Contract Employee no Different. Supreme Court

The Supreme Court on 29 April 2019, delivered a Judgement that went on to clarify the distinction if any, of a person employed by the principal or through a contractor.

The blogger hopes that this would give some relief to the many employees on contract, differentiated on the basis, contrary to the law. 

"The word “employee” as defined in the Minimum Wages Act, 1948 means any

person who is employed for hire or reward in a scheduled employment." reminds the judgement.

The Supreme Court finds, according to the Act, "no distinction made between a person employed by the principal employer and a person employed through a contractor." 

Any person who employs, whether directly or through any other person, one or more

employees in a scheduled employment falls within the definition of an “employer”, reads the Judgement.

"A close scrutiny of the definitions of the employer and the employee would bring

the workmen employed through the contractors within the purview of the Act." Stating this, the Court rejected the submission that the contract workmen are not covered under the Act.

The judgement further adds that, "where any of the above categories of workmen
are engaged/ employed through a Contractor, the Occupier/ the Principal Employer shall be personally responsible for ensuring the payment of the minimum rates of wages by the Contractor.

Download Judgement Copy

No Relief on Failure to Appear in Subsequent Recruitments : Supreme Court

A failure to appear in subsequent recruitment drives, may disqualify of any entitlement to relief.

Acting on an appeal preferred by a candidate, the Supreme Court on 29 April 2019, delivered this judgement.
Download Judgement.

Writ Not Maintainable against IBPS or Banks: Supreme Court

In a certain Banking Examination, a candidate failed to produce Community Certificate, issued during a particular period of time. The certificate, so produced by the candidate was prior to those dates and the candidate was disqualified from participating further in the selection process.

The candidate then filed a writ petition challenging the proceeding and the High Court dismissed it. Acting on his appeal, the Supreme Court, on 29 April 2019 delivered its judgement.

The High Court was of the view that the Respondent, IBPS was not a State within the meaning of Article 12 of the Constitution of India and there was no public function that was discharged by the Respondent. On the said grounds, the High Court opined that the Respondent is not amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India.

The Supreme Court held the High Court was right about holding the Writ Petition not maintainable against the Respondent, on the ground that, conducting recruitment tests for appointment in banking and other financial institutions, was not a public duty. The Respondent is not a creature of a statute, says the judgement, because of the reason that there were no statutory duties or obligations imposed on the Respondent.

The Supreme Court, further held that, "the Respondent therein would not be amenable to Writ Jurisdiction under Article 226 of the Constitution of India, as the activities were voluntarily undertaken by the Respondents and there was no obligation to discharge certain activities which were statutory or of public character."

Reference was made to the Federal Bank
case wherein it was held that "the Writ Petition was not maintainable under Article 226 of the Constitution of India in spite of the regulatory regime of the Banking Regulation Act and the other statutes being in operation."

The Supreme Court dismissed the appeal, on further finding that the Respondent had failed to participate in the four rectruitments those were held subsequent to the year 2013,  and "as he did not participate in any of said subsequent recruitments, the Appellant is not entitled to any relief." the Supreme Court, declared.
Download Judgement Copy.

Mere Apprehension cannot be a ground for rejection, says HC

The High Court of Judicature at Madras on 23 April 2019 has permitted the petitioner to conduct cultural programme in the event of Hanumantheertham Village Sri Mariamman Temple Festival at Hanumantheertham post, Uthangarai Taluk, Krishnagir District, on 26.04.2019 between 6.00 p.m. and  10.00 p.m.

The permission is granted with a view that  mere apprehension (of a law and order problem, in the event of the permission being granted) cannot be a ground to reject the representation.

Further to this, the court has  given clear directions as to the conduct of the programme.
No obscene dance or vulgar dialogues
No playing of Double meaning songs
No playing of dance or songs, touching upon any political party or religion or community or caste
No flex boards in support of any political party or communal leader
Not to affect either religious or communal harmony and no discrimination based on caste.
Stick to timings and conditions
"If there is violation of any one of the conditions imposed, the concerned police officer is at liberty to take necessary action, as per law and stop such performance forthwith", the court has warned.

