TEACHERS DESERVE GRATUITY

Gratuity Act to be amended urgently to plug the loop holes

(By Advocate Gaurav Kumar. New Delhi)

The Supreme Court judgment dated 13'" January, 2004 in Ahmedabad Primary Teachers' Association v. Administrative Officer & Ors. (2004 (1) KLT470 (SC)=2004 LLR 97 (SC)) holding that a teacher cannot be classified as 'employee' under the Act since a trained teacher is not described in industrial field or service as a skilled employee. This ruling has shocked the teaching community and surprised others. The Court has based its judgment on a reading of the Payment of Gratuity Act, 1972 as it stands now that such adjectives, generally, is used for an employee doing manual ortechnical work. Similarly, the words "semi-skilled and unskilled" are not understood in educational establishments as describing the nature of job of untrained . teachers. The Bench added that even if teachers do some administrative work occasionally as part of their duty, they don't carry out the job in managerial or administrative capacity.

The Bench, however, observed that there are already,           Neither celebration of Teachers Day annually,

in several States, separate Statutes, Rules and                         nor any number of accolades, awards or

Regulations granting gratuity benefits to teachers in             acclamation of the teachers, that they are

educational institutions which are 'more or less'                    missionaries in the noble cause of education,

beneficial than the gratuity benefit provided under                  would take place of bread and butter for them.

the Act. But this will also not solve the problem. For             Howsoever high sounding showers of praise for

instance, a reference is made to S.10 of the Delhi                 their essential services to the society, after

School Education Act, 1973 inter alia providing that              retirement they need gratuity more than the

the scales of pay and allowances, medical facilities              certificates and the wordy-homage to their work

, pension, gratuity, provident fund and other prescribed          which cannot solve their post-retirement

benefits of the employees* of a recognised private school      problems. Therefore, what they need first is the

shall not be less than those of the employees of the             gratuity to buy some food for their survival.

corresponding status in school run by the appropriate                                 Hon'ble Justice R.J. Kochar

authority......                                                                                                     Bombay High Court

The words 'corresponding status' refer e.g. appropriate authority to those teachers who are employed in the Government schools. Their gratuity under the captions 'Service Gratuity' and 'Retirement/Death Gratuity' is regulated by Rr.49 and 50 of CCS (Pension) Rules, 1972.

The above rules No.49 and 50 are extracted from the Central Civil Services Pension Rules, 1972 and its Cl.(d) categorically excludes the persons who are entitled to a Contributory Provident Fund. Since the teachers are also covered by the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 which was extended upon the Schools w.e.f. 1982, this may lead to further complications. While applying the strict principles of interpretation, the teachers as covered under the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 cannot claim gratuity as of right even on their retirement what to speak on resignation as provided under the Payment of Gratuity Act.

In view of the above, it becomes imperative that the Law Ministry must get down to the job of drafting an amendment that the teachers should be covered by the Act. No doubt, "teaching" is a noble profession. But when such a huge population requires education, it should be considered as a profession that needs high quality. Compared to other professions, teachers in India are underpaid specifically at the school level. Education is a progressive discovery of ignorance and when you educate a woman, the whole family is uplifted. Thus, to encourage imparting of gratuity, education, on which progress of a nation rests, there is an urgent need to amend the Payment of Gratuity Act, to accommodate teachers for payment of gratuity. On the conclusion of the judgment, the Bench in the judgment that "it is for legislature to take cognizance of the situation of such teachers in various establishments where gratuity benefits are not available for them in this regard", the Union Minister for HRD being himself an educationist had immediately reacted in stating that "in my opinion the teachers should be allowed to have gratuity".

