the original complaint. Even then, what was the need or scope for examining the question as to whether cognizance of the offence was or was not taken ? If as a matter of fact the amendment sought is one which can be allowed since it does not change the foundation of the case as originally pleaded, can it not be allowed even after cognizance of the offence has been taken? Was not the enquiry regarding the factum and the stage of taking cognizance of the offences, an avoidable exercise?

3. Now let us examine the soundness of the propositions of law/observations referred to above. Although the learned Judges have adverted to the binding and oft quoted passages from the decisions of the Apex Court itself, such asR.R.Chari v. State of Uttar Pradesh (1951 SCR 312), Jamuna Singh & Ors. v. Bhadai Sah ((1964) 5 SCR 37), Nirmaljit Singh Hoon v. State of West Bengal & Anr. ((1973) 3 SCC 753), Devarapally Lakshminarayana Reddy & Ors. v. Narayana Reddy & Ors. (AIR 1976 SC1072); C.R.E.F. Finance Ltd v.Shree Shanthi Hornes (P) Ltd. & Anr. ( (2005) 7SCC 467), S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd & Ors. ((2008 (2) KLT SN 64 (C.No.78) SC = (2008) 2 SCC 492,) and Subrahmaniam Swamy v. Manmohan Singh & Anr.( (2012 (1) KLT SN 79 (C.No. 90) SC = (2012) 3 SCC 64), it is respectfully submitted that the essence of the ratio decidendi in those decisions has either been missed or conveniently sculled over by the learned Judges unmindful of the resultant incertitude and confusion. The settled position has been unsettled and chaos has been injected into the consistent, stable and immutable situation. The law, as crystallised through the various rulings of the Apex Court, is very clear on the point. If the Magistrate applies his mind for the purpose of proceeding under Section 200 and the subsequent sections of Chapter XV of Cr.P.C. then he can be said to have taken cognizance of the offences as made out in the complaint. But, if the Magistrate applies his mind not for the above purpose, but for taking action of some other kind, eg. ordering investigation under Section 156 (3) Cr.P.C. or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence.

4. The above proposition of law laid down by Justice Das Gupta of the Culcutta High Court in Superintendent and Remembrances of Legal Affairs, West Bengal v.Abani Kumar Banerji (AIR 1950 Cal. 437)was quoted with approval by the three - Judge Bench of the Apex Court in R.R. Chari (supra) and the other decisions adverted to by the learned Judges in the said decision of questionable authority. The decision inDevarapally Lakshminarayana Reddy (supra) was also rendered by a three - Judge Bench, Another three - Judge Bench of the Supreme Court inGopal Das Sindhi v. State of Assam(AIR 1961 SC 986) also reiterated the above legal position. One more decision which has affirmed the above legal position but which was not adverted to by the learned Judges, is Narayanadas Bhagwandas Madhavadas v. State of West Bengal(AIR 1959 SC 1118). The distinction between Chapter XII Cr.P.C. dealing with the pre-cognizance stage and Chapter XV Cr.P.C. dealing with post-cognizance stage, was succinctly delineated by the Supreme Court in Tula Ram v. Kishor Singh ((1977) 4 SCC 459). The judicial act of taking cognizance of the offence should not be confused with the subsequent act of issuing process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in the complaint or Police report or in the other information. The issue of process is at a subsequent stage. (Vide C.R.E.F. Finance Ltd v. Shree Shanthi Homes (P) Ltd & Anr.((2005) 7 SCC 467) and State of Karnataka v. Pastor P. Rajan ((2006) 6 SCC 728). (See in this connection the illuminating article authored by Advocate Sri. M.A. Rashid titled “Anil Kumar’s case(2013) 10 SCC 705 violates binding precedents”)

5. Thus, if the Magistrate after applying his judicial mind to the avernments in the complaint decides to record the sworn statement of the complainant under Section 200 CrPC (i.e. decides to proceed under Chapter XV Cr.P.C.) he can legitimately be said to have taken cognizance of the offence. Even the actual recording of the sworn statement under Section 200 Cr.P.C.. is not necessary. For instance, we will take a hypothetical situation:

After applying his judicial mind to the factual matrix recited in the complaint the Magistrate records the following in the “proceedings sheet” at 5 pm.-

“Complainant present. For want of time, the case is adjourned to tomorrow for recording the sworn statement of the complainant and his witnesses, if any”.

6. Here the Magistrate has decided to proceed under Chapter XV Cr.P.C. Hence the Magistrate can legitimately be said to have taken cognizance of the offence. He cannot thereafter retrace his steps back to the pre-cognizance stage and forward the complaint to the Police under Section 156(3) Cr.P.C. (See Adalat Prasad v. Rooplal Jindal (2004 (3) KLT 382 (SC) = (2004) 7 SCC 338).

 I am, therefore, with due respect, of the considered opinion that the two - judge Bench in Sukumar’s casewas wrong in laying down the propositions of law marked as A to E in paragraph 1 above and they tend to confuse, if not mislead, the entire hierarchy of courts particularly the Magistrates in the whole nation. The said verdict deserves to be over-ruled at the earliest.

Rule Only Observed In Breach

(By K. Ramakumar, Sr. Advocate, High Court of Kerala)

Order XX Rule (1) of the Code of Civil Procedure, a Code, once upon a time, considered the Bible for trial court lawyers, reads as follows:-

“1. Judgment when pronounced -- (1) The Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders:

Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders.”

This is affirmed in Rule 180 of the Civil Rules of Practice, Kerala, which reads as follows:

“Date of pronouncing judgment:-- Unless the Court pronounces judgment immediately after the conclusion of the hearing, the case shall be adjourned to a specified date for pronouncing judgment and judgment shall not be pronounced on any day to which the case does not stand adjourned for the purpose unless notice has been previously given to the pleaders” While Section 354 of the Code of Criminal Procedure does not prescribe any time limit, Rule 132 of the Criminal Rules of Practice mandate recording of reasons for delay.

Who observes the above provisions these days? None at all. No judgment either in the High Court or in any one of the courts in Kerala is pronounced within the time stipulated by the salutary statutory provisions. The rule is breached every time often delaying the judgments for years together particularly in the High Court. You may feel I am exaggerating when I say that some judgments are pending for more than four and half years after arguments are heard. An adamantine truth all the same. In one of the cases a distraught mother whose daughter was suspected to be murdered in a Lady’s Hostel and who had got an order for enquiry by the Central Bureau of Investigation from the High Court, had to stage a silent protest along with her women friends with their mouths covered by black clothes. Itimmediately yielded results. The judgment was immediately rendered and a copy furnished.

Do the dispensers of justice expect every litigant to resort to such exfoliating tactics? If they do, it will indeed be an unfortunate day for the entire judiciary in the country as the same survives still as the last hope of the common man, whom all other institutions have wholly failed. Why are judgments so much delayed? Long arguments? Inadequacy? Overload of work? Indifference or lack of commitment? It can be anyone of them but all equally unsupportable and wholly unjustifiable. Anil Rai rendered long back (2001) is the law of the land under Article 141 of the Constitution of India. Yet that law is also breached showing disrespect to the highest court of the country.

There are two branches of criminal law, the contours of which are by now far too well settled not warranting time consuming adjudications. They are applications for bail and petitions under Section 482 of the Code of Criminal Procedure. The Apex Court has authoritatively spoken on every facet of those two, by series of decisions. Yet applications for bail are held over for days together often leading to unjust and continued incarceration and threat of imminent loss of freedom to many. How can this be justified in a democratic country where Articles 21 and 22 proclaim the prime importance of individual freedom along with Article 19 of the Constitution of India? Even those who were not initiated into practice on the criminal side will find no difficulty in quick disposal of applications for bail and miscellaneous petitions under Section 482 of the Code of Criminal Procedure.

