Lesson 14 Industrial Disputes Act 1947 - Dheeraj Tyagi …dheerajtyagiclasses.com/dtcadmin/uploads... · · 2017-09-06CS SIMRANJEET SINGH CS EXECUTIVE Page 1 Lesson 14 Industrial

CS SIMRANJEET SINGH CS EXECUTIVE

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Lesson 14

Industrial Disputes Act 1947

Introduction

The Employers and Workmen’s (Disputes) Act, 1880 was the first law dealing with

industrial disputes in India,

The Trade Disputes Act, 1929, replaced this Act.

The Industrial Disputes Act, 1947 came in place of the 1929 Act to give more coverage

to the industries disputes in the country.

The Act came into force on the 01.04.1947.

The Act extends to the whole of lndia.

It applies to all industries whether owned by private owners or by the Government

Objectives

Workman of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate, AIR

(1958) SC 353 . The Supreme Court laid down the following principal objectives of the Act:

Promotion of measures for securing and preserving amity and good relations between the

employer and workmen.

Investigation and settlement of industrial disputes between employers and employers,

employers and workmen, or workmen and workmen.

Prevention of illegal strikes and lock-outs.

Relief to workmen in the matter of lay-off and retrenchment.

Promotion of collective bargaining.

Providing machinery or authority for settlement of industrial disputes.

Relief to workmen in case of transfer and closure of undertaking.

Improving service conditions of labor.

Workman [Section 2(5)]

Any person (including an apprentice) employed in any industry to do any manual, unskilled,

skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms

of employment is express or implied.

For the purposes of any proceeding under the Act. Workmen includes any such person who has

been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute

or whose dismissal, discharge or retrenchment has led to that dispute.

Workman does not include the following :

Any person who is subject to the Air Force Act, 1950,0r the Army Act, 1950, or the Navy

Act, 1957.


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Any person who is employed in the police service or as an officer or other employee of a

prison.

Any person who is employed mainly in a managerial or administrative capacity.

Any person who, being employed in a supervisory capacity, draws wages exceeding

10,000 p. m Any person who exercises functions mainly of a managerial nature.

Wages Section 2 (rr)

Wages means all remuneration capable of being expressed in terms of money, which would, if

the terms of employment, expressed or implied, were fulfilled, be payable to a workman in

respect of his employment or of work done in such employment.

Wages includes the following :

Allowances (including dearness allowance) as the workman is for the time being entitled

to.

The value of any house accommodation or of supply of light, water, medical attendance

or other amenity or of any service or of any concessional supply of food-grains or other

articles.

Any travelling concession.

Any commission payable on the promotion of sales or business or both.

Industry [Section 2(i)]

Industry means any business, trade, undertaking, manufacture or calling of employers and

includes any calling, service, employment, handicraft, or industrial occupation or evocation of

workmen.

Case Laws; Bangalore Water Supply v. A Rajappa (1978) 2 SCC 213 [Triple Test]

A bench of the Supreme Court consisting of seven judges exclusively considered the scope of

industry and laid down that "Where there is

systematic activity,

organised by co-operation between employer and employee,

for the production and/or distribution of goods and services calculated to satisfy human

wants and wishes,

prima facie, there is an "industry" in that enterprise." This is known as the ‘Triple Test’ for

defining an enterprise as industry.

Industrial Dispute [Section 2(k)

Industrial dispute means any dispute or difference between

employers and employers or


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employers and workmen, or

workmen and workmen,

which is connected with the employment or non-employment or the terms of employment or

with the conditions of labour of any person.

The two crucial limitations are

the dispute must be a real dispute between the parties capable of settlement or

adjudication and

the person against whom the dispute is raised must be one in whose employment, non-

employment, terms of employment, or conditions of labour, the parties to the dispute

have a direct or substantial interest.

Individual Dispute or Collective Dispute

An industrial dispute may be individual dispute or collective dispute. Any dispute between an

individual worker and the management is an individual dispute.

Where any dispute relates to the overall workers like dispute relating to hours of work, leave,

wages, retrenchment, closure etc., these are collective disputes.

Case Laws : Workmen v. Cotton Greaves Co. Ltd. (1971) An industrial dispute can be raised

for non-workmen.

Industrial Dispute by individual (Section 2A)

Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an

individual Workman, the dispute or difference between that workman and his employer shall be

deemed to be an industrial dispute even when no other workman nor any union of workmen is a

party to the dispute.

Works Committee [Section 3]

In case of any industrial establishment in which 100 or more workmen are employed or

have been employee; on any day in the preceding 12 months, the appropriate Government

may order the employer to constitute a Works Committee.

The Committee shall consist of representatives of the employer and workmen engaged in

the establishment.

Duties of the Works Committee:

To promote measures for securing and preserving amity and good relations between the

employer anq workmen.

To comment upon matters of their common interest.

To endeavour to compose any material difference of opinion in respect of any matters.


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Conciliation Officer [Section 4]

Appropriate government to appoint conciliation officers.

The conciliation officers shall be charged with the duty of mediating and promoting the

settlement of industrial disputes.

A conciliation officer may be appointed for a specified area or for specified industries in

a specified area or for one or more specified industries either permanently or for a limited

period.

Powers of Conciliation Officer

The conciliation officer may enter the premises of any establishment to which the dispute

relates after giving reasonable notice for holding conciliation proceeding.

The conciliation officer may enforce the attendance of any person for the purpose of

examination of such person

The conciliation officer may call for and inspect any documents which are relevant to the

industrial dispute or for verifying the implementation of any award or carrying out any

other duty.

Duties of Conciliation Officers

Where any industrial dispute exists or is apprehended, the conciliation officer may hold

conciliation proceedings to settle the dispute.

Where the dispute relates to a public utility service and a notice has been given, the

conciliation officer shall hold conciliation proceedings to settle the dispute.

The conciliation officer shall investigate the dispute and may do all such things as he

thinks ht for the purpose of inducing the parties to come to a fair and amicable

settlement.

A report shall be submitted within 14 days of the commencement of the conciliation

proceedings or within such shorter period as may be fixed by the appropriate

Government. The time may be extended by such period as may be agreed upon in writing

by all the parties to the dispute.

Duties of Court

A Court shall inquire into the matters referred to it and report thereon to the appropriate

government ordinarily within a period of six months from the commencement of its

inquiry.

Every report of a Court together with any minute of dissent shall, within a period of 30

days from the date of its receipt by the appropriate government, be published in such

manner as the appropriate government thinks tit.

The award so published shall be final and shall not be called in question by any Court.

Power of Labour Courts


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A member of a Labour Court may, after giving reasonable notice, enter the premises

occupied by any establishment to which the dispute relates for the purpose of inquiry.

The Court shall have the same powers as are vested in a Civil Court,.

A Labour Court may appoint one or more persons having special knowledge of the matter

under consideration as assessor to advise it.

The Labour Court shall have full power to determine by and to whom and to what extent

and subject to what conditions, if any, such costs are to be paid.

Where an industrial dispute relating to the discharge or dismissal of a workman has been

referred to a Labour Court, and if it is satisfied that the order of discharge or dismissal

was not justihed, it may set aside the order of discharge or dismissal and direct

reinstatement of the workman on such terms and conditions as it thinks tit.

The Labour Court shall rely only on the materials on record and shall not take any fresh

evidence in relation to the matter.

Reference of Disputes to the Board Court or Tribunals [Section 10]

Where the appropriate government is of opinion that any industrial dispute exists or is

apprehended, it may refer the dispute to different adjudication authorities as under for

adjudication:

To Board of Conciliation - For settlement of any dispute.

To a Court for inquiry - Any matter appearing to be connected with the dispute. (c) To

a Labour Court if the dispute relates to any matter specified in the Second Schedule.

To a Labour Court - Where the dispute relates to any matter specified in the Third

Schedule and is not likely to affect more than 100 workmen.

To a Tribunal -The dispute or any matter appearing to be connected with the dispute,

whether it relates to any matter specified in the Second Schedule or the Third Schedule.

To National Tribunal -Where the Central Government is of opinion that any industrial

dispute involves any question of national importance or is of such a nature that industrial

establishments situated in more than one State are likely to be affected, the Central

Government may, whether or not it is the appropriate Government in relation to that

dispute, at any time refer the dispute.

THE SECOND SCHEDULE Matters within the Jurisdiction of Labour Courts

1. The propriety or legality of an order passed by an employer under the standing orders; 2. The

application and interpretation of standing orders;

3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen

wrongfully dismissed;

4. Withdrawal of any customary concession or privilege;


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5. illegality or otherwise of a strike or locklout; and

6All matters other than those specified in the Third Schedule.

THE THIRD SCHEDULE Matters within the Jurisdiction of Industrial Tribunals

1. Wages, including the period and mode of payment;

2. Compensatory and other allowances;

3. Hours of‘ work and rest intervals;

4. Leave With wages and holidays;

5. Bonus, profit sharing, provident fund and gratuity;

6. Shift working otherwise than in accordance with standing orders;

7. Classification by grades;

8. Rules of discipline;

9. Rationalisation;

10. Retrenchment of workmen and closure of establishment; and

11. Any other matter that may be prescribed.

Voluntarily Reference of Disputes to Arbitration [Section 10A]

Where any industrial dispute exists or is apprehended and the employer and the workmen

agree to refer the dispute to arbitration, they may, at any time before the dispute has been

referred to a Labour Court or Tribunal or National Tribunal, by a written agreement refer

the dispute to arbitration.

The reference shall be as per the arbitration agreement.

Award

As per Section 2(b), award means an interim or a final determination of any industrial

dispute or of any question relating thereto by any Labour Court, industrial Tribunal or

National Industrial Tribunal. It includes an arbitration award. The report of a Board or

Court shall be in writing and shall be signed by all the members of the Board or Court

The award of a Labour Court or Tribunal or National Tribunal shall be in writing and

shall be signed by its presiding officer. ‘

Every report of a Board or Court together with any minute of dissent, every arbitration

award and every award of a Labour Court, Tribunal or National Tribunal shall, within 30

days from the date of its receipt by the appropriate Government, be published in such

manner as the appropriate Government thinks fit.

The award published shall be final and shall not be called in question by any Court.

Settlement [Section 2(p)]

Settlement means a settlement arrived at in the course of conciliation proceeding.


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It includes a written agreement between the employer and workmen arrived at otherwise

than in the course of conciliation proceeding.

The agreement has to be signed by the parties.

A Copy the agreement has to be sent to an officer authorised in this behalf by the

appropriate Government and to the conciliation officer.

Period of operation of Settlement Section 19

Such settlement shall be binding for such period as is agreed upon by the parties.

If no such period is agreed upon, it shall be binding for a period of six months from the

date on which the memorandum of settlement is signed by the parties to the dispute.

Change in Conditions of Service

No change without notice section 9A

An employer, who proposes to effect any change in the conditions of service in respect of

any matter specified in the Fourth Schedule, shall not effect such change without giving

to the workmen a notice of the nature of the change proposed.

Such change shall not be effective within 21 days of giving such notice.

No notice shall be required under the following circumstances as provided in section 9A

Where the change is effected in pursuance of any settlement or award.

Where the workmen are persons to whom the Fundamental and Supplementary Rules,

Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary

Service) Rules, Revised Leave Rules. Civil Service Regulations, Civilians in Defence

Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment

apply. '

No Action against Protected Workmen

No employer shall, during the pendency of any proceeding in respect of an industrial

dispute, take any action against any protected workman concerned in dispute by altering

the service conditions applicable to him immediately before the commencement of such

proceedings.

No employer shall discharge or punish, whether by dismissal or otherwise, such protected

workman.

Unfair Labour Practice [Section 25T]

No employer or workman or a trade union shall commit any unfair labour practice.

Any person who commits any unfair labour practice shall be punishable with

imprisonment up to six months or with fine up to 1000 or with both.


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Strikes [Section 2(q)]

Strike means cessation of work by a body of persons employed in any industry acting in

combination, or a concerted refusal, or a refusal under a common understanding of any number

of persons who are so employed to continue to work or to accept employment.

Prohibition of Strikes Section 23

No workman shall go on strike in breach of contract under the following situations:

During the pendency of conciliation proceedings before a Board and within 7 days after

the conclusion of such proceedings.

During the pendency of proceedings before a Labour Court, Tribunal or National

Tribunal and two months after the conclusion of such proceedings.

During the pendency of arbitration proceedings before an arbitrator and two months after

the conclusion of such proceedings.

During any period in which a settlement or award is in operation, in respect of any of the

matters covered by the settlement or award.

Illegal Strikes Section 24

A strike is legal if it does not violate any provision of the statute.

A strike shall be illegal if it is in contravention of section 22 or section 23.

Strike is also illegal if it is continued in contravention of an order made under section

10(3) or section 10A(4A).

Where a strike is in existence at the time of reference of the dispute to a Board,

Arbitrator, Labour Court, Tribunal or National Tribunal, the continuance of such strike

shall not be deemed to be illegal if such strike was not in contravention of the provisions

of the Act or not prohibited under section 10(3) or section 10A(4A) at commencement.

A strike declared in consequence of an illegal lock-out shall not be deemed to be illegal.

Dismissal of Workman for illegal Strike

lf workers participate in illegal strike. the employer can dismiss them.

Before, dismissal proper inquiry should be held and the worker be given an opportunity

to represent his case.

Wages for the Strike Period

The workmen shall be entitled to wages for the period of strike, where it is found that the

strike is neither illegal nor unjustified.

A strike is legal if it does not violate any provision of the law.


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And a strike cannot be said to be unjustified unless the reasons for it are entirely perverse

or unreasonable.

In this connection, it is pertinent to note that in the case of Bank of indie Vs T.S. Kelawala and

Dre. the Supreme Court had observed that the workmen are not entitled to wages for the strike

period. irrespective of whether the strike is legal or illegal. However, a larger bench of the

Supreme Court had earlier upheld the claim for wages for the strike period, where the strike was

held to be neither illegal nor unjustified. And. where there are two pronouncements of the

Supreme Court, suggesting or indicating contrary views, the ruling of the decision rendered by

the larger Bench should be adopted.

Strikes in Public Sector Undertaking Section 22

The Act prohibits strike in public utility service

Without giving notice of strike to the employer six weeks before striking; or

Within fourteen days of giving such notice ; or

Before the expiry of the date of strike specified in any such notice

During the pendency of any conciliation proceedings and 7 days after the conclusion of

such proceedings.

If an employer receives any such notice he shall within five days report to the appropriate

Government

Lock-out [Section 2(l)]

Lock-out means the following:

Temporary closing of a place of employment or the suspension of work, or the refusal by

an employer to continue to employ any employee.

Termination of the service of the workman due to non-renewal of the contract of

employment on its expiry or the contract being terminated in terms of the contract.

Termination of the service of a workman on the ground of continued ill health.

Lock out is opposite to and an antithesis of strike.

Prohibition of Lock-out Section 23

No employer shall declare a lock-out

During the pendency of conciliation proceedings before a Board and 7 days after the

conclusion of Such proceedings;

During the pendency of proceedings before a Labour Court. Tribunal or National

Tribunal and two months. after the conclusion of such proceedings;

During the pendency of arbitration proceedings before an arbitrator and two months after

the conclusion of such proceedings; or


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During any period in which a settlement or award is in operation, in respect of any of the

matters covered by the settlement or award.

Illegal Lockout [Section 24)

Lock-out shall be illegal if it is commenced or declared in contravention of section 22 or

section 23 or it is continued in contravention of an order made under section 10(3) or

section 10A(4A).

A lock-out declared in consequence of an illegal strike shall not be deemed to be illegal.

Lay -Off

As defined in Section 2(kkk), lay-off with its grammatical variations and cognate expressions

means the failure, refusal or inability of an employer on account of shortage of coal, power or

raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity

or for any other reason to give employment to a workman whose name is borne on the muster

rolls of his industrial establishment.

Compensation to workmen laid-off Section 25C

Whenever a workman (other than a badli workman or a casual workman) whose name is

borne on the muster rolls and has completed one year of continuous service is laid-off, he

shall be paid for all days during which he is so laid-off except for weekly holidays.

The compensation shall be equal to 50% of the total of basic wages and dearness

allowance.

If during any period of twelve months, a workman is laid-off for more than 45 days, no

such compensation shall be payable in excess of the first 45 days if there is an agreement

between the workman and the employer.

Non-entitlement of Compsensation for laid off Section 25E

No compensation shall be paid to a workman if he refuses to accept any alternative

employment in the same establishment, or in any other establishment belonging to the

same employer situate in the same town or village or situate within a radius of five miles

from the establishment to which he belongs,

Such alternative employment should not require any special skill or previous experience

and can be done by the workman.

The wages should be that normally have been paid to the workman.

If he does not present himself for work at the appointed time during normal working

hours at least once a day no compensation shall be paid.

If such laying-off is due to a strike or slowing-down of production on the part of

workmen in another part of the establishment, no compensation shall also be paid.

Prohibition of lay-off Section 25M


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Where the workman of a mine has been laid off, the employer shall, within a period of 30

days from the date of commencement of such lay-off, apply to the appropriate

Government for permission to continue the lay-off.

Retrenchment

As defined in Section 2(oo), retrenchment means the termination of the service of a workman by

the employer for any reason whatsoever otherwise than as a punishment inflicted by way of

disciplinary action.

Exception Retrenchment does not include the following :

Voluntary retirement of the workman.

Retirement of the workman on reaching the, age of superannuation.

Termination of the service of the workman as a result of the non-renewal of the contract

of employment.

Termination of the service of a workman on the ground of continued ill health.

Retrenchment may be for surplus age, redundancy due to advanced machinery, slowdown

in business. Reason does not matter.

Retrenchment Compensation Section 25F

A workman who has been in continuous service for not less than one year under an employer

shall not be retrenched by the employer under the following circumstances :

Until the workman has been given one month's notice in writing indicating the reasons

for retrenchment or the workman has been paid wages in lieu of such notice.

Until the workman has been paid compensation equivalent to 15 days' average pay for

every completed year of continuous service or any part thereof in excess of six months.

Until notice is served on the appropriate Government.

Notice of Retrenchment Section 25N

In case of an industrial establishment (not being a seasonal establishment or in which work is

performed only intermittently) in which not less than 100 workmen were employed on an

average per working day for the preceding 12 months no workman employed in any such

establishment, who has been in continuous service ,for not less than one year under an employer

shall be retrenched by that employer until the workman has been given three months' notice in

writing indicating the reasons for retrenchment and the period of notice has expired or the

workman has been paid in lieu of such notice, wages for the period of the notice.

Re-employment of retrenched workmen Section 25H

Where any workman is retrenched and the employer proposes to employ any persons, he

shall give an opportunity to the retrenched workmen who are citizens of india for re-

employment.


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Such retrenched workmen who offer themselves for re-employment shall have preference

over other persons.

Closure of Undertaking

As defined in Section 2(cc) ‘closure’ means the permanent closing down of a place of

employment or part thereof.

Section 25FFA of the Act provides that an employer who intends to close down an

undertaking shall serve a notice on the appropriate Government stating clearly the

reasons for the closure at least 60 days before the date of the intended closure.

Compensation in case of Closure Section 25FFF

Where an undertaking is closed, every workman who has been in continuous service for

not less than one year in that undertaking immediately before such closure shall be

entitled to notice and compensation as if the workman had been retrenched.

Where the undertaking is closed down on account of unavoidable circumstances beyond

the control of the employer, the compensation shall not exceed average pay for 3

months.

Penalties

An employer shall be liable to the following penalties for offences under the Act:

Lay-off without previous permission " [Section 25Q] Imprisonment for a term up to

one month or with fine up to 1000, or with both.

Retrenchment without previous permission [Section 25Q] Imprisonment for a term up

to one month or with fine up to 1000, or with both.

Closure without permission [Section 25R] Imprisonment for a term up to six months or

with fine up to 5000 or with both.

Closure if not permitted by authority -[Section 25R] Imprisonment up to one year, or

with fine up to 5000, or with both. In case of continuing offence, further fine up to 2000

for every day during which the contravention continues.

Committing unfair labour practices [Section 25U] Imprisonment up to six months or

with fine up to IOOO or with both.

Illegal strikes and lock-outs [Section 26] Imprisonment up to one month, or with fine

up to 50, or with both.

Furtherance of illegal lock-outs [Section 26] Imprisonment up to one month, or with up

to 1000, or with both.


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Instigating strike etc. [Section 27] Imprisonment up to six months, or with up to 1000,

or with both.

Giving financial aid to illegal strikes and lock-outs [Section 28] Imprisonment up to

six months, or with fine up to 1000, or with both.

Committing breach of settlement or award [Section 29] Imprisonment up to six

months, or with tine, or with both, and in case of continuing one, further tine up to 200

for every day during which the breach continues.

Disclosing confidential information [Section 30] Imprisonment up to six months, or

with fine up to 1 000, or with both. '

Closure without notice [Section 30A] Imprisonment up to six months, or with fine up to

5000, or with both.

Other offences -[Section 31] Any employer who contravenes the provisions for

changing conditions of service, etc. during pendency of proceedings, shall be punishable

with imprisonment up to six months, or with fine up to 1000, or with both. Where no

penalty is provided by the Act for any contravention fine up to 100.

Offence by companies, etc [Section 32] Where company commits an offence, every

director, manager, secretary, or other officer or person concerned with the management

thereof shall, unless he proves that the offence was committed without his knowledge or

consent, be deemed to be guilty of such offence.


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1.A workman who has been in

continuous service for not less than

one year under an employer shall

not be retrenched by the employer

until the workman has been paid

compensation equivalent to .............

average pay for every completed

year of continuous service or any

part thereof in excess of …… (a) 7 days, 30 days

(b) 15 days, 2 months

(c) 15 days, 3 months

(d) 15 days, 6 months

2.In case of an industrial

establishment (not being a seasonal

establishment or in which work is

performed only intermittently) in

which not less than .............

workmen were employed on an

average per working day for the

preceding 12‘ months no workman

employed in any such

establishment, shall be retrenched

until the workman has been given

............. notice in writing. (a) 10, 15 days'

(b) 20, 30 days'

(c) 100, three months'

(d) 250, three months'

3.An employer who intends to close

down an undertaking shall serve a

notice on the appropriate

Government stating clearly the

reasons for the closure at least

............ before the date of the

intended closure. (a) 30 days '

(b) 45 days

(c) 60 days

(d) 80 days

4.For lay-off without previous

permission, penalty is

imprisonment for a term up to one

month or with fine up to ......... ..., or

with both.

(a) Rs. 500

(b) Rs.1000

(c) Rs.5000

(d) Rs.10000

5.For retrenchment without

previous permission, penalty is

imprisonment for a term up to one

month or with fine up to. Rs...........

or with both. (a) Rs.500

(b) Rs.1000

(c) Rs.5000

(cl) Rs.10000

6.For closure without permission,

penalty is imprisonment for a term

up to six months or with fine up

to......... Or with both. (a) Rs.500

(b) Rs. (1000

(c) Rs.35000

(c!) Rs. :10000

7.Prior intimation to the

appropriate Govt to lay off,

retrench or close down an

establishment is required

under the Industrial Disputes

Act, 1947 where there are

............ workers (a) 100

(b) 1000

(c) 50

(d) 500

8.As per the provisions contained in

Chapter VB of the Industrial

Dispute Act, 1947 establishment


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employing ................ persons or

more are required to seek prior

permission of Appropriate

Government before effecting lay-

off, retrenchment and closure. (a) 50

(b) 100

(c) 250

(d) 500

9...............have been set up under

the provisions of Industrial Dispute

Act, 1947 for adjudication of

industrial disputes in an

organisation. (a) Lok-Adalat

(b) Industrial Tribunal

(c) Labour Court

(d) All of the above

10.Forming of a' Works Committee

under the industrial Disputes Act, is

mandatory where the number of

employees is................... (a) 1000

(b) 100

(c) 500

(d) 250

11.Lay off compensation is to be

paid .......... of average wages. (a) 15 days

(b) 50%

(c) 60%

(d) 75 %

12.Award means an interim or a

final determination of any

industrial dispute determined

by...... . '

(a) Labour Court

(b) Arbitrator

(c) Both (a) & (b)

(d) None of the above

13.Which of the following statement

is true about the Constitutional

validity of section 10 of the

industrial Dispute Act, 1 947? (a) it is ultra-vitae the Constitution

(b) It is intra-vires the Constitution

(c) Both (a) 8. (b)


14.............Means the temporary

closing of a place of employment or

suspension of work or the refusal

by an employer to continue to

employ any number of persons

employed by him. (a) Lay-off

(b) Retrenchment

(c) Closure

(d) Ail of the above

15...............Means the termination

by the employer of the services of a

workman for any reason

whatsoever otherwise than as a

punishment inflicted by way of

disciplinary action. (a) Lay-off

(b) Retrenchment

(c) Closure


16.An ‘arbitrator' under the

Industrial Disputes Act, 1947

includes an ................ (a) lndividual

(b) Partnership

(6) Corporate entity


17.Which of the following is

considered an ‘industry’ under the

Industrial Disputes Act, 1947? (a) Posts and Telegraph Department

(b) Central institute of Fisheries


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(c) Construction and maintenance of

National and State highways

(d) Dock Labour Board. (CS EP June 2012)

18.Which of the following type of

strike is not called a primary

strike? (a) Stay in strike

(b) Tool down strike

(c) Pen down strike

(d) Go slow. (08 EP June 2013)

19.Under section 2(oo) of the

industrial Disputes Act, 1947

termination of the services of a

workman by the employer for (any

reason whatsoever, otherwise than

as a punishment inflicted by way of

disciplinary action, but not

including voluntary retirement; or

superannuation; or non renewal of

contract of employment; or

termination of service on the

ground of continued ill-health is

known as –

(a) Settlement

(b) Retirement

(c) Suspension

(d) Retrenchment (CS EP Dec. 2014)

20.The preamble of the industrial

Disputes Act, 1947 states that it is

an Act to make provision for the

and of industrial disputes and for

certain other purposes. (a) Investigation; settlement

(b) Inquiry; arbitration

(c) Investigation; safety

(d) Inquiry; welfare. (CS EP Dec. 2014)

21.Under section 3 of the industrial

Disputes Act, 1947 the appropriate

Government may be general or

special order require the employer

to constitute in the prescribed

manner in industrial

establishments, where or more

workmen are employed or have

been employed on any working day

in the preceding 12 months and

such Committee will be comprised

of the representatives of employers

and workmen engaged in the

establishment. (a) AnAppropriate Committee; 300

(b) An Employer’s Committee; 200

(c) A Works Committee; 100

(d) A GovernmentCommittee; 500. (CS EP

Dec. 2014)

22.Under of the industrial Disputes

Act, 1947 unfair labour practices on

the part of_ employers and trade

unions of employers are specified in

~ (a) Second schedule

(b) Third schedule

(c) Fourth schedule

(d) Fifth schedule (CS EP Dec. 2014)

23.The Supreme Court carried out

an indepth study of the definition of

the term ‘industry' in a

comprehensive manner and laid

down the tests to determine

whether an activity is covered by

the definition of 'lndustry’ or not.

Also referred to u the triple test, it

was laid down in the can of

(a) Workman oi Dimakuchi Tea Estate v

Dimakuchi Tea Estate.

(b) Hospital Employees Union v. Christian

Medical College.

(c) Bangalore Water Supply and Sewerage

Board v. A Raiappa

(d) Corporation of City of Nagpur v.

Employee. (CS EP Dec. 2014)


Page 17

24.Under the industrial Disputes

Act, 1947 which of the following

matter does not fail within the

jurisdiction of industrial Tribunals- (a) Classification by grades

(b) Rationalisation

(c) Leave with wages and holidays

(d) illegality or otherwise of a strike or lock-

out. (CS EP Dec. 2014)

25.As per section 22 of the

industrial Disputes Act, 1947 no

person employed in a public utility

service shall go on strike in breach

of contract without giving to the

employer a notice of strike, within

before striking or within fourteen

days of giving such notice. (a) Three weeks

(b) Six weeks

(c) Eight weeks

(d) Five weeks. (CS EP Dec. 2014)


Act. 1947 which of the following

matter does not fall within the

jurisdiction of Labour Courts (a) Hours of work and rest intervals

(b) The application and interpretation of

standing orders

(c) Withdrawal of any customary concession

or privilege

(d) The propriety or legality of an order

passed by an employer under standing

orders. (CS EP Dec. 2014)

27………..means any dispute

between employers and workmen,

or between workmen and workmen,

or between employers and

employers, which is connected with

the employment or no employment,

or the terms of employment or the

conditions of labour, of any person,

and 'workmen’ means all persons

employed in trade or industry

whether or not in the employment

of the employer with whom the

trade dispute arises as defined

under the (a) Trade dispute; Industrial Disputes Act,

1947

(b) Industrial dispute; Industrial Disputes

Act, 1947

(c) Trade dispute; Trade Union Act, 1926

(d) Company dispute; Companies Act, 1956.

(CS EP Dec. 2014)

28.Under the Industrial Disputes

Act, 1947 means the temporary

closing of a place of employment or

suspension of work or the refusal

by to continue to employ any

number of persons so employed. (a)Lay-off; an employer

(b) Lock out; an employer

(c) Strike; Government

(d) Retrenchment; an employer. _(cs EP

Dec. 2014)

29.Which of the following person is

not included in the definition of

‘workman’ under the industrial

Disputes Act, 1947 --‘ (a) Who is employed in a supervisory

capacity drawing more than € 6,500 but less

than ? 7,500 per month as wages '

(b) Who is employed in a supervisory

capacity drawing more than 2' 1,600 but less

than 2‘ _ 6,500 per month as wages

(c) Who is employed in a supervisory

capacity drawing more than ? 10,000 per

month as wages

(d) Who is employed in a supervisory

capacity drawing less than 1,600 per month

as wages (CS EP June 2015)

30.Which of the following is

included in the definition of

‘Wages’ under the Industrial

Disputes Act, 1947 -


Page 18

(a) Any bonus

(b) Any traveling concession

(c) Any gratuity payable on the termination

of the service

(d) Any commission payable on the

promotion of sales or business or both (cs

EP June 2015)

31.Any industrial dispute or any

matter appearing to be connected

with, or relevant to the dispute

specified in the Second Schedule of

the Industrial Disputes Act, 1947

the appropriate Government, by

order in writing may make a

reference for adjudication to - (a) Labour Court

(b) Court of Inquiry

(c) Industrial Tribunal

(d) National Tribunal (CS EP June 2015)

32.In terms of section 25N of the

Industrial Disputes Act, 1947 a

workman employed in any

industrial establishment shall be

retrenched by the employer by

giving notice in writing indicating

the reasons for retrenchment. (a) One month

(b) Three months

(c) Fifteen days

(d) Twenty-one clays (CS EP June 2015)

33.In the case of Workman of

Dimakuchi Tea Estate v.

Dimakuchi Tea Estate, which of the

following objectives of the

industrial Disputes Act, 1947 are

not laid down by the Supreme

Court - (a) Promotion of measures of securing and

preserving amity and good relations between

the employer and workmen

(b) Investigation and settlement of industrial

disputes between employers and employees

(c) Promotion of collective bargaining

(d) Promotion of lay-off and lock-outs (CS

EP June 2015)


Act, 1947 which of the following

matter does not fall within the

jurisdiction of Labour Courts -- (a) Hours of work and rest intervals

(b) The application and interpretation of

standing orders

(0) Withdrawal of any customary concession

or privilege

(d) The propriety or legality of an other

Passed by an employer under standing order.

(CS EP June 2015)


Aet, 1947 failure, refusal or

inability of an employer to give

employment, to a‘ workman whose

name appears on the muster-rolls of

his industrial establishment and

who has not been retrenched due to

break-down of machinery is defined

as – (a) Lay-off

(b) Look out

(c) Retrenchment

(d) Termination (CS EP June 2015)

36.The principal objects of the

Industrial Disputes Act, 1947 as

analysed by the Supreme Court of

India in Workmen of Dimakuchi

Tea Estate v. Dimakuchi Tea Estate

are: (1) The promotion of measures for

securing and preserving amity and good

relations between the employer and

workmen

(2) The prevention of illegal strikes and

lockcuts


Page 19

(3) The prevention of collective

bargaining

Which of the above islare incorrect -

(a) Only (1)

(b) Only (2)

(c) Only (3)

(d) Only (1) and (2) (03 EP Dec. 2015)

37.Triple Test’ and ‘Dominant

Nature Test’ for determination of

industry were propounded by the ~

(a) Government of India

(b) Parliament of lndia

(c) Supreme Court of India

(d) All of the above (CS EP Dec. 2015)

38.The order making a reference

under section 10(1) of the Industrial

Disputes Act, 1947 is ~ (a) An administrative act

(b) Ajudicial act

(c) A quasi~judicial act


39.The Supreme Court of India

taking note of various previous

judicial decisions and exhaustively

considering the scope of ‘industry’

evolved a new concept of the term

‘industry’ in 1978 in the following

case -- (a) State of Bombay v. Bombay Hospital

Mazdoor Sabha

(b) Bangalore Water Supply and Sewerage

Board v. A. Rajappa

(c) D. N. Banerji v. P. R. Mukherji

(d) University of Delhi v Ram Nath (CS EP

Dec. 2015)

40.Under section 7B of the

Industrial Disputes Act, 1947 one or

more “National Tribunals’ may be

constituted for adjudication of

industrial disputes which are of

such nature that industrial

establishments situated in more

than one states are likely to be

interested in, or affected by, such

disputes. National Tribunal may be

constituted by (a) Central Government

(b) Affected parties

(c) Appropriate government

(d) All of the above. (CS EP Dec. 2015)

41.In which of the following cases a

Division Bench of the Supreme

Court held that whether the strike

is legal or illegal, the employees are

not entitled for wages for the period

of strike (a) Management of Churakulam Tea Estate

(P) Ltd. v. The Workmen

(b) Bank of India v. T.S. Kelawala

(c) Cromption Greaves Ltd. v. lts Workmen.

(d) All of the above. (CS EP Dec. 2015)

42.The legality of a strike is

determined (a) With reference to the legal provisions

enumerated in the lndustrial Disputes Act,

1947

(b) With reference to the purpose for which

the strike was declared

(c) On the basis of its justification, i.e.,

fairness and reasonableness of demands

made by workmen declaring strike

(d) None of the above. (CS EP Dec. 2015)

43.According to the Industrial

Disputes Act, 1947, no workman or

employer or trade union shall

commit any ‘unfair labour

practice’. Any person who commits

any ‘unfair labour practice’ shall be

punishable with imprisonment and

fine as per provisions of (a) Section 25T

(b) Section 25U

(c) Section 26(1)

(d) Section 26(2) (CS EP Dec. 2015)


Page 20

44.'Malis' looking after the garden

attached to the bungalows provided

by the employer to its officers and

directors are workmen even though

their work Is not directly concerned

with the main work or operation of

the industry. This was held by the

Supreme Court of India in the case

of

(a) Piparaich Sugar Mills Ltd. v. Pipraich

Sugar Mills Mazdoor Union

(b) J. K. Cotton Spinning and Weaving

Mills Co. Ltd. v. L. A..T.

(c) Both (A) and (B) above

(d) Neither (A) nor (B). (CS EP Dec. 2015)


Act, 1947 the factors which may

constitute the ground for ‘iay-off’ is

refusal or inability to give

employment due to following

reasons : (1) Shortage of coal, power, raw,

materials

(2) Breakdown of machinery

(3) Financial stringency

Which of the above is incorrect

(a) Only (1)

(b) Only (2)

(6) Only (3)

(d) None of the above (CS EP Dec. 2015)

46.Which one of the following is

true in relation to courts of inquiry

under section 6 of the ‘industrial

Disputes Act, 1947? (a) The court of inquiry is constituted by the

State Government by notification in the

official gazette .

(b) The court always consists of five

independent persons and out of them one

person is appointed as Chairman

(c) The court enjoys power to consider and

decide any matter under the provisions of

this Act

(d) The period within which the report is to

be submitted is not mandatory and the report

may be submitted even beyond the period of

six months without affecting the legality of

the inquiry. (CS EP June 2016)

47.Under the provisions of the

Industrial Disputes Act, 1947,

which of the following is not a valid

reason for an employer to declare

lay-off -? (a) Break-down of machinery

(b) Financial stringency

(c) Accumulation of stocks

(d) Shortage of raw materials. (CS EP June

2016)

48.In the case of Workmen of

Dimakuchi Tea Estate v.

Dimakuchi Tea Estate (1958), the

Supreme Court laid down the

following objectives of the

Industrial Disputes Act, 1947: (i) Promotion of measures for securing

and preserving amity and good relations

between the employer and workmen

(ii) Investigation and settlement of

industries

(iii) Prevention of collective bargaining

(iv) Relief to workmen in the matters of

layoff and retrenchment

Select the incorrect answer from the

option given below --

(a) and (ii)

(b) (ii) and (iii)

(c) (iii) and (iv)

(d) (iv) and (i) (cs EP June 2016)

49.Which one of the following

activities would fall under

‘industry’ under the industrial

Disputes Act, 1942?


Page 21

(a) Welfare activities or economic

adventures undertaken by government or

statutory bodies

(b) A charitable institution that makes no

profit but hires the services of employees as

in any other business but the goods and

services which are the output, are made

available at a low or no cost to the indigent

poor

(c) Physical Research Laboratory,

Ahmedabad. Carrying on research not for

the benefit of others and not engaged in

commercial activity

(d) Posts and Telegraphs Departments. (CS

EP June 2016)

50.Under the provisions of the

industrial Disputes Act, 1947 no

workman who is employed in any

industrial establishment shall go on

strike in breach of contract and no

employer of any such workman

shall declare a lock-out during the

pendency of ~

(a) Conciliation proceedings before a Board

and two months after the conclusion of such

proceedings (b) Proceeding before a Labour

Court and two months after the conclusion

of such Proceedings

(c) Proceeding before a Tribunal or

National Tribunal and two months after the

conclusion of such proceedings

(d) Arbitration proceedings before an

arbitrator and seven days after the

conclusion of such proceedings. (CS EP

June 2016)

51.The second schedule appended

to the Industrial Disputes Act, 1947

relates to matters within the

jurisdiction of the Labour Court.

Which one of the following matters

is not covered in the said schedule - (a) The illegality or otherwise of a strike or

lockout

(b) Discharge or dismissal of workmen

(c) The application and interpretation of

standing orders

(d) Leave with wages and holidays. (CS EP

June 2016)

52.The term ‘award’ is defined in

the Industrial Disputes Act, 1947 as

- (a) An interim determination of any

industrial dispute by any Labour Court.

Industrial Tribunal or National Industrial

Tribunal

(b) A final determination of any industrial

dispute by any Labour Court, Industrial

Tribunal or National Industrial Tribunal

(c) An interim or a final determination of

any industrial dispute by any Labour Court,

Industrial Tribunal or National Industrial

Tribunal

(d) An interim or a final determination of

any industrial dispute by any Labour court,

Industrial Tribunal and not National

Industrial Tribunal (CS EP June 2016)

53.‘Retrenchment’ under the

Industrial Disputes Act, 1947

includes -- (a) Voluntary retirement of the workman

(b) Retirement of the workman reaching the

age of superannuation as per the contract of

employment

(c) Termination by the employer of the

service of a workman as a punishment

inflicted by way of disciplinary action

(d) Termination by the employer of the

service of a workman for any other reason.

(CS EP June 2016)

1. D

2. C

3. C

4. D

5. B

6. C

7. C

8. B

9. C


Page 22

10. B

11. B

12. B

13. B

14. A

15. B

16. A

17. D

18. D

19. D

20. A

21. C

22. D

23. C

24. D

25. B

26. A

27. B

28. B

29. C

30. B

31. A

32. B

33. D

34. A

35. A

36. D

37. C

38. A

39. B

40. A

41. B

42. A

43. B

44. B

45. C

46. C

47. B

48. D

49. D

50. B

51. D

52. C

53. C


Page 23


Page 24

Lesson 15

Trade Union Act 1926

objectives

Trade unions are essential for safeguarding the rights of labourers when there is a

struggle between the labourers and the management.

In order to regulate the trade union movement in India, the Trade Unions Act, 1926 was

enacted on the recommendation of the Royal Commission of Labour.

The Act came into force on 01.06.1927.

The following are the main objects of the trade unions:

To secure fair wages for workers and improve their opportunities for promotion and

training. To safeguard security of tenure and improve their conditions of service.

To improve working and living conditions of workers.

To provide educational, cultural and recreational facilities.

To facilitate technological advancement by broadening the understanding of the workers.

To help them in improving levels of production, productivity, discipline and high

standard of living.

To promote individual and collective welfare and thus correlate the workers‘ interests

with that of their industry.

Scope and Coverage

The Act extends to the whole of India.

Its main objective is to provide for the registration of trade unions and to define law

relating to registered trade unions.

In order that the union may fight for its legitimate rights fearlessly, certain immunities

from criminal and civil actions are granted to the members of a registered trade union to

ensure a healthy trade union movement in India.

Trade Union [Section 2(h)]

Trade union means any combination, whether temporary or permanent, formed primarily

for the purpose of regulating the relations between workmen and employers or between

workmen and workmen, or between employers and employers, or for imposing restrictive

conditions on the conduct of any trade or business.

It includes any federation of two or more Trade Unions.

Employees only engaged in business are eligible to form union.

Minimum requirement about Membership of a Trade Union


Page 25

A registered Trade Union of Workmen shall at all times continue to have not less than 10% or

100 of the workmen whichever is less subject to a minimum of seven engaged or employed in an

establishment or industry with which it is connected as its members. [Sec9A]

Who can be a member?

Any person who has attained the age of 15 years, is eligible to be a member of a registered trade

union, subject to the rules of the union. [Sec -21]

Registration of Trade Union [Section 4]

At least seven members of a Trade Union may, apply to the Registrar of Trade Unions for

registration of the Trade Union

No Trade Union shall be registered unless at least 10% or 100 of the workmen,

whichever is less, engaged or employed in the establishment or industry with which it is

connected are the members of such Trade Union on the date of making of application.

At least 7 persons should be workmen engaged or employed in the establishment or

industry on the date of application.

The application shall not become invalid even if after the date of the application but before the

registration, half of the total applicants have ceased to be members of the Trade Union or have

given notice in writing to the Registrar dissociating themselves from the applications.

Cancellation of Registration Section 10

A certificate of registration of a Trade Union may be withdrawn or cancelled by the

Registrar on the application of the Trade Union.

The registration may be withdrawn or cancelled if the Registrar is satisfied that the

certificate has been obtained by fraud or mistake, or that the Trade Union has ceased to

exist or has wilfully contravened any provision of the Act or allowed any rule to continue

in force which is inconsistent with any such provision.

The registration may be withdrawn or cancelled if the Registrar is satisfied that a

registered Trade Union ceases to have the requisite number of members.

Not less than two months' previous notice in writing specifying the ground is required.

Legal Status of a Registered Trade Union

A registered trade union is a body corporate with perpetual succession and a common

seal.

it can acquire, hold, sell or transfer any movable or immovable property and can be a

party to contracts.

A registered trade union can sue and be sued, in its own name. [Sec -13]

No civil suit or legal proceeding can be initiated against a registered trade union in

respect of any act done in furtherance of a trade dispute under certain conditions. [Sec -

18]


Page 26

No agreement between the members of a registered trade union shall be void or voidable

merely on the ground that any of its objects is in restraint of trade. [Sec -19]

Offences and Penalties

Offence Penalty

(1) if the registered trade union/its office-

bearers or members fail to give any notice or

send any statement as required under the

Act[Sec -31(1)].

Fine upto 5 plus additional fine upto 5 per

week in case of continuing offence. (Maximum

fine imposable 50)

(2) if any person willfully makes any false

entry in the annual statement of the union or its

rules. [Sec 31 (2)]

Fine upto 500

(3) if any person, with intent to deceive, gives

an incorrect copy of rules of the union to any

member or a prospective member. [Sec -32]

Fine upto 200.

Dissolution of Trade Union [Section 27]

When a registered Trade Union is dissolved, notice of the dissolution signed by 7 members and

by the Secretary of the Trade Union shall, within 14 days of the dissolution, be sent to the

Registrar, for dissolution of the Trade Union.


Page 27

1.In order to regulate the trade

union movement in India, the

Trade Unions Act, 1926 was

enacted on the recommendation of

the ....................... (a) British Parliament

(b) Royal Commission of Labour

(c) Labour Commissioner


2.The Trade Unions Act, 1926 came

into force on............... (a) 01.04.1926

(b) 01.07.1926

(0) 01.04.1927

(d) 01.06.1927

3.‘Trade Union is defined in ............

of the Trade Unions Act, 1926. (a) Section 2(e)

(b) Section 2(h)

(c) Section 2(k)

(d) Section 2(h)

4.Trade union means any

combination formed primarily for

the purpose of regulating the

relations between . ............... (a) Workmen and employers

(b) Workmen and workmen

(c) Employers and employers

(d) Any of the above

5.The following islare the main

object(s) of the trade unions: (a) To secure fair wages for workers and

improve their opportunities for promotion

and training

(b) To improve working and living

conditions of workers

(6) To provide educational. cultural and

recreational facilities


6.Minimum number of person

required to apply for registration of

a trade union is.........

(a) 3

(b) 7

(c) 10

(d) 30

7.At least applicants for registration

of trade union should be workmen

engaged or employed in the

establishment or industry on the

date of application. (a) 3

(b) 7

(c) 10

(d) 30

8.No Trade Union shall be

registered unless at least ....... of the

workmen, whichever is less,

engaged or employed in the

establishment or industry with

which it is connected are the

members of such Trade Union on

the date of making of application. (a) 10% or 100

(b) 10% or 250

(c) 20% or 100

(d) 20% or 500

9.The following Act(s) shall not

apply to any registered Trade

Union. (i) The Societies Registration Act, 1860

(ii) The Co-operative Societies Act, 191-2

(iii) The Companies Act, 1956 ,

(iv) The Code of Civil Procedure, 1860

(a) (i) & (ii)

(b) (ii) & (iv)

(c) (iii) & (iv)

(d) (i). (ii). (iii) & (iv)

10.The application for registration

of Trade Union shall not become

invalid even if after the date of the

application but before the

registration, ............. of the total

applicants have ceased to be


Page 28

members of the Trade Union or

have given notice in writing to the

Registrar dissociating themselves

from the applications. (a) one tenth

(b) one fifth

(c) half

(d) None of the above.

11.Where a Trade Union has been

in existence for more than........

Before the making of an application

for registration, a general statement

of the assets and liabilities of the

Trade Union shall be given with the

application. (a) three month

(b) six month

(c) one year

(d) two year

12.The registration may be

withdrawn or cancelled if the

Registrar is satisfied that a

registered Trade Union ceases to

have the requisite number of

members. Not less than ..........

previous notice in writing

specifying the ground is required.

(a) two months

(b) three months

(c) 15 days

(d) 7 days

13.The rules of the Trade Union

shall provide the following

matter(s): (a) Name of the Trade Union

(b) Objects of the Trade Union

(c) Purposes for which the general funds of

the Trade Union shall be applicable


14.The rules of the Trade Union

shall provide the following

matter(s):

(a) Maintenance of list of the members of

the Trade Union

(b) Admission of ordinary members

(c) Both (a) and (b) '

(d) None of (a) and (b)

15................ Manages the trade

union (a) Executive body

(b) Office Bearers

(c) Secretary

(d) Company

16.Office-bearer in the case of a

Trade Union includes any member

of the executive committee. But

does not include (a) Vice Chairman

(b) Treasurer

(c) Auditor


17. Trade dispute means any

dispute ……… (a) between employers and workmen

(b) between workmen and workmen

(c) between employers and employers

(d) any of the above

18.An amalgamation of two or

more registered Trade Unions shall

not prejudice any right of any of

such Trade Unions or any right of a

creditor of any of them. (a) True

(b) False

(c) Partly true


19.Audited receipts and

expenditure statement for the year

and the assets and liabilities as on

............ of every registered Trade

Union shall be sent annually to the

Registrar. (a) 31st March

(b) 30th June

(c) 30th September


Page 29

(d) 31st December

20.Any registered Trade Union

may, with the consent of not less

than ............. of the total number of

its members change its name. (a) One-third

(b) two-thirds

(c) three-fourth

(d) one-tenth

21.A copy of every alteration made

in the rules of a registered Trade

Union shall be sent to the Registrar

within................. of the making of

the alteration. ' (a) 7 days

(b) 10 days

(c) 15 days

(d) 30 days

22.A person shall be disqualified as

a member of the executive or any

other office-bearer of a registered

Trade Union if he has not attained

the age of.. (a) 14 years. ‘

(b) 15 years.

(c) 18 years;

(d) 21 years

23.Not less than ...... of the total

number of the office bearers of

every registered Trade Union shall

be persons actually engaged or

employed in an industry with which

the Trade Union is connected. (a) One-half

(b) One-third

(c) Two-thirds

(d) One-tenth

24.As per the Trade Unions Act,

1926 a registered trade union of

workmen shall at all times continue

to have not less than ‘or of the

workmen, whichever is less subject

to a minimum of seven, engaged or

employed in an establishment or

industry with which it is connected,

as its members. (a) 7%; 70

(b) 10%; 100

(c) 10%; 120 .

(d) 15%; 100. (CS EP Dec. 2014)

25.As per section 27 of the Trade

Unions Act, 1926 when a registered

trade union is dissolved, notice of

the dissolution signed by seven

members and by the of the trade

union shall be sent to the Registrar,

within of the dissolution. (a) Manager; one month

(b) Director; twenty-one days

(c) Managing Director; twenty-one clear

days

(d) Secretary; fourteen days. ' (CS EP Dec.

2014)

26.The body, by whatever name

called, to which the management of

the affairs of a trade union is

entrusted is defined as -- (a) Body corporate under the Trade Union

Act, 1926

(b) Agent under the Trade Union Act. 1926

(c) Office-bearer under the Trade Union

Act, 1926 (d) Executive under the Trade

Union Act, 1926 (CS EP June 2015)

27.Which of the following body

registers a Trade Union -- (a) Controller of Trade Union

(b) Registrar of Trade Union

(c) Registrar of Societies

(d) Controller of Societies (CS EP June

2015)

28.Under the trade union Act 1926

a registered trade union shall be a

body corporate by the name under

which it is registered and it:


Page 30

(1) Shall have imperpetual succession

(2) Shall have a common seal with power

to acquire and hold the property

(3) Shall have power to contract.

Which of the above is incorrect -

(a) Only (1)

(b) Only (2)

(6) Only (3)

(d) None of the above (CS EP Dec. 2015)

29.According to section 2(9) of the

Trade Unions Act, 1926, trade

dispute means any dispute between: (1) Employer and workmen

(2) Workmen and workmen

(3) Employer and public servant

Which of the above islare correct (a) Only (1) and (2)

(b) Only (2) and (3)

(c) Only (1) and (3)


30.As per section 5 of the Trade

Unions Act, 1926, where a trade

union has been in existence for

more than one year before the

making of an application for its

registration, which of the 'following

shall be delivered to the Registrar,

together with the application ---- (a) A general statement of the assets and

liabilities of the trade union

(b) A general statement of the income and

expenditure of the trade union

(c) A general statement of the profit and loss

of the trade union

(cl) A general statement of the balance sheet

of the trade union. (CS EP Dec. 2015)

31.The provision relating to mode

of registration of trade union is

given in (a) Section 3 of the Trade Unions Act, 1926

(b) Section 4 of the Trade Unions Act, 1926

(c) Section 6 of the Trade Unions Act, 1926

(d) Section 7 of the Trade Unions Act, 1926.

(CS EP Dec. 2015)

32.Which one of the following

statements is correct under the

Trade Unions Act, 1926 - (a) A certificate of registration is not a

conclusive evidence that the trade union has

been duly registered under the Act .

(b) A certificate of registration of a trade

union may be cancelled by the Registrar if

he is satisfied that the certificate has been

obtained by fraud

(c) Any fifteen or more members of a trade

union may apply for registration of the trade

union

(d) The Act does not protect a trade union

from civil or criminal liability. (CS EP June

2016)

33.Consider the following

statements under the provisions of

the ‘Trade Unions Act, 1926: - (i) A federation of two or more trade

unions is not deemed to be a trade union

(ii) Trade unions are the most suitable

organisations for balancing and

improving relations between the

employers

(iii) Every registered trade union is a

body corporate but not having perpetual

succession

(iv) A registered trade union has power to

acquire and hold movable and immovable

properties.


options given below –

(a) (i), (ii) and (iii)

(b) (ii), (iii) and (iv)

© (iii) (iv)and (i)

(d) (iv) (i) and (ii) (CS EP June 2016)


Page 31

1. B

2. D

3. B

4. D

5. D

6. B

7. B

8. A

9. D

10. C

11. C

12. A

13. D

14. C

15. A

16. C

17. D

18. A

19. D

20. B

21. C

22. C

23. A

24. B

25. D

26. D

27. B

28. D

29. A

30. A

31. B

32. B

33. A


Page 32


Page 33

Lesson 16

The Labour Laws (Exemption from Furnishing Returns

and Maintaining Register by Certain Establishments) Act

1988

Introduction

The Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by

certain Establishments) Amendment Act, 2014 passed by the Rajya Sabha on November

26, 2014; the Lok Sabha on November 28, 2014 and received the assent of the President

on the 9th December, 2014 amended the Labour Laws (Exemption from Furnishing

Returns and Maintaining Registers by certain Establishments) Act, 1988.

The Amendment Act now includes 7 more Labour Acts under the purview of the

Principal Act. Also, the coverage of Principal Act has been expanded from the

establishments employing upto 19 workers to 40 workers. The Amendment Act also

gives an option to maintain the registers electronically and to file the returns

electronically which leads to ease of compliance as well as better enforcement of the

labour laws.

Objectives

From time to time a number of labour laws have been enacted for regulating employment

and conditions of service of workers.

Whenever a new law was enacted, it prescribed certain registers to be maintained by the

employers and also for furnishing various returns by the employers to the authorities.

The Labour Laws (Exemption from Furnishing Returns and Maintaining Register by

Certain Establishments) Act, 1988 was enacted exempting from maintaining registers and

filing returns by some establishments.

Act also provides for the simplification of procedure for furnishing returns and

maintaining registers in relation to establishments employing a small number of persons

under certain labour laws.

The Act came into force on 27.09.1988.

Scope and Coverage


The Act was enacted to provide exemption to certain establishments given in the

Schedule to the Act (Scheduled Act) employing a small number of persons from

furnishing returns and maintaining registers under some labour laws.

Definitions


Page 34

Scheduled Act

The following acts are specified in the Schedule:

The Payment of Wages Act, 1936

The Weekly Holidays Act, 1942

The Minimum Wages Act, 1948

The Factories Act, 1948

The Plantations Labour Act, 1951

The Working Journalists and other Newspaper Employees (Conditions of Service) and

Miscellaneous Provisions Act, 1955

The Motor Transport Workers Act, 1961

The Payment of Bonus Act, 1965

The Beedi and Cigar Workers (Conditions of Employment) Act, 1966

The Contract Labour (Regulation and Abolition) Act, 1970

The Sales Promotion Employees (Conditions of Service) Act, 1976

The Equal Remuneration Act, 1976

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of

Service) Act, 1979

The Dock Workers (Safety, Health and Welfare) Act, 1986

The Child Labour (Prohibition and Regulation) Act, 1986

The Building and Other Construction Workers (Regulation of Employment and

Conditions of Service) Act, 1996

Small Establishment Section 2 (e)

Small establishment means an establishment in which not less than 10 and not more than 40

persons are employed or were employed on any day of the preceding twelve months

Very Small Establishment Section 2(f)

Very small establishment means an establishment in which not more than 9 persons are

employed or were employed on any day of the preceding twelve months.

Compliances

The employer has to comply with the following:

Section 4(1) of the Act provides that it shall not be necessary for an employer in relation

to any small establishment or very small establishment to which a Scheduled Act applies,

to furnish the returns or to maintain the registers required to be furnished or maintained

under that Scheduled Act.

It may be noted that such employer furnishes, in lieu of such returns, annual return in

Form I; and


Page 35

maintains at the work spot, in lieu of such registers,— (i) registers in Form II and Form

III, in the case of small establishments, and

a register in Form III, in the case of very small establishments,

Every such employer shall continue to issue wage slips in the Form prescribed in the

Minimum Wages (Central) Rules, 1950 made under sections 18 and 30 of the Minimum

Wages Act, 1948 and

slips relating to measurement of the amount of work done by piece-rated workers

required to be issued under the Payment of Wages (Mines) Rules, 1956 made under

sections 13A and 26 of the Payment of Wages Act, 1936; and

file returns relating to accidents under sections 88 and 88A of the Factories Act, 1948 and

sections 32A and 32B of the Plantations Labour Act, 1951.

Furnishing or maintaining of returns and registers in electronic

Penalty

Any employer who fails to comply with the provisions of the Act shall be punishable-

in the Case of the first conviction, with fine up to ? 5 000; and

in the case of any second or subsequent conviction with imprisonment not less than one

month but which may extend to six months or with fine not less than ?10,000 and may

extend to 25,000 or with both.


Page 36

1.The Labour Laws (Exemption

from Furnishing Returns and

Maintaining Register by Certain

Establishments) Act, 1988 came

into force on............. (a) 01.04.1988

(b) 01.07.1988

(c) 27.09.1988

(d) 27.12.1988




Establishments) Act, 1988 was

enacted exempting from .............. (a) maintaining registers

(b) filing returns by some establishments

(c) maintaining registers and filing returns

by some establishments

(d) maintaining registers and filing returns

by all establishments





enacted to provide . exemption to

establishments given in the ......... (a) Industrial Disputes Act

(b) Factories Ac‘t

(c)‘ Both (a) and (b)

(d) Schedule to the Act

4.Under the Labour Laws

(Exemption from Furnishing

Returns and Maintaining Register

by Certain Establishments) Act,

1988, establishment is defined

in................. (a) Section 2(b)

(b) Section 2(C)

(C) Section 2(I)

(d) Section 4

5.The following Act(s) islare

specified in the Schedule to the

Labour Laws (Exemption from

Furnishing Returns and


Establishments) Act, 1988: (a) The Payment of Wages Act, 1936

(b) The Weekly Holidays Act, 1942

(c) The Minimum Wages Act, 1948


6The following Act(s) islare





Establishments) Act, 1988: (a) The Factories Act, 1948

(b) The Plantations Labour Act. 1951

(c) The Working Journalists and other

Newspaper employees (conditions of

service) and Miscellaneous Provisions Act,

1955


7.The following Act(s) islare





Establishments) Act, 1988: (a) The Contract Labour (Regulation and

Abolition) Act, 1970

(b) The Sales Promotion Employees

(Conditions of Service) Act, 1976

(c) The Equal Remuneration Act, 1976


8.A very small establishment under

the Labour Laws (Exemption from



Establishments) Act, 1988 means an

establishment in which not more

than ……….


Page 37

(a) 9 persons are employed or were

employed on any day of the preceding

twelve months.

(b) 10 persons are employed or were


twelve months.

(c) 50 persons are mployed or were


twelve months.

(d) 100 persons are employed or were


twelve months

9.Small establishment under the




Establishments) Act, 1988 means an

establishment in which........... are

employed or were employed on any

day of the preceding twelve months. (a) not less than 10 and not more than 19

(b) not less than 9 and not more than 20

(c) not less than 10 and not more than 20

(d) none of the above

10.A small establishment exempted

under the Labour Laws (Exemption



Establishments) Act, 1988 for

maintenance of register shall

maintain..................... (a) three registers

(b) four registers

(0) seven registers






1988 small establishments shall

maintain register(s) in................

(a) Form B

(b) Form C

(c) FormD






1988 very small establishments

shall maintain register(s)

in.................. (a) Form A

(b) Form D

(c) Form E

(d) Both (b) & (c)

13.As per the Labour Laws


Returns and Maintaining Registers


1988, an employer of any small

establishment or very small

establishment required to furnishes

a Core Return in .............. (a) Form A

(b) Form F

(C) Form K

(d) Form M'

14.Any employer who fails to

comply with the provisions of the

Act shall be punishable in the case

of the first conviction, with fine

Which may extend to . ......... . (a) RS.500

(b) RS. 1,000

(c) RS.5, 000

(d) RS. 10,000





enacted that provides exemption to


Page 38

certain establishments employing a

small number of persons from

furnishing returns and maintaining

registers under some labour laws.

(a) True

(b) False

(c) Partly true


16.In terms of the Labour Laws




'1988 ‘small establishment’ means

an establishment in which not less

than and not more nineteen persons

are employed or were employed on

any day of the preceding twelve

months and ‘very small

establishment’ means an

establishment in which not more

than persons are employed or were

employed on any day of the

preceding twelve months’. (a) Ten; fifteen

(b) Ten; twenty

(c) Ten; nine

(d) Twenty; nine. (CS EP Dec. 2014)

17.As per the Labour Laws




1988 employer of very small

establishment is required to furnish

a core return in - (a) Form A

(b) Form B

(c) Form C

(d) Form D (CS EP Dec. 2014)

18.Which establishment is defined

as ‘small establishment’ under the

Labour Laws Exemption from


Maintaining Registers by certain

Establishments) Act, 1988 - (a) The establishment in which not less than

9 and not more than 20 persons are

employed or were employed on any day in

preceding 12 months

(b) The establishment in which not less than

10 and not more than 19 persons are

employed

or were employed on any in preceding 12

months

(c) The establishment in which not more

than 9 persons are employed or were

employed on any day in preceding 12

months

(cl) The establishment IN which not more

than 10 persons are employed or were

employed on any day in preceding 12

months (cs EP June 2015)

19. Which of the following Act is

not 3 Scheduled Act as specified in

the First Schedule to the Labour

Laws (Exemption from Furnishing


by Certain ‘ Establishments) Act,

1988 ‘ (a) The Payment of Wages Act, 1936

(b) The Weekly Holidays Act. 1942 ‘

(C) The Minimum Wages Act, 1948

(d) The Employees’ State insurance Act

1948. (CS EP June 2015)

20 Which of the following is a

‘Scheduled Act’ as per First

Schedule of the Labour Laws




1988 ” (a) The Trade Unions Act, 1926

(b) The Payment of Bonus Act. 1965

(c) The Minimum Wages Act 1948


Page 39

(d) The Maternity Benefit Act 1961. ‘ (CS

EP Dec 2015)

21. The Labour Laws (Exemption


Maintaining Registers by Certain

Establishments) Act, 1988-'

(a) Provides for the exemption of employees

employed In small establishments.

(b) Is applicable to establishments in which

not less than fifteen and not more than

twenty . persons are employed

(c) Provides for the exemption of employers

of small establishments in‘relation to their

tax liability

(d) Is applicable to establishments in which

not less than ten and not more than nineteen

persons are employed. (CS EP June 2016)

1 c

2 c

3 d

4 a

5 d

6 d

7 d

8 a

9 a

10 a

11 d

12 d

13 a

14 c

15 a

16 c

17 a

18 b

19 d

20 c

21 d


Page 40

Lesson 17

Employment Exchange (Compulsory Notification of

Vacancies) Act 1959

Objectives

The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was

enacted to provide for compulsory notification of vacancies to the Employment

Exchanges and for the rendition of returns relating to employment situation by the

employers. '

The act came into force on 01.05.1960.

Scope and Coverage

The Act extends to whole of India.

It applies to all establishments in the public sector and to establishments in the private sector

engaged in non-agricultural activities employing 25 or more workers.

Unskilled office work [Section 2(i)]

Unskilled office work means work done in an establishment by any of the following categories

of employees:

Daftri.

Jemadar, orderly and peon.

Dusting man or farash.

Bundle or record lifter.

Process server.

Watchman.

Sweeper.

Any other employee which the Central Government may declare to be unskilled office

work.

Establishment in Public Sector [Section 2(f)]

Establishment in public sector means an establishment owned, controlled or managed by

the Government or a department of the Government;

a Government company

a corporation (including a co-operative society) established by or under a Central or State

Act, which is owned, controlled or managed by the Government;

a local authority.

Establishment in Private Sector [Section 2(9)]


Page 41

Establishment in private sector means an establishment which is not an establishment in public

sector and where ordinarily 25 or more persons are employed to work for remuneration.

Act not apply to in certain vacancies

The Act shall no apply in8 relation to the following vacancies:

In any employment in agriculture (including horticulture) in any establishment in private

sector other than employment as agricultural or farm machinery operatives. ‘

In any employment in domestic service.

Inany employment the total duration of which is less than 3 months.

In any employment to do unskilled office work.

In any employment connected with the staff of Parliament.

In case of promotion or absorption of surplus staff.

Any employee carrying remuneration of less than t 60 per month.

Unless the Central Government otherwise directs by notification in the Official Gazette, the Act

shah not also apply in relation to the following:

Vacancies which are proposed to be filled through promotion or by absorption of surplus

staff of any branch or department of the same establishment or on the result of any

examination conducted or interview held by, or on the recommendation of any

independent agency, such as the Union or a State Public Service Commission.

Vacancies in an employment which carries a remuneration of less than 60 in a month.

Notification [Section 4]

The employer in every establishment in public sector shall, before filling up any vacancy

in any employment, notify the vacancy to the employment exchanges.

The appropriate Government may, by notification in the Official Gazette, require that the

employer it every establishment in private sector shall, before filling up any vacancy in

any employment, notify the vacancy to the employment exchanges and the employer

shall comply with such requisition.

There is, however, no obligation to recruit any person through the employment

exchanges.

Rights of access to records and documents [Section 6]

Any authorized officer shall have access to any relevant record or document in the

possession of any employer required to furnish any information or returns.

He may enter at any reasonable time any premises where he believes such record or

document to be kept

He may also inspect or take copies of relevant records or documents or ask any question

necessary for obtaining any information.


Page 42

Power to Make Rules

The Central Government for carrying out the purposes of the Act framed the Employment

Exchanges (Compulsory Notification of Vacancies) Rules, 1960, which came into force w. e. f.

1.5.1960.

Penalties

lf any employer fails to notify to the employment exchanges, he shall be punishable for the first

offence with hne up to t 500 and for every subsequent offence, with fine up to 111,000.

If any person required to furnish any information or return

refuses or neglects to furnish such information or return, or

furnishes any information or return which he knows to be false, or

refuses to answer, or gives a false answer to any question; or

impedes the right of access to relevant records or documents, he shall be punishable for

the first offence with fine upto a 250 and for every subsequent offence with fine up to

500.


Page 43

1.The Employment Exchanges

(Compulsory Notification of

Vacancies) Act, 1959 came into

force on................ (a) 01.01.1959

(b) 01.01.1960

(c) 01.05.1960

(d) 01.04.1959



Vacancies) Act, 1959 does not apply

to employees belonging to (a) Clerks

(b) Supervisors

(c) Watchman

(d) Accountants

3.Unskilled Office Work is defined

under ......... of the Employment

Exchanges (Compulsory

Notification of Vacancies) Act,

1959. (a) Section 2(d)

(b) Section 2(i)

(c) Section 2(m)

(d) Section 2(r)

4.Under the Employment 3

Exchanges ‘(Compulsory

Notification of Vacancies) Act, 1959

unskilled office work means work

done in an establishment by ............. (a) Delhi

(b) Jamadar orderly and peon i

(c) Dusting man


5.Under the’ Employment



unskilled office work means work

done ‘in an establishment by

................. (a) Process server

(b) Watchman

(c) Sweeper


6.Employment exchange is defined

in.........Of the Employment



1959. (a) Section 2(d) ' '

(b) Section 20)

(c) Section 2(m)

(d) Section 2(r)

7.As per the Employment



establishment in private sector

means , an establishment which is

not an establishment in public

sector and where ordinarily ............

persons are employed to work for

remuneration. (a) 10 or more

(b) 25 or more

(c) 50 or more




Vacancies) Act, 1959 shall not

apply. To vacancies in any

employment the total duration of

which is less than............ (a) 1month

(b) 3 months

(c) 6 months




Vacancies) Act, 1959 shall not apply

to any employee carrying

remuneration of less than .............

per month. , (a) Rs.50


Page 44

(b) Rs.60

(c) Rs.100

(d) Rs.500

10.Employment ' Exchanges



to vacancies in any employment

……

(a) In domestic service;

(b) To do unskilled office work;

(c) Connected with the staff of Parliament


11.Local Employment Exchange

shall be notified at

least...........Before the date on which

applicants will be interviewed. (a) 7 days

(b) 10 days

(c) 15 days

(d) 30 days

12.If any employer fails to notify to

the employment exchanges, he shall

be punishable for the first offence

with fine up to ............ and for every

subsequent offence, with fine up

to............ (a) ) Rs. 100, Rs. 500

(b) ) Rs. 500, Rs.1,000

(c) ) Rs. 5000, ) Rs. 10,000

(d) ) Rs. 5000, ) Rs. 25,000

13.As per the Employment



1960 in case of ‘vacancies in posts of

a technical and scientific nature

carrying a basic pay of ......... ‘Or

more per month occurring in

establishment’s .in respect of which

the Central Government is. The

appropriate Government

notification shall be given to the

Central Employment Exchanges.

In other case notification is to be

made to the Local Employment

Exchange (a) ) Rs.1000/-

(b) ) Rs.1400/-

(c) Rs.1800/-

(d) ) Rs.2500/-

14.All employer shall furnish to the.

Concerned Employment Exchange,

the results of selection within

...................from the date of

selection. (a) 7 days

(b) 10 days

(c) 15 days

(d) 30 days



Vacancies) Act, 1959 applies 'in

relation to vacancies in any

employment-' (a) In domestic services

(b) To do unskilled office work

(c) Where the period of employment is less

than three months ‘

(d) in an establishment in public sector

(CSEP Dec. 2014)

16.Under section ' 2(9) of the

Employment Exchanges


Vacancies) Act, 1959 ‘establishment

in private sector’ means an

establishment which is not an

establishment in public sector and

where ordinarily or more persons

are employed to work for

remuneration“

(a) Ten

(b) Twenty-five

(C) Fifty


Page 45

(d) One hundred. (CS EP Dec. 2014)

17.Under the Employment



an establishment which is not an

establishment in public sector and

where ordinarily twenty-five or

more persons are employed to work

for remuneration is defined as-- (a) Employment exchange

(b) Establishment in public sector

(c) Establishment in private sector

(d) Public company (CS EP June 2015)

18.Who is responsible for giving

notification of vacancies to

employment exchanges under the

Employment Exchanges


Vacancies) Act, 1959 -- (a) Employment exchange

(b) The employer

(c) The employee

(d) Establishment in private sector (CS EP

June 2015)




in relation to vacancies in following

employment,’ (1) In agriculture and horticulture in any

establishment in private sector

(2) Where the period of employment is

lessthan six months

(3) In domestic services

Which of the above islare correct –?

(a) Only (1) and (2)






Vacancies) Act, 1959 provides for: ‘

(1) Compulsory notification of vacancies

by the employers to employment

exchanges

(2) Submission of employment returns by

the employers in prescribed manner to

the employment exchanges

(3) Recruitment of persons through the

Employment exchanges only to fill any

vacancy

Which of the above islare correct







Vacancies) Act, 1959 ~ (a) Provides for compulsory notification of

vacancies and submission of employment

returns by the employers to the employment

exchange

(b) Provides that the main activity of the

employment exchange is appointment of job

seekers in the establishments in the public

sector

(c) Applies to all establishments in the

private sector and establishments engaged in

agricultural activities

(d) Applies to all establishments in the

private sector employing 250 or more

workers. (CS EP June 2016)

22.Consider the following

statements under the Employment



1959:

(i) ‘Employer’ includes any person

entrusted with the supervision and

control. of employees in such

establishment

(ii)Establishment in private sector means

an establishment which is not an

establishment in public sector and where


Page 46

ordinarily twenty five or more persons

are employed to work for remuneration

(iii)The Act is applicable in relation to

vacancies in any employment connected

with the staff of Parliament.

(iv)The Act imposes punishment by way

of fine and imprisonment both.


options given below -

(a) and (ii)

(b) (ii) and (iii)

(c) (iii) and (iv) .

(d) (M and (i). (cs EP June 2016)

1. C

2. B

3. D

4. D

5. A

6. B

7. B

8. B

9. D

10. C

11. B

12. B

13. B

14. D

15. B

16. C

17. B

18. B

19. A

20. A

21. A

22. A


Page 47

Lesson 18

Apprentice Act 1961

Obiectives

The Apprentices Act 1961 was enacted with the objective of regulating the programme of

training of apprentices in the industry by utilising the facilities available therein for

imparting on-the-job training.

The Act was amended in 1973 and 1986 to include training of graduates, technicians and

technician (vocational) apprentices respectively under its purview.

It was further amended in 1997 and 2007 to amend various sections of the Act as regards

definition of “establishment”, “worker”, number of apprentices for a designated trade and

reservation for candidates belonging to Other Backward Classes, etc.

Comparing the size and rate of growth of economy of India, the performance of

Apprenticeship Training Scheme is not satisfactory and a large number of training

facilities available in the industry are going unutilised depriving unemployed youth to

avail the benefits of the Apprenticeship Training Scheme.

Employers are of the opinion that provisions of the Act are too rigid to encourage them to

engage apprentices and provision relating to penalty creates fear amongst them of

prosecution and they have suggested to modify the Apprentices Act suitably.

In order to make the apprenticeship more responsive to youth and industry, the

Apprentices Act, 1961 has been amended and brought into effect from 22nd December,

2014.

These amendments have been made with the objective of expanding the apprenticeship

opportunities for youth.

Non engineering graduates and diploma holders have been made eligible for

apprenticeship.

A portal is being setup to make all approvals transparent and time bound.

Apprenticeship can be taken up in new occupations also.

Scope and Coverage


Its provisions apply to areas or industries specified by the Central Government by

notification in the Official Gazette.

The Act shall not apply to an area or an industry until it is specified by notification.

Power to Make Rules

The Central Government has the powers to make rules, after consultations with the Central

Apprenticeship Council, for enforcement of the provisions of the Act.

Definitions


Page 48

Apprentice Section 2(aa)

Apprentice means a person who is undergoing apprenticeship training in pursuance of a contract

of apprenticeship

Apprentice Training Section 2 (aaa)

Apprenticeship training means a course of training in any industry or establishment undergone in

pursuance of a contract of apprenticeship and under prescribed terms and conditions which may

be different for different categories of apprentices.

Trade Apprentice Section 2(q)

Trade Apprentice means an apprentice who undergoes apprenticeship training in any designated

trade

Designated Trade Section 2(e)

Designated trade means any trade or occupation or any subject field in engineering or non-

engineering or technology or any vocational course which the Central Government, after

consultation with the Central Apprenticeship Council, may, by notification in the Official

Gazette, specify as a designated trade for the purposes of this Act.

Graduate or Technician Apprentice Section 2(j)

Graduate or technician apprentice means an apprentice who holds, or is undergoing training in

order that he may hold a degree or diploma in engineering or non-engineering or technology or

equivalent qualification granted by any institution recognised by the Government and undergoes

apprenticeship training in any designated trade.

Technician (Vocational) Apprentice Section 2(pp)

Technician (vocational) apprentice means an apprentice who holds or is undergoing training in

order that he may hold a certificate in vocational course involving two years of study after the

completion of the secondary stage of school education recognised by the All-India Council and

undergoes apprenticeship training in designated trade.

Optional Trade Section 2(ll)

Optional trade means any trade or occupation or any subject field in engineering or non-

engineering or technology or any vocational course as may be determined by the employer for

the purposes of this Act.

Qualifications of Apprentice [Section 3]


Page 49

A person shall not be qualified for being engaged as an apprentice to undergo apprenticeship

training -

in any designated trade, unless he is not less than 14 years of age, and

for designated trades related to hazardous industries, not less than 18 of age; and

satisfies such standards of education and physical fitness as may be prescribed:

Provided that different standards may be prescribed in relation to apprenticeship training

in different designated trades and for different categories of apprentices.

Contract of Apprentices [Section 4]

No person shall be engaged as an apprentice to undergo apprenticeship training in a

designated trade unless such person or, if he is minor, his guardian has entered into a

contract of apprenticeship with the employer.

The apprenticeship training shall be deemed to have commenced on the date on which the

contract of apprenticeship has been entered into.

Every contract of apprenticeship may contain such terms and conditions as may be

agreed to by the parties to the contract

Provided that no such term or condition shall be inconsistent with any provision of this

Act or any rule made thereunder.

Every contract of apprenticeship shall be sent by the employer within 30 days to the

Apprenticeship Adviser until a portal-site is developed by the Central Government, and

thereafter the details of contract of apprenticeship shall be entered on the portal-site

within 7 days, for verification and registration.

Objection in contract of apprentice (4A)

In the case of objection in the contract of apprenticeship, the Apprenticeship Adviser shall

convey the objection to the employer within fifteen days from the date of its receipt.

Registration of Contract (4B)

The Apprenticeship Adviser shall register the contract of apprenticeship within 30 days from the

date of its receipt.

Period of training [Section 6]

As per section 6 the period of apprenticeship training, which shall be specified in the contract of

apprenticeship, shall be as follows-

In the case of trade apprentices who, having undergone institutional training in a school

or other institution recognised by the National Council, have passed the trade tests or

examinations conducted by that Council or by an institution recognised by that Council ,

the period of apprenticeship training shall be such as may be prescribed.


Page 50

In the case of trade apprentices who, having undergone institutional training in a school

or other institution affiliated to or recognised by a Board or State Council of Technical

Education or any other authority or courses approved under any scheme which the

Central Government may, by notification in the Official Gazette specify in this behalf,

have passed the trade tests or examinations conducted by that Board or State Council or

authority or by any other agency authorised by the Central Government, the period of

apprenticeship training shall be such as may be prescribed;

In the case of other trade apprentices , the period of apprenticeship training shall be such

as may be prescribed;

In the case of graduate or technician apprentices, technician (vocational) apprentices and

the period of apprenticeship training shall be such as may be prescribed.

Termination of Apprenticeship Contract [Section 7]

The contract of apprenticeship shall terminate on the‘expiry of the period of

apprenticeship training.

Either party to a contract of apprenticeship may make an application to the

Apprenticeship Adviser for the termination of the contract earlier

After considering the application and the objections, if any, the Apprenticeship Adviser

may terminate the contract

Number of apprentice for a designated trade [Section 8]

Central Government to prescribe the number of apprentices to be engaged by the

employer for designated trade and optional trade.

Several employers may join together either themselves or through an agency, approved

by the Apprenticeship Adviser, according to the guidelines issued from time to time by

the Central Government in this behalf, for the purpose of providing apprenticeship

training to the apprentices under them.

Practical Training of Apprentices [Section 9]

Every employer shall make suitable arrangements in his workplace for imparting a course

of practical training to every apprentice engaged by him.

Any of the trade apprentices who have not undergone institutional training in a school or

other institution recognised by the National Council or any other institution affiliated to

or recognised by a Board or State Council of Technical Education or any other authority

which the Central Government may, by notification in the Official Gazette, specify in this

behalf, shall, before admission in the workplace for practical training, undergo a course

of basic training and the course of basic training shall be given to the trade apprentices in

any institute having adequate facilities.

Cost of training


Page 51

Recurring costs (including the cost of stipends) incurred by an employer in connection

with basic training, imparted to trade apprentices shall be borne-

If such employer employs two hundred and fifty workers or more, by the employer;

If such employer employs less than two hundred and fifty workers, by the employer and

the Government in equal shares up to such limit as may be laid down by the Central

Government and beyond that limit, by the employer alone;

Recurring costs (excluding the cost of stipends) incurred by an employer in connection

with the practical training imparted to graduate or technician apprentices technician

(vocational) apprentices shall be borne by the employer and the cost of stipends shall be

borne by the Central Government and the employer in equal shares up to such limit as

may be laid down by the Central Government and beyond that limit, by the employer

alone except apprentices who holds degree or diploma in non-engineering.

Obligation of Employers

Every employer shall have the following obligations in relation to an apprentice:

To provide the apprentice with the training in his trade in accordance with the provisions

of the Act and the rules made thereunder.

if the employer is not himself qualified in the trade, he shall ensure that a person who

possesses the prescribed qualifications is placed in charge of the training of the

apprentice.

To provide adequate instructional staff, possessing prescribed qualifications for imparting

practical and theoretical training and facilities for trade test of apprentices.

To carry out his obligations under the contract of apprenticeship.

Obligations of Trade Apprentice

Every trade apprentice shall have the following obligations:

To learn his trade conscientiously and diligently and endeavour to qualify himself as a

skilled craftsman before the expiry of the period of training.

To attend practical and instructional classes regularly.

To carry out all lawful orders of his employer and superiors in the establishments.

To carry out his obligations under the contract of apprenticeship.

Hours of Work, Overtime, Leave and Holidays [Section 15]

The weekly and daily hours of work of an apprentice while undergoing practical training

in a workplace shall be as determined by the employer subject to the compliance with the

training duration, if prescribed.

No apprentice shall be required or allowed to work overtime except with the approval of

the Apprenticeship Adviser who shall not grant such approval unless he is satisfied that

such overtime is in the interest of the training of the apprentice or in the public interest.


Page 52

An apprentice shall be entitled to such leave and holidays as are observed in the

establishment in which he is undergoing training

Records and Returns [Section 19]

Every employer shall maintain records of the progress of training of each apprentice

undergoing apprenticeship training in his establishment in such form as may be

prescribed.

Until a portal-site is developed by the Central Government, every employer shall furnish

such information and return in such form as may be prescribed, to such authorities at such

intervals as may be prescribed.

Every employer shall also give trade-wise requirement and engagement of apprentices in

respect of apprenticeship training on portal-site developed by the Central Government in

this regard.

Offence and Penalties [Section 30]

If any employer contravenes the provisions of the Act relating to the number of apprentices

which he is required to engage under those provisions, he shall be given a month’s notice in

writing, by an officer duly authorised in this behalf by the appropriate Government, for

explaining the reasons for such contravention.

In case the employer fails to reply the notice within the period specified under subsection or the

authorised officer, after giving him an opportunity of being heard, is not satisfied with the

reasons given by the employer, he shall be punishable with fine of five hundred rupees per

shortfall of apprenticeship month for first three months and thereafter one thousand rupees per

month till such number of seats are filled up.

If any employer or any other person-

(a) required to furnish any information or return-

(i) refuses or neglects to furnish such information or return, or

(ii) furnishes or causes to be furnished any information or return which is false and which is

either knows or believes to be false or does not believe to be true, or

(iii) refuses to answer, or give a false answer to any question necessary for obtaining any

information required to be furnished by him, or

(b) refuses or wilfully neglects to afford the Central or the State Apprenticeship Adviser or such

other person, not below the rank of an Assistant Apprenticeship Adviser, as may be authorised

by the central or the State Apprenticeship Adviser in writing in this behalf any reasonable facility

for making any entry, inspection, examination or inquiry authorised by or under this Act, or

(c) requires an apprentice to work overtime without the approval of the Apprenticeship Adviser,

or

(d) employs an apprentice on any work which is not connected with his training, or

(e) makes payment to an apprentice on the basis of piece-work, or

(f) requires an apprentice to take part in any output bonus or incentive scheme.

(g) engages as an apprentice a person who is not qualified for being so engaged, or

(h) fails to carry out the terms and conditions of a contract of apprenticeship he shall be

punishable with fine of one thousand rupees for every occurrence.


Page 53

(2A) The provisions of this section shall not apply to any establishment or industry which is

under the Board for Industrial and Financial Reconstruction established under the Sick Industrial

Companies (Special Provisions) Act, 1985.


Page 54

Apprentice Act

1. Apprentice in defined in Section of the

Apprentice Act. 1961.

(a) 2(a)

(b) 2(aa)

(c) 2(eea)


2. As provided in the Apprentice Act,

1961 every State Council shall be

affiliated to ……….. (a) National Council

(b) Central Apprenticeship Council

(c) All India Council

(d) Any of the above

3. Apprenticeship training is defined in

section........Of the Apprentice Act, 1961.

(a) 2(a)

(b) 2(38)

(c) 2(aaa)


4. Designated trade is defined in section

...... of the Apprentice Act, 1961.

(a) 2(d)

(b) 2(6)

(c) 2(k)


5. Graduate or technician apprentice is

defined in section of the Apprentice Act,

1961.

(a) 2(0)

(b) 20)

(c) 2(m)

(d) 2(k)

6. Technician (vocational) apprentice is

defined in section........... of the Apprentice

Act. 1961. (a) 2(m)

(b) 2(p)

© 2(pp)


7. A person shall not be qualified for

being engaged as an apprentice to

undergo apprenticeship training in any

designated trade, unless he ..... (a) is not less than 14 years

(b) is not less than 15 years

(c) is not less than 18 years

(d) is not less than 21 years

8. The contract of apprenticeship shall

terminate on............ (a) the apprentice attaining 15 years of age

(b) the apprentice attaining 18 years of age

(c) the apprentice attaining 21 years of age

(d) the expiry of the period of apprenticeship

training

9. Where an employer employs ............

workers, basic training shall be imparted

to the trade apprentices either in separate

parts of the workshop building or in a

separate building which shall be set up by

the employer himself. '

(a) 100 or more

(b) 500 or more

(c) 1000 or more

(d) 2500 or more

10. Where an employer employs less than

.......... workers, the basic training shall be

imparted to the trade apprentices in

training institutes set by the Government.

(a) 100

(b) 500

(c) 1000

(d) 2500

11. Any person aggrieved by the decision

of the Apprenticeship Adviser may.

Within ..... From the date of

communication to him of such decision,

make an appeal to the Apprenticeship

Council.

(a) 7 days

(b) 15 days

(c) 30 days

(d) 90 days

12. Apprenticeship Council, may, by

notification -in the Official Gazette,

specify any establishment as .......... for the

purposes of Apprentices Act, 1961. ' (a) Designated trade


Page 55

(b) Apprenticeship training.

(c) Both (a) & (b)


13............... Means any trade or

occupation or any subject field in

engineering or technology or any

vocational course which the Central

Government, after consultation with the

Central Apprenticeship Council, may, by

notification in the Official Gazette, specify

as a designated trade.

(a) Apprenticeship

(b) Apprenticeship training

(c) Designated trade


14. Under the Apprentices Act, 1961,

apprentice entitled for casual leave for the

maximum period of........... days in a year. (a) 12

(B) 10

(c) 15

(d) 45

15. Every apprentice is trainee and not a

worker. ' The statement is .......

(a) True

(b) False

(c) Partly true


16. It be obligatory on the part of the

employer to offer any employment to‘any

apprentice.

(a) shall

(b) shall not

(C) may

(d) may not

17. Under the Apprentices Act, 1961 any

disagreement or dispute between an

employer and an apprentice arising out of

the contract of apprenticeship shall be

referred for decision to the

(a) Apprenticeship Director

(b) Apprenticeship Adviser"

(c) Apprenticeship Committee

(d) Apprenticeship Tribunal. (CS EP Dec.

2014)

18. As per the Apprentices Act, 1961 a

person shall not be qualified for being

engaged as an apprentice to undergo

apprenticeship training in any designated

trade, if such person is not less than -

(a) 14 years of age and satisfies prescribed

standards of education and physical fitness

(b) 16 years of age and satisfies prescribed

standard of education

(c) 18 years of age and satisfies prescribed

standards of physical fitness

(d) 21 years of age and satisfies prescribed

standards of education and physical fitness.

(CS EP Dec. 2014)

19. Under the Apprentices Act, 1961

every apprentice undergoing

apprenticeship training in a designated

trade in an establishment shall be ‘and

not a worker and the provisions of any

law with respect to labour shall to or in

relation to such apprentice.

(a) Employee of the establishment; apply

(b) Trainee; apply

(c) Trainee; not apply

(d) Employee of the establishment; not

apply. (CS EP Dec. 2014)

20. ………means any trade or occupation

or any subject held in engineering or

technology or any vocational course

which the Central Government, after

consultation with the Central

Apprenticeship Council, may, by

notification in the Official Gazette.

Specify as a-------- for the purposes of

Apprentices Act, 1961. (a) Technical trade; technical training

(b) Technical trade; apprenticeship training

(c) Designated trade; apprenticeship training

(d) Designated trade; designated trade. (CS

EP Dec. 2014)

21. As per section 3A and: 18 and of the

Apprentices Act, 1961 in every designated

trade, training. Places shall not be

reserved for------

(a) Scheduled castes

(b) Scheduled tribes


Page 56

(c) Other backward classes

(d) Minority community (CS EP June 2015)

22. Under the Apprentices Act, 1961 any

industry or business in which any trade,

occupation or subject field in engineering

or technology or any vocational course

may be specified as a designated trade is

defined as ------ (a) Industry

(b) Business

(c) Trade

(d) Designated trade (CS EP June 2015)

23. Every State Council. Constituted

under the Apprentices Act, 1961 should

be affiliated to the

(a) State Council

(b) State Apprenticeship council

(c) National Council

(d) Central Apprenticeship Council (CS EP

June 2015)

24. Who eligible to become an apprentice

under the Apprentices Act, 1961’

(a) Any person who is of 14 years or above,

fulfils the basic physical and educational

standards as defined in the Apprentices Act,

1961

(b) Any person who is of 16 years or above,

fulfils the basic physical or educational


1961

(c) Any person who is of 18 years of above


standards as defined in the Apprentices Act.

1961

(d) Any person who is of 21 years or above



1961. (cs EP June 2015)

25. Under the Apprentices Act, 1961 an

‘apprentice' is a person who is -

(a) Learner and is undergoing apprenticeship

training in pursuance of ‘a contract of

apprenticeship’

(b) An employee

(c) Both (A) and (B) above ’

(d) Neither (A) nor (B). (CS EP Dec. 2015)

26. under the Apprentice Act. 1861 every

trade apprentice undergoing

apprenticeship training shall have:

(1) To attend practical classes regularly

(2) To carry out all lawful orders of his

employer and superiors in the

establishment

(3) To carry out his obligations under the

contract of Apprenticeship.

Which of the above is/are correct?




(d) (1). (2) And (3) (cs EP Dec. 2015) ‘

27. According to section 3 of the

Apprentices Act, 1961. a person shall be

qualified for being engaged as an

apprentice to undergo apprenticeship

training in any designated trade “ if such

person: ‘ .

(1) is not less than 18 years of age

(2) Satisfies prescribed standard or

education’

(3) Satisfies prescribed physical fitness

Which of the above is/are correct -?





28. as per the provisions of section 20 of

the Apprentices Act, 1961. Any person

aggrieved ) by the decision of the

Apprenticeship l Adviser may. Within

____________ from the date at

communication to him of such decision,

prefer an appeal against the decision to

the f Apprenticeship Council.

(a) 15 Days

(b) 30 Days

(c) 60 Days

(d) 90 Days (cs EP June 2018) ‘

29. Which one of the following statements

is incorrect under the Apprentices Act.

1961


Page 57

(a) The stipend is to be given to an

apprentice at the rate specified by the

appropriate government.

(b) Any disagreement or dispute between an

employer and an apprentice arising. Out of

the apprenticeship contract is referred to

Apprenticeship Council’

(c) The National Council is not an authority

under the Apprentices Act, 1961

(d) An offence cannot be committed by a

company under this Act. (CS EP June 2016)

30. Which one of the following is not an

obligation oi apprentices under the

Apprentices Act, 1961 -

(a) To qualify himself as a skilled craftsman

before the expiry of the period of training

(b) To attend practical and instructional

classes regularly

(c) To carry out all orders of his employer

(d) To carry out his obligations under the

contract of apprenticeship. (CS EP June

2016)

1. B

2. A

3. C

4. B

5. B

6. C

7. A

8. D

9. B

10. B

11. C

12. A

13. C

14. A

15. A

16. C

17. B

18. A

19. C

20. D

21. D

22. A

23. C

24. A

25. A

26. D

27. B

28. B

29. B

30. A


Page 58

Lesson 19

Audit Under Labour Legislations

Objectives

The legislatures have, from time to time enacted numerous laws and legislations to

protect the interest of labourers

Lack of legal awareness amongst the working population as well as the employers Is the

major impediment In proper compliance with the laws and regulations

Business corporations have recognized the importance of legal compliance of the

provisions of the labour laws.

For this purpose labour law audit is essential.

Scope and Coverage

The scope of labour law audit includes in depth examination of various applicable laws,

company records, facilities, policies practices and procedures to ensure proper and

complete compliance with applicable labour laws

Labour law audit also suggests a remedial action if something Is in violation or not In line

with the provisions of the applicable labour laws '

Areas of Labour Audit

Registration and licenses (eg Factory, Shops and Establishment, Contract Labour, P F,

E.S.l., etc)

Preparation and submission of various returns.) ' ‘

Updatation/maintenance of records and registers.

Display of notices and extracts of Acts.

Process of disciplinary action.

Handling audits and inspections.

Apprising of the corporations of any amendments and important judgments on various

labour laws for compliance

Engaging law practitioners to appear in any matter or disputes before the industrial and

labour court and . other authorities

Any other measures required under the special circumstances of your business.

Company Secretary as Labour Law Auditor

The institute of Company Secretaries of indie has mooted the concept of audit of

compliance of labour laws‘.

The course content of the institute is such that qualified company secretaries are well

versed with the legal aspect in a broader way.


Page 59

It would be easy for the practicing company secretaries to have the labour law audit as

independent professionals.

Similar to compliance certificate under the Companies Act, compliance certificate can be

given the PCS to the government within specified time. *

Provisions in the Companies Act, 2013

The Companies Act, 2013 provides provisions for compliance of various laws and

empowers the Company Secretary to ensure that the company has made compliances

with the provisions of the Act, the rules made thereunder and other laws applicable to the

company.

To ensure this, complete check list is to be maintained by a Company Secretary.

This will serve some aspects. But for strict compliance, labour law audit is essential and

will support the Company Secretary to ensure strict compliances by various departments

of the company dealing with such compliances.


Page 60

Audit Under Labour

Legislations

1.Lack of , amongst the working

population as well as the employers is the

major impediment in proper compliance

with the laws and regulations.

(a) legal awareness

(b) legal knowledge

(c) adequate courts

(d) adequate professionals

2.The scope of ........... includes in depth

examination of various applicable laws,

company records, facilities, policies,

practices and procedures to ensure

proper and complete compliance with

applicable labour laws. (a) labour law audit

(b) inquiry

(c) investigation

(d) search

3.................... suggests a remedial action if

something is in violation or not in line

with the provisions of the applicable

labour laws.

(a) labour law audit

(b) inquiry

(c) investigation

(d) search

4.Areas of labor law audit is/are............

(a) Registration and licences (e.g.) Factory,

Shops and Establishment, Contract ‘Labour.

P.F., E.S.l.,Etc.)

(b) Preparation and submission of various

returns '

(c) Updatation/maintenance of records and

registers


5.Areas of labor law audit is/are

(a) Display of notices and extracts of Acts

(b) Process of disciplinary action

(c) Handling audits and inspections

(d) All of the above '

6.Compliance with labour laws may bring

the following benefit(s):

(a) it will boost the moral of the labourer

(b) It will increase social security of the

labourer

(c) it will serve timely payment of wages

and other benefits to the labourer




(a) No threat of legal action/industrial

dispute which may damage the reputation.

image or goodwill of the establishment

(b) No legal or administrative action against

the Directors, Board of Members or

Management of the establishment

responsible to manage day to day affairs for

non-compliance of labour laws

(c) Smooth running of business




(a) Regular payment of dues/contributions

for the employees

(b) Timely filing of returns helps in

generating statistical data smoothly

(c) Compliance with rules and regulations

increases the image of the government in

international forum


9.By undertaking labour law audit, :3

Company Secretary can achieve the

following:

(a) Compliance with labour laws and

regulations

(b) Set up adequate internal control system

to minimize risks

(c) Identify gaps and adequate measures to

rectify the same


10............. prevent lawsuits and penalties

for noncompliance.

(a) Labour law audit

(b) inquiry

(c) investigation

(d) Search


Page 61

11.Under the Factories Act. labour audit

is to be done for:

(a) Whether the factory is registered or not

(b) Whether manufacturing process is

carried on

(c) Whether any hazardous process is

carried on


12.Under the Minimum Wages Act,

labour audit is to be done for:

(a) Whether minimum wages if prescribed is

paid .

(b) Whether proper records are being

maintained

(c) Certificate that all statutory requirements

are complied with


13.Under the Payment of Wages Act,


(a) Number of employees employed

(b) What is the wage period?

(c) Whether proper records are maintained


14.Under the ESl Act, labour audit is to

be done for:

(a) Whether registration has been made

(b) Whether contribution regularly paid

(c) Whether all eligible employees are

covered


15.Under the EFF Act, labour audit is to

be done for:

(a) Whether contributions regularly paid

(b) Whether returns regularly filed

(c) Whether proper records are maintained


16.Under the Payment of Bonus Act,


(a) Whether all eligible employees getting

bonus

(b) Whether bonus is paid within time

(c) Whether minimum bonus is paid


17.Under the Payment of Gratuity Act,


(a) Whether trust is maintained

(b) Whether gratuity is paid as per rules

(c) Whether claims settled timely


18.Under the Employee Compensation

Act, labour audit is to be done for:

(a) Whether any occupational disease

suffered by employees

(b) Whether any fatal accident occurred

(c) Whether compensation is paid timely


19.Under the Maternity Benefit Act,


(a) Whether women employees are getting

proper leave

(b) Whether benefits are paid

(c) Whether ESl covered employees are

getting benefits


20.Under the industrial Disputes Act Act,


(a) Number of disputes referred to

Arbitration

(b) Number of protected workmen

(c) Whether unfair labour practice followed


21.The benefits of ‘labour audit’ to the

labour are-

(a) it increases their social security

(b) It inculcates in workers a sense of

belongingness towards their employer

(c) it secures timely payment of wages,

bonus, overtime and compensation, etc. of

workers


22.Labour audit provides benefits to the

labour, to the employer and to the

government. Which one of the following is

not a benefit of labour audit to the labour

~

(a) Labour audit boosts the morale of the

workers

(b) lt increases social security of the labour

(c) it increases status of the employer in

society


Page 62

(d) Labour audit secures timely payment of

wages (CS EP June 2016)

1. A

2. A

3. A

4. D

5. D

6. D

7. D

8. D

9. D

10. A

11. D

12. D

13. D

14. D

15. D

16. D

17. D

18. D

19. D

20. D

21. D

22. c


Page 63

Lesson 20

CONSTITUTION OF INDIA

Introduction

Constitution is a document which provides a basic legal framework by which the entire country I

regulated. In the context of India, a constituent Assembly was set up in the year 1946 to frame the

Constitution of India, It appointed number of committees for suggesting recommendations in

framing the Constitution of India and finally the Constitution of India was adopted by Constituent

Assembly of 26th January 1950.

The constitution of India contains 395 Articles, which are divided into 22 Parts and 12 Schedules.

The Constitution deals with Structure of the Government, Right of the Citizens, Principles to be

followed by the State in the governance of the country, etc. Constitution of India is considered all

supreme and has the overriding effect over all the laws governing the various aspects of our system.

The Constitution of India is said to be mother of all laws i.e. all the laws have their origin in the

Constitution of India.

Preamble To Constitution of India

Preamble to the Constitution of India reads as:

WE THE PEOPLE OF INDIA. Having solemnly resolved to constitute India into a

SOVERIN, SOCIALIST, SECULAR, DEMOCRATIC AND EPUBLIC and to secure to all its

citizens:

JUSTICE, social, economic and political:

LIBERTY of thought, expression, belief, faith and worship:

EQUALITY of status and opportunity:

And to promote among them all

FRATERNITY assuring the dignity of the Individual and unity and integrity of the Nation.

Although Preamble does not contain any substantive law, yet it is considered to be the most sacred

part of the Constitution of India, if any provision of Constitution of India is ambiguous, then that

provision has to be interpreted in the light of the contents of Preamble. The Supreme Court, in

number of causes, has held that Constitution is to be read and interpreted in the light of visions and

values, pledges and sentiments expressed in the Preamble. The preamble truly represents the soul of

our Constitution.

STRUCTURE OF THE CONSTITUTION – WHETHER FEDERAL OR UNITARY

The constitution generally may be unitary type of federal type. Under unitary type of constitution,

all powers flow from a single top authority. But under federal system, there

Are different layers of authority and each layer has separate powers, all decided by the constitution.

Our constitution is basically federal but with certain unitary features.

The federal futures of our constitution are:

Dual authority: We have two sets of government i.e., government. At the centre and

government, at various state levels.

Distribution of power: The constitution distributes the power to make law by way of Union

List (where only union can make law) State List where only states can make laws) and

Concurrent List (where both the union and the states can make laws).

Supremacy of Constitution : The three pillars of our legal system i.e., legislature, executive

and judiciary all are subordinates to the Constitution of India, i.e., none of them can surpass

the provisional of constitution of India.

Independence of Judiciary: The judiciary of our country is totally independent and neither

the legislature not the executive can control the judiciary.


Page 64

Written Constitution: The Constitution of India is a written document.

However, even our constitution has aforesaid federal features, in times of need, it becomes unitary

i.e., union has more powers than the state under the following circumstances:

The union list contains 97 entries out of which 96 have been specifically names and the 97th

item has bee left blank and is unknown as residuary item under which any new item which

has not found a place in any of the list can be included, This being in the union list, it

effectively means that on any new subject, only parliament can make a law.

Under state list, only state can pass law but Article 246 permits the Parliament to pass law on

state list matters under five circumstances, These circumstances are a matter of:

National Interest:

Emergency:

Dispute between two or more states:

To give effect to an international agreement: and

Breakdown of constitutional machinery in a state.

This parliament has more powers under these five circumstances ever in the state list.

Under concurrent list, if any law is pass on a particular matter by Union as well as State and

if there is an inconsistency between two laws then the union law will prevail over the state

law.

In India, we have a single citizenship system unlike in the case of USA where there is a

concept of dual citizenship.

Professor K.C.Wheare thus held that the Indian Constitution establish a system of government which

is at the most Quasi-Federal (not strictly federal). Jennings also characterized Indian constitution as

a federation with a strong centralized tendency.

FUNDAMENTAL RIGHTS

Introduction

A man, by birth, has certain rights which are universal and inalienable i.e., e can not be deprived of

them. It is the function of the State to recognize these rights and allow then of free play so that the

human liberty is preserved, human personality is developed and an effective cultured, social and

democratic life is promoted. The aforesaid rights are recognized in the form of fundamental rights in

Part III of the constitution of India.

Constitution of India guarantees six categories of fundamental rights. The are:

Right to equality ( Articles 14 to 18)

Right to freedom (Articles 19 to 22)

Right against exploitation (Articles 23 & 24)

Right to freedom of religion (Articles 25 to 28)

Cultural and educational right (Articles 29 & 30)

Right to constitutional remedies (Articles 32)

Concept of State

The term “State” a defined in Article 12 of the Constitution of India. As per this unless the context

otherwise provides, the term “state” includes:

The Government and Parliament of India

The Government and legislature of each of the state; and

All local or other authorities:


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Within the territory of India; of

Under the control of the Government of India

The expression ‘Local authority’ includes the following:

Municipalities;

District Boards;

Panchayats, etc.

The expression ‘other authority’ includes the following:

Electricity authorities;

Universities;

Income tax Department, etc.

The expression ‘under the control of the Government of India’ covers into the definition of State,

not only every authority within the territory of India, but also those functioning outside India

provided such authorities are under the control of the Government. Of India.

The question, whether a corporation acting as instrumentality or agency of Government is ‘state’ or

not, was decided by the Supreme Court in the case of R.D.Shetty v. International Airport

Authority and later on followed in the case of Ajay Hasia v. Khalid Mujib. It was decided in the

aforesaid cases that in general a corporation acting as an instrumentality or agency of the

government is not a state within the meaning of Article 12 of the Constitution of India. However,

following are some the instance where a corporation acting as a instrumentality or agency of the

Government. Can be regarded as a State within the meaning of Articles 12 of Constitution of India:

If the entire share capital is held by the government

If the Government exercises deep and persuasive control over the corporation

Where the corporation enjoys monopoly status

If the function of the corporation are of public importance and closely relates to

Government functions.

If a department of Government is transferred to a corporation.

Where court exercises a judicial function, it can not be regarded as State as the expression ‘State’

covers only legislature and executive and executive and not judiciary. However, where a court

exercises non-judicial function, it can be considered as State {A. R. Antulay v. R .S. Nayak}

The significance of concept of ‘State’ in the context of fundamental rights is that generally the

fundamental rights are available against the State.

Justifiability/ amenability of Fundamental Rights Article 13 of Constitution of India invalidates any pre or post constitutional law which is against the

fundamental rights. It also restricts the amenability of Fundamental Rights.

The question whether a fundamental right can be amended, abridge or taken away has been

examined in various cases and finally settled in the Golaknath case. In this case it was held that

fundamental rights can neither be abridged or amended nor taken away by the law and for this

purpose, the term law includes a Constitutional Amendment. Thus fundamental rights can’t be

affected ever by constitutional amendment.

The aforesaid decision was set aside by inserting a provision in Article 13 i.e., Article 13(4) which

ways that “Nothing in Article 13 shall apply to any amendment of this Constitution.

Further, the aforesaid provisions of Article 13(4) were challenged in the case of Keshavanand

Bharti v. State of Kerala, where the Supreme Court has dismissed the petition and upheld the


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validity of Article 13(4) and held that fundamental rights can be affected by a Constitutional

Amendment by the basic structure of the constitution can not be amended.

Article 13 came up from judicial review in number of cases and the courts have enclosed carious

doctrines like doctrine of severability, doctrine of eclipse, doctrine of waiver of right, etc of

interpreting the provisions of Article 13.

Doctrine of Severability:

It provides that only that part of the law will be declared invalid which is inconsistent with the

fundamental rights and the rest of the law will stand. However, invalid part of the law will be

severed only if it is severable, i.e., if after separating the invalid part, the valid part is capable of

giving effect to the legislature’s intent, then only it will survive otherwise the court shall declare the

entire law as invalid.

Doctrine of Eclipse : It provides that a law made before the commencement of the constitution remains eclipsed or

dormant to be extent in comes under the shadow of fundamental rights i.e., is inconsistency brought

about by the fundamental rights is removed by the amendment to the Constitution of India.

Doctrine of Waiver of Right:

It provides that a person has the liberty to waive the enjoyment of such rights as are conferred on

him by the state, provide that such person must have the knowledge of his rights and the waiver

should be voluntarily, However, citizens cannot waive of any of the fundamental rights { Basheshar

Nath v. I T Commissioner}

RIGHT TO EQUALITY [ARTICLES 14 TO 18]

Right to equality is on of the basic fundamental human rights afforded by the constitution of modern

democratic states including India. The constitution of our country is espouses the principles of

equality of status and opportunity in its very Preamble and further gave a practical effect in Article

14 to 18, which are as follows:

Equality before the law (Article 14)

Prohibition of discrimination on grounds only of religion, race, caste, sex, place of

birth. (Article 15)

Equality of opportunity in matters of public employment (Article 16)

Abolition of untouchability (Article 17)

Abolition of Titles (Articles 18)

Equality before the law

Article 14 of Constitution of India Provides:

“The State shall not deny to any person equality before law or equal protection of the laws within the

territory of India.”

The expression ‘equality before law’ is a negative concept and it implies the absence of any special

privilege in favors of any individual, whatever be his rank or status, and the equal subjection of all

classes to the ordinary law.

The expression ‘equal protection of the law’ is a positive concept and it implies equality of treatment

in equal circumstances. In other words same law should be applicable among equals or some law

should not be applicable among unequal. In order that “right to equal treatment in similar

circumstances” should make sense, the law shall have to make a classification between persons who

are equally situated. Thus, if there is a reasonable basis of classification, the legislature would be

entitles to treat different classes differently.

In Ramkishan Dalmiya v. Justic Tendulkar , the Supreme Court has summarized he rules with

respect to permissible classification, which are as follows:

Article 14 forbids class legislation, but does not forbid classification

Permissible classification must satisfy following two conditions


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o The distinction between those who are included and those who are left out

from the provisions of an Act should be clear and

o Such distinction should have a reasonable relationship with purpose of the

Act.

The classification may be founded on different basis, namely geographical or

according to the objects or occupation or the like.

Even a single individual may be treated as a class by himself on account of some

special circumstances or reasons applicable to him ad not applicable to other.

It is not necessary for the state to proof that the law provides equality but it is up to the

affected persons to prove whether equality is violated or not.

It may be noted that Article 14 applies to any person and is not limited to citizens alone. Thus, a

corporation, which is only on artificial person by not a citizen is also entitled to the benefit of this

Article.

Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth Article 15 provides that the State shall not discriminate against any citizen on grounds only of

religion, race, caste, sex or place of birth or any of them. Further no citizen shall be deprived of the

following right on ground only of religion, race, caste, sex, place of birth

Access to shop, public restaurants, hotels and places of public entertainment:

The use of wells, tanks bathing ghats, roads and places of resorts, maintained out of State

funds.

The significance of the word ‘only’ used in Article 15 is that if there are any grounds on

discrimination other than ground of religion, race, caste, sex, place of birth then such discrimination

is not prohibited [ Yusuf v. State of Bombay]

The rights guaranteed in Article 15 are subject to the following exceptions:

The State can make any special provision for women and children;

The State can make any special provision for the advancement of any socially and

educationally backward classes of citizens or for the Schedule Castes and Schedule Tribes.

Equality of Opportunity in Matters of Public Employment Article 16 guarantees equality of opportunity to all citizens in the matter of appointment to any

office under the State. The aforesaid rule is subject to the following exceptions:

The Parliament can make any law prescribing any requirement as to resident in a State in

respect of any particular class or classes of employment in that state.

The State can make provisions for the reservation of post in favor of any backward classes

of citizens.

Offices connected with religious institutions may be reserved for he persons of a particular

religion

Abolition of untouchability

Article 17 provides that untouchability is abolished and its practice in any form is forbidden. The

enforcement of any disability arising out of untouchability shall be an offence punishable in

accordance with law.

Abolition of Titles

Articles 18 abolishes all the titles conferred on various Indian Citizens by British Government and

the use of those titles is prohibited as it results in creating superior and inferior classes of citizens.

However, Military titles, Academic titles or Titles recognizing merit or work of an extra-ordinary

nature can be conferred and used. RIGHT TO FREEDOM [ARTICLS 19 TO 22]


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Article 19

Article 19 guarantees the following six freedoms to the citizens of India:

1. Right to freedom of speech and expression.

2. Right to assemble peacefully and without arms.

3. Right to form associations or unions.

4. Right to move freely throughout the territory of India.

5. Right to reside and settle in any part of territory of India.

6. Right to practice any profession or to carry on any trade, business or occupation.

It may be noted that the aforesaid rights are not absolute and hence reasonable restrictions may be

imposed on them. The phrase reasonable restrictions connotes that the limitation imposed upon a

person in the enjoyment of a right should not be arbitrary or of an excessive nature. In determining

the reasonableness of statute, the court would see both the nature of the restrictions and procedures

prescribed by the statute for enforcing the

Restrictions on the individual freedom. The reasonableness of restriction has to be determined in an

objective manner and from the point of view of the interest of the general public and not from the

point of view of the persons upon whom the restrictions are imposed. The court is required to

ascertain the reasonableness of the restrictions and not of the law which permits the restrictions.

The word ‘restriction’ also includes cases of prohibition and the state can establish that a law,

thought purporting to deprive a person of his fundamental right, under certain circumstances

amounts to a reasonable restriction only.

Right to freedom of Speech and Expression [Articles 19(1)(a)]: Freedom of speech and

expression is a very important aspect of democracy, The freedom of speech and expression means

the right to express one’s convictions and opinions freely by words of mouth, writing, printing,

pictures or any other mode.

The right speech and expression includes right to make good or bad speech. One may express

oneself even by sign. It also includes the expression of idea through dramatic performance,

cinematographic and any other mode of expression.

In Maneka Gandhi v. Union of India, it was decided that the freedom of speech and expression

includes the freedom of press and thus imposition of pre-censorship on publication of views, ideas,

analysis, etc is violative of freedom of speech and expression.

In the case of Bijoe Emmanuel v. State of Kerala, it was held that the right to freedom of speech

and expression also includes the right to remain silent. It was decided that a person can not be

compelled to sing a National Anthem of he does not want to do so because of some religious

objections.

Permissible restrictions

Sovereignty and integrity of India

Security of the state

Friendly relations with foreign States

Public order

Decency and morality

Contempt of court

Defamation

Incitement to an offence

Right to assemble peacefully and without arms [Article 19(1)(b) :

It is the right to citizens to assemble peacefully and without arms.


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However reasonable restrictions may be imposed on this right in the interest of:

The sovereignty and integrity of India;

Public order.

Right to form association and union [Article 19 (1)©] :

Right to form associations and union is guaranteed so that the people can form a group of people

having the similar view, In Sitharamachary v. Dy, Inspector of School, it was held that this right

necessarily implies a right not to be a member of an association. Thus, no one can be compelled to

become member of an association.

The right is subject to reasonable restrictions which may be imposed in a interest of:

Sovereignty and integrity of India;

Public order;

Morality

Right to move freely throughout the territory of India [Articles 19(1)(d) :

Right to move freely is confirmed only to the territory of India and it can not be extended to travel

abroad.

This right is also subject to some reasonable restrictions which may be imposed:

In the interest of the general public ;

For the protection of interest of any scheduled tribe.

Right to reside and settle in any part of territory of India [Article 19 (1)(e):

The right to freedom of residence is intended to remove internal barriers within the territory of India

to enable every citizen to travel freely and settle down in any part of the state or Union territory.

This freedom is also subject to reasonable restrictions which may be imposed:

In the interest of general public;

For the protection of interest of any scheduled tribe.

Right to practice any profession or carry on any trade, business or occupation [Article 19

(1)(g):

Article 19 (1)(g) provides that all citizens shall have the right to practice any profession or to carry

on any occupation, trade or business.

This right is also subject to reasonable restrictions which may be imposed:

In the interest of the general public;

To prescribe professional or technical qualification necessary for carrying on any profession,

trade or business;

To enable the State to carry on any trade or business to the exclusion of Private Citizens.

This means that the creation of State monopoly shall not be considered to deprive a citizen of

the freedom of trade and occupation.

Banking Business will be done only by the state and not by any private person was challenged

before the Supreme Court. However the Supreme Court rejected the petition and held that the law is

valid as State has got the power to create a monopoly in its favour, [ R.C.Cooper v. Union of

India]

Article 20

Article 20 guarantees to all persons, whether citizens or non-citizens, the three rights. They are as

follows:


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Protection against ex-post facto laws : Ex post facto laws are laws which punishes what

had been lawful when done. If a particular act was not an offence according to the law of the

land at the time when the person did that act, then he can not be convicted under a law which

with retrospective declares that act as a offence. Even the penalty for the commission of an

offence can not be increased with retrospective effect.

Thus the meaning of the above two provisions is that so far as criminal law creates a new offence or

increases the penalty, it shall be applicable only to those offences which are committed after its

coming into force and can not cover those offences which have already been committed in the past.

Exceptions:

Protection under this Article is available only for offences and their punishments under

criminal law and not for any civil liability, where retrospective law can be passed.

Article 20 prohibits the conviction under ex-post facto law only in respect of substantive

law but not in respect of procedural law as no one has vested right in procedure [ Shiv

Bhadur Singh v. State of Vindhya Pradesh]

Protection against double jeopardy : No person can be prosecuted and punished for the

same offence more than once, However if a person has been let off after prosecution,

without being punished, he can be prosecuted again.

Protection against self-incrimination: A person accused of any offence can not be

compelled to be a witness against himself. In other words, an accused can not be

compelled to state anything which goes against him.

Article 21

Article 1 of the constitution confers on every person the fundamental right to life and personal

liberty. It says that “No person shall be deprived of his life or personal liberty except according to

the procedure established by law”

Thus Article 21 seeks to prevent encroachment upon personal liberty by the executive except in

accordance with law and in conformity with the provisions of the law. The scope, application and

effect of Article 21 may be well understood through the following important judicial decisions.

In Philips Alfred Malvin v. Y.J. Gonsalvis, it was held that right to life includes those things

which make life meaningful. For instance, the right of a couple to adopt a son.

In one of the leading cases, “life” has been interpreted as a decent life in a democratic society.

In A.K.Gopalan v. State of Madras, a very narrow meaning was given to the expression personal

liberty confining it to the liberty of the persons i.e., of the body of a person. It was held that only if

the person’s otherwise his personal liberty would be restricted in any way without violating Article

21.

That the expression “personal liberty” is not limited to bodily restraint or to confinement to prison

only is well illustrated by Kharak Singh v. State of U.P. In this case, the question raised was of

the validity of the police regulation authorizing the police to conduct what are called domiciliary

visits against bad characters and to have surveillance over them. The court held that such visits were

an invasion on the part of the police, of the sanctity of a man’s house and intrusion into his personal

security and his right to sleep, and therefore violative of personal liberty of the individual, unless

authorized by a valid law.

In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi. It was held that right to

travel abroad is included within the expression ‘personal liberty’ and therefore, no person can be

deprived of his right to travel except according to the procedure established by law. Since a passport

is essential for the enjoyment of this right, the denial of a passport amounts to deprivation of


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personal liberty. The view of this case was reiterated in Meanka Gandhi v. Union of India by the

Supreme Court.

At present, personal liberty includes various other liberties like right to bail, public interest,

litigation, right to free legal aid, right to speedy trial, etc.

The expression “procedures establish law” means procedure laid down by statute or prescribed by

the law of the State.

Article 22

Article 22 lays down certain specific safeguards against arbitrary arrest and detention.

These safeguards are:

A person who is arrested cannot be detained in custody, unless he has been informed of the

grounds for such arrest;

Such person shall have the right to consult and to be defended by lawyer of his choice. Such

person must be produced before the nearest Magistrate within 24 hours of arrest, excluding

the time of journey; and

Such person shall not be detained in custody beyond 24 hours without the authority of the

Magistrate.

It may be noted that aforesaid safeguards are not available to:

Alien enemies; and

Persons arrested or detained under preventive detention law.

RIGHT AGAINST EXPLCITATION [ARTICLES 23 & 24]

Introduction

Articles 23 and 24 guarantee certain right to weaker section of the society to prevent their

exploitation by unscrupulous individuals or even by the State. Article 23 imposes a complete ban on

traffic in human beings and forced labour, Article 24 prohibits employment o children in factories,

etc.

Articles 23

Articles 23 provide that traffic is human beings and begar and other similar forms of forced labour

are prohibited and any contravention of this provision shall be an offence punishable in accordance

with law.

Traffic in human beings means to deal in men and women like goods such as to sell or let otherwise

dispose off them. It includes not only slavery but also traffic in women or the crippled for immoral

or other purposes.

Begar is a system where a person is complied to render involuntary and free service. Even if there is

payment of wages, a person cannot be compelled to work against his will.

Article 24

Article 24 provides that no child below the age of 14 years shall be employed to work in any factory

or mine or engaged in any other hazardous employment.

RIGHT TO FREEDOM OF RELIGION [ARTICLES 25 TO 28]

Article 25

It guarantees to every person freedom of conscience and the right to profess, practice and propagate

any religion freely.

Article 26

It guarantees to every religious denomination the following rights:

The right to establish and maintain institution for religious and charitable purpose

The right to manage its own affairs in maters of religion.

Right to own and acquire movable and immovable property.

Right to administer that property in accordance with law.


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Article 27

It provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically

appropriated in payment of expenses for the promotion or maintenance of any particular religion or

religious denomination.

Article 28

It provides that no religious instructions shall be provided in any educational institution wholly

maintained out of State funds. However, this prohibition shall not apply to any educational

institution which is administered by the State by has been established under any endowment or trust

which requires that religious instruction shall be imparted in such institution.

CULTURAL AND EDUCATIONAL RIGHT [ARTICLES 29 & 30]

Articles 29

It provides the following:

Any section of the citizens residing in the territory of India having distinct language. Script

or culture of its own shall have the right to conserve the same; and

No citizen shall be denied admission into any educational institution maintained by the state

on grounds only of religion, race, cast, language or any of them.

Article 30

It provides the following:

1. All minorities, whether based on religion or language, shall have the right to establish and

administer educational institutions of their choice; and

2. The state shall not in granting aid to educational institution, discriminate any educational

institutions, discriminate any educational institution on the ground that it is under the

management of the minority whether based on religion or language.

RIGHT TO CONSTITUTIONAL REMEDIES [ARTICLES 32]

Article 32 guarantees the enforcement of fundamental rights. Article 32 makes it a fundamental

right that a person, whose fundamental right is violated, has a right to move the Supreme Court for

the enforcement of his fundamental rights, Thus, a person nee not first exhaust the other remedies

and then go to the Supreme Court. On the other hand, he can directly raise the matter before the

highest court of the land and the Supreme Court may pass the appropriate orders and writs for the

enforcement of the right, the violation of which has been alleged.

DIRECTIVE PRINCIPLES OF STATE POLICY

Meaning of Directive Principle of State Policy

Directive principles of State Policy are contained in Part IV, Articles 37 to 51, of the Constitution of

India. They are declared as fundamental to the governance of the country. The State shall apply

these principles in framing the law. But these can’t be enforced by the intervention of the Court.

IMPORTANT Directive Principles of State Policy

Following are some of the important directive principles of state policy:

State to secure a social order for the promotion of the welfare of the people.

Certain principles and policies to be followed by the State, such as :

Equal pay for both men and women:

The ownership and control of the material resources of the community are so

distributed as best to sub-serve the common goods;

Prevention of concentration of economic wealth to the common detriment.

Equal justice and free legal aid.

Organization of village panchayats.


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The State shall endeavour to secure the citizens a uniform civil code through out the territory

of India.

The State shall endeavour to protect and improve the environment and to safeguard the forest

and wildlife of the country.

The State shall take steps to separate the judiciary from the executive.

The State shall endeavour to promote international peace and security.

Relationship of directive principles of state policy with fundamental rights.

There is no conflict between Fundamental Right (FR) and Directive Principles of State Policy (DP).

Both are important to achieve the objectives of the Constitution. But what will be the legal position

if a law is enacted to enforce a DP which violates the FR. To understand the correct position, we

may look into the various stages of development.

In the initial stages, if any law was passed giving effect to FR but violating DP then DP was totally

ignored. In State of Madras v. Champakam Dorairajan, it was held that the DP cannot override

the ER. The DP has to conform and to run as subsidiary to the FR. Subsequently, the Supreme

Court applied the principle of harmonious construction by which whenever any law involves with

FR and DP, an attempt was made to give effect to both, to the extent possible, and when it become

impossible. DP was ignored.

Subsequently, Article 31-C was inserted in the Constitution of India by an amendment, which

provided that any law passed to give effect to the directive principles of prevention of concentration

of economic wealth to the common determent (MRTP Act) cannot be challenged even it violates

Article 14 or 19.

Subsequently, Article 31-C was amended and its scope was widened in the sense that any law passed

to give effect to any DP cannot be challenged even if it violates FR under Article 14 or 19.

In Keshavanand Bharti v. Union of India, the court observed that the FR and DP are meant to

supplement each other. It can well be said that the DP prescribes the goals to be attained and FR

lays down the means to achieve them.

Therefore the present position is that the violations of FR is legally enforceable but if it is due to any

law giving effect to DP, it can not be enforced as far as Article 14 to 19 are concerned.

FUNDAMENTAL DUTIES

Rights and duties go hand in hand. Thus, Article 51A of Constitution of India imposes the number of

Fundamental duties on every citizen of India. However, they are not enforceable in the court of law.

Following are some of the important fundamental duties:

To abide by the Constitution and respect its ideals and institutions, the National Flag and the

National Anthem.

To hold and protect the sovereignty, unity and integrity of India.

To defend the country and render National service when called upon to do so.

To promote harmony and spirit of common brotherhood amongst all the people of India

transacting religious, linguistic and regional or sectional diversities.

To renounce practices derogatory to the dignity of women.

To value and preserve the rich heritage of our composite culture.

ORDINANCE MAKING POWERS OF THE PRESIDENT OF INDIA

Normally, parliament has legislative powers and it alone can pass laws on Union list matters.

However, our constitution under Article 123 gives special legislative powers to President of India by

promulgating ordinance under certain circumstances.

Following are the important provisions regarding ordinance making powers of the President of India:

The President gets the powers only when the Parliament is not functioning. Even if one house

of Parliament is not functioning, the President can pass on ordinance.


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The President has powers to pass ordinance on the matters on which the Parliament has

powers.

The Councils of Ministers should suggest the passing of an ordinance on such matters.

The President himself should be satisfied about the need for the ordinance and he cannot be

compelled.

Once an ordinance is passed, it should be placed before both the Houses of Parliament and

approved by then within six weeks of their respective dates of reassembly.

The ordinance lapses if it is not approved within the aforesaid six weeks or if it is rejected

earlier or if the President himself withdraws the ordinance.

The ordinance cannot be challenged except on the limited grounds of mala fide intention in

passing the ordinance. [Cooper’s Case]

WRITS

Writs are extra ordinary remedies in cases where there is either no remedy available under the

ordinary law or the remedy available is inadequate.

Articles 32 and 226 of our Constitution empower anyone, whose rights are violated, to seek writs,

Under Article 32; the Supreme Court can be moved for enforcement of fundamental right only.

However, under Article 226. High Court can be moved for enforcement of any right including

fundamental right.

Depending upon circumstance, the various types of merits can be issued. Which are discussed below

Writ of Habeas Corpus

The words ‘habeas corpus’ literally means ‘to have body. It is a remedy available to a person who is

confined without legal justification. Through this writ, the court let it know the reasons for detention

of the person and if there is no justification, order the authority concerned to se the person free. The

writ of hebeas corpus, thus, entails the authority to produce the person before the court. The

applicant of this writ may be the prisoner or any person on his behalf to safeguard his liberty. It

seeks immediate relief from unlawful detention whether in prison or private custody.

Writ of Mandamus

Mandamus literally means a command. This writ of command is issued by the Supreme Court of

High court when any government, court, corporation or any public authority has to do a public duty

but fail to do so. To invoke the performance of such duty this writ of mandamus is issued, It should

be noted that it should not be discretionary duty of the authority which is challenged. It should be a

compulsory one; the applicant too should have a legal right to enforce such performance. It may

further be noted that this writ can not be issued against President or the Governor.

Writ of Prohibition

Writ of Prohibition is issued by a superior court to subordinate court preventing latter from usurping

the jurisdiction which is legally not vested in it. The writ lies in both for access of jurisdiction or

absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of

the proceeding but before the order is made. It may be noted that this writ is available against

judicial and quasi-judicial body.

Writ of Certiorari

If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the effected party

can move this writ for a direction against such lower court or tribunal to ignore such decisions based

on wrong jurisdiction. The writ of certiorari issued to subordinate judicial or quasi- judicial body

when they act:

Without or in excess of jurisdiction;

In violation of the prescribed procedure;

In contravention of principles of natural justice;

Resulting in an error of law apparent on the face of record.


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The writs of prohibition and certiorari are of the same nature, the only difference being that the writ

of prohibition is issued at an earlier stage, before the order is made and the writ of certiorari is

available on a later stage i.e. after the order has been passed.

Writ of Quo Warranto

The term ‘Quo Warranto’ means “What is your authority”. Whenever any public office is held by

any one not qualified to hold it, it can be challenged by this writ by any person. An order issued by

the court to such an authority to explain under what valid grounds he is holding such a post. It is

found on investigation that he is not entitled to be office; the court may restrain him from acting in

the office and declare the office to be Vacant. The writ of quo-warranto to issue when:

The office is public and of substantive nature;

The office is created by the State or by the Constitution itself; and

The respondent must have asserted his claim to the office.

DISTRIBUTION OF LEGISLATIVE POWERS

Important Provisions

Since India is a federal State, there is distribution of powers among the Centre and the state. In this

regard, Article 246 provides for the following lists:

List 1 or the Union List: This list includes subjects over which Parliament has the exclusive

poser to legislate. The list contains 97 items, some of which are defence, foreign affairs,

citizenship, currency, judiciary, central taxes, etc.

List II or the State List: This list contains 66 items over which the state legislature have the

exclusive power to legislate. Some of the important items are public health and sanitation,

pilgrimage, roads, agriculture, state taxes, etc.

List III or the Concurrent List: This list contains 47 entries over which both Parliament

and the state legislatures can legislate, Some of the important items are marriage, economic

and social planning, trade union, stamp duties, etc.

It may be noted that Parliament has exclusive powers to make any law with respect to any matter

which is not covered in any of three lists. This is known as residuary powers of legislature.

Power of the Parliament to make Laws on State List Matters

Normally the state legislature has the exclusive powers to make laws with respect to subjects

enumerated in the state list. But Article 246 of our constitution empowers Parliament to make laws

even on state list matters under the following five circumstances;

In the National Interest (Article 249) : National Interest has been defined but whenever

parliament feels that it is necessary to pass laws on state list matters in public interest, it is

covered under this Article.

During proclamation of emergency (Article 250) : While proclamation of emergency is in

operation, Parliament shall have the power to make laws for whole or any part of the territory

of India on any matter in the state list. Here emergency includes period of internal

disturbances and external aggression etc.

On request of two or more states (Article 252) : If there is a dispute between two or more

states and they pass a resolution in their assemblies to refer the matter to Parliament for any

law on state list matters concerning them, the Parliament can pass law.

Legislation for enforcing international agreements (Article 253) : If there is any

international agreement between foreign country and India, and to give effect to such

agreement if a law is to be passed, the Parliament can pass the law ever if the matter is

contained in state list.


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Breakdown of Constitutional machinery in a state (Article 356) : parliament can make

law with respect to all state matters as regard the state in which there is breakdown of

constitutional machinery and is under President Rule.

FREEDOM OF TRDE COMMERCE AND INTERCOURSE

The Constitution of India in Part XIII, wide Articles 301 to 305, deals with freedom of Trade,

Commerce and Intercourse. Out of these articles, Article 301 creates an overall limitation on all

legislative powers of the Union and the State legislature. The bar on state powers to interfere in the

free trade, commerce and intercourse (Article 301) is loosened by Article 302,303 and 304. Article

305 provides for state monopoly.

Study of the Articles 302 to 305 will reveal when and how the Constitution of India permits the

government to restrict freedom of trade, commerce and intercourse.

Article 301: The trade and commerce throughout the territory of India shall be free and without

restriction. The restriction can generally may be way of taxes. The taxes may be compensatory

where they are levied for any service provided it is not taken as restriction.

But if the tax is levied to regulate or to prevent certain people from carrying on business, it amounts

to restriction.

Thus the object of Article 301 is to break down the barriers between the states and to make the

country as one unit with a view to encourage trade and commerce.

Article 302: However, the Parliament can impose restrictions on freedom of trade commerce and

intercourse in public interest.

Article 303: The Parliament while imposing restrictions under Article 302, cannot discriminate

between different state. However, the parliament can discriminate in case of scarcity of goods.

Article 304: It enables state legislature to impose taxes on goods coming from other states, if goods

produced within the state are subjected to such taxes.

Article 305: Any law passed by the Union thereby creating the state monopoly shall not be affected

by the provision of Part XIII of the Constitution of India. IMPORTANT TERMS

Pith and Substances Rule

The rule of pith and substance is applied when a law dealing with a subject in one list also touches a

subject in another list. In such cases the pith and substance of the legislation i.e., the true object of

legislation is to be determined. If on such examination, it is found that the legislation in its existence

is within the legislative competent of the legislature which enacted it, it is valid even if it

accidentally encroached on a subject in another list.

Colourabe legislation

The theory being this concept is “you cannot do indirectly what you cannot do directly”. The object

of distribution of legislative powers to different legislatures is that they ought to act within their

respective boundaries marked by the specific entries, The are some cases where the legislature

passes an Act which outwardly purports to be dealing with a subject within its legislative

competence but in substance it covers a subject not within its powers, Such type of law is called

colorable legislation and it will be struck down by the Court.

Delegated Legislation

It refer to all law making which take place outside the legislature and is generally expressed as rules,

regulations, orders, by-law etc. In other words, when an instrument of a legislative nature is made

by an authority in exercise of poser delegated by the legislature, it is called the delegated legislation.

The three relevant justifications for delegated legislation are:

The limits of the time of the legislature:

The limits of the amplitude of legislature; and


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The need of some weapon for copying with situation created by emergency.

Lesson 21

INTERPRETATION OF STATUTES GENERAL PRINCIPLES/RULES OF INTERPRETATIONS

Rule of literal construction/ Interpretation

According to this rule, the words phrases and sentences of a statute are ordinarily to be understood in

their natural, ordinary or popular and grammatical meaning unless such a construction leads to an

absurdity or the content or object of the statute suggests a different meaning.

The objectives natures, ordinary and popular are used interchangeably. They mean the grammatical

or literal meaning, except when the words are technical because technical words have technical

meanings.

In simple words, this rule means to give simple straightforward and fair meaning to the provision of

law. It is also known as golden or primary rule of interpretation.

Rule of reasonable Construction or Doctrine of Ut Res Magis Valeat Quam Pareat

The maximum Ut Res Magis Valeat Quam Pareat i.e., the rule of reasonable construction implies

that Statute must be constructed reasonably. A statute or any enacting provision therein must be so

construed so as to make it effective and operative. A construction should be rejected if it results in

hardship serious inconvenience, injustice, absurdity, etc.

In simple words, this rule means that if any word in a law can be given more than one meaning, then

the court gives the reasonable meaning relevant to the circumstances, If the litera-leegis i.e., the

letter of the circumstances, If the litera-legis i.e., the letter of the law is not clear, the interpretation

must be ratio-legis,i.e according to the purpose, policy, object or spirit of law.

Mischief Rule or Heydon’s Rule


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Numbers of laws are made to cure a mischief. The mischief rule of interpretation is based on this

reason and it states that interpretation should be made in such way that it is able to cure that mischief

for which the law had been made. Thus, law should be interpreted in such a way so that it

suppresses the mischief and advances the remedy.

It may be noted that mischief rule is applicable only when a particular rule is ambiguous and capable

of different meanings. In such a case, the meaning which can suppress the mischief and advance the

remedy should be taken and other meaning should be discarded. Thus where a law is clear and can

have only one meaning, this rule shall not apply. [CIT v. Sodra Devil]

Harmonious construction

When a different section is an enactment is to be interpreted, they should be done in such a way that

the Act as a whole serves a useful purpose. It may be possible that different sections may appear to

mean contrary to each other or contradicting each other. Under such circumstances, an attempt

should be made to reconcile the provisions of the Act and an effect should be made to give the effect

to both the apparently contradictory provisions. Thereby a head on clash between sections of the

Act is avoided. This is known as harmonious construction.

That effect should be given to both the law, is the very essence of the rule of harmonious

construction. Thus a construction that reduces one of the provisions to a dead letter is not

harmonious construction.

Rule of Ejusdem Generis

The literal meaning of the term ejusdem generic is “of the same kind or species”. If any general

words such a ‘like’,’ so on’. etc follow specific words, the general words should include only those

meaning which can be given to the specific words. For example, printing, bleaching, dying, etc.

The rule requires that where specific words are all of one genius, meaning of the general words shall

be restricted to that genus only, unless there is something to show that a wider meaning was

intended.

The rule of ejusdem generic applies only when the following conditions are satisfied:

The statute contains an enumeration of specific words;

The members of enumeration constitute a class or category;

The class/ category is not exhausted by the enumeration;

The general term follows the enumeration; and

There is no indication of different legislative intent.

OTHER PRINCIPLE/RULES OF INTERPLRETATION

Expressio Unls Est Exclusio Alterius

The rule literally means that express mention of one thing implies the exclusion of another. In other

words, mention of one or more things of particular class may be regarded as silently excluding all

other members of the class. Thus where a statute uses two words or expressions, one of which

generally includes the other, the more general term is taken in a sense excluding the less general one;

otherwise they would have been little point in using the letter as well as the former.

It may be noted that this maxim ought not to be applied, where its application lead to inconsistency

or injustice.

Contemporanea Expositio Est Optima Et Fortissima Lege

The rule literally means that a contemporaneous exposition is the best and strongest in the law. It is

said that the best exposition of the statute or any other document is that which it has received from

contemporary authority. The language of the statute must be understood in the sense in which it was

understood when it was made.

It may be noted that the application of this doctrine is confined to the construction of ambiguous

language used in very old statutes where indeed the language itself might have had a rather a

different meaning on those days.


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Noscitur a sociis

The rule literally means that a word is known by its associates. In other words, the meaning of the

word is to be judged by the company it keeps. When two or more words having the analogous

meaning are coupled together, they are understood in their cognate sense. They take their colour

from each other.

The Supreme Court, while interpreting the expression “powers, privilege or immunities of a House

of the State Legislature”, held that the word ‘powers’ must take its colour from the words in

immediate connection with it and that it should be construed to refer not to legislative posers but to

powers of House which are necessary for the conduct of its business. [State of Karnataka v. Union

of India]

Strict and Liberal Construction

The words of a statute are to be constructed in the manner in which they are stated in the Act. The

state is not to be regarded as including any thing which is not within its letter and its spirit and which

is not clearly and manifestly described in the words of the statute itself. It may be noted that the

words of a Penal Statute which creates an offence or prescribes punishment are construed very

strictly.

Where the usual meaning of the words falls short of the object of the legislature, a more extended

meaning may be attributed to them. It has been held in many cases that it is the duty of the judge to

make such construction of a statute as shall suppress the mischief and advance the remedy or which

fulfills the objective thought behind in enactment of that law.

AIDS OF INTERPRETATION

There are two kinds of aids of interpretation i.e., internal & External aids of Interpretation.

Internal aids of interpretation

Title : The long title is set out at the head of the statute and gives a fairly full description of

the general purpose, object and scope of the Act. It is now settled that the long title of an Act

is the part of the Act and it is legitimate to use it for the purpose of interpreting the Act as a

whole.

Preamble: A preamble may afford useful light as to what a statute intends to achieve. It may

be noted that the preamble can be taken s an aid in interpretation of law only if that law is not

clear and ambiguous in nature, otherwise not.

Headings : The headings prefix to sections, chapters and parts of statute can be used in

constructing the provision of an Act, but only in cases where the enacting words are

ambiguous.

Marginal Notes : Marginal notes are often found printed at the side of the sections in an Act.

They purport to summaries the effect of the section and have sometimes be used as an aid to

interpretation.

Interpretation Clause : Interpretation clause consists of definitions of various words which

are frequently used throughout the Act. Whenever a word has been defined in interpretation

clause, prima facie that definition governs whenever that word is used in the body of the

statute. However, if in a particular context, different meaning of a word is given, then the

different meaning will be used and general meanings will be discarded for the purpose of

interpretation.

Provisos : Provisos are the various conditions appended to a section in an Act. A particular

section will be applicable only if the conditions specified in its provisio are satisfied.

Illustrations: Illustrations attached to sections are part of the statute and they are useful so

far as they furnish some information which helps in interpretation.

Explanation : An explanation is, at times, appended to a section to explain the meaning of

words contained in the section. It becomes the part and parcel of an enactment.

Schedules : The schedules form a part of the statute and must be read together with it for the

purpose construction.


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Statement of Objects and Reasons: The fact that Parliament has passed the provisions of

the statement of objects given sanction to them and thus they are a valid aid in the

interpretation of provisions.

External Aids of Interpretation

Following are important external aid of interpretation:

Parliamentary History: The Supreme Court, on many occasions, has used this aid of

parliamentary history i.e., debates and discussions of the Parliament while making that law,

in resolving questions of construction.

Historical facts and circumstances: It has already been established that the court is entitled

to take into account such external or historical facts as may be necessary to understand the

subject matter of the statute.

Reference to reports of committee: The report of a select committee or other committees

on whose report an enactment is based, can be looked into for the interpretation of statute.

Reference to other statutes: It has already been established that reference to other statutes

in “pari meteria” i.e., statutes dealing with the same subject matter, is permitted.

Dictionaries: When a word is not defined in the Act itself, it is permissible to refer to

dictionaries to find out the general sense in which that word is understood in common

parlance.

Use of Foreign decision: Use of foreign decisions of countries, following the same systems

of jurisprudence as ours, and rendered on statutes in ‘pari materia’, has been permitted by

practice courts.


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Lesson 22

Section-I

SPECIFIC RELIEF ACT 1963

INTRODUCTION

The term ‘relief’ means the remedy granted for some wrong or injury.

There are two types of remedies:

Remedy by which the aggrieved party obtains the same thing to which he is entitled.

Remedy by which the aggrieved party does not obtain the very thing to which he is entitled

but compensation for the loss.

The first remedy is to “Specific Relief”. While the second remedy is the “Compensatory Relief’s

Thus, specific relief is a relief in specie which aims at the “exact” fulfillment of an obligation. It is

also known as equitable relief.

The concept of specific relief is governed by various provision of Specific Relief Act, 1963.

PRINCIPLES UPON WHICH SPECIFIC RELIEF IS GRANTED

Following are the principles upon which remedy of specific relief is granted:

Damages is not an adequate remedy: Where damages in money are not an adequate

remedy or relief, the court grants the remedy of specific relief.

Dissertation of the Court: An aggrieved party can always apply for the specific relief but

whether specific relief will be granted or not it depends upon the discretion of the court. But

this discretion of the court is not arbitrary, depending upon the will and pleasure of the court.

It has to be exercised on sound and established principles of equity.

Specific relief granted only for enforcing individual and civil rights and no for

enforcing Panel laws: Specific relief can be granted only for the purpose of enforcing

individual civil rights. Thus, enforcement of Penal law is not possible, except where

enforcement of a panel law is merely incidental to the grant of specific relief.

RECOVERY OF POSSESSION OF PROPERTY

The Specific Relief Act, 1963 lays down the law in this regard under the following two heads;

Recovery of immovable property; and

Recovery of movable property.

Recovery of immovable property

The Specific Relief Act, 1963 provides for the recovery of the possession of immovable property on

the strength of:

Title; and

Possession

Recovery on the strength of title [Section 5]:

A person entitled to the possession of specific immovable property may recover it in the manner

provided by the Code of Civil Procedure, 1908. According to this, he may file for ejectment on the

strength of his title of property within 12 years from the date of dispossession.

Recovery on the strength of Possession [Section 6]:


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A person may sometimes be dispossessed without his consent of immovable property otherwise than

in due course of law. Such a person may file a suit, within six months from the date of

dispossession, for the recovery of possession of such property.

Following are the important points in this regard:

Plaintiff was disposed without his consent and otherwise than in due course of law.

A suit can be instituted even against the rightful owner of the property.

No suit under section 6 can be brought against the government.

No appeal and no review of he order or decree passed under section 6 is allowed.

Recovery of possession of movable property

Section 7: A person who is entitled to the possession of specific movable property may recover the

possession of that property if he is disposed of that property, in the manner provided by the Code of

Civil Procedure, 1908.

To recover the possession under section 7, following points may be noted:

The property to be recovered must be capable of being ascertained and identified.

The person suing must have a right to the immediate possession of the property.

Trustee may sue for the possession of movable property which is held by him in trust.

A person having a special or temporary right to the possession of property may also file a

suit.

Section 8: This section deals with the liability of a person having the possession of a movable

property of which he is not a legal owner.

To apply Section 8, following conditions must be satisfied:

a) The defendant have the possession or control of the movable property;

b) The defendant is not the owner of the movable property; and

c) Plaintiff have the right to the immediate possession of the movable property

If the above conditions are satisfied, the defendant can be compelled to deliver the property to

the plaintiff in the following cases:

1) When the property or thing is held by defendant as an agent or trustee of the plaintiff.

2) When the compensation in money is not adequate for the property.

3) When it is not possible to ascertain the damage suffered from the loss of article.

4) When the possession of thing or article has been wrongly transferred from the plaintiff.

Difference between Section 7 and Section 8:

Following are the important points of difference between Section 7 and Section 8:

Section 7 provides a general relief, whereas Section 8 provides a special relief.

Under section 7, even the owner of the movable property can be sued. However, it is

not possible under Section 8.

Under Section 7, money compensation may be alternative remedy, whereas specific

relief is the only remedy under Section 8.

SPECIFIC PERFORMANCE OF CONTRACT

Introduction

Specific performance is an equitable relief given by the court in cases of breach of contract. It is in

the form of judgment by the court ordering the defendant o actually perform the contract according

to its terms and condition. In the case of breach of contract, compensatory relief can also be granted

but in some cases such relief may not be adequate and hence specific relief is granted. However, the

defendant can also take the various defences in order to avoid the specific performance of contract.

The subject of specific performance may be discussed under the following heads:


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Contract which may be specifically enforced.

Contracts which cannot be specifically enforced.

Defences to an action for specific performance.

Parties to an action for specific performance.

Contracts which may be specifically enforced

Section 10: The specific performance of any contract may be enforced in the following cases:

When there exists no standard for determining the actual damage caused as a result of non-

performance of contract.

When compensation in money is not an adequate relief for the non-performance of the

contract.

Section 10 further provides that, until and unless the contrary is proved, the court shall presume the

following:

In case of breach of contract of transfer of immovable property, the compensation in

money is not an adequate relief.

In case of breach of contract of transfer of movable property, the compensation in money

is an adequate relief. However in the following cases, the court shall presume that the

compensation in money is not an adequate relief:

When compensation in money is not an adequate relief.

When the property is of special value or interest to the plaintiff.

Where the property consists of goods which are not easily available in the market.

Where the property is held by the defendant as the agent/ trustee of the plaintiff.

Section 11: Specific performance of the contract may be enforced when the act agreed to be done is

the performance of a trust.

Specific performance of part of contract [Section 12]:

The general rule is that the court normally does not grant the specific performance of only a part of a

contract. However, the court may direct the specific performance of a part of a contract in the

following cases:

Part left underperformed proportionately small and can be compensated in money.

Part left unperformed considerably large, if the plaintiff relinquishes all claim to further

performance and all rights to compensation.

Separate and independent part.

Contracts which can not be specifically enforced

Section 14: Following contracts can not be specifically enforced:

A contract in which compensation in money is an adequate relief for the nonperformance of

such contract.

A contract requiring supervision of the court as the court’s time is precious.

A contract depending upon personal qualification or volition of parties.

A contract which runs into such minute and numerous details which court could not enforce.

A contract of such nature that court cannot enforce its specific performance.

A contract which by it nature is a determinable contract. A determinable contract is a

contract which can be terminated by any of the parties to a contract.

A contract to refer present future disputes to arbitration except provided by the arbitration

law.

Contract to sell or let property by one who has no title [Section 17]:


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A contract to sell or let any immovable property cannot be specifically enforced in the following

cases where

A seller or a lesser does not have any title to the property;

Where the seller or lesser cannot give the purchases/ lessee a free title at the time fixed by the

parties or court.

Section 20:

In the following cases, the court can use its discretion and may reject the specific relief:

Contract giving unfair advantages to the plaintiff.

Performance involving hardships on the dependant.

When the enforcement makes it inequitable.

Section 14(3):

It lays down the exceptions where the court may enforce the specific performance in the following

cases:

Where the suit is for the enforcement of a contract to execute a mortgage or furnish a security

for securing the repayment of a loan which the borrower is not willing to repay.

Where the suit is for the performance/ enforcement of a contract to take up and pay for the

debentures of a company.

Where the suit is for the executing the formal deed of partnership and the parties have

commenced the business OR purchasing of shares of parties in a firm,

Where the suite is for the performance of contract for the construction of any building or the

execution of any other work on land provided the following conditions are satisfied:

The building or other work is described sufficiently in the contract:

The plaintiff has substantial interest in the performance of a contract:

Compensation in money is not an adequate relief for the non-performance of contract;

and

The defendant has obtained the possession of land where the work is to be done.

Defences to an action for specific performance

The following defences may taken by a defendant against a suit for specific performance of contract:

Contract by trustee in excess o his powers,

Specific performance of a part of a contract where unperformed part is large or substantial.

Unperformed part of a contract not separate and independent.

Contracts not specifically enforceable.

Non enforcement except with variations,

For example. A sues B to compel specific performance of contract in writing to buy a house. B

proved that he assumed that the contract included house and adjoining garage and a contract was so

framed as to leave it doubtful weather the garage was included or not. The court will refuse to

enforce the contract except with the variations set up by B,

Delay or laches:

If time is the essence of the contract and there is failure on the part of the plaintiff to perform his part

of the contract, then the defendant can take a defence to an action for specific performance of

contract,

Parties to an action for specific performance

The law on the parties to an action may be discussed under the following two heads:

A. Persons who may obtain specific performance; and

B. Persons against whom contracts maybe specifically enforced.


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Parties who may obtain specific performance [Section 15]:

Parties to the contract: The general rule is that the specific performance of the contract may

be obtained by parties to the contract.

Representative in Interest: The specific performance of a contract may also be obtained by

the representative in interest or the principle of any party therein.

Any person beneficially entitled: Where the contract in settlement of marriage or a

compromise of doubtful right between the members of some family, any person beneficially

entitled there under may claim specific performance.

Remainder Man: Remainder man means a man to whom the remaining interest in a property

vast office the happening of a certain specified event.

Reversioner: Person having the Reversionary Interest.

However in the following case, a specific performance of a contract cannot be enforced against a

person. [Section 16]:

A person who would not to be entitled to recover compensation for its breach.

A person who has become incapable of performing.

A person who violates any essential terms of contract.

A person who act in a fraudulent manner.

A person who varies the terms and conditions of the contract in a wrongful manner.

A person who fails to perform his part of the contract or fails to prove that he is willing to

perform his part of the contract.

Persons against whom contract may be specifically performed [Section 19]:

Specific performance of a contract may be enforced against the following person:

Either party thereto;

Any other person claiming under him by a title arising subsequently to the contract. However

against a transferee for value who has paid his money in good faith and without notice of

original contract, specific performance can not be granted;

Any person claiming under a title which, though prior to the contract and known to the

plaintiff, might have been displayed by the defendant.

For example, A, a tenant for life of the property, with remainder to B, in due exercise of the power

conferred by the settlement under which he is tenant for life; contract to sell the property C, who has

notice of the settlement. Before the sale is completed, A dies, C may enforce specific performance of

a contract against B

DECLARATORY DECREE

Meaning of declaratory decree [Section 34]

A declaratory decree of the court is a decree which declares that the plaintiff is entitled to any legal

character or any legal right as to any property against the defendant who denies his title to such

character or right.

The main object of section 34 is to dispel a cloud cast upon the legal character or title of the plaintiff

who seeks the aid of the court to get the declaration so that he can peacefully enjoy the legal

character or title without any fear or disturbance.

Requisites for the purpose of declaratory decree

The court may issue a declaratory decree, if the following conditions are fulfilled:

The plaintiff is entitled to any property.

The defendant denies the plaintiff’s title to such legal character or right;


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The declaration asked for is for legal character or right to property only;

The plaintiff is not able to claim further relief other then declaration: and

The court is satisfies that the relief is proper.

Effect of Declaration [Section 35]:

A declaration decree passed under Section 34 is binding only on the following persons:

The parties to the suit;

The persons claiming through them respectively; and

The persons for whom any of the parties to the suit are trustees.

Thus, declaration under section 34 is a judgment in personam and not a judgment in rem. Hence, it is

not binding on strangers.

For example, A, a Hindu in a suit to which B, his alleged wife and her mother seeks a declaration

that his marriage was duly organized and an order for the restitution of conjugal rights. The court

makes the declaration and order, C, claiming that N is his wife then sues A for the recovery of B.

The declaration made in the former suit is not binding upon C.

PREVENTIVE RELIEF/INJUCTION

Meaning

Preventive relief means the relief where a party to the contract is prevented from doing particular

act, which he is under an obligation not to do. Preventive relief is granted under the discretion of

court by way of Injunction. Injunction is a judicial process whereby a party is ordered to refrain

from doing or to do a particular act or thing.

Types of Injunction

Temporary injuction: A temporary injuction means an injuction which is to continue until a

specific time or until the further orders of the court. It may be granted at any stage of the suit

and does not conclude or determine the right. This is also known as interlocutory or interim

injuction.

Perpetual Injuction: A perpetual injuction can be granted by decree made at the hearing and

made upon the merits of the suit. It is granted only after full trial or hearing or the case,

when a right is firmly established.

Mandatory Injuction: Sometime to prevent the breach of an obligation, it may be necessary

to compel the performance of certain acts. If a court is capable of enforcing the performance

of those acts, it may grant an injuction to prevent the breach complained of and also to

compel the performance of the requisite act. This injuction is known as mandatory injuction.

Ex-parte Injunction : Where the facts and circumstances of the case require that an

injunction should be granted in favour of one party without hearing the other party, the court

may do so. This is known as ex-parte injunction.

Injunction to perform Negative Agreement [Section 42]

Sometime a contract may comprise of two agreements i.e., an affirmative agreement, to do a

particular act and a negative agreement, not to do a certain at. In such a case, if the court is unable to

compel the specific performance of the affirmation agreement, it may grant an Injunction to perform

the negative agreement.

Following are the essential requirements of Section 42:

The contract must consist of two agreements i.e., positive and negative agreement;

The contract must be divisible and the negative part must be capable of being separated from

the rest of the contract: and

The applicant must not have failed to perform the contract so far as it is binding on him.


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Lesson 22

Section II

LAW RELATING TO TORTS

INTRODUCTION

The word ‘tort’ is a French equivalent of English word ‘wrong’. The word tort is derived

from Latin language from the word Tortum. Thus, simply stated ‘tort’ means wrong. But

every wrong or wrongful act is not a tort. Tort is really a kind of civil wrong as opposed to

criminal wrong. Wrongs, in law, are either public or private.

Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not

exclusively a breach of contract or breach of trust.”

GENERAL CONDITIONS OF LIABILITY FOR A TORT

Wrongful act:


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The act complained of, should under the circumstances, be legally wrongful as regards the party

complaining. In other words, it should prejudicially affect any of the above mentioned interests, and

protected by law. Eg. right of reputation, right of bodily safety and freedom, and right to property are

violated without legal excuse, has a right of action against the person who violated them, whether

loss results from such violation or not. Legal damages:

As was stated in Ashby v. White, (1703) 2 Ld. Raym. 938 legal damage is neither identical with

actual damage nor is it necessarily pecuniary. Two maxims, namely :

Damnum Sine Injuria

The maxim means a man may have suffered damage and yet have no action in tort, because

the damage is not to an interest protected by the law of torts.

Thus, if I own a shop and you open a shop in the neighbourhood, as a result of which I lose

some customers and my profits fall off, I cannot sue you for the lose in profits, because you

are exercising your legal right.

Injuria Sine Damno

Where there is no damage resulted yet it is an injury or wrong in tort, i.e. where there is

infringement of a legal right not resulting in harm but plaintiff can still sue in tort.

The leading example is the case of Ashby v White referred to above where a person was

wrongfully not allowed to vote and even though it has not caused him any damage, since his

legal right to vote was denied, he was entitled to compensation.

Legal remedy:

The third condition of liability for a tort is legal remedy. This means that to constitute a tort,

the wrongful act must come under the law. The main remedy for a tort is an action for

unliquidated damages, although some other remedies, e.g., injunction, may be obtained in

addition to damages or specific restitution may be claimed in an action for the detention of a

chattel.

For example, if “A” finds a drunken stranger in his room who has no business to be there in

it, and is thus a trespass, he (A) is entitled to get rid of him, if possible without force but if

that be not possible with such force as the circumstances of the case may warrant.

Mens Rea

The General principle lies in the maxim “actus non facit reum nisi mens sit rea” i.e. the act

itself creates no guilt in the absence of a guilty mind.

It does not mean that for the law or Torts, the act must be done with an evil motive, but

simply means that mind must concur in the Act, the act must be done either with wrongful

intention or negligence.

For example, under criminal law, mens rea must be proved. However, to this principle cases

of absolute or strict liability are exceptions.

KINDS OF TORTIOUS LIABILITY

The following types of tortuous liability may be noted:


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(A) STRICT OR ABSOLUTE LIABILITY

In some torts, the defendant is liable even though the harm to the plaintiff occurred without intention

or negligence on the defendant’s part. In other words, the defendant is held liable without fault.

These cases fall under the following categories:

Liability for Inevitable Accident – Such liability arises in cases where damage is done by the

escape of dangerous substances brought or kept by anyone upon his land. Such cases are

where a man is made by law an insurer of other against the result of his activities.

Liability for Inevitable Mistake – Such cases are where a person interferes with the property

or reputation of another.

Vicarious Liability for Wrongs committed by others – Responsibility in such cases is

imputed by law on grounds of social policy or expediency. These case involve liability of

master for the acts of his servant.

The facts of this case were as follows:

B, a mill owner employed independent contractors, who were apparently competent to

construct a reservoir on his land to provide water for his mill.

There were old disused mining shafts under the site of the reservoir which the contractors

failed to observe because they were filled with earth.

The contractors therefore, did not block them. When the water was filled in the reservoir, it

bursted through the shafts and flooded the plaintiff’s coal mines on the adjoining land.

It was found as a fact that B did not know of the shafts and had not been negligent, though

the independent contractors, had been, B was held liable. Blackburn,

J., observed; “We think that the true rule of law is that the person, who for his own purposes

brings on his lands and collects and keeps there anything likely to do mischief if it escapes,

must keep it at his peril and if, he does not do so is, prima facie answerable for all the

damage which is the natural consequence of its escape.” Exceptions to the Rule of Strict Liability

The following exceptions to the rule of strict liability have been introduced in course of time, some

of them being inherent in the judgment itself in Ryland v. Fletcher:

Damage due to Natural Use of the Land

In Ryland v. Fletcher water collected in the reservoir in such large quantity, was held to be

non-natural use of land. Keeping water for ordinary domestic purpose is ‘natural use’. Things

not essentially dangerous which is not unusual for a person to have on his own land, such as

water pipe installations in buildings, the working of mines and minerals on land, the lighting

of fire in a fire-place of a house, and necessary wiring for supplying electric light, fall under

the category of “natural use” of land.

Consent of the plaintiff

Where the plaintiff has consented to the accumulation of the dangerous thing on the

defendant’s land, the liability under the rule in Ryland v. Flethcher does not arise. Such a

consent is implied where the source of danger is for the ‘common benefit’ of both the

plaintiff and the defendant.

Act of Third Party


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If the harm has been caused due to the act of a stranger, who is neither defendant’s servant

nor agent nor the defendant has any control over him, the defendant will not be liable. Thus,

in Box v. Jubh (1879) 4 Ex. D. 76, the overflow from the defendant’s reservoir was caused

by the blocking of a drain by stranger, the defendant was held not liable. But if the act of the

stranger, is or can be foreseen by the defendant and the damage can be prevented, the

defendant must, by due care prevent the damage. Failure on his part to avoid such damage

will make him liable.

Statutory Authority

Sometimes, public bodies storing water, gas, electricity and the like are by statute, exempted

from liability so long as they have taken reasonable care. This is based on the principle that

they act in public interest.

Act of God

If an escape is caused, through natural causes and without human intervention circumstances

which no human foresight can provide against and of which human prudence is not bound to

recognize the possibility, there is then said to exist the defence of Act of God.

Escape due to plaintiff’s own Default

Damage by escape due to the plaintiff’s own default was considered to be good defence in

Rylands v. Fletcher itself. Also, if the plaintiff suffers damage by his own intrusion into the

defendant’s property, he cannot complain for the damage so caused. VICARIOUS LIABILITY

Normally, the tortfeasor is liable for his tort. But in some cases a person may be held liable for the

tort committed by another. A master is vicariously liable for the tort of his servant, principal for the

tort of his agent and partners for the tort of a partner. This is know as vicarious liability in tort. The

common examples of such a liability are:

Principal and Agent [Specific authority]

Partners

Master and Servant [Authority by relation]

Employer and Independent Contractor

Where Employer is Liable for the acts of Independent Contractor

Where Employer is not Liable for the acts of an Independent Contractor

Liability for the acts of Servants

TORTS OR WRONGS TO PERSONAL SAFETY AND FREEDOM An action for damages lies in the following kinds of wrongs which are styled as injuries to the

person of an individual:

Battery

Any direct application of force to the person of another individual without his consent or lawful

justification is a wrong of battery. To constitute a tort of battery, therefore, two things are necessary:

use of force, however, trivial it may be without the plaintiff’s consent, and

without any lawful justification.


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Even though the force used is very trivial and does not cause any harm, the wrong is committed.

Thus, even to touch a person in anger or without any lawful justification is battery.

Assault Assault is any act of the defendant which directly causes the plaintiff immediately to apprehend a

contact with his person.

Thus, when the defendant by his act creates an apprehension in the mind of the plaintiff that he is

going to commit battery against him, the tort of assault is committed.

The law of assault is substantially the same as that of battery except that apprehension of contact, not

the contact itself has to be established.

Usually when there is a battery, there will also be assault, but not for instance, when a person is hit

from behind.

To point a loaded gun at the plaintiff, or

to shake fist under his nose, or

to curse him in a threatening manner, or

to aim a blow at him which is intercepted, or

to surround him with a display of force

is to assault him clearly if the defendant by his act intends to commit a battery and the plaintiff

apprehends it, is an assault.

Bodily Harm

A willful act (or statement) of defendant, calculated to cause physical harm to the plaintiff and in

fact causing physical harm to him, is a tort.

False Imprisonment False imprisonment consists in the imposition of a total restraint for some period, however short,

upon the liberty of another, without sufficient lawful justification. It means unauthorized restraint on

a person’s body.

What happens in false imprisonment is that a person is confined within certain limits so that he

cannot move about and so his personal liberty is infringed.

Malicious Prosecution Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another,

maliciously and without reasonable and probable cause, which terminate in favour of that other and

which results in damage to his reputation, personal freedom or property. The following are the essential elements of this tort: There must have been a prosecution of the

plaintiff by the defendant.

There must have been want of reasonable and probable cause for that prosecution.

The defendant must have acted maliciously (i.e. with an improper motive and not to further

the end of justice).

The plaintiff must have suffered damages as a result of the prosecution.

The prosecution must have terminated in favour of the plaintiff.

Nervous Shock


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This branch of law is comparatively of recent origin. It provides relief when a person may get

physical injury not by an impact, e.g., by stick, bullet or sword but merely by the nervous shock

through what he has seen or heard.

Causing of nervous shock itself is not enough to make it an actionable tort, some injury or illness

must take place as a result of the emotional disturbance, fear or sorrow.

Defamation

Defamation is an attack on the reputation of a person. It means that something is said or done by a

person which affects the reputation of another. It is defined as follows:

“Defamation is the publication of a statement which tends to lower a person in the estimation of

right thinking members of society generally; or which tends to make them shun or avoid that

person.

Defamation may be classified into two heads: Libel and Slander.

Libel is a representation made in some permanent form, e.g. written words, pictures,

caricatures, cinema films, effigy, statue and recorded words. In a cinema films both the

photographic part of it and the speech which is synchronized with it amount to tort.

Slander is the publication of a defamatory statement in a transient form; statement of

temporary nature such as spoken words, or gestures. REMEDIES IN TORTS

Judicial Remedies

Three types of judicial remedies are available to the plaintiff in an action for tort namely:

Damages or Compensation,

Injunction, and

Specific Restitution of Property.

Extra Judicial Remedies

In certain cases it is lawful to redress one’s injuries by means of self help without recourse to the

court. These remedies are:

Self Defence

It is lawful for any person to use reasonable forces to protect himself, or any other person against

any unlawful use of force.

Prevention of Trespass An occupier of land or any person with his authority may use reasonable force to prevent trespassers

entering or to eject them but the force should be reasonable for the purpose.

Re-entry on Land A person wrongfully disposed of land may retake possession of land if he can do so in a peaceful

and reasonable manner.

Re-caption of Goods


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It is neither a crime nor a tort for a person entitled to possession of a chattel to take it either

peacefully or by the use of a reasonable force from one who has wrongly taken it or wrongfully

detained it.

Abatement of Nuisance

The occupier of land may lawfully abate (i.e. terminate by his own act), any nuisance injuriously

affecting it. Thus, he may cut overhanging branches as spreading roots from his neighbour’s trees,

but

upon giving notice;

by choosing the least mischievous method;

avoiding unnecessary damage. Distress Damage Feasant

An occupier may lawfully seize any cattle or any chattel which are unlawfully on his land doing

damage there and detain them until compensation is paid for the damage. The right is known as that

of distress damage feasant-to distrain things which are doing damage. It is a legal seizure and

detention of cattle or chattel till compensation is paid for the damage.

Lesson 22

Section III

Limitation Act, 1963

Introduction:

The object of the Limitation Act, 1963 is to prescribe the period within existing rights can be

enforced in courts of law.

The principal in which the law of limitation is base is “vigilantibus non dormientibus leges

subvenient” i.e. the, law aids the diligent and not the indolent. This is because with passage of time

all evidence of the facts may be lost.

Limitation Bars Remedy But does not Extinguish right:


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The law of limitation only bars the remedy by way of the suit i.e., if the period of limitation expires,

the party entitled to file a suit for the enforcement of a right is debarred from doing so. However, the

original right on which the suit was to base is not barred. Thus, limitation only bars the judicial

remedy but it does not extinguish the right.

For example, where the recovery of a debt has become time barred by the lapse of the prescribed

period limitation, the right to the debt is not extinguished. If the debtor, without being aware of the

bar of time, pays the debt he cannot sue the creditor to refund the money to him on the ground that

his claims for the recovery of the debt had become time barred.

It may be noted that there is one exception to the aforesaid rule which is contained in Section 27 of

the Limitation Act, 1963. It provides that where a person’s right to institute the suit for the

possession of any property has become barred by limitation his riht to the property itself shall be

extinguished.

Limitation is the Statute of Repose, Peace and Justice:

The statutes of limitation are statute of repose because they extinguish stale demands and quite titles.

They lay, at rest; claims which might otherwise have disturbed the peace of community. They

secure peace by ensuring security of rights and secure justice as by lapse of time evidence may have

been destroyed.

In S.C. Parashar v.Vasant Sen, the Supreme Court has rightly observed that the statute of

limitation is a statute of repose, peace and justice.

The intention of the law of limitation is not to give a right where there is not one, but to interpose a

bas after certain period to a suit to impose an existing right. The object is to compel the litigant to be

diligent in seeking remedies in court of law.

Concept of Time Barred [Section3]

Concept of time barred is incorporated in Section 3 of Limitation Act, 1963. According to this

section, every suit must be instituted, appeal must be preferred and application must be made within

the period of limitation as specified in the schedule II of Limitation Act.

The provisions of this section are absolute and mandatory. The court will not proceed with the suit;

application made beyond prescribed period of limitation and is liable to be dismissed when the suit,

appeal or application has become time barred.

Doctrine of Sufficient Cause for Extension of Time or Condonation of Delay [Section 5]

The general rule is that the suit, appeal or application must be made within the prescribed period of

limitation. However, there is an exception to this general rule which provides that the court may

admit an application or appeal even after the expiry of prescribed period of limitation, if it is

satisfied that the applicant or the appellant has been prevented by some sufficient cause, from not

making the application or preferring the appeal within the prescribed period of limitation.

It may be noted that doctrine of sufficient cause is not applicable in the following cases:

Application made under any of the provisions of Order XXI of CPC, 1908 and

Suits.

The expression ‘sufficient cause’ had not been defined under the limitation Act, 1963. However, a

cause in order to be sufficient cause must be a cause which is beyond the control of the party

invoking this section.

For example, illness of the party, mistake of the counsel, mistake o law, and not ignorance of law,

etc. are some of the instance of sufficient cause.

The burden to prove sufficient cause for delay in filling an application or appeal lies on the party

applying for condonation of delay under section 5. However, it is the discretion of the court to grant

extension of time or not.

Period of Limitation in the case of Persons Under Legal Disability [Sec 6,7 & 8]

The period of limitation starts from the date on which the cause of action has arisen but in the case of

persons suffering from some legal disability, the period of limitation runs from the date of the

cessation of disability. The rules to this effect are contained in section 6, 7 and 8.


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Section 6

Section 6 provides that a person is under a legal disability if such person is a minor, (the term minor

includes child in the womb) insane and idiot. In such cases, the persons will be entitled to fresh

starting point of limitation from the date on which the legal disability ceases to exist subject to the

following conditions:

Such a legal disability must be existing at the time from which the period of

limitation is to be commenced; and

The person under legal disability must be entitled to institute the suit or make an

application.

Section 6 further provides the following:

If a person is affected by several disability at one point of time, then the person may institute

o suit or make an application after all disabilities have ceased.

If one legal disability is followed by another legal disability, then the person may institute a

suit or make an application after all disabilities have ceased.

If the legal disabilities continue up to the death of the person under such disability, then his

legal representative may institute the suit or make the application within the same period

after the death, as would otherwise have been allowed from the time specified in the schedule

to the Act.

It may be noted that section 6 does not apply to appeals.

Section 7

Section 7 is applicable where several persons are jointly entitled to institute the suit or make an

application for execution of a decree and out of the several persons, one or some of them are affected

by ‘ legal disability’.

The period of limitation in such a case is to be reckoned, depending upon whether discharge can be

made with or without the consent of the person under legal disability. If the discharge can be given

with the consent of such person, he period of limitation will start only after the disability is removed.

On the other hand, where consent of the person under legal disability is not required time will run

against them all.

I may be noted that section 7 is not applicable to appeals.

Section 8

Section 8 is an exception to section 6 and 7 controls both these sections. According to Section 8, the

period of limitation can not extend beyond three years from the date of cessation of legal disability.

However, if the ordinary period of limitation computed from the original accrual of the cause of

action expires more than 3 years after the cessation disability, such period will be allowed.

Continuous running of Time [Section 9]

Section 9 of the Limitation Act, 1963 provides that where the limitation period has started, no

subsequent disability or inability to institute a suit or make an application can stop it. The section

embodies the principle that once the time for filing suit or an application starts running, it will

continue to run till it has exhausted the full prescribed period. The running process can only be

stopped or suspended by express statutory exceptions.

‘Disability’ connotes legal disability. It is want of legal qualification to act i.e., want of capacity to

act. It is the state of being minor, insane and idiot. ‘Inability’, on the other hand, connotes want of

physical power to act. Illness, poverty, ignorance, etc. are some of the instances of inability.

It may be noted that section 9 is applicable only to suit and application. It does not apply to appeals.

Exclusion of Time in Legal Proceedings [Section 12]

Following period shall be excluded in computing the period of limitation for various proceedings

mentioned:


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In computing the period of limitation prescribed for a suit, the day on which the time begins

to run shall be excluded.

In computing the period of limitation prescribed for an appeal the following periods shall be

excluded:

the day on which the period begins to run;

the day on which the judgment was pronounced;

the time required for obtaining the copy of decree, sentence, order; and

the time required for obtaining he copy of judgment.

In computing the period of limitation prescribed for an application for revision or review or

leave to appeal, the following shall be excluded:

the day on which the period begins to run;

The day on which the judgment was pronounced;

the time required for obtaining the copy of decree; and

the time required for obtaining he copy of judgment.

In computing the period of limitation prescribed for an application to set aside an award, the

following period shall be excluded:

the day on which the period begins to run; and

the time required for obtaining a copy of the award.

In computing the period prescribed for any other application, only the day on which the time

begins to run shall be excluded.

Effects of Announcement of a Liability on Period of Limitation [Section 18]

Sometimes a liability may be acknowledged by the party against whom the liability is alleged within

the period of limitation. If this acknowledgement is made in writing, it would give rise to a fresh

period of limitation and it would run from the date of acknowledgement.

It may be noted that it is not necessary that an acknowledgement must contain an express or implied

promise to pay. What is necessary is that these should be admission of the subsisting liability.

The essential requisites of a valid acknowledgement are as follows:

The acknowledgement must have been made before the expiration of the prescribed period of

limitation;

The acknowledgement must have been made by the party against whom the right is claimed;

The acknowledgement must be in writing;

The acknowledgement must be in respect of some liability or a particular property or right

claimed in the suit or application; and

The acknowledgement is not required to be made to the creditors or the person entitled to the

property i.e. it may be made to any person, even to a stranger.

Effect of Part Payment of Principal Amount or Payment of Interest on Period of Limitation

[Section 19]

Section 19 of the Limitation Act stipulates the law for the extension of the period of limitation when

part payment of the principal amount or payment of interest is made. As per this section, where


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payment on account of the debt or of interest on a legacy is made before the expiration of the

prescribed period, by the person liable to pay the debt or legacy or by his agent duly authorized in

his behalf. A fresh period of limitation shall be computed from the time when the payment was

made. Further part payment of the principal amount or payment of interest money is also required to

be acknowledged and such acknowledgement must appear either in the hands writing of the person

making the payment or must appear in a writing signed by the person making the payment.

It may be noted that where mortgaged land is in the possession of the mortgagee, the receipt of the

rent or produce of such land shall be deemed to be a payment.

Thus according to this section, a fresh period of limitation become available to the creditor when

part payment of debt or payment of interest is made by the debtor before the expiration of the period

of limitation.

Important Limitation Periods:

Suit for money payable or money lent – 3 years from the time when the loan is made.

Suit for specific performance of contract – 3 years from the date fixed for performance. In

case where no such date is fixed, 3 years shall be calculated from the date when the plaintiff

has notice that the performance is refused.

Appeal against the sentence of death passed by the Session Court or by the High court in

exercise or its original jurisdiction – 3- days.

Suits relating to Contract – 3 years.

Suit relating to movable property – 3 years.

Suit relating to possession of immovable property mortgaged – 12 years.

Suit for arrears of rent – 3 years.

Suits for an account and a share out of profits of a partnership firm – 3 years.

Suit in respect of wages due to seamen – 3 years.

Suit in respect of wages due to other employees – 3 years.

Suit in respect of price of food or drink sold by a hotel, restaurant, lodging house etc. – 3

years.

Suit in respect of compensation for false imprisonment – 1 year.

Suit in respect of compensation for malicious prosecution – 1 year.

Suit to enforce payment of money secured by a mortgage – 12 years.

Suit for possession of immovable property – 30 years.

Suit for leave/ permission to appear and defend a suit under summary procedure – 10 days.


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Lesson22

Section IV

Indian Evidence Act, 1892

Introduction

Indian Evidence Act, 1872 contains the general rules of evidence, which are applicable both in

civil as well as in criminal mattes.

Section 3 of the Act recognizes the two categories of evidence i.e., oral evidence and

documentary evidence. Oral evidence means and includes all statements which the Court

permits or required to be made before it by witnesses, in relation to matters of fact under enquiry.

Documentary evidence means and includes all documents, produced for the inspection of the

Court.

For the purpose of evidence, facts are divided into the following two categories:

Fact of Issue: The facts which are constituent of a litigated right, liability, or disability are called

facts in issue.

Relevant Fact: In order to prove the existence or non-existence of facts in issue, certain other

inter-connected fact may be given in evidence. They are called relevant facts.

Relevancy of Facts:

Meaning of ResGestae

The term Res Gestae means surrounding or accompanying circumstances which are inseparable

from the fact in issue and are necessary to explain the nature of the main act.

They includes acts or declaration accompanying or explaining the transaction or fact in issue.

The area of events covered by Res Gestae depends upon circumstances of each case.

Relevancy of Facts Forming Part of the same Transaction Section 6

Section 6 lays down the requirement that the inter-connation between facts in issue and other

connected facts must be such that they form part of the same transaction. A transaction may be

defined as a group of facts so connected together so as to referred to by a single legal name as a

crime or a contract or a wrong or any other subject of enquiry which may be in issue.

In Rattan v. Queen, a man was prosecuted for murder of his wife. His defence was that the bullet

went off accidentally. There was evidence to the extent that he deceased, before her death,

telephoned to telephone operator and said “Get the police please”. Before the operator could

have connected the call to the police, the lady had given the address and the call suddenly ended.

Thereafter the police, the lady had given the address and the call suddenly ended. Thereafter the

police came to the house and found the dead body of the lady. Her call and the words she had

spoken to the telephone operator were held to be relevant as the part of the same transaction.

Motive, Preparation and Conduct [Section8]

Every crime can be divided into the following three stages i.e., Motive, Preparation and Conduct.

Motive: Motive is that part which induces or moves a Peron to act in a certain way. It is the

emotion supposed to have led to the act. There can be no action without a motive, which must

exist for every voluntary act.

The mere existence of the motive is by itself not an incriminating circumstance. In Tara Devi v.

State of U.P., it was held that motive of a woman to get rid of her husband was not enough to

convict particularly when her paramour was acquitted.

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Preparation: Preparation means the means and measures necessary for the commission of any

offence.

Conduct: Conduct means attempt to commit the crime and actual commission of the crime.

Inconsistent Fact [Section 11]

Section 11 provides that the fact which ordinarily have nothing to do with the fact of the case,

become relevant because of the reasons that they are consistent with the fact in issue.

Admission and Confession

Meaning of Admission [Section 17]

Admission is a statement given by a person admitting a fact which suggests as to the existence of

his liability. For the applicability of this provision, admission must be against the interest of the

maker.

Meaning of Confession

The word ‘Confession’ is not defined in Indian Evidence Act, 1872. Hence the definition of

admission given in Sec. 17 is also applicable to confession. Thus, confession is a statement

given by an accused admitting his guilt.

If a confession is made to the Court, it is called the judicial confession, whereas where the

confession is made to any person outside the court, it is called extra judicial confession.

Important Provisions Pertaining to Confession

Confession must be free and on voluntarily basis [Sec.24]: Sec.24 provides that confession

should free and on a voluntary basis. It must not be caused by any inducement, threat or promise.

Confession made to police officer will be irrelevant and inadmissible [Sec. 25] Sec. 25

provides that confession made to a police officer will be irrelevant and inadmissible.

Section 26: Sec. 26 provides that a confession made to police officer in the immediate presence

of a Magistrate will be admissible.

It may be noted that a Civil Judge is not a Magistrate. A Civil judge has a power under CPC

where a Magistrate exercise poser under CrPC. Thus Sec 26 is applicable only when the

confession is made in a presence of Magistrate. It may further be noted that Sec. 26 is an

exception to Sec. 25.

Section 27: Sec. 27 provides that a statement in the form of confession to a police officer will be

admissible provided that the statement leads to the discovery of a fact connected with a crime.

For example, A confesses to Police that he has murdered B with a revolver and that the revolver

is with C. The police recovered the revolver from C. Thus, in such a case Section 27 will be

applicable.

Section 30: Sec. 30 provides that when a statement in the form of a confession is given by co-

accused, then such statement may be used against another co-accused.

For example, A and B together murder C. There is allegation on them and B confesses before a

Judge that he has murdered C along with A. This is a statement of co-accused and thus can be

used against another co-accused i.e., A

Conclusion: Section 24 to 30 provides that the court may accept the confession in toto and reject

in toto. The court can’t accept only the in-culpantory part while rejecting the ex-culpatory part.

For example, A wife is supposed to murder her husband; she said that she wrongly administered

the poison in place of the medicine to be given to her husband. In addition, she said that she

murdered her husband with the help of some other person and drowns the dead body in the well.

There are two part of this statement i.e., one is in-culpatory and another is ex-culpatory.

Difference between admission and confession

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Admissions are a genus of which confession are a specie. Confession is a special from of

admission. The main points of difference between them are as follows.

Admission Confession

1. Admission may be oral Confession even it is oral, it is

Recorded in writing and signed by

The parties.

2. Admission may be under compulsion also. Confession has to be voluntary.

3. Admission may be made by anybody Confession shall be by accused only.

Confession has to be done by self

Only.

5. It doesn’t arise in case of admission Confession can bind even the co

Accused.

6. Admission is allowed in civil & criminal cases. Generally it is available only in

Criminal cases.

7. All admissions need not be confessions. All confessions are admissions

Hearsay Evidence

Section 59 of Indian Evidence Act provides that except content of documents, all other facts may

be proved by oral evidence.

Section 60 further provides that the oral evidence must be direct and it should not be indirect or

hearsay. Thus it can be sated that in all cases the evidence has to be that of a person who himself

witnessed the happening of a fact. Such a witness is called eye witness. Therefore, it is normally

said ‘hearsay evidence is no evidence’

However, there are certain exceptions to the aforesaid rule that hearsay evidence is no evidence.

They are as under:

1. Res Gestae: As per this provision, statement of person may be proved through another

person who appears as a witness, if the statement is a part of transaction issue.

2. Admission and Confession: An admission of liability or confession of guilt is proved

through the testimony of the witness to whom such admission and confession was made.

3. Dying Declaration: As per Section 32, statements are proved through testimony of the

witness to whom such statement has been made. This provision covers the testimony

related to dying declaration as well as the statements relating to a person under disability.

It may be noted that where a person making a declaration survives then the statement

made by him can’t used as dying declaration.

4. The evidence given by witness in a judicial proceeding can be used as evidence in

subsequent proceedings.

Estoppel [Section 115]

Estoppels is a proposition of law by which a person is held by the representation made by him or

arising out of his conduct. The facts constituting the estoppel will be relevant and admissible.

Privilege Communication

There are certain mattes which a witness can’t be compelled to disclose or even if the witness is

willing to disclose, he will not be permitted to do so. Such mattes are known as privileged

communication.

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Following are the fact of which evidence can’t be given:

Communication During marriage [Section 122]

Section 122 prevents communication between husband and his wife from being disclosed. Thus

a wife or husband can’t be permitted to disclose what her husband or his wife respectively has

stated with regards to the matters in issue. Such communication remains protected even after the

divorce. However communications made before the marriage or after the divorce are not

protected.

Professional Communication [Section 126]

Communication made by a client to his advocate for the purpose of his professional work is not

permitted to be disclosed.

Witness [Section 118]

Every person is a competent witness provided such person understands the questions posed to

him and can give logical and rational answer to those questions.

A child can also be a competent witness provided such a child is intelligent enough to understand

the questions and answer them in a logical and rational manner.

A Judge or a Magistrate can also be a competent witness provided such judge or Magistrate is

personally aware of the facts of the case.

Evidence in Respect of Certain Documents

Section 93 provides that where the language of document is apparently defective on the fact of it,

oral evidence can’t be entertained to cure that defect.

Section 97 provided that where the language of a document applies partly to one set of facts or

partly to another set of facts, but doesn’t apply accurately to either set of fact, then evidence can

be given to show to which fact the document intended to apply.

Lesson23

Civil Procedure Code, 1908

Introduction

Civil Procedure Code is the general law relating to civil suits.

The Code consists of two divisions. The first division, containing 158 Section, is the substantive

law i.e., the law which determines the rights and obligation of the parties to a dispute. The

second division, containing 51 Orders, each of which contains several Rules, is the procedural

law i.e., the law which prescribes the procedure for the enforcement of rights and obligation of

the parties to the disputes.

The first division, containing substantive law, can be amended only be the Parliament whereas

the second division, containing procedural law, can be amended only by the High Courts.

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Concept of Decree, Order and Judgment

Decree

The term ‘decree’ has been defined u/s 2(2) of Civil Procedure Code, 1908. It means the formal

expression of an adjudication which conclusively determines the rights of the parties with regard

to all or any of the matter in controversy in the suit.

A decree may be either preliminary or final. A decree is preliminary when a further procedure

has to be taken before the suit can be completely disposed off. It is final when such adjudication

completely disposes of the suit.

It may be noted that the term ‘decree’ doesn’t include the following:

Any adjudication from which an appeal lies as an appeal from an order.

Any order or decision of the dismissal of the suit for default.

Order

The term ‘Order’ has been defined u/s 2 (14) of the Civil Procedure Code. It means the formal

expression of any decision of the Civil Court which is not a decree.

Judgment

The term judgment has bee defined u/s 2 (9) of the Civil Procedure Code. It means the statement

given by the Judge on the grounds of a Decree or Order. Thus a judgment sets out the ground

and the reason for the Judge to have arrived at the decision.

Difference between Decree and Order

A Decree adjudicates and conclusively determines the rights of the parties, whereas an

Order doesn’t do so.

A Decree is always appealable unless prohibited by the law, whereas an Order is not

appealable unless permitted by the law.

Law may provide even for second appeal in case of Decree, whereas second appeal is

not possible in the case of an Order.

A Decree may be final or preliminary whereas an Order can’t be preliminary and it is

always final.

Appearance of Parties [Order 9]

When a suit is filed by the plaintiff, a summon is issued to the defendant to appear on a particular

date fixed by the court. The defendant is further directed through the summon to file the written

statement (reply) to the suit filed by a plaintiff.

On the date of hearing by the court, both the plaintiffs as well as the defendant are required to

present themselves before the court. If the plaintiff doesn’t appear on the date of the hearing,

then the court may either dismiss the suit for default o decide it ex – parte on the merit of the

case. If the defendant doesn’t appear on the date of hearing, the court may either adjourn the

hearing or decide it ex – parte on the merits of the case.

The ex – parte order or the order relating to the dismissal of the suit can be set aside provided the

plaintiff or the defendant, as the case may be, gives a sufficient reason for his non-appearance on

the date of hearing.

Place of Filing of Suit

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Section 15

Every suit shall be instituted in the court of lowest grade.

Section 16

Suits regarding immovable property are instituted in the court within whose jurisdiction, the

Immovable property is situated.

Section 17

Where immovable property is situated in the jurisdiction of different courts, the suit may be filed

in any of such courts.

Section 18

Where there is apparent uncertainty regarding the jurisdiction of the court, the suit may be filed

in any of such courts.

Section 19

Suit with regards to the compensation for wrongs done to the persons or suit pertaining to

movable property can be filed in the court having the jurisdiction over the place where the wrong

was committed or where the defendant resides.

Section 20

Where above section i.e., Section 16, 17, 18 and 19 are not applicable, such suits may be filed in

the court having jurisdiction over the place where the defendant resides or where the cause of

action has arisen.

For instance, A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at

Varanasi; B and C make a joint promissory note payable on demand , and deliver it to A. A may

sue B and C at Varanasi, where cause of action arose. He may also sue them at Calcutta where B

resides or at Delhi where C resides, but in each cases, if the non-resident defendant objects, the

suit can’t be proceeded without the leave of the Court.

Section 20 further provides that in the case of a Company, the suit may be filed at any of the

following places:

Place where the Principal office or the Head office of the Company is situated.

Place where the cause of action has arisen, subject to the condition that the company

has a Branch office at such place.

Important Point

In the leading case of Hakam Singh v. Gammon (India) Limited, the Supreme Court held that

the parties, by an agreement, can not confer jurisdiction on a Court which it doesn’t possess

under the law. However, the parties can agree that only a particular Court will try a suit, where

the two courts have jurisdiction to try a suit.

Important Doctrines

Doctrine of Res Sub-Judice [Section 10]

Section 10 of the Civil Procedure Code provides the doctrine of res sub-judice or the rule with

regard to stay of suit where things are under consideration by court. It provides that no court

shall proceed with the trial of any suit in which the mater in issue is also directly and

substantially in issue in a previously instituting suit between the same parties where such suit is

pending in the same or any other court in India. However, the pendency of a

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Suit in Foreign Court doesn’t bat the courts in India from trying a suit founded on the same cause

of action.

For the application of the doctrine of res sub-judice, the following conditions must be satisfied:

A previously instituted suit is pending in a Court;

The matter in issue in second suit is also directly and substantially the same as in the

previous suit;

The previously instituted suit is still pending in same court or any other court in India;

The parties in two suits are same; and

The court in which previous suit is pending has the jurisdiction to try such suit.

Section 10 is enacted to prevent courts of concurrent jurisdiction from simultaneously trying two

parallel suits in respect of same matter in issue.

A suit was instituted by the plaintiff company alleging infringement by the defendant company

by using trade name o medicine and selling the same in wrapper and carton of identical design

with same color combination etc. as that of plaintiff company. A subsequent suit was instituted

in different court by the defendant company against the plaintiff company with the same

allegation. The Court held that subsequent suit should be stayed as simultaneous trial of the suits

in different courts might result in conflicting decisions as issue involved in two suits was totally

identical.

[Wings Pharmaceuticals v. Swan Pharmaceuticals]

Doctrine of Res-Judicata [Section 11]

The doctrine of res-judicata or the Rule of conclusiveness of judgments is explained in Section

11 of the Civil Procedure Code. It provides that once the matter is finally decided by a

competent court, no party can be permitted to re-open it in subsequent litigation. The principle

underlines that no one shall be vexed twice for the same cause. It prevents two different decrees

on he same subject.

To apply this doctrine, the following condition must be fulfilled:

The matters in both the former and the latter suits should be directly and substantially the

same.

The former suit should have been decided;

parties in two suit are same; and

The court which determines the earlier suit must be competent to decide it.

The application of this doctrine is based on the public policy so that the patties would not be

harassed again and again on the same issue already decided. The court’s time will also not get

vested on matter already decided.

It may be noted the Sect. 11 will not be applicable in those circumstances where the first suit

have been dismissed on technical ground and has not been decided on merit of the case.

Concept of set off, Equitable Set off and Counter Claim

Set Off

Order 8, Rule 6 deals with set off which is a reciprocal acquittal of debts between the plaintiff

and he defendant. It has the effect of extinguishing the plaintiff’s climbs to the extent of the

amount claimed by the defendant.

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Where in a suit for the recovery of money, the defendant’s claims to set off against the plaintiff’s

demand, any ascertained sum of money legally recoverable by him from the plaintiff, the

defendant may present a written statement containing the particulars of the debt sought to be set

off.

Equitable Set Off

This is not a concept of CPC deals with the concept of equitable set off. Where the defendant

claims set off in respect of an unascertained sum of money, where the claim arises of the same

transaction, and then such set off is known as equitable set off. Generally, the suits emerge from

cross demands in the same transaction and this doctrine is intended to save the defendant from

having to take recourse to a separate cross suit.

Counter Claim

Order 8, Rule 6A of Civil Procedure Code deals with the Rule of Counter claim. This Rule

permits the defendant to set up the claim as a counter to the claim of the plaintiff, which arose

between the parties. This rule is applicable in the interest of public policy so as to minimize

litigation between the parties which could have been filed by the defendant separately.

Reference, Review and Revision [Section 113, 114 & 115]

Reference [Section 113] A reference can be made by a lower court to the higher court where the question of law is

involved in the suit and the lower court has a reasonable doubt about such question of law. The

application for reference can be made by any of the parties to the suit. Further the lower court

may also, on its own, refer the mater to the higher court.

The purpose of Sec. 113 is to enable the sub-ordinate courts to obtain, in non- appealable cases,

the opinion of High Court on questions of law for doing justice to the parties.

Review [ Section114]

Section 114 of the Civil Procedure Code provides for the review of the case i.e., the

reconsideration of the decision given by a court.

The application for review can be filed where no appeal could be preferred against the order of

the court and also in those cases where the person concerned doesn’t want o prefer such an

appeal, though such an appeal is maintainable.

It may be noted that application to review has to be filled before the same court which has given

the decision. It may further be noted that a court can exercise the power of review only if it is

specifically authorized to exercise such power under some law.

Revision [Section 115]

A petition of revision can be made before the High Court when the subordinate Court:

Exercises a jurisdiction not vested in it by law;

Fails to exercise jurisdiction vested in it by law or

Acted in the exercise of jurisdiction with material irregularity.

Appeals

Appeal is an application by which a party requests an appellate court to set aside or modify the

decision of the subordinate court.

The Civil Procedure Code provides for following four kinds of appeals:

Appeals from original decree

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Appeals from original decrees may be preferred from any decree, passed by any court exercising

original jurisdiction, to the court authorized the hear appeals from the decision of such courts on

point of law as well as on points of facts. In this case, there is always a right to appeal, until

unless there is a specific prohibition to such a right.

Second appeals

Second appeals lies to the High Court from any decree passed in appeal by any court subordinate

to the High Court, if the High Court is satisfied that the case involves a substantial question of

law.

Appeals against the orders

In general, appeals against the order are not allowed. However, if it is specifically permitted

under the provisions of law, appeal can be filed against the order on ground of defects or

irregularity of law.

Appeal to Supreme Court

An Appeal can be filed to the Supreme Court in respect of those decrees which have been passed

by High Court in their original jurisdiction.

Injunction

An injunction is a judicial process by which one, that has invaded or threatened to invade the

rights of another, is restrained form continuing or commencing such wrongful acts. This is a

preventive relief granted as discretion of court.

An Injunction may be a temporary or a perpetual Injunction. Temporary Injunction is regulated

by Order 39 of Civil Procedure Code whereas Perpetual Injunction is regