THE   TRIVANDRUM   BENCH    HULLABALOO

(By T.P.Kelu Nambiar, Sr. Advocate, High Court of Kerala )

PREAMBLE :- Whereas it is thought expedient to explain the exact legal aspects relating to the controversy over the establishment of a permanent Bench of the High Court of Kerala at Trivandrum, especially in view of the prevailing confused conundrum,  this audio write-up is ventured.

PRE-CAUTION:- The writer wishes to make it abundantly clear that he is neither supporting nor opposing either of the conflicting views on the expediency of establishing the Bench at Trivandrum, as he is unable to bear the brunt of any attack from the one side or the other in view of age-related physical weakness.

Now, let me begin the subject, and, that, with the First Information Report thereon, without indulging in circumambulation.

It all began on the 6th day of June 1949, when, without much of a discussion, the Constituent Assembly adopted the motion to add Draft Art.191 to the Constitution. The Draft Art. 191 corresponds to Art.214 of the Constitution of India.

Let me grab a glance at Art.214:

“High Courts for States: -

  (1) There shall be a High Court for each state.

(2) For the purpose of this Constitution the High Court existing in any Province immediately before the commencement of this Constitution shall be deemed to be the High Court of the corresponding State.

(3) The provisions of this Chapter shall apply to every High Court referred to in this Article”.

Therefore, all the existing High Courts in the erstwhile Provinces remained in place.

The necessity arose to amend Art. 214 of the Constitution with effect from the 1st day of November 1956, in view of the coming into force of the States Reorganisation Act 1956 with effect from the “appointed day”, meaning the 1st day of November 1956. Therefore, by the Constitution (Seventh Amendment) Act, 1956, “(1)” and Clauses (2) and (3) in Art.214 were omitted. Resultantly, thereafter, Art.214 only said: “There shall be a High Court for each State”.

The States Reorganisation Act took care of the principal seats of the High Courts for the new States and the establishment of permanent Bench or Benches at places other than the principal seats of the High Courts. That was done in S.51 of the States Reorganisation Act. I read here S.51:

“Principal seat and other places of sitting of High Courts for new States.-

(1) The principal seat of the High Court for a new State shall be at such place as the President may, by notified order, appoint.

(2) The President may, after consultation with the Governor of a new State and the Chief Justice of the High Court for that State, by notified order, provide for the establishment of a permanent Bench or Benches of that High Court at one or more places within the State other than the principal seat of the High Court and for any matters connected therewith.

(3) Notwithstanding anything contained in sub-s.(1) or sub-s.(2), the Judges and Division Courts of the High Court for a new State way also sit at such other place or places in that State as the Chief Justice may, with the approval of the Governor, appoint”.

It would, therefore, be seen that the Constitutional provision in Art. 214 was varied to suit the changed situation, and was enacted as a statutory provision. Now, therefore, the legal aspect in question is covered by S.51 of the States Reorganisation Act. 

S.51(2) is the provision relating to establishment of a permanent Bench or Benches of High Courts at one or other places within the State other than the principal seat of the High Court. The provision is clear. It says that the President may, by notified order, provide for such establishment. There is no mandate to the President. Before issuing the notification, the President consults the Governor of the State concerned and the Chief Justice of the High Court for that State. That means, the opinion of the Council of Ministers of the State concerned and the opinion of the Chief Justice of the High Court are to be sought. No distinction is seen made in regard to the weight or over-weight to be given to the opinion of either. Be that as it may, the decision to be taken is the decision of the President, on the advice of the Council of Ministers of the Union Government.

In certain decisions of the Supreme Court and the High Courts, stress is seen made in regard to the opinion of the Chief Justice of the High Court. That may be as it should be, but no decision has said that the opinion of the Chief Justice is final and binding on the President, who decides the matter. For the present purpose, I should think, I need not go to the extent of saying, with respect though, that the decisions taking the afore-mentioned view might require reconsideration.

That the opinion of the Governor is not far less important than that of the Chief Justice, may be gleaned from the provisions in S.51(3). As per the provisions therein, ‘the Judges and the Division Courts of the High Court may also sit in such other place or places in the State as the Chief Justice may, with the approval of the Governor, appoint’.

Therefore, approval of the Governor for such Circuit Sitting is necessary. The above are the Constitutional and Statutory provisions relating to the controversy. It may be seen that the ultimate authority to decide the place for a permanent Bench is the Central Government. The concerned State renders opinion; the concerned Chief Justice gives his opinion. Both are at liberty to express their opinions. The matter has to be considered in the light of such opinions. The Central Government may give a little more weight to the opinion of the Chief Justice. But the Chief Justice’s opinion does not seem to be the deciding factor. The deciding authority is the President - on advice by the Council of Ministers.

Then, why should there be such hullabaloo about the opinion of the Chief Justice. Why should the Chief Justice be found fault with for rendering his opinion. The State, in case it is of the opinion that there should be a permanent Bench established at Trivandrum, has to persuade the Central Government to accept their view and act accordingly. Agitation against the considered view of the Chief Justice is uncalled for.

The above being the legal position, I was surprised to read a news item in the Malayala Manorama, of 6-3-2008, that a former Advocate-General of Kerala ventured the view that the claim for the establishment of a permanent Bench of the High Court at Trivandrum, is unconstitutional. I really fail to comprehend this expression of opinion. The report further says that the former Advocate-General opined that Art.214 of the Constitution prescribes provisions for the place of establishment of the High Court and the places of establishment of permanent Benches of the High Court; and he also said that the decision regarding these should be taken by the Chief Justice of the concerned High Court. The statements made by the former Advocate-General do not have the backing of any constitutional or statutory provision. Dr.Rajendraprasad, Dr.Ambedkar and Sri.T.T.Krishnamachari, who were closely connected with the shaping of the original Art.214, and Sardar Vallabhai Patel, Sri V.P.Menon and Sardar K.M.Panicker, who were the architects of the States reorganisation, would turn in their graves to hear the interpretation of the former Advocate-General.

I wish to make it abundantly clear that I have not intended any disrespect to anybody. I have only analysed the legal provisions to the best of my ability, by spending considerable time over the matter.

I, for one, should think that it is not fair and proper to venture views without properly studying the aspect concerned. There is no vote/pat for non-performance.

I conclude by reiterating that I have not ventured any view either for or against the establishment of a permanent Bench of the High Court of Kerala at Trivandrum, as I am the least interested in the politics of mutual destruction.

Though I close the matter here, should I know, the issue will continue to make news.

Mediation and Conciliation

(By Justice M.R. Hariharan Nair, Former Judge, High Court of Kerala)

A Mediation Centre was inaugurated in the old High Court building recently. When the mediation centre functions in a full fledged level, mediation as a mode of redressal of disputes (pending cases included) is bound to become popular here. My attempt here is to look at ‘mediation’ from the perspective of a lawyer and to appraise its efficacy and utility in the days to come.

With the amendment of S.89 of the C.P.C. providing for settlement of disputes outside the Court, inter alia, through mediation, this technique is bound to assume importance in coming days. It is the non framing of Rules by the High Court under the new provision which stood in the way of settlement of atleast some of the pending cases using this technique. Needless to say that once the panel of well trained Mediators is put in position, Courts will have to send cases to the Mediators frequently.

S.89 of the CPC, as it stands amended now, provides that in appropriate cases the courts may formulate terms of a possible settlement and refer the same for:

(a) arbitration; (b) conciliation, (c) judicial settlement including settlement through Lok Adalat; or (d) mediation.

The Section also provides that in the case of reference to the Lok Adalat, the provisions of S. 20(1) of the Legal Services Authority Act, 1987 and in the case of reference to Arbitration, the provisions of the Arbitration and Conciliation Act, 1996 will govern the further proceedings. Chapter III of the latter Act takes care of conciliations also; but the term Mediation is conspicuously absent in the Act. If Conciliation and Mediation are both permitted under S.89, how do they differ from each other? What exactly is mediation after all?

Mediation is the process of bringing two or more parties in a dispute closer together towards an agreement through discussions. It may certainly be initiated by the Court under S.89 aforementioned, though that is not the only way. Even in the case of a dispute which has not reached the Court, parties may resort to mediation. The will of the parties to settle the matter is the governing factor here. Mediation differs from most other adversarial resolution processes by virtue of its simplicity, informality, flexibility, and economy. The mediator who is a neutral person has a major role to play in this process. He intervenes and uses appropriate techniques to assist the parties involved therein to help them negotiate an agreement solving their disputes permanently. The matter ends in a written contract enumerating the terms of settlement which both parties would be bound to abide. The Mediator, often a professional, has to play an important role to bring to terms the warring parties who may be individuals, Firms, Companies, or even States in the largest sense. In other words, the parties work towards an agreement with the aid and under the control of the Mediator.

Mediation differs from litigation in that in the case of litigation, it is the Court or Tribunal which imposes a binding decision on the dispute on the parties. That determinative process also will not be final in so far as there will always be an appeal or revision, or atleast judicial review allowed by law therefrom. These takes more time and involves more expense. Mediation, on the other hand, leads to a final decision in the shortest time possible and that too at minimum cost. The attitude of give and take is, however, indispensable here. To those parties who have this spirit, mediation is a successful tool in dispute resolution and is certainly an effective alternative to litigation. The other side of the coin is that the mediator will be helpless in his endeavour unless the parties consent to the final output. The Mediator cannot impose his views on the parties. He can of course suggest terms of settlement; but they may or may not be accepted by the parties. It they accept the terms, it leads to a compromise and will mean an end of the dispute. In the case of reference under S.89, the compromise so arrived at during mediation will be recorded by the Court and enforced. If such referred mediation fails and the parties fail to reach at a compromise, on the mediator’s report, the case will be proceeded with in the Court in the normal way and a decision on merits or ex parte, as the case may be, will be rendered as in any other civil case. So by trying mediation, the parties do not stand to lose in any way; it is only the other way round.

Mediation applies to different fields, with some common peculiar elements and some differences for each of its specialties. The main fields of mediation include commerce, legal disputes and diplomacy, but it is effective in other fields like marital disputes, property disputes etc. as well.

Mediation  and  Conciliation

How does conciliation differ from mediation? The term conciliation is sometimes used as an umbrella term that covers mediation as also other facilitative and advisory dispute resolution processes as well. Sometimes the two terms are used as synonyms or interchanged though that is not quite appropriate. Of course, both processes are non determinative and they have many similarities. For example, both mediator and conciliator identify the disputed issues and use options to endeavour to reach an agreement. Both are relatively flexible processes and the outcome will depend on the parties themselves reaching an agreement. But then, distinctions are also there between the two. The fact is that inspite of much debate, there is still no universal agreement arrived at with regard to the exact definitions of the two terms.

The main difference between a mediator and a conciliator is that conciliator should have some degree of expert knowledge on the subject that he is conciliating on. He uses such knowledge to lead the parties to a settlement whereas a mediator can very well be a lay person. A Conciliator will certainly be competent to act as a mediator; but the vice versa may not always be true. A Conciliator can make suggestions for settlement terms and can also give advice on the subject matter. That makes conciliation more of an advisory service. Though a conciliator cannot proceed to decide the dispute, he can use his role to actively encourage the parties to come to a resolution. In some types of conciliations the conciliator has also a responsibility to provide legal advice or information so that any agreement made can fit into the statutory framework that is required in the area concerned.

Mediation is not only used as a tool for dispute resolution but also as a means of dispute prevention. Mediation can be used to facilitate the process of contract negotiation by the identification of mutual interests and the promotion of effective communication between the two parties. Mediator, as a third party, assists the parties in dispute to find mutually agreeable solutions. His role is purely facilitative whereas conciliator’s role is a mixture of an advisor and facilitator.

The term mediation can thus be appropriately used where the practitioner-mediator has no advisory role, but if the practitioner does have an advisory role also, then use of the term conciliation may be more appropriate. Another important distinction is that in India, conciliation, by virtue of Ss. 73 and 74 of the Arbitration and Conciliation Act, can lead to statutory resolution of the dispute; but a mediated settlement is not given that status. What follows is that as regards disputes which are not referred under S.89, (pre-litigation disputes included) a conciliated settlement, under Chapter III of the Arbitration and Conciliation Act, amounts to an Award and has the force of a decree whereas a mediated settlement may not directly be enforced in a Court except through a suit for enforcement of the contract concerned.

Methodology to be followed by Mediators are not ordinarily governed by law. To suit the particular needs of each case, each mediator can therefore use appropriate method of his or her own.

Mediators can contribute to the settlement of disputes by creating favourable conditions for dealing with them. This is done by providing an appropriate physical environment like neutral venues, appropriate and comfortable seating arrangements, visual aids and security. They can establish basic ground rules, provide order, sequence and continuity. Perhaps even the mediators’ opening statement provides an opportunity to establish a structural framework, including the mediation guidelines on which the process will be based. They can mitigate the emotional pressure, aggression and intimidation from the other side in the conference room etc. by providing a sense of neutrality. Mediators can also act as catalysts for creative problem solving, through brainstorming or by citing analogous mediation experiences and giving settlement options in sight. Mediators may have to require parties to provide position statements, valuation reports, records and risk assessment analysis. To be on the safer side, the parties may also be required to execute an agreement to mediate before preparatory activities commence.

A core problem in the dispute resolution process is the determination of what the dispute is actually about. Through the process of mediation participants can agree to the scope and extent of the dispute or issues to be resolved.

Requirements  of  a  good  Mediator

Writers in the field of mediation normally espouse a code of conduct that mirrors the underlying principles of the mediation process. Some of the most common aspects of a mediator’s codes of conduct include:

i. Interpersonal skills, absolute neutrality, patience, empathy, intelligence, optimism and flexibility.

ii. A commitment to inform participants as to the process of mediation. 

iii. Neutral stance and impartiality towards all parties to the mediation. Potential conflicts of interest, if any, must be revealed before taking up the work. 

iv. Strict confidentiality. Within the bounds of the legal framework under which the mediation is undertaken, any information gained by the mediators during the discharge of his functions should be kept as strictly confidential. 

v. Mediators should be alert and mindful of the psychological and physical well being of all the participants. 

vi. Mediators should not offer legal advice, rather they should direct participants to appropriate sources for the provision of any advice they might need.

Mediators have to be careful in their functioning. Liability in contract may arise if they breach the contract; may it be written or oral. Liability arises in Tort if a mediator influences a party in any way to compromise, defames a party  breaches confidentiality, or acts negligently. To succeed in his claim, the party must show that it was the act or omission of the mediator and not of the parties that caused the damage. Liability for breach of fiduciary obligations can occur if parties misconceive their relationship with the Mediator for something other than completely neutral.

Mediation  and  Arbitration:

Mediation is not Arbitration. A mediator does not impose a solution on the parties, whereas an arbitrator does. The culmination of both mediation and conciliation is a decision of the parties. Of course, an Arbitrator can also decide based on agreement arrived at between the parties; but he can decide otherwise too. He can sometimes pass even ex parte awards; but ex parte mediation is inconceivable. There is specific prohibition arising under S.77 of the Arbitration and Conciliation Act, 1996 de-barring initiation, during the pendency of conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject-matter of the conciliation proceedings except where a party believes that such proceedings are necessary for preserving his rights. This shows that normally the two options will not co-exist.