Reference is made to a judgment of the Bombay High Court in General Education Academy, Chemburv. Smt. Sudha Vasudeo Desai & Ors. (2001 LLR 627 (Bom. HC)) wherein Justice R.J. Kochar has observed "neither celebration of Teachers Day annually, nor any number of accolades, awards or acclamation of the teachers, that they are missionaries in the noble cause of education, would take place of bread and butter for them. The bestowed good words do not buy even 10 grams of sugar needed for the milk for their chi1dren. Howsoever high sounding showers of praise for their essential services to the society, after retirement they need gratuity more than the certificates and the wordy-homage to their work which cannot solve their post-retirement problems. Therefore, what they need first is the gratuity to buy some food for their survival. I do not know whether a man cannot live with bread alone but I certainly know that a man cannot live without bread. A hungry teacher can never fulfil the desire for good education. Even a missionary need fire in his belly to keep his spirit high. If I were to interpret the term 'employee' to exclude the teachers there from to deny them the bread for their evening of life, I would be wholly failing to the Constitution and also betraying the philosophy so well expounded by the Supreme Court in several cases while interpreting the endeavour of the State to materialize the Directive Principles enshrined in the Constitution".

While reacting upon the judgment of the Apex Court, the Secretary in the department of Elementary Education and Literacy, Mr. S.C. Tripathi said, "The Supreme Court has ruled as per its discretion, but the Act may need to be amended as teachers come in the category of employees". Talking of the age-old concept of gurus, he said, "When village committees engaged a person to teach children, he was highly esteemed and had a certain stature. But things have changed now. Today, teachers are like any other employee", he said

It would not be fair to blame the court for denying gratuity to the teachers since the court has only interpreted the law as it is framed. The onus for rectifying this situation lies with our lawmakers. What they need to do is to bring the letter of the law in line with its spirit. Now that the Apex Court has discovered the infirmity in law concerning teachers, it is possible that there may be other categories of employees also who may find themselves in eligible for the benefit on a strict interpretation of law. The solution lies in adopting a wider definition of the term 'employee' as, for instance, in the Provident Fund Act, 1952 but it should not take too much time since there is no likelihood of any opposition. Whether the ministry and our lawmakers will design to find time to do it, is another matter. Hopefully, since the HRD Minister himself being an educationist is seized of the matter, we should see some progress soon. Gratuity is a major social security measure available to employees at the end of their service and it provides them a safety net in times when they are unable to work. There is thus no reason to deny an important social security benefit.

_______________________________________________________________________

* Under S.2(1) of the Delhi School Education Act, "employee" means a teacher and includes every other employee working a in recognized school.

PROTECT PREGNANT WOMAN

(By S.A. Karim, Advocate, Trivandrum)

In many matters law leans to fair sex. In civil decree a woman is not send to prison. Hindu Marriage Act provides alimony to wife for maintenance and case expense. Guardian and Wards Act prefers mother for the custody of minor children. Similar is the case with Muslim personal law - Sharia, and other personal laws. Criminal Procedure Code, makes bail easier to woman. It further enables woman to claim maintenance on prima facie evidence. The same law prevents woman from going to the police station for questioning in criminal cases. At the same time law directs the police to go to the woman's place and record statements. Vanitha police station is a recent development and an exception. These are some of the privileges a woman enjoy in day-to-day life. This is not available to a man. It points the society's concern to the fair sex and their safety and security.

In recent times pregnant woman becomes accused, ends in conviction and sentenced to prison in large numbers. Conception and birth is an usual affair of every woman. During pregnancy one has to follow healthy meal plan, moderate and regular physical exercise, maintain healthy weight, so on and so forth. Indeed, medical attention is another unavoidable aspect. Apart from all these, presence and attention of dear and near ones is a must. If such protection lacks, it affects the mother as well as the foetus in the womb. Medical science says foetus is a living body that develops to a baby. Foetus is an unborn child and the law considers unborn child is another person. Despite advancement of medical science, pre-natal and post-natal care, delivery is hard one.

When a pregnant woman who needs medical protection, parental care, and other basic needs, happens to be convicted and sentenced to prison, the court convicts and sentence not only the accused but also an innocent unborn child. In my view a pregnant woman, if found guilty, shall not be sentenced to prison till one delivers and recovers from health. A woman in service gets maternity leave and period to recover one's health. Like wise a law needs to be enacted to suspend the sentence to prison of a pregnant woman till she delivers and recovers health.

SERVICE OF PROCESS AT WHOSE COST?

