POWER OF COURTESY

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

His appointment as Judge, High Court, was announced. He was my erstwhile student. He came to me, ecstatically though, the day before his swearing-in as Judge; and sought my blessings. I gave them aplenty. He then made another request. He wanted me to give him some advice regarding right behaviour and faultless functioning as a Judge. I was glad, he asked my views. I said:

"Mind you, you have not become a Judge by pressing a button on the voting machine.

Judicial office is essentially a public trust.

Judges are the most privileged inhabitants of the High Court.

Do not be a victim of the privileged position you enjoy.

Do not be affected with the syndrome of 'I' and the 'Self.

Bear a dignified manner; but not insulting posture. The Bar loves to see you smile.

Do not be intoxicated with your own delusions.

Try not for judicial triumphalism.

See that your court does not operate in confrontation, but co-ordination.

Do not laugh at a lawyer to keep yourself in good humour.

Do not shoot from the lip, without pausing and considering.

Lawyers may not always enjoy the sound of Judges' music.

Remember, you cannot reform anyone through abuse.

Do not make unbalanced comments from the Bench.

Do not make it a habit to question all the answers of the lawyers. Less talk, more disposals.

Let it not be said of you that you show not just intolerance, but crude authoritarianism.

Remember, advocacy is not a shoot-out between the Bench and the Bar.

Do not enlarge the domain of the judiciary needlessly.

Remember, not even two Hon'ble Judges may surpass a certain great lawyer.

Create no occasion to say that you are less than unbiased towards the Bar.

Do not inflict a wound on the Bar that would refuse to heal.

See that your court is not a sort of Siachen, the highest battle-field (in the world).

Do not get hold of the wrong end of the stick while deciding an issue.

Write judgments for times to come.

Do not give occasion for anybody to say that you could have done well with a little more civility.

Remember, a Judge is not a disciplinary authority over lawyers.

Exercise the power of courtesy and dignity, not position and authority.

Mind your language. Do not talk 'Greengrocer's English'.

Lastly, do not forget that young lawyers are the profession's fuel of the future.

May God bless you."

"Thank you, Sir," he said; and departed.

He served; and left.

Ask me not whether he had conformed to my advice; or tried to teach the teacher; or whether it was possible for him to beat the drums for a successful good functioning.

R.I. P.

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

This is the fifth in the series of occasional articles by me.

Let me not start with a bang or whimper, but with silence.

God gave him the dying grace. But, we, blessed with living grace, show disrespect to his soul, looking down from a vague height. The question, or conjecture, is, whether it is right. The answer, or deduction, is, we should not hurt his soul.

I am on the practice of mass obituary reference in Court, accorded to lawyers, on hearing the rumour of mortality; delayed talk about the departed dead. I am not raising an issue from nowhere. Now-a-days court reference to a deceased lawyer is delayed for weeks together, until death slays another lawyer. Court reference is then held for the two together. There are instances in which obituary reference is held for three lawyers at one and the same time, singing treble. And this is done as an empty formality (of a ritual). You should have respect of place, person and time, as Shakespeare said.

If you think we are doing the right thing, perish the thought. I should think, it borders on absurdity. It is objectionable from Alpha to Omega.

Respect the dead to uttermost extent, is what we have been taught. Do not give a 'Golden Dustbin Award' to a deceased lawyer. Do not disturb him in the peaceful bosom of his grave. "O grave, keep shut lest I be ashamed", sung John Mansfield.

It is hardly a secret that when a Judge dies, obituary reference is promptly held as if death reveals the eminent and 'judicial' hearts are hurt with a deep dynastic wound; forgetting what Charles Caleb Colton said: "Death and the cross are the two great levellers; kings and their subjects, masters and slaves, find a common level in two places - at the foot of the cross, and in the silence of the grave". The sentinel of the grave only counts, not weighs.

I am showing a healthy anger. If you do not feel diminished with the death of a lawyer, at least avoid insulting his soul; and allow his soul requiescat in pace (R.I.P.).