This should not happen in a Court where there are Judges who commanded large and lucrative practice in the past in all branches of law after abrilliant academic career. [See journal section of Kerala Law Times] One should not however fail to respectfully and gratefully acknowledge that majority of our Judges do pronounce promptly judgments with the sense of urgency needed. This therefore, is a lachrymose lament.

Why should there be an excruciating and yawning gap between close of arguments and pronouncing judgments and providing copies of the judgments to the ordinary litigants? Lawyers throughout the State and those who run an institution which should be the best managed public institution of the State should ponder over this matter and take appropriate measures. Of course without delay.

Public Service Commission - Some Lines of Thought

(By O.V. Radhakrishnan, Advocate, Ernakulam)

Public services under a democratic system of Government hold a pivotal position. Our Constitution has adopted the working of the British Civil Service under open competitive examination and avoided the spoils system in America. The Public Service Commission, under our Constitution, is an advisory and consultative body. It is legally independent, but its powers depend upon the terms of the statute. Expand a little, it cannot exercise powers that are not specifically conferred on it and cannot breach any statutory barricade. The Commission is powerless to discharge its constitutional obligations in respect of services that are not brought within its purview by legislative wand or executive fiat.

Art.320(1) refers to "appointments to the Services of the Union and the Services of the State" and the proviso to Art.320(3) refers to "services and posts in connection with the affairs of the Union and to the services and posts in connection with the affairs of the State". The expression "Services of the Union and Services of the State" would embrace services under all the departments of the Government and the Services constituted by the Union of India and the State Governments. Art.321 of the Constitution of India empower the Parliament or the Legislature of the State as the case may be, to provide for the exercise of additional functions by the Union Public Service Commission or the State Public Service Commission as respects the services of the Union or the State and also as respects the services of any Local Authority or other body corporate constituted by law or of any Public Institution. Efficient functioning of the Government depends upon the efficiency of the personnel working for and under the Government. Efficiency demands proficiency and proficiency is a variable quotient of merit and suitability of candidates for appointments to various departments. The Commissions have been set up with aplomb and assurance as an independent body insulated against political, governmental and other authorisation influences and pressures. The job seekers, the Government and the general public expect a rational and reasonable procedure and process of selection for finding out suitable and meritorious candidates for appropriate posts in various public services.

The constitutional task assigned to the Commission is to conduct examinations for appointments to the services of the Union and the services of the State respectively under Art.320(1) of the Constitution of India. Art.320(3) provides that Public Service Commission shall be consulted in respect of all matters falling under sub-clauses (a) to (e) of that Clause that do not relate to selection and recruitment to services under the Union or the State. There is thus a clear dichotomy between clause (1) and clause (3) of Art.320. Consultation contemplated under clause 3 does not mean concurrence. The omission or irregularity in making consultation is not justifiable either. It is settled that in default of consultation, the action of the Government would not become inoperative and void. Nonetheless, consultation would be mandatory when the word 'shall' is used in a Rule or Regulation made by the Government.   

Now, let us disabuse our mind of certain misgivings associated with the powers of the Commission in regard to the conduct of examinations in the exercise of the power under Art.320(1) of the Constitution of India. Art.320(1) or for that matter any of the provisions of the Constitution does not lay down that all appointments to the services of the Union or the State shall be made only on the advice of the Public Service Commission. The power and authority of the Commission to hold examinations for appointment to the services of the Union or the State can be exercised only in respect of those 'services' those are brought within the purview of the Commission by law made by the appropriate Legislature or Rules made under the Proviso to Art.309 of the Constitution. The legislative heads are found in Entry 70, List I of Schedule VII and Entry 41, List II of Schedule VII. In the absence of any such law or rule requiring the Government to make first appointments to services of the Union and Services of the State on the advice of the Public Service Commission, the Commission is not called in to play. The power of the Government to include in or exclude any service from the purview of the Public Service Commission is unguided and unbridled. In this context, it is relevant to refer to R.3(a) of the Kerala State and Subordinate Service Rules, deemed to have been made under the Kerala Public Services Act which provides that all first appointments to the Service shall be made by the appointing authority on the advice of the Commission in respect of posts falling within the purview of the Commission and in all other cases, by the appointing authority from a list of approved candidates prepared in the prescribed manner. The expression 'service' is defined in R.2(15) of the said Rules to mean 'a group of persons classified by the State Government as a State or Subordinate Service as the case may be'. Rr.7 and 8 of the Kerala Civil Services (Classification, Control and Appeal) Rules make the classifications. R.7 of the said Rules provides that the State Services shall consist of the Services included in Schedule I. R.8 provides that the Subordinate Services shall consist of the Services included in Schedule II. Therefore, the services that are not classified either as State Service or Subordinate Services fall outside the gamut of the Commission. To all other services, appointments would be made by the appointing authority from a list of approved candidates prepared in the prescribed manner.