(By T.M. Rajasekharan, Advocate, Calicut)

A Division Bench of the Kerala High Court in Jayalaxmi v. Avara (2003 (2) KLT 901), following the Supreme Courts' ruling in Malkiat Singh v. Jaginder Singh (AIR 1998 SC 258), condoned the delay of 335 days in filing Petition to set aside the ex-parte decree by accepting the plea that the Petitioner was not informed of the progress (or to be more appropriate, halt of the progress) of her case. The High Court further held that in all cases where the counsel reports "no instruction", the court shall issue notice to the parties. Much time did not elapse when a Single Bench of the Kerala High Court held that if the parties could not be served with notice in criminal matters before the High Court, notice should be sent to the counsel who holds Vakalath in the Subordinate Court (2003 (3) KLT 454).

Two interesting and important questions arise: (1) Should the State bear the process expenses in a civil litigation and if the answer is in the affirmative, is there a fund allocated for the same? and (2) Can a lawyer be burdened with the responsibilities of searching for his hibernating client?

The law does not empower the civil courts to meet the expenditure for service of process. It is the duty of the litigant who approaches the civil courts to bear such expenses, by paying the requisite process fee. Experience shows that litigants are made to spend much more than what they pay as process fee to get the notice "served" properly and in time for reasons that are obvious. The petitioning litigant cannot be asked to pay the process fee or to meet the service charges after the other side appears before the court, just for the reason that the lawyer on the opposite side reports "no instruction". Now it looks that this judge made law forces the court to send notices to the party at its own expense. What if such notices can not be served even after repeated summons? Should the court proceed with substituted service at huge cost? The situation can be imagined if there are innumerable parties to be served in some cases. Sadly, that our subordinate courts are not properly equipped to meet such contingencies has escaped consideration by the High Court.

The legislature, before introducing any bill for enactment, gets clearance from the Ministry of Finance. Can there be a non-consideration of financial and other burdens when the judges make laws, procedures etc.?

What must be realised is that it is only in pressing and unavoidable circumstances that a lawyer reports "no instruction". Normally, no Advocate would like to abandon a brief or a client. It is only when the client is lethargic inspite of warning that a lawyer is forced to withdraw from such cases. Many a time, there would not be time to issue registered notices to all erring clients. That time factor depends upon the circumstances of each case. It should not be forgotten that there are Rip Van Winkles among clients. At times they are totally callous and grossly irresponsible towards their own rights. The golden rule that "the law does not help the one who does not help himself is to be remembered. An Advocate is not supposed to go in search of such clients, more so these days when the courts as a rule are reluctant to grant adjournments for whatever reasons they be. Advocates cannot go on with their work without active assistance, co-operation and help from the clients, leave alone the financial side of the matter.

The decision of the Supreme Court in 'Malkiat Singh & Ors. v. Joginder Singh & Ors.', and the earlier one in 'Tanil Ram Issardas Sedarjaini v. Ramachandra Issardas Sadaranjini' (1992 AIR SCWR 3445) were under totally different situations. In the earlier decision, the counsel reported 'no instruction' after the examination and cross examination of two witnesses for the plaintiff were completed. Admittedly his client was no where in the Court and probably the Advocate could not proceed with the case in his absence.   In the latter case also "no instruction" was reported when the parties were not in the court. But on both the occasions the respective clients approached the court to get the ex-parte order set-aside without delay and no complaints were made against their counsel. The situation is vastly different in Jayalaxmi v. Avara, where the Petitioner suddenly reapproaches the court after nearly one year of the decision in her case when the execution proceedings shook her up. Strange that nine years after a surgical operation she could visit the doctor "atleast twice a month", but did not call on her Advocate's next door even once during one of such visits. Her concern for health is understandable but lack of it for legal right in non-exclusable. With great respect I submit that the decision of the Division Bench would act as an encouragement to those litigants who neglect their cases and later on blame the counsel despite their own latches and.omissions. Such litigants are curses of the judicial system and they do great harm to the legal profession.

ART OF ADVOCACY

(By T.P. Kelu Nambiar, Senior Advocate)

*Special Address delivered by Senior Advocate T.P. Kelu Nambiar, on 22.11.2003, at the Valedictory Session of the State Level Competition on Art of Ad vocacy for Junior Lawyers, held at the National Institute for Advanced Legal Studies (NIALS), Cochin.