My last wish: Do not wake me up in my grave long after my interment only to convey your false regrets and rehearsed recollections. Leave me alone in my Hades, forgiving me, as "Only the dead can be forgiven": (W.B. Yeats, in "A Dialogue of Self and Soul").

LABOUR LAW REFORMS: EARLIER THE BETTER

Even States can take initiative

(By Advocate H.L Kumar, Editor: Labour Law Reporter)

'Time and tide wait for none' is an old saying. Now, if one does not change and does not keep pace with the science and technology, one is bound to be overtaken by others, perhaps left behind for always. The growth that is taking place is no longer arithmetical but it has become geometrical and, therefore, exponential. In this context, it has become absolutely necessary to shed and eschew the shibboleth labour laws, which were enacted in the backdrop of industrial revolution and socialistic mindset. Those laws have outlived their utility as they are proving to be abbatross in the neck in the era of galloping technological revolution.

The world is increasingly getting borderless              WAKE UP CALL FOR CENTRE AND STATES

and has shrunk into a global village with                   Indian Companies should constantly innovate and bring

enough methods of connecting each other               cost -effective products.

The development in I.T. hasrevolutionised                Labour reforms, if delayed, willlead to disastrous

the speed and means by which both money             consequences and industries, once shifted to more

and information can flow round the planet.               favorable locations, will find it difficult to come back and

Today, the world is literally at finger tips of the         our advantages will dissipate since others who are

hand that holds the laptop. In our lifetime, we           waiting in the wings will lap it up.

have seen a transformation of communication,         Remove the protective fetters of shibboleth anti,

which has changed our lifestyles forever. The           employment labour laws hampering

environmentis ready to swallow us up into a             the growth and see the wonders!

knowledge and technology podium.

The power of networks in mailing information available across the globe, across the industry, across the companies, across the employees and across the customers has totally changed the ground realities. Consequently, competition has become very aggressive to such an extent that now no Company can sell its outdated products in new markets. People everywhere know about the existence of latest products through T.V. and the various media. Every day we are discovering new themes of information sharing and people connectivity. Yesterday you could e-mail, then you could chat, now you can see, next we could be just shopped across in a jiffy like the star worlds? Who knows next? Thus, in order to survive, we have to be operational for this change. Thus networking of people, races, and communities and enthralling!

In order to survive in the competitive environment of today, the Indian companies should constantly innovate and bring out products and services in a cost effective manner to eater to the needs of to-day's demanding customers. The efforts thereof should be obviously supported by reforms, both economic and others. The most important, in this direction, is the labour reforms.

India has, no doubt, potentials and blessed with skilled workforce and abundant of raw material to be a leader of the world but labour laws stand in the way to achieve the desired results much less the targeted growth rate. To make India a major industrial and manufacturing power in the globalised world, the Government of India will have to urgently make the labour laws simple and unvexatious otherwise the immense talent as, available in plenty at much cheaper price, will be wasted. Take it for example that technocrat-support company in Bangalore recently advertised for 800 jobs and it has received 87,000 applications.

In the recent past, there have been many approaches for effecting labour reforms like Ramanujum Committee report and recommendations of the Group of Ministers Report of the 2^nd National Commission on Labour. Even though it is understood that these issues are being examined and processed at various levels, the out-come thereof is still awaited.

Some of the States, have already brought about certain reforms and simplification in labour laws without compromising with basic objective of the statutes and without diluting the implementation mechanism. For instance, Andhra Pradesh has initiated several steps in this direction. If other States don't reform their labour laws, will it not compel the industrialists to shift their activities from other States to Andhra Pradesh. Any central law, in this regard, would always be desirable. The jute industry is leaving Kolkata and shifting to Andhra Pradesh because there is not only cheaper labour, better work culture and employment but friendly labour laws also.

India has many locational and other advantages - including a skilled, English-speaking work force. These advantages are not being tapped up simply because of labour laws which are over protective even for non performers.

It must be remembered that when a company markets its products or services to the world, it is free also to locate its factory in the most favourable location. India, because of its anti-employment labour laws, is a most unfavourable location. It may be noted that now Ajanta Clocks has shifted its manufacturing base to China; obviously because it will be cheaper and easier to produce there with a conductive work culture and open hire and fire policies. For instance, Taiwan's Life on Tech Technology Corporation, manufacturing and exporting flat-screen and printers, has merely 3,000 employees in Taiwan as compared to 3,00,000 at its 18 factories in China because of lower labour cost and simpler labour laws.

The talk of the Union and Justice Law, Company Affairs and Commerce Minister Shri Arun Jaitley, on "India's growth challenges and opportunities in Global Trade at Hyderabad in August 2003" is summarised by Mr. B.C. Prabhakar, Working President of Karnataka Employers' Association, as under:

• India can emerge as knowledge supplier to world with vast reservoir of Talent.

• A revolution in service sector is sweeping across the world and we can offer sharpest minds at cheapest price.

• The services sector, which now forms the largest component of economy accounting for 52% of GDP, was the "greatest source of strength" for the country.

• Reforms in labour laws is the immediate need to make the country's manufacturing sector competitive in global markets. Those who are opposing labour reforms are actually anti labour.

• Increase in productivity will make the Indian Industry more competitive and thereby create more employment.

If the labour reforms are attended to, promptly, there is no earthy reason why India should not emerge as the manufacturing destination of choice for the entire world. The only requirement now is that we wake up and see both the problems and the prospects squarely in the eye. Then we must act.

The English language is a gift of Macaulay to this country and it is because of this language that the computer geniuses of this country have obtained very high edge on others but so long as the work culture and labour laws are not changed, all our advantages will dissipate and others who are waiting in the wings will lap it up. In fact, work culture and labour laws are very closely inter twined. Remove the protective fetters of labour laws and see the wonders. It is not protection but incentive that will immensely generate the work culture. The sooner it is realised, the better otherwise the industries, once shifted, would find it difficult to come back.

The problem in India is that there is an acute dearth of forward looking political leaders with requisite will power. They believe more in rhetoric than in reality imitating the ostrich-like policy. Otherwise, there could hardly be any plausible reason for India still positioned at the lowest ladder of development in the comity of nations despite being the biggest supplier of information technologists.

Kerala High Court on Co-operative Cases - A Digest of Cases in 2002

(By R. Muraleedharan, Deputy Registrar of Co-operative Societies, Mahe)

Kerala, the God's own country, is rich not only in tradition and culture, but in the field of co-operation as well. The number of path-breaking judgments delivered by the Kerala High Court over the years is the testimony as how much Kerala High Court has contributed to the co-operative law. This article is an attempt to cull out the important case laws, rendered by Kerala High Court, published in "Kerala Law Times" during the year 2002. The case laws are grouped chapter-wise to facilitate easy reference and better understanding.

Bye Laws

In the decision reported in 2002 (3) KLT 193, the Court ruled that merely based on Government circular, the Registrar cannot issue directions to the existing societies to alter their area of operation and carry out necessary amendments in the bye laws. The Court is of the view that ultimately it is for the members to decide the area of operation of the society, subject to the restrictions imposed under S.7 of the Act.

Membership

In a case reported in 2002 (2) KLT 113, the question before the Court was whether a person obtaining membership in another society while being member of similar class of society can escape action by resigning his membership in the former society at the time of initiation of action. The Court answered in negative and held that such an action is illegal, while interpreting sub-ss.(3) and (4) of S.16. The Court was not impressed by the petitioner's contention that at the time of initiation of action he has membership in only one society. Hence the disqualification relates back to the moment of membership though the cessation takes effect only from the date of removal.

Management

What is the meaning of "one-third of the total number of members of the committee" appearing in S.31(3) of the Act is decided in a decision found in 2002 (2) KLT 116. When the Director Board consisting of seven elected members, the action of the Government nominating three persons is declared invalid. Total means aggregate of more than two sums, when seven and three are added, total comes ten and one-third of it is more than three and hence nomination of three is not tenable.

For the purpose of S.33(1) tendering resignation by a member of the committee shall have the effect of terminating his membership from the committee and the resignation once tendered cannot be withdrawn. When vacancies occur by resignation of members and eventually the number of remaining members cannot constitute the quorum of the meeting of the committee, appointment of administrator is held valid, vide 2002 (2) KLT 730.

An interesting and important question came up before the Full Bench is in the absence of a specific provision in the Act, Rules and the bye laws whether the managing committee has a right to move or consider a motion of loss of confidence in the President, Vice-President or Treasurer or any other office bearer of the committee elected in accordance with R.43. After deliberating on almost all the decisions rendered by various Courts in this subject and relying on a decision of a Division Bench of Bombay High Court and a Full Bench decision of Punjab and Haryana High Court reported in AIR 1982 Bom. 216 and AIR 1991 P & H 149 respectively, the Full Bench answered in negative to the question referred to it. The Full Bench affirmed the decision reported in 1999 (3) KLT 680 and overruled the decisions in 1982 KLT 602; 1990 (1) KLT 374 and 2000 (1) KLT 319. The decision can certainly be a treatise on the subject.

When the administrator has no power to enroll new members to the society, can he remove ineligible members was answered in affirmative in a decision reported in 2002 (2) KLT 817. The Court ruled that after following the procedure prescribed under R. 16 the administrator or the administrative committee has power to remove the ineligible members.

When a member in default admits his liability and requests the society to proceed against the security, realise the dues and pay back the balance, still he is default to the society and attracts disqualification under R. 44(l)(c) is the dictum of the Court, in 2002 (3) KLT 268. Here the Court quoted with advantage the decision reported in 1981 KLT 868.

Supervision

While quashing the supersession order the Court noted that the basic principle underlying S.32 is that management of society should be by representative bodies and the exception is only their substitution by administrator. When the enquiry under S.66 is still in progress and interim report is neither complete nor comprehensive, there is no warrant to invoke S.32, vide 2002 (2) KLT 110 SN.

Election

When can the committee request for appointment of returning officer is the question that came up in 2002 (1) KLT 638. The Court is of the view that under R.35, the committee can request for appointment of returning officer for the purpose of election to a new committee only when its term is due to expire.

In a decision reported in 2002 (3) KLT 386 the Court held that the rejection of nomination papers of the candidates for the only reason of not specifying the constituency as to whether it is general or reserved is not proper. In the absence of any specification regarding a reserved constituency, a nomination which is otherwise valid in all respects has only to be treated as candidate of a general seat.

Appeal

Parties aggrieved by awards or orders passed by Registrar or his nominee under Ss. 69 or 70 of the Act should invoke the remedies under the Act and cannot invoke jurisdiction of civil court is the crux of the decision reported in 2002 (1) KLT 73 SN.

The Division Bench of the Court held in 2002 (1) KLT 857 that when a society acts in violation of orders passed by Registrar or Government under the Act, the High Court can under Art. 226 see whether the society follows those circulars and orders.

In 2002 (2) KLT 36 SN the Court ruled that under R.99(2) an agent duly authorised can be permitted to present a revision petition before the tribunal.

Whether in an appeal by an employee, can the punishment be enhanced is an interesting question that came up before a Division Bench in 2002 (3) KLT 89 V. The Court is of the view that only punishment mentioned in R.198 can be imposed. In an appeal by an employee, punishment should not be enhanced in the absence of enabling provision in the rules, even if the punishment already imposed cannot be confirmed. The Court went on to say that an employee should not be put to more disadvantage by filing an appeal. Hence the matter was remitted to appellate authority for reconsideration of the punishment.

Miscellaneous and Service

When an employee of a co-operative urban bank has misappropriated money and where the misappropriation is established, it must be treated very differently and reinstatement must be without backwages and other remuneration, vide 2002 (1) KLT 21 SN. This view is in tune with two decisions of the Apex Court reported in (2000) 10 SCC 280 and AIR 1989 SC 149.

The Government or the Joint Registrar has no power to direct the co-operative bank to suspend its employees under R. 198(6) is the decision reported in 2002 (1) KLT 880.

In a matter of disciplinary proceedings initiated against an employee, a third party is not entitled to invoke the appellate jurisdiction under R.198, vide 2002 (2) KLT 216.

In a decision reported in 2002 (3) KLT 405, the Court ruled that under Rr.186 and 187, the Public Service Commission cannot insist that experience of the incumbents who were employees of member societies should be in same cadre. The Commission is not competent to prescribe additional requirements not contemplated by the rules for selection and experience can be in any cadre in the member societies.

The Controversial Summons of The Legislative Committee and the Constitutional Status of the Public Service Commission

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

The controversy which rages round the question regarding the constitutional status of the Public Service Commission and the powers and privileges of the Legislative Assembly is an imminent legal battle according to the reports appeared in Mathrubhumi, Kerala Kaumudi and Malayala Manorama and other leading Newspapers. According to the news paper reports, the Backward Class Welfare Committee constituted by the Kerala Legislative Assembly have issued summons to the Secretary of the Kerala Public Service Commission to appear and explain the injury being caused to the backward class of citizens and Dalits in the matter of appointments through the PSC on account of the inadequacy felt in the relevant Service Rules. The Secretary of the PSC is reported have informed his inability to appear as he has been instructed not to appear before the Committee in obedience to the summons, considering the high constitutional status of the Commission. The stand taken in the matter has been deprecated by the Committee; which referred the question lo the Speaker. The issue has now gained public importance and necessitates to cogitate about the contentious stand taken by the Kerala Public Service Commission.

The Public Service Commission is an independent expert body constituted for the purpose of conducting examinations for recruitment to public service and also for consultation of matters falling under Art.320(3) of the Constitution. Art.320(4) specifically excludes consultation as respect the manner in which any provision referred to in CI.s(4) of Art.16 and as respect the manner in which effect may be given to the provisions of Art.335. The function of the Commission is advisory and consultative. Its advice is not binding on the Government except where there are Rules made under Art.309 whereunder the advice is binding on the Government. The members of the Public Service Commission have no immunity other than security of tenure. The members including the Chairman of the Public Service Commission have no constitutional privileges either.

The Legislative Assembly on the other hand is possessed with privileges under Art. 194 and is conferred with immunity under Art.212 of the Constitution of India. The question whether the privilege conferred on the House by the second part of Art. 194(3) would take precedence over the fundamental rights guaranteed under Part III of the Constitution is a matter to be resolved by a harmonious construction. In the above sitting, the Public Service Commission cannot take the stand that its Secretary shall not be summoned by a Legislative Committee for any purpose and refusal to obey the summons may entail breach of privilege.

The Rules of Procedure and Conduct of Business in the Kerala Legislative Assembly are made by the Assembly in pursuance of the provisions contained in Art. 208(1) of the Constitution of India. R.180 of the Rules of Procedure provides that the members of a Legislature Committee shall be appointed or elected by the Assembly or nominated by the Speaker as the case may be. R.195 provides that the Committee shall have power to send for persons, papers and records; Provided that if any question arises whether the evidence of a person or the production of a document is relevant for the purposes of the Committee, the question shall be referred to the Speaker, whose decision shall be final: Provided further that Government may decline to produce a document on the ground that its disclosure would be prejudicial to the safety or interest of the State. The word 'Government' would embrace the Public Service Commission and the Public Service Commission can decline to produce a document only on the ground that its disclosure would be prejudicial to the safety or interest of the State.

The Secretary to the Commission is appointed by the Commission with the previous approval of the Governor. R.11(1) of the Kerala Public Service Commission (Composition and Conditions of Service of Members and Staff) Regulations, 1957 provides that the Service Regulations shall apply to the Secretary, who shall for that purpose be deemed to be an officer of the State. The refusal by the Secretary of the Commission to appear before the Legislature Committee cannot be justified under the penumbra of any of the Fundamental rights guaranteed in Part III of the Constitution of India. The Secretary of the PSC alone can explain to the Committee the present procedure being followed by the Commission in working out the reservation provided under Rr.14 to 17 of the General Rules. Summoning the Secretary for that purpose by the Committee cannot be faulted or branded as a false step and the Legislature Committee is legally entitled to prise the information out of the Public Service Commission for the purpose of making suitable amendments to the rules of reservation in favour of backward class of citizens and Dalits to ensure their due representation in public services.