In Canada, Australia, South Africa and certain other Countries appointments, promotions and transfers lie exclusively within the hands of the Public Service Commissions. The makers of our Constitution were very particular to provide means and measures to make the Public Service Commission independent and fearless by prescribing a cumbersome process for removal and also prohibiting holding of offices by members of the Commission on ceasing to be such members. Art.322 of the Constitution of India provides that the expenses of the Union or a State Public-Service Commission including any salaries, allowances and pensions payable to or in respect of the Members or staff of the Commission shall be charged on the Consolidated Fund of India or as the case may be, Consolidated Fund of the State. The above provisions are intended to ensure independence of the members of the Public Service Commissions so that they will not be susceptible to any allurement of employment, under the Government after expiry of their term of Office in the Commission and also to ensure independence from Governmental interferences.

After giving strong constitutional protective vestments, the Constitution-makers did not provide a clause in the Constitution that no appointments to Public Services under the Union or the State shall be made otherwise than on the advice of the Commission, which would achieve the avowed object in setting up the Commission. Needless to say, the 'Service' is the soul of administration and the Government can function well and make progress only if the Civil Services are efficient and organised and the Services are manned by persons who would be neither "after the smiles of the Government nor would be afraid of their frowns". It is essential that all the Civil Services are brought under the penumbra of the Public Service Commission for efficient and dynamic functioning of the Government.

It is Art.316 of the Constitution of India that deals with appointment and term of office of members of the Commission. The Chairman and other members of Public Service Commission shall be appointed in the case of the Union Commission or a Joint Commission, by the President and in the case of a State Commission, by the Governor of the State. It is provided thereunder that as nearly as may be, one-half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least 10 years either under the Government of India or under the Government of a State. It is a subliminal provision without indicating any level or cadre of the Government servants who are eligible to be appointed as Members. The Public Service Commission being the highest constitutional body set up for discharging constitutional duties under Art. 320 of the Constitution should have members who are academically highly qualified and occupying high echelons in service having profound experience and learning and also having familiarity with setting and procedures. They should be equipped with cutting-edge technological information and ability to grasp crucial matters in issue. The Governor, who is the appointing authority of the members of the Commission is acting on the advice of the Council of Ministers. The present day Governments are making appointments out of political, communal, regional and other considerations and in the absence of any provision in the Constitution prescribing definite eligibility criteria for appointment as members of the Commission, the power of appointment is likely to be abused. Moreover, Government Servants at the lower echelons of the services are generally bereft of administrative experience needed for the job of a member of the Public Service Commission. In like manner, no criteria whatsoever have been laid down in regard to non-officials to be appointed as members of the Commission. Therefore, the Government would be influenced by subjective factors and would be subjective in its approach. It is in the fitness of things that non-official members should be distinguished Jurists and professionals with good academic background and administrative acumen. If a specific provision obligating the Government to make appointment of such erudite persons of the Society is provided in the Constitution, the power can no longer remain licentious. To put it differently, prescription of requisite qualifications and eligibility conditions would act as a damper upon the propensity for deviant conduct.

Under Art.318 of the Constitution, power is given to make regulations as to conditions of service of members and staff of the Commission. In exercise of the power under Art.318, the Governor of Kerala has made the Kerala Public Service Commission (Composition and Conditions of Service of Members and Staff) Regulations, 1957. It only deals with composition, conditions of service, etc., of the members of the Commission and its staff and the qualifications for appointment of members of the Commission remain undefined.

Employment under the State and under the Public Sector Undertakings is national wealth and public property. Recruitment to the public services must be transparent and above suspicion. The happiness and well-being of the people depend on competent, efficient and incorruptible officials devoted to the public good - A service which does comport with the known pattern of a responsible Government bound by rule of law.

Back Wages on Reinstatement is not the Normal Rule

(By Advocate H.L. Kumar)

The Industrial Disputes Act helps the needy and not the greedy. The labour laws are enacted not to harass the employer but to get the injustice undone. The machinery, as provided under the law, cannot be exploited by unscrupulous employees to extract money from the employer in a clandestine manner by abusing the process of law. Of late, the Apex Court has also clarified that the termination of a workman has been set aside, the award of back wages is not the natural consequence. But a lot of money of employers has also flown under the bridge of archaic rule that prevailed for more than five decades providing that full back wages is a concomitant of reinstatement of a workman.

Most of the pending cases in the Labour Courts and Industrial Tribunals pertain to dismissal/discharge of the workmen and linger on for adjudication and ultimately in majority of such cases reinstatement with full back wages is awarded even when the workmen remain gainfully employed since no able bodied person can remain unemployed provided he is willing to work. With passage of time, such workmen are least interested in their reinstatement but make their fortune in getting full back wages for the period when the dispute was pending in addition to their earning by self or gainful employment by abusing the process of law. All along over five decades, the Labour Courts and Industrial Tribunals have been holding that grant of full back wages is a normal consequence when termination of a workman is held either illegal and/ or unjustified and the higher Courts have also been upholding such awards. However, recently the Supreme Court has observed that the payment of back wages is not automatic entitlement to a workman since it is discretionary and has to be dealt with in accordance with the facts and circumstances of each case1. It is heartening that though late, the Apex Court in another case, has held that when termination of a workman is set aside, the award of back wages is not the natural consequence2.

Anybody, having the elementary knowledge of labour laws, knows it well that while challenging his discharge or termination, an employee makes a general prayer that he should be taken back on duty with full back wages and all other consequential benefits.

No doubt, the principles of natural justice ordain that if a workman has been wrongly, disproportionately or illegally punished, he should be duly compensated. It is pertinent to mention here that as and when a workman challenges his dismissal, he demands reinstatement with full back wages till the award is passed by the adjudicator. Every worker invariably pleads and states in evidence that after he has been rendered unemployed, he could not find any job. On this assertion itself, the burden of proof shifts upon the employer to prove the gainful employment of the workman, as held by the Supreme Court3. This principle of onus of proof, as laid down the Apex Court, is being followed by the adjudicators and the High Courts. In 2003 itself, the Madhya Pradesh4 and Punjab & Haryana High Courts5 like other High Courts, Labour Courts and Industrial Tribunals have reiterated that the burden of proof is upon the employer to establish gainful employment of the workman during pendency of adjudication proceedings.

The workman's logic is that he should not be allowed to suffer for no fault of his own. But it is not as simple a matter as it appears to be. On the one side, if untrained and obstinate management commits mistakes, the workers also do not lag behind. No party can claim to be lily white.

It is also a common knowledge that ours is a litigation-loving society. That is why our courts are always cramped and crowded. On an average, it takes nearly eight to ten years to get a case adjudicated notwithstanding that the proviso to sub-s.(2A) S.10 of the Industrial Disputes Act, 1947 provides that where an industrial dispute as referred for adjudication is connected with an individual workman, the period of adjudication should not exceed three months. If the award is challenged in the higher Courts, then it takes another five to fifteen years. Even during pendency of such disputes, the employer has to pay last drawn full wages every month to the concerned workman besides depositing of the awarded amount as per S.17B of the Industrial Disputes Act.

While claiming full back wages, the provision of the law is that the employee must not be in 'gainful employment'. Now the million dollar question is, how can anybody survive in this world for years together without any gainful earnings? Can anybody have sufficient resources at his command that without doing any work he will carry on his dispute in the Courts? Litigation also requires money. Therefore, a workman will not have to earn money only to keep his hearths burning but also to meet out the expenses on litigation.

Many a time it has been observed that most of the workmen fight their cases in courts on the one side and on the other engage themselves in lucrative business activities. There are innumerable instances where workers, being thrown out of job for their misconducts, have rolled in money and at the same time got awards from the Labour Courts/Industrial Tribunals in their favour notwithstanding that they got back wages as if they have been in the employment with the management whereas double employment is prohibited in all the Shops & Establishments Acts of the States and the Factories Act. Lady luck smiles on them from all sides.

Knowing fully well that a workman is not only gainfully employed but he is in a position to provide employment to others, the employers or for that matter even courts cannot do anything for want of any conclusive and clinching proof. Here, it must be noted that the burden of proof about the gainful employment of a workman is on the management and not vice-versa. Simply stating that he is unemployed will shift the burden upon the management to prove the' 'gainful employment' of the workman. Some detective agencies have been rendering such services to find out the gainful employment of the workmen and the employers have to pay them through nose but results are rarely positive since workmen hardly leave any apparent proof of their gainful employment and sometimes even change their names and receive the remuneration in the name of someone else. Such workers become adept in playing the game of hide and seek. It is not for the workman to prove that he has remained unemployed for so many years. It is also not for him to prove that he has lived in penury, as repeatedly held by the Supreme Court and High Courts6.

This lacunae has often been misused and abused by cunning and wily workmen actively supported and prodded by the trade unions. But at the same time it must also be mentioned here that this provision has done great damage to some workmen also because they could not prove themselves smarter than their managements. When exposed, they have to face humiliation and humble pie. In fact, with passage of time, they become interested only in receiving back wages and not in their reinstatement.

So, there are two facets of this provision of the law. One, which is twisted by unscrupulous people in their own favour and the other one is that a gentle and not so cunning workman has to suffer. For instance in one case, the Bombay High Court has observed that the Labour Laws are not meant to harass the employers but to get injustice undone. Hence, this machinery cannot be exploited to extract more money from the employers in an unjust way. It has been very clear from the conduct of the workman that he is not interested in reinstatement. And since he was offered reinstatement in 1992 by the employer, he will not be entitled to get any wages from the date of that offer which was not accepted by the workman7. In another case, the Punjab & Haryana High Court has held that the Industrial Disputes Act helps the needy and not the greedy. The facts of the case were that the workman has admitted that he was working with his father in the Northern Exchange at Chandigarh. He has stated, in his evidence, that his father is a member of the Exchange. On perusal of the file and after hearing the parties, it was found that the petitioner has not been interested in the job and that he actually wanted to garb the arrears of salary on one pretext or the other. Also, as far back as September 6, 1995, the employer had filed a detailed reply to the workman's demand notice before the Assistant Labour Commissioner. In this reply, it has been inter alia, pointed out that the petitioner had raised the demand after more than one and a quarter years, as he was really not interested in the job. While rejecting his claim, the Court held that in fact, "he is gainfully employed in his exchange business. Even otherwise, a qualified person, holding Master's Degree in Commerce, cannot remain unemployed at a place like Chandigarh."8

There are many cases where the workmen are not interested to join duties despite offers by the employers but pursue their cases as if their services are wrongly terminated. Their aim is to extract money from the employers. Reference is made to one case where the workman alleged that his services have been illegally terminated but the employer rebutted his plea. Notwithstanding that the Labour Court granted 50% back wages on his reinstatement. In a writ petition filed by the employer the Bombay High Court held that awarding 50% back-wages by the Labour Court on reinstatement of a workman, who has persistently refused to resume duties despite repeated offers by the management and even ignoring the advice of the Conciliation Officer to resume work, will not be justified and as such the High Court thus modified the award of the back-wages, as granted by the Labour Court9.' The High Court has relied upon its earlier judgment wherein the concerned workman has declined to accept the unconditional offer of the management to resume his duties. While denying the back wages on reinstatement their Lordships observed that "it is not disputed that the offer of reinstatement was unconditional, what was contested was the acceptance of a smaller amount, perhaps, out of the back wages. Nothing prevented the first respondent from accepting reinstatement and containing to buttress his claim for back wages before the Competent Court."10

The above views are the glaring examples of the inherent flaws of the law. This needs to be changed for the advantage of both; employees and employers. If the law is made simple; so that the delinquent employee can be easily got rid of, after paying reasonable compensation, then no party will try to take advantage of the complexities of the court procedures. At the same time, innocent workmen will be saved from a great deal of sufferings and hardships.

The provision of 'gainful employment' must also be dispensed with. No skilled, semi-skilled or even unskilled workman can remain unemployed provided he is interested to work. Therefore, a workman should be allowed to work somewhere but if he wins a case, some amount of lump sum compensation should be paid to him irrespective of whether he was gainfully employed or unemployed. For instance, an employee challenged his termination order dated 7.12.1983 and the Delhi High Court in an interim order dated 5.3.2000 directed his reinstatement which was challenged by the Company. The Supreme Court modified the order of the High Court in holding that compensation in lieu of reinstatement with back wages would be appropriate relief to the employee more so when he has lost the confidence of management11. This will save both the parties from harassment and 'hide and seek game for concealment of facts.

All said and done, if the case of dismissal or discharge is adjudicated upon, a point must be taken into consideration that anybody who has committed wrong must be punished as per the theory of 'ubi jus ibi remedium' .If the management has committed irregularity or illegality, he must suffer the consequences but it should not be in the shape of awarding backwages to the workmen on his reinstatement because that leaves more questions than answers to the problems that have beset the industrial relationship. The change in law can be brought about by the Legislature but a lot can be done by the judicial pronouncements. In this context, the role of labour courts has to be proactive to have the conducive atmosphere for industrialisation.

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1. Ram Ashrey Singh & Anr. v. Ram Bux Singh & Ors. (2003 LLR 415 (SC)).

2. M.P. State Electricity Board v. Smt. Jarina Bee (2003 LLR 848).

3. Hindustan Tin Works (Pvt.) Ltd. v. The Employees of Hindustan Tin Works (Pvt.) Ltd. & Ors. (AIR1979SC7'5).

4. Sachiv, Krishi Upaj Mandi Samiti Anjad (Barwani) v. Shobha Barge (2003 LLR 462 (MP HC)), Sachiv, Krishi Upaj Mandi Samiti, Anjad (Barwani) v. Kalyan Singh & Anr. (2003 LLR 489 (MPHQ)).

5. Angrez Singh v. State of Punjab & Anr. (2003 LLR 794 (P & H HC)).

6. Jati Pal Singh v. Industrial Tribunal No.5 at Meerut and Ors. (1996 LLR 1082 (All. HC)), Hindustan Tin Works v. Its Employees (AIR 1979 SC 75; M.P. State Co-op. Marketing Federation Ltd., Bhopal v. Presiding Officer, LabourCourt, Raipur & Anr. (1996 LLR 656 (MPHC).

7. M/s. Purafil Engineers, Pune v. Shaikh Anwar Abdul Rahman (2000 LLR 268 (Bom. HC)).

8. MukeshKhannav. Chandigarh Administration, Chandigarh & Anr. (2000 LLR 168 (P & H HC).

9. R.K. Kitchen Equipments, Mumbai v. Majid Yusuf Hurape & Ors. (2003 LLR920 (Bom. HC)).

10. Kala Silk Factory v. Phankoo Bakas Yadav & Ors. (1992 LLR 107 (Bom. HC)).

11. Indian Railway Construction Company Ltd. v. Ajay Kumar (2003 LLR 337 (SC)).