Years ago, when I was a fledgling lawyer, I saw the great Judge Sri. Justice M.S. Menon, (who later became Chief Justice of the High Court of Kerala), pouncing upon Advocate Sri. V.P. Gopalan Nambiar, (my erstwhile Law Teacher), who later became Judge and Chief Justice of the High Court of Kerala, observing:

"Is this the way to argue on appeal?". Pat came the answer: "My Lord, there are several methods of arguing a case; and I am adopting one such method". The learned Judge said: "Yes. you may proceed". The arguments were continued; and Sri Nambiar won the case.

This was an experience to me. I learned a lesson from the incident. Sri. Nambiar's art of advocacy was flawless. He handled his profession with poise, working hard and living it up.

The legal profession is a great, glorious, noble profession. We have to show positive commitment tothe profession. We should not forget the profession's excellences.

Both hard work and neat arguments are essential, to enjoy professional eminence in peace. When two things are essential, they are not alternatives, just like comparisons being possible only when there are options available. Achieve good results, without being over-anxious to 'show-case' your achievements. Advocacy is a difficult terrain. Therefore ride carefully. You cannot win a case by inspiration, but only by preparation. We should have total concentration on the brief. Be a Karmayogi lawyer: good results will follow. The legal tiger certainly distinguishes between honest rider and dishonest rider, as the legal profession consists of the good, the bad and the ugly.

We should not forget the profession's excellences. The Swedish discoverer of dynamite, Alfred Bernhard Nobel, or the Nobel Foundation, did not institute a prize for advocacy. (An Iranian lawyer won the Nobel Prize 2003, not for Advocacy, but for Peace). Let a prize be instituted for advocacy in the name of Hortensius, who, according to Cicero, was the greatest of advocates. We should strive to maintain the culture of professional responsibility. Let us go an extra mile to improve the situation.

A case has to be argued with precision, without indulging in unlimited arguments. A cour-house is not the theatre of the absurd. Lord Reid said, in Rondel's case, that far more cases have been lost by going on too long than by stopping too soon. Lord Templeman considered torrents of words by advocates, oppressive. Oral marathon by loquacious lawyers goes unappreciated. Do not frontload your case with untenable contentions. Be respectful, for respect unlimited is expected. But, be bold; it is said, lawyers are heartless, spineless and gutless, and their heads and rear ends are interchangeable. A lawyer is no bezonian. A lawyer's loyalty is to the law; and by worshipping law, chanting law and meditating on law, he becomes a true lawyer.

Let me attempt a crisp advice to the young wing of the profession. Juniors should act as monitors of seniors, not as mere back-room boys of the profession's super-stars, who occasionally ignore and periodically disown their juniors. Show a credible interest in the profession. Scan your brief, create and perform. Your abilities should come in for quick recognition. You may not get an award; but you may receive honourable mention. Make winning a habit. Do not be a mere gloveman behind the stumps, but a blaster in front, too.

Remember, you are destined to replace the ageing fleet, sans eyes, sans ears. Therefore discover the passion for the profession. A lawyer has to go about his profession with a 'mind without fear' and 'the head held high', to use the music of Tagore. "Strong in will", let us "strive, seek and find", as Tennyson said in Ulysses.

Hard work is the summary of the legal profession. Do not surrender to comfort. Come up the hard way. Confucius once said: "You cannot see anything, if you learn but not think, and it is dangerous to think without learning". Therefore study your brief thoroughly and argue. Be thorough with every aspect of the case, apposite or opposite. Play well in the court and try to net every good point you have. First, tame your mind, as an untamed mind is dangerous to advocacy. A swimming pool is a sport for one who knows swimming; but for one who does not, it becomes a death-trap.

Your arguments should not be long on facts but short on matter. See that the Judge does not consign your arguments to the scrap heap. Try to stump your opponent with good deliveries. Project yourself by performing better than your opponent. Do not argue in 'sweaty haste'. Do heavy homework. Argue, galloping thoughts gradually. Provide clarity to the confused. Argue in a voice as clear as a bell. Your voice is your only weapon. Try to get from the Judge undivided attention to you. Try, of course, to project yourself; but not to insult your adversary. Do not make rough-edged submissions. Respect seniors in the profession. Senior advocates remain a powerful presence at the Bar. Remember, interruption is a double-edged weapon. It can be answered only by interruption. And, interruption is not answering. Sometimes you have to tolerate the intolerable. Before some Judges all your answers get questioned. Remember, there are jabberers as also speed-breakers both among Judges and lawyers. Advocacy is not a shoot-out between opposing counsel, or between the Bench and the Bar. An advocate is paid to argue the point, not to decide it, as David Pannick said. Lawyers are not there in court to say 'amen' to the Judge's observations. Show feisty independence. Resist the strong-arm method of the court. Some Judges hate the guts of lawyers. Lawyers labour under a disadvantage because when a Judge insults a lawyer, he cannot return the favour.

Fear only your own self. Respect your profession and the judicature. Do not adore individual Judges. For a lawyer, a Judge become irrelevant after retirement.

Please remember, English is the tongue for your survival; and the custodian of your future. Therefore, be thorough with the Mecaulay-imported diction.

For junior lawyers, the profession is a push-pull profession. They may suffer a massive anxiety attack. Confidence should be your biggest ally. Once you establish yourselves, you can try to grip the 'Fortune Pillar'. 'Win at Work' should be the motto of junior lawyers.

Wish you well, and great success in the profession. I am grateful to the providers of this opportunity.

GENTLEMAN - AT - LAW:

(By T.P. Kelu Nambiar, Senior Advocate)

Courtesy, gentilemanliness and dignity personified, the stranger-visitor said : "I am Advocate C.K. Sivasankara Panicker". "Please sit down", said my father-in-law and senior, Sri. A. Achuthan Nambiar. Introducing me, Sri. Achuthan Nambiar said: "Kelu Nambiar, my junior, as also my son-in-law". "Hello", greeted Sri. Panicker: "1 live some six houses away, at the right end of this Warriam Road. Since you are new to Ernakulam, I can render any personal help you require". "Thank you so much", said my senior. I was a fledging lawyer at that time.

That was in November 1956, the very day we reached Ernakulam from Madras on our shift, on the re-organisation of the States. The cordial personal relationship lasted till November 2003.

Sri. C.K. Sivasankara Panicker is no more. He has died aged 88. But his 'afterglow' remains. I had been to his house when his deadbody lay there. But I made an agnoising choice of not going near the body, for I wanted ever to remember his live face.

Sri. Panicker was a 'complete package' as a lawyer, who led from the paddock to the post. His progress in the legal profession from pursuit to perfection and prosperity was phenomena!. He was seated in the best front seat row. A lawyer courageous, he was; a lawyer who had spent a life-time of feisty independence; and who was affectionately respected. He showed strong professional ethics even in high-pressure situations. He was Kerala Bar's most marketable lawyer. He displayed a western lawyer's wares. He was a man of tremendous integrity. He was an asset to the legal profession; not a shadow justice.

Sri. Panicker never considered an advocate's fee as 'mount fee'. He was a lesson in professional ethics for the young lawyers.

Even at 88, when he died, his memory bank had not lost its deposits. He was a man of tremendous determination and concentration.

Sri. Panicker was a lawyer who got the profession in his hand. He took accolades with a heavy dose of humility. His arguments were lucid and clear, like a running stream.

The void-at the top of the legal profession in Kerala is increasing. This is a sorry state of affairs in these days of endangered species (of good lawyers).

When life ebbed out of Sri. Panicker, the moment signalled the end of a great careeer. The profession has lost a stalwart, who symbolised the very essence of humility and simplicity despite the fact that there was no vertical limit for his raise in the profession.

Sri. Panicker's charm lies in his being totally devoid of pretension. He never showcased his ability.

He was ready for a victory much before a case started. Learning to him was not profit-driven. He never put a client to difficulties by design or default.

Humble, polite, well-mannered, brave and wise in life, was Sri. C.K. Sivasankara Panicker, the Lawyer Emeritus; a gentleman-lawyer he was. I salute the memory of the Gentleman-at-law.