Statutory  prohibitions  in  India

The Arbitration and Conciliation Act contains certain prohibitions on Conciliators. Under S.80 unless otherwise agreed to by the parties, conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is subjected to conciliation proceedings. Nor should he depose as a witness in any arbitral or judicial proceedings touching upon the dispute between the parties which was the subject matter of conciliation before him. S.81 specifically provides that the parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, admissions, proposals or views expressed or suggestions made by the other party in respect of a possible settlement of the dispute or the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.

Conciliation proceedings end with the signing of the settlement agreement by the parties or by a written declaration of the conciliator, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified as on the date of the declaration; or by a written declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated on the date of the declaration; or by a written declaration of a party to the other party and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration.

Under S.73(1) of the Arbitration and Conciliation Act, when it appears to the conciliator that there exist elements of a settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations and after receiving the observations of the parties, the conciliator may reformulate the terms of a possible settlement in the light of such observations. If the parties reach agreement on a settlement of the dispute, they may draw up and sign a written settlement agreement. If requested by the parties, the conciliator may draw up, or assist the parties in drawing up, the settlement agreement. When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them respectively. The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties. The settlement agreement recorded as above shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under S. 30. This process is more appropriate in civil matters where rules of evidence or jurisdiction are not in dispute.

There is no doubt that in coming days these forms of dispute redressal will become very popular. The convenience in the process, the few number of sittings required, lesser expenses, finality, etc. add to the charm of conciliatory settlement.

MARCH OF LAW ON CO-OPERATIVE   LAW  --

A DIGEST OF CASES BY KERALA HIGH COURT IN 2007

(By R. Muralidharan, Deputy Registrar (Planning & Legal),

 Co-operative Department, Puducherry) 

As in the past, Kerala continues to contribute in its own way to the richness of co-operative law and the Kerala High Court has rendered some thought-provoking, innovative and path-breaking judgments in 2007. The Kerala Law Times maintains the rich tradition of bringing out these judgments. This article crystallizes such decisions, subject wise and sections and rules referred to here denote the Kerala Co-operative Societies Act, 1969 and Rules made thereunder.

On  area  of  operation  of  the  society

The question involved in this writ appeal, Karassery Service Co-operative Bank v. Mokkam Service Co-operative Bank ( 2007 (1) KLT 555) ; AIR 2007 (DOC) 209 is as to whether a society can construct its head office beyond the area of operation of the society. It was held that the area of operation is different from establishment of an administrative office. The word “operation” would necessarily relate to the business of the society. That means one society should not have its business in respect of the area of operation of another society. Simply because one society establishes a head office within the area of another society, that would not automatically mean that there is overlapping of area of operation of the two banks, unless of course the first bank canvasses business from the area of operation of the other bank.

On  cessation  of  membership

The cascading effect of R.143(2) is that upon the cessation of the membership of the managing committee, the member shall cease to be a member of the Circle Co-operative Union, vide Thomas v. Registrar of Co­operative Societies  (2007 (3) KLT 741). Cessation is irreversible by the happening of any subsequent event such as re-election to the committee as in this case and it must set in motion the process of filling up the vacancy in the manner known to law. In other words, upon a member ceasing to be the member of the managing committee under R.143 a clear cut vacancy arises in the body of the Circle Co-operative Union.

On  appointment  of  Administrator  and  his  powers

The controversy sought to be resolved through Registrar of Co-operative Societies v. Ahamed Ali (2007 (2) KLT 320: AIR 2007 (NOC) 1597 (Ker.)) was when there was sufficient quorum, can the Registrar remove an elected committee and appoint an administrator relying on the maximum strength of the committee as per bye laws. Bye laws of the society states that the number of board of directors shall not be more than 25, which would only show that the bye laws prescribe only upper limit of the number of board and total number of the board can always be fixed by the committee and election be conducted to fill up the strength. The board has no power to fill up the total strength beyond 25. In the instant case, the strength of the board was only 20 and the quorum would be only 11. When there was sufficient quorum the action of the Registrar in removing an elected committee and appointing an Administrator was found without authority. The writ appeal was dismissed.

The question before the Division Bench in Elamgulam Service Co­operative Bank Ltd., v. Gopinath Nair ( 2007 (1) KLT 147) was whether an administrator has jurisdiction to impose punishment on employees. Answering in affirmative, the Bench held that such right cannot be denied to the administrator simply because the employee would lose a right of appeal. The doctrine of necessity squarely applies to the situation at hand. On the appointment of the administrator, the functions of the President, sub committee and managing committee contemplated under the Act vest in the administrator alone. Without exercising these functions the society cannot carry on its business effectively, which is the sole object of appointment of the administrator. The enrolment of new members to the society can certainly wait till an elected committee takes charge without affecting the functions of the society. The Bench affirmed the decision in Mary v. Kuzhur Service Co-operative Bank Ltd. reported in 2006(1) KLT 323, wherein an identical question came up for consideration.

On  no  confidence  motion

The only question arising for consideration in the writ appeal, reported in Gopakumar v. Sajikumar (2007 (1) KLT 1), is whether a resolution adopting a no-confidence motion against the President of a co-operative society is capable of being rescinded by the Registrar under R.176 or whether the same could only be canvassed in an election dispute under S.69.

A motion carried under R.43A (Removal of President, Vice-President etc., by no-confidence motion) has all trappings of a resolution. This procedure is totally different from the procedure in R.43, which deals with election of the office-bearers, where there is no resolution at all. A motion of no-confidence is a resolution which could be properly be rescinded by the Registrar under R.176 if the same has been passed without complying with the procedure prescribed under R.43A since R.176 makes it competent for the Registrar to rescind any resolution of any meeting of any society or committee of any society, if it appears to him that such resolution is ultra vires the objects of the society or is against the provisions of the Act, Rules, bye laws of the society.

In Kurien v. Joint Registrar, reported in  (1987 (2) KLT 357), the single Judge held that the process of election of the President of the society under R.43 cannot be set aside by the Registrar by purporting to rescind a resolution under R.176, as the process of election under R.43 cannot be regarded as adoption of a resolution which is capable of being rescinded by the Registrar. This decision is affirmed by the Division Bench.

Doubting the correctness of the judgment reported in Mathachan v. Joint Registrar (2006 (2) KLT 45) wherein it was held that the fifteen clear days of notice as provided in R.43A(ii) is only directory and not mandatory, a reference was made to the Division Bench in Jose v. Joint Registrar of Co-operative Societies  (2007 (1) KLT 391). Fifteen clear days of notice contemplated in the last part of R. 43A(ii) is to inform the members of the convening of the meeting of the no-confidence motion. The main object of giving the notice is to make it possible for them so as to arrange their other business as to be able to attend the meeting. Legislature has not provided any consequence that is to follow if fifteen clear days of notice has not been given. Petitioner in this case could not explain in what manner he is prejudiced by not getting fifteen clear days of notice. In such a case, the 15 days clear notice is only directory and not mandatory.

When petitioner himself is a person facing no-confidence motion, he has no right to vote. It is not confidence of a member in him that matters; but the confidence or the lack of it of the other members of the body on him/her. Petitioner has evidently having a personal or direct interest in the matter of no-confidence and therefore he shall not participate in the meeting convened for considering the no-confidence motion against him and the vote he has cast is not liable to be counted. The decision in Mathachan’s case was affirmed.

On  exemption  of  stamp  duty

Purchase of immovable property by a co-operative society is exempted from stamp duty. The sale was effected by liquidator in public action. Cancellation of registration of the seller society is not effected by the Registrar and so much so the society continues to be a registered society. Since sale by the liquidator is on behalf of the registered society, the sale deed to be executed is entitled to exemption from stamp duty. Exemption is also available for any document executed pursuant to award, or orders of the Registrar or Arbitrator under the Act. This ruling is reported in Kerala State Co-operative Consumers Federation v. Sub Registrar  (2007 (2) KLT 629).

On  the  powers  of  the  general  body

The dictum rendered through Mathai v. State Co-operative Election Commission ( 2007 (2) KLT 789), was that in respect of matters not covered by the Act, Rules or bye laws, it would be for the general body to take decisions and not the managing committee. In this case, bye law provides that election to board shall be on ward basis. Delimitation of wards can be done only by general body and not by managing committee. After adopting resolution to conduct election, the managing committee cannot take any decision which would affect the election process. Delimitation has to be done prior to that resolution. When the election has to be on ward basis, the election to seats reserved for SC/ST and women as per S.28A also should be on ward basis.

On  settlement  of  disputes

S.69 provides that if a dispute arises such dispute shall be referred to Co-operative Arbitration Court constituted under S.70A, in the case of non-monetary disputes and to the Registrar in the case of monetary disputes. The Division Bench in F.A.C.T. Service Co-operative Society v. Balakrishna Menon (2007 (3) KLT SN 80 (C.No.101), has ruled that a dispute which is to be resolved under S.69 cannot be the subject matter of the exercise of jurisdiction under Ss.66 and 66A. Assistant Registrar had no jurisdiction to issue a direction to pay a particular amount as salary or allowances or other service benefits to an employee of a society, such orders could be issued only by an authority under S.69.

On  service  matters

The question involved in Dasan v. Registrar of Co-operative Societies  (2007 (1) KLT 581) is relating to the power of the Registrar to give sanction to effect relaxation being granted in qualification to the employees of Co-operative Societies on the resolution passed by the committee of the society. As per R.185 (8) (unamended) the governing body is competent to relax the educational qualification on the basis of experience for promotion in deserving cases and as per the above Rule, the Registrar has to approve the action taken by the governing body and has no power to reject or decline the resolution passed by the board. As per the unamended provision, the society has to get prior sanction and the word ‘prior sanction’ will not give any power for the Registrar to withhold or decline or reject the relaxation already granted by the board by passing the resolution. In this case, relaxations were granted by the board prior to the amendment brought to the Rule. Held, these amendments are correct and the petitioners are entitled for the promotion already given by effecting relaxation to the qualification from the date of the resolution passed by the board.

The question referred to the Full Bench in Sherly v. Parappuram Milk Producers Co-operative Society (2007 (1) KLT 809), is whether in the matter of disciplinary proceedings against an employee of a co-operative society when once the Registrar exercises his powers under R.176, is it open to the aggrieved employee to take recourse to the remedies under the Industrial Disputes Act, 1947.

An employee of a co-operative society is entitled to have his grievance, if the same constitutes a dispute under S.69 (2)(d), adjudicated before the Co-operative Arbitration Court. An employee subjected to a disciplinary action has right to have his grievance adjudicated before an independent Forum (a Forum, Tribunal, Labour Court etc.) having the trappings of a Court after he has exhausted the departmental remedies. In the instant case, the employee did not get an opportunity before the Co-operative Arbitration Court since the same had not been notified and hence the reference of the dispute by the Government before the Industrial Tribunal is certainly valid. The matter was remitted to the Industrial Tribunal for adjudication and to pass an award on merits.

In Muvattupuzha Agricultural Co-operative Bank Ltd. v. District Labour Officer ( 2007 (1) KLT 863), it was held that R.59 is a mandatory provision which makes it clear that society should provide for gratuity to all salaried employees engaged on monthly basis. This does not mean that other eligible employees under the Payment of Gratuity Act should not be paid gratuity, if they are eligible under the Act.

The amendment made to R.186(1)(1A)(i) was questioned in Rajesh Kumar v. Kerala Public Service Commission ( 2007 (2) KLT 970). Through this amendment the qualification for all posts to be filled up by direct recruitment under R.185 (2) was graduation from a recognized University with not less than 50% of marks in the aggregate. Upholding the challenge to the rule, the Court held that when the persons who come through the channel of promotion should necessarily possess HDC/JDC or other qualifications in Co-operation and Banking as an essential qualification, it defies logic as to how a person with a mere graduation with 50% marks could be considered for appointment by direct recruitment to the post of Branch Manager. It does not require a detailed intellectual exercise to conclude that such prescription would not pass the test of arbitrariness under Arts. 14 and 16.

The interesting question posed before the Division Bench in Raveendran v. State of Kerala (2007 (3) KLT 558), was whether the mere fact that the Court in a Writ Petition directed the Joint Registrar to decide a dispute on service matter, confer him jurisdiction to decide disputes on which he has no jurisdiction. Answering in negative, the Bench held that after the coming into force of Act 1 of 2000 with effect from 2.1.2003, the dispute in connection with the employment of officers and servants of different classes of societies specified in sub-s.(1) of S.80 including their promotion and inter-se seniority has to be decided by the Arbitration Court and not by the Joint Registrar or by the Government.

On the constitution of Co-operative Arbitration Court, every dispute pending before the Registrar or any person invested with the power to dispose of the same by the Government or the arbitrator appointed by the Registrar, in respect of non-monetary disputes relating to the local area of jurisdiction of the Arbitration Court, shall be transferred to such Arbitration Court and the Court shall dispose of the same as if it were a dispute referred to it under S.69. The Division Bench confirmed the order passed in 2006 (1) KLT 199.

The Division Bench in Venjaramood  Co-operative Rubber Marketing Society v. Nazimuddin (2007 (4) KLT 322) was asked to interpret the words “the entire period of dismissal is treated as a period of service’’. The learned single Judge has held that the employee would be entitled to consequential benefits like back wages and other monetary benefits. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. Gravity of the charges leveled against a delinquent employee, the quantum of punishment, the income earned during the period of dismissal etc., would go into the mind of the Court, Tribunal or other authority while granting or denying consequential benefits. Sometimes reinstatement is ordered with full back wages or with half the back wages or without back wages, or pay a consolidated amount etc. In the absence of consequential benefits, it must be taken that consequential benefit has been denied and only “continuity of service” is granted. To creep up to this conclusion, the Division Bench relied on the decisions of the Apex Court reported in (2007) 2 SCC 433, (2003) 2 SCC 212 and (2005) 7 SCC 406.

THE LEGEND THAT WAS

(By AdvocateJayasankaran Nambiar, M/s. Menon & Pai, Advocates)

There was never a dull moment in Court when Mr.P.K.Kurien stood up to argue his case. Those who have had the privilege of assisting him in Court will testify to that. He was a giant in all respects...Physically, Intellectually and Emotionally. He strode like a colossus in social circles and in the work arena he displayed an erudition and charm that were worthy of emulation.

My earliest memory of the man is as a colleague of my father, who was also then a partner of M/s Menon & Pai. His larger-than-life presence during dinner meetings was quite intimidating to a little boy and I would keep a safe distance from him at all times. It was only later in life, when I got to know him better as my Senior Partner in Menon & Pai, that I realised that behind all that facade and within that huge frame existed a very simple human being. Simplicity was his Mantra... be it in his attire or in his work. I don’t recall seeing him dressed up in fanciful clothes for any occasion. He wore his Lounge Suit or Dinner Jacket, if the occasion demanded it, but otherwise he was quite comfortable in his loose fitting whites.

As a lawyer he was gifted...or should I say - pure genius. Endowed with a photographic memory and a command over the English language which was flawless to the point of perfection, his exploits in court were a treat to those present. I have never seen a person with a greater presence of mind and, for those of us who were fortunate to have had the opportunity to assist him in Court, there was ample humour thrown in as well. His skills at cross-examination were devastating and it didn’t take him very long to nail even the most recalcitrant of witnesses. To the judge he was always polite and to the opposite side, fair. I never saw him seek an adjournment in court without first calling the lawyer appearing for the other side and getting his permission. He was also never late to court when there was a hearing scheduled. When on his feet to present the case, he went straight to the point and never indulged in beating about the bush. He would summarise the relevant points, including the ones against him, and gradually take the judge through a path of legal reasoning and logic. Once he got going, it was difficult not to pay attention to him. Indeed, of him can be said, what was once said of Sir Patrick Hastings....His powers of persuasion were a positive menace to the legal fraternity!

There was a certain childishness in the man as well. I remember once when I was discussing a case with him, he simply refused to talk during the meeting. Throughout the meeting he would simply make noises...the odd grunt and if absolutely necessary, a “Yes”. I then asked him if there was something wrong. “No”, he said and continued to read the papers. The next day, it was the same behaviour and I noticed that he was having some difficulty with his speech. Worried, I called his daughter, for she was the only one he would listen to, and asked her to take him to the Doctor. When she arrived, he reluctantly went to the ENT specialist who promptly pulled out a tiny fish bone from his throat. Having a fish bone pulled out from one’s throat, is nothing unusual but, in his case it was bad news because he had been sworn to a vegetarian diet by his wife and everybody believed that he was sticking to that diet religiously. I couldn’t believe that he had actually suffered the fish bone in his throat just so that his family wouldn’t get to know of his dietary exploits which had gone terribly wrong!

He was dear to us in Menon & Pai and dearer still to his family members. For the legal fraternity, he was an Achilles - one you could depend on to steer you through legal battles. But every great warrior has necessarily to fade away and so did this mighty soul. Physically he is not amidst us now, but he will forever remain in our hearts. For me, he will always be the gentle giant who led me through the turbulent waters of legal practice, whispering “go on” at every difficult juncture.

Privilege and Immunity of  Lawyers  --  Need for Legislation

(By O.V. Radhakrishnan, Senior Advocate)

 The privilege of an Advocate under the laws in India and in the Courts of Justice and the need for providing professional immunity to lawyers is  a subject much of topical importance. The privilege expressly conferred upon an advocate is the right to practise throughout the territories to which the Advocates Act extends, namely, in all Courts including the Supreme Court, before any Tribunal or person legally authorised to take evidence and before any authority or person before whom an Advocate is by or under any law for the time being in force entitled to practise under S. 30 of the Advocates Act, 1961.   The above right is fortified in S. 33 of the Act by injuncting any person who is not enrolled as an Advocate under the Act to practise in any Court or before any authority or person. In carrying out his duties, an Advocate enjoys broad powers but he cannot claim immunity from legal consequences in the discharge of his duties and obligations while acting for his client. 

S. 126 of the Evidence Act has put an embargo on the Advocate against disclosure of any communication made to him in the course and for the purpose of his employment as an Advocate and he is not permitted to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment.  S. 126 of the Indian Evidence Act does not confer any privilege on an advocate in the sense of exempting from a liability or burden to which others are subject. No protection is given to an advocate in ‘acting’ for his client under the Indian Evidence Act or under the Advocates Act or any other law for the time being in force. It only limits the power and authority in the exercise of his professional functions and cannot be regarded as a privilege in the real sense. All the same, an advocate has a professional duty to promote and to protect fearlessly and by all proper and lawful means his client’s interest regardless of his interest and without fear of any consequences. 

S.179 of the Indian Penal Code on the other hand makes it a penal offence to refuse to answer any question demanded of him touching a subject on which he is legally bound to state the truth to any public servant. The liability to state the truth under S. 179 is qualified by the Indian Evidence Act under which certain exemptions are made applicable to witnesses. The witnesses are not bound to answer questions covered by exemption granted by the Evidence Act. Under S.161(2) of the Code of Criminal Procedure a person shall not be bound to answer questions to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Compelling a person accused of any offence to be a witness against himself is prohibited under Art.20(3) of the Constitution of India. The privilege conferred upon the witnesses under the Evidence Act is not extended to the Advocate appearing for the party and his refusal to answer the questions may constitute an offence under S. 179 of the Indian Penal Code. There is an apparent conflict between S.179 of the Indian Penal Code and S. 126 of the Indian Evidence Act in regard to the right of disclosure. Under S. 126 of the Evidence Act an advocate is not permitted to disclose any communication made to him without his client’s express consent. It is a bar and not a privilege which can be put up as a defence against prosecution under S.179 of the Indian Penal Code. 

Under Art.19(1)(g) of the Constitution of India right to practise the profession of law is a fundamental right which can be regulated under Art.19(6). Nevertheless, no privilege is conferred on the advocates as in the case of legislators under Art.105 and 194 of the Constitution of India.  The Judges and the Magistrates enjoy immunity under S. 121 of the Indian Evidence Act which provides that no Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any question as to his own conduct in Court as such Judge or Magistrate or as to anything which came to his knowledge in court as such Judge or Magistrate. The Judicial Officers Protection Act, 1850 was enacted for the greater protection of Magistrates and others acting judicially. The above Act continues to be in force under Art.372 of the Constitution of India. S. 1 of the Act relates to non-liability to suit of officers acting judicially for official acts done in good faith and of officers executing warrants and orders.  Lack of such protective law in respect of lawyers has hamstrung the right and authority of lawyers which has a debilitating effect on the functioning of lawyers.  It is necessarily to be provided to maintain the integrity and efficiency of our legal system.

According to the Common Law, absolute privilege is attached to any statement made by Judges, witnesses and the advocates during the course of judicial or quasi-judicial proceedings. The parameters of the doctrine of absolute privilege were laid down in the locus classicus decision in R v. Skinner by Lord Mansfield in 1772 as  “neither party, witness, counsel, jury, or judge, can be put to answer civilly or criminally, for words spoken in office”. The only exceptions are with respect to perjury, contempt of court and perverting the course of justice. In 1892 the English Court of Appeal affirmed the rule of absolute privilege as an essential requirement for the proper administration of justice. The ‘absolute privilege’ has been conceived on the grounds of public policy to ensure freedom of speech meaningful. Justice Foong in R v. Skinner emphatically stated that “it (a relevancy restriction to absolute privilege) contradicts their Lordship’s basic rationale of preventing any pressure on counsel or parties when they present their case before the Court. Any exception or  proviso attached to this rule on the freedom to advance a prosecution or defence without fear of an action for libel and slander will certainly defeat this concept on administration of justice as a public policy. In my view there must be no restriction placed in the way of this principle”. The ratio decidendi in R v. Skinner was adopted in 1993 by the High Court of Australia in Jamieson v.. The Queen and in Brugmans v. The Queen. 

The Australian High Court settled the law by declaring that the privilege would even protect false statement. “In the case of a party or a lawyer, the phrase ‘words spoken in office’ (from R. v.. Skinner) at least encompasses ‘anything said ..... In the ordinary course of any proceedings in a Court of justice’, ‘although falsely and maliciously and without any reasonable or probable cause”. The doctrine of absolute privilege is founded on public policy. It serves public interest by protecting a person who is taking part by prosecuting or defending a party in a litigation to speak freely to bring out the truth by effectively cross- examining witnesses. It may be necessary to correctly assess the credibility of witnesses to put certain questions which are unpalatable to them and border on defamation. While discharging those solemn duty if the advocate is hesitant to put questions for fear of action for defamation or for tortious liability he is certainly failing in playing an independent and fearless role in the administration of justice. Therefore, freedom of speech without fear of consequences is a fundamental right to be conferred upon advocates.  

In Malaysia, the Government have recognised and respected the right of freedom of speech for lawyers while defending and advocating.  As stated by Brette, M.R. in Munster v. Lamv: “a counsel has a special need to have his mind clear from all anxiety. A counsel’s position is one of the utmost difficulty. He is not to speak of that which he knows; he is not called upon to consider whether the facts with which he is dealing are true or false. What he has to do is to argue as best he can, without degrading himself; in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. For, more than a judge; infinitely more than a witness, he wants protection on the ground of benefit to the public. The rule of law is that what is said in the course of the administration of the law is privileged; and the reason of that rule covers a counsel even more than a Judge or a witness. If the rule of law were otherwise the most innocent, counsel might be unrighteously harassed with suits, and therefore, it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct”. Therefore, long-drawn process of reasoning is not required to establish that absolute privilege shall be conferred upon lawyers in order to effectively and zealously perform the duties he/she owes to clients.  Needless to say, subjecting lawyers to action for defamation or sedition would definitely impair the independence and his right to carry on his profession of law fearlessly. Absence of privilege to advocates in regard to his professional acts would certainly play with or pervert the due course of justice. The only exceptions that can be culled out from professional privilege are  penal offences, perjury, contempt of court and perverting the course of justice in any manner. The warp and woof of our experience is that the right and duty of a lawyer to represent the best interest of his client could not be exercised at times effectively and conscientiously for fear of consequences of civil/criminal action, Governmental interferences, Police intimidation and harassment and the like. The legislation should usher in a law providing privilege and immunity to lawyers. It is the need of the day to secure and maintain the independence of advocates for playing a fearless and non-servile role. 

It is an irrefragable truth that adequate protection of the Human Rights and the fundamental freedoms to which all persons are entitled requires that all persons shall enjoy effective and easy access to legal services through lawyers who are honestly anxious to arrive at right decision in playing the part of the judicial business. To ensure an independent bar, the advocates must be freed from the present day handicaps by armouring them from action for defamation both civil and criminal and other penal offences. If that is not done, the efficient and dynamic functioning of advocates would be crippled reducing them to a subservient tail-wagging appendage to the judicial branch which is an anathema to a healthy democratic judicial system.