Relief to Computer Assistants is Coming Soon.

The Madurai Bench if Madras High Cour on 24 April 2019, has directed the concerned to allow the petitioners appointed through outsourcing, as per the Government Orders issued periodically, at par with those Computer Assistants, who were recruited under Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) through Employment Exchanges to appear for the special qualifying test for absorption as Junior Assistants.

The Order adds that, vide G.O.(Ms)No.84, the Government has ordered that Computer Assistants shall be appointed only through Employment Exchange. Thereafter, vide G.O.(Ms)No.71, dated 20.06.2014, the consolidated pay of Computer Assistants appointed under various  channels for Mahatma Gandhi National Rural Guarantee Scheme was increased from Rs.7,500/~ to Rs 11,000/~ per month.

Further to the above, there is also a mention of "G.O.(Ms)No.37,  Rural Development and Panchayat Raj (E5) Department, dated 22.03.2017, of the government's proposal to absorb the Computer Assistants in MGNREG Scheme.

The blogger has been informed of certain computer operators attached tot certain departments of the government with a pay as low as Rs 5500 pm. The blogger hopes there to be some relief to them, as well.

Click Link to Download Order.
https://drive.google.com/file/d/1ri_1CH2m5oRtCVNlgVztGaiNbTvofspz/view?usp=drivesdk

Is a child, property of a parent?

Is guardianship sufficient to claim suzerainty over the interests of the ward?
Is a child, property of a parent?
Can by the consent of a parent, an act upon a minor, become legal and ethically sound?

The Honourable Justice, at the Madurai Bench of Madras High Court, while pronouncing his Order on 22 April 2019, on  a Writ Petition praying to direct the respondents to register the marriage solemnized between a Hindu male and a transwoman, has quoted much in favour of the third gender and has also in his order, published verbatim the response of the  Directorate General of Health Services to Shri Gopi Shankar M, Executive Director, Srishti Madurai Student Volunteer Educational ResearchFoundation, on his request seeking the NHRC to ban the forced sex selective surgeries. The DGMS in it's response sounding of a clear conscience indicating of no violation or any intrusion into Intersex people's fundamental rights, strangely states "any kind of invasive
 medical procedure including sex reassignment surgeries are done only after thorough assessment oft thepatient, obtaining justification for the procedure
planned to be conducted with the help of appropriate diagnostic test and only after taking a written consent of the patient/guardian."

Stating that "The consent of the parent cannot be considered as thec consentof the child." the Justice has quoted the work of Khalil Gibran in his small book, The Prophet.

"Your children are not your children.
They are the sons and daughters of Life's longing for itself.
They come through you but not from you,
And though they are with you yet they belong not to you.
You may give them your love but not your thoughts,
For they have their own thoughts...."

WHO has called for a deferment of intersex genital mutilation (IGM) until the intersex persons are old, enough to make decisions for themselves, the Justice has stated.

The order of the Justice further states that the Hon'ble Supreme Court in NLSA case hasc categoricallystated that none be forced to undergo medical procedures including SRS, sterilisation or hormonal theraphy, as a requirementfor legal recognition of their gender identity.

Taking note of the current state that the mandate issued by the Hon'ble Supreme Court is not beingh onoured, the  Court has to necessarily direct the Government of Tamilnadu to issue a Government Order enshrining the aforesaidm mandateof the Hon'ble Supreme Court so as to effectively ban sex reassignmentsurgeries on intersex infants and children.

"A person who isi n the Third Category is entitled to remain beyond the duality ofm malefemale or opt to identify oneself as male or female. It is entirelythe choice of the individual concerned." the Order states.

Read The Prophet, online
http://www.gutenberg.org/files/58585/58585-h/58585-h.htmhttp://www.gutenberg.org/files/58585/58585-h/58585-h.htm
Osho Rajneesh has written a commentary in two volumes, on The Prophet, entitled, The Messiah in two volumes, both available for Free download.
Veteran broadcaster, Late.P.U.Aiyoob, a good old friend of mine, has translated the work in Tamil, entitled, Perarivalan, and this was then made part of all government library collections in the State. The Tiruchirappalli Intellectual Forum had a practice of gifting this book to the visitors.

Pension Order for Postal Employee

The High Court of Judicature at Madras yesterday gave a life_saving verdict to an Extra Departmental Delivery Agent (Gramin Dak Sevak) of the Past, later promoted as a Post man, though releived without pension, for lack of motivation nimum service with the Postal services.

https://drive.google.com/file/d/1aPgwuVvta0_xtY8jSPj67yJTnQauHmz_/view?usp=drivesdk

The Bride is Not Wrong.

The Madurai Bench of Madras High Court on 22 April 2019, has issued order declaring a marriage solemnized between a male and a transwoman, both professing Hindu religion, is valid in terms of Section 5 of the Hindu
Marriage Act, 1955 and the Registrar of Marriages is bound to register the same.

Earlier, the petitioners, a transgender and a male submitted a memorandum for registration of marriage under Rule 5 (1) (a) of the Tamil Nadu Registration of Marriages
Rules in Form I to the Registrar and the officer has refused to register the same and hence have they preferred to a legal remedy.

The registering officers have relied on Section 7 of the Tamil Nadu Registration of Marriages Act,2009 that empowers them to refuse registration, in case of they being satisfied that the marriage between the parties was not performed in accordance with the personal laws of the parties, any custom or usage or tradition.

Further, Section 7 (1) (c) of the same Act, empowers them to refuse registering the marriage, in case of the documents so tendered do not prove the Marraige status of the parties.

The contention was also that the Oxford Advance Learner's Dictionary of Current English refers 'Bride' to a Woman on her wedding day. Thus the concerned person, being a transgender and not a woman, has failed to fulfill the statutory requirement set out in Section 5 of the Hindu Marriage Act, 1955.

However, The Bench observed that the expression "bride" in Section 5 of the Hindu Marriage Act, 1955 shall include, a woman, a transwoman, an intersex person (person with a genatalia, resembling neither a man nor a woman) or a transgender person, whosoever identifies oneself as a woman. It is understandable that the personal sexual identity of the person concerned alone is sufficient at identifying the gender and the anatomy or sexual orientation is of no concern.

One may ask, what if the same situation happened with the groom rather than the bride. The response would be that, the same ruling would apply.

https://drive.google.com/file/d/1Jz2Gt1b2uXcVzNzZPIL2WD_X3cwpPzN9/view?usp=drivesdk

Lawyer Claims of a Conspiracy against CJI Ranjan Gogoi

Following a claim from a lawyer, of a Conspiracy to make the CJI resign, by way of a false case of sexual harassment, the Supreme Court today, has called for a response from the whistleblower.

Tamil Nadu Litigation Counter as on 23 Apr 2019

Tamil Nadu Litigation Counter
As on 23 Apr 2019
Disposed, Total
1671430 Civil
1731621 Criminal
3403075 Both

Pending, Total:
637706  Civil
470529 Criminal
1108235 Both

Pending_Matter Type: Both Cv&Cr
960997 (86.85 %)s Original
39776 (3.59 %) Appeal
16928 (1.53 %) Application
88776 (8.02 %) Execution

Pending_Age: Both Cv&Cr
436014 (39.34 %) 0 to 1 years
337639 (30.47 %) 1 to 3 years
172998 (15.61 %) 3 to 5 years
123844 (11.17 %) 5 to 10 years
35005 (3.16 %) 10 to 20 years
2442 (0.22 %) 20 to 30 years
293 (0.03 %) above 30 years

Pending_Stage: Both Cv&Cr
195346 (18.21 Appearance/Service Related
163151 (15.21 %) Compliance/Steps/stay
463409 (43.20  Evidence/Argument/Judgement
250913 (23.39 %) Pleadings/Issues/Charge

Online Privacy Protection of Children

The Supreme Court on Monday, 15 Apr 2019, refused to stay the order of the Madurai Bench of the Madras  High Court, directing the Center to ban the "Tiktok" app.

Earlier, on 03 April, the Madurai Bench of Madras High Court, without hearing the other party, scheduled to hear the matter on 16 April, and issued the Interim order, inclusive of directing the media not to telecast clips made with the app. In addition, the Madurai Bench has also asked the government if it would enact a statute on the line of the Children's Online Privacy Protection Act in the US.

The Supreme Court has listed to hear the matter on 22 April.

What is Children's Online Privacy Protection Act?
The Children's Online Privacy Act. COPPA, 1998 is about imposing certain requirements on Operators of Websites and Online Services, with regard to the content, services and collection of information fron children under 13 years of age.

What is "Personal Information" according to COPPA?

(A) a first and last name;

(B) a home or other physical address including street name and name of a city or town;

(C) an e-mail address;

(D) a telephone number;

(E) a Social Security number;

(F) any other identifier that the Commission determines permits the physical or online contacting of a specific individual; or

(G) information concerning the child or the parents of that child that the website collects online from the child and combines with an identifier described in this paragraph.

Interestingly, Date of Birth is NOT identified as any "Personal Information" though it's still used in India, by the government and the banks for User identification.

Tamil Nadu Litigation Counter 16 Apr 2019

Tamil Nadu Litigation Counter
As on 16 Apr 2019
Disposed, Total
1670126 Civil
1723571 Criminal
3393701 Both

Pending, Total:
638337  Civil
469935 Criminal
1108272 Both

Pending_Matter Type: Both Cv&Cr
1108272 Original
39776 (3.59 %) Appeal
17005 (1.54 %) Application
88839 (8.03 %) Execution

Pending_Age: Both Cv&Cr
433677 (39.13 %) 0 to 1 years
338783 (30.57 %) 1 to 3 years
173643 (15.67 %) 3 to 5 years
124330 (11.22 %) 5 to 10 years
35098 (3.17 %) 10 to 20 years
2447 (0.22 %) 20 to 30 years
294 (0.03 %) above 30 years

Pending_Stage: Both Cv&Cr
195021 (18.18 % Appearance/Service Related
163102 (15.21 %) Compliance/Steps/stay
463430 (43.21  Evidence/Argument/Judgement
250881 (23.39 %) Pleadings/Issues/Charge

Pending_Reason: Both Cv&Cr
14 (5.45 %) Awaiting Record
92 (35.80 %) Bulky Case
19 (7.39 %) Execution Delays
31 (12.06 %) Offshoots
54 (21.01 %) Securing Presence
12 (4.67 %) Stayed
35 (13.62 %) Unattended

Tamil Nadu Litigation Counter 15 Apr 2019

Tamil Nadu Litigation Counter
As on 15 Apr 19
Disposed, Total
1668989 Civil
1722279 Criminal
3391272 Both

Pending, Total:
637922  Civil
480372 Criminal
1118294 Both

Pending_Matter Type: Both Cv&Cr
509542 (79.94 %) Original
30106 (4.72 %) Appeal
8993 (1.41 %) Application
88762 (13.93 %) Execution

Pending_Age: Both Cv&Cr
436733 (39.05 %) 0 to 1 years
341475 (30.54 %) 1 to 3 years
174697 (15.62 %) 3 to 5 years
126238 (11.29 %) 5 to 10 years
36371 (3.25 %) 10 to 20 years
2486 (0.22 %) 20 to 30 years
294 (0.03 %) above 30 years

Pending_Stage: Both Cv&Cr
202545 (18.71 %) Appearance/Service Related
163347 (15.09 %) Compliance/Steps/stay
465830 (43.03 %) Evidence/Argument/Judgement
250730 (23.16 %) Pleadings/Issues/Charge

Pending_Reason: Both Cv&Cr
14 (5.45 %) Awaiting Record
92 (35.80 %) Bulky Case
19 (7.39 %) Execution Delays
31 (12.06 %) Offshoots
54 (21.01 %) Securing Presence
12 (4.67 %) Stayed
35 (13.62 %) Unattended

Tamil Nadu Litigation Counter 12 April 2019

Tamil Nadu 12 Apr 2019

Pending, Total:
637556 Civil
479756 Criminal
1117312 Both

Disposed, Total
1667760 Civil
1717315 Criminal
3385079 Both

Pending_Matter Type: Both Cv&Cr
970041 (86.94 %) Original
39764 (3.56 %) Appeal
17300 (1.55 %) Application
88681 (7.95 %) Execution

Pending_Age: Both Cv&Cr
435086 (38.94 %) 0 to 1 years
341804 (30.59 %) 1 to 3 years
174880 (15.65 %) 3 to 5 years
126389 (11.31 %) 5 to 10 years
36372 (3.26 %) 10 to 20 years
2487 (0.22 %) 20 to 30 years
294 (0.03 %) above 30 years

Pending_Stage: Both Cv&Cr
50371 (8.26 %) Appearance/Service Related
139809 (22.91 %) Compliance/Steps/stay
300693 (49.28 %) Evidence/Argument/Judgement
119267 (19.55 %) Pleadings/Issues/Charge

Pending_Reason: Both Cv&Cr
13 (7.14 %) Awaiting Record
58 (31.87 %) Bulky Case
19 (10.44 %) Execution Delays
25 (13.74 %) Offshoots
22 (12.09 %) Securing Presence
10 (5.49 %) Stayed
35 (19.23 %) Unattended

Inordinate Delay Sufficient to Close Allegation on Corruption.

A case of alleged corruption, involving politicians, bureaucrats and corporates, filed in 1997, comes to close, taking note of delay. Maharashtra government has earlier made a plea to close the case and a bench at the Supreme Court, on 12 April, has allowed it.

The case filed at the Apex court by Centre for Indian Trade Union (CITU) in 1997, involves US based Enron and it's associates Dabhol Power Corporation. The case was filedf challenging the a Bombay High Courtorder that upheld the PPA. It is about the 3 Billion US Dollar, mega power project, set up in 1996, by Maharashtra government. It concerns the Power Purchase Agreement (PPA), between the two parties, in 1993. The Maharashtra government is represented by Maharashtra State Electricity Board, MSEB.

One among the party to the PPA in question, has made a plea to close the case and a bench comprising Chief Justice Ranjan Gogoi and Justices Deepak Gupta has allowed the same.

Rafale deal case _ A new look at RTI

The media is reported to have sourced classified documents relating to Rafale deal. The central government claimed that as per Section 22 of the Indian Evidence Act, it was inappropriate to consider those leaked documents as any evidence. The center further contested that the documents were further protected under Section8(1)(a) Right to Information Act and also the official Secrets Act.

PTI reports that, the Supreme Court has dismissed the government's preliminary objections claiming "privilege" over the same.

It is also observed that Sections 22 and 24 of Right to Information Act, were in favour of the consideration.

Section 22 of the Indian Evidence Act

When oral admissions as to contents of documents are relwvant.

- Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Section 8(1)(a) Right to Information Act

(1) Notwithstanding anything contained in this Act, there shall be no obligation to
give any citizen,— 

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

Section 22 Right to Information Act

The provisions of this Act shall have effect notwithstanding anything inconsistent  therewith contained in the Official Secrets Act 1923 and any other law for the time being in force or in any instrument having effect by the virtue of any law other than this Act.

Section 24 Right to Information Act

24. (1)Nothing contained in this Act shall apply to the intelligence and security 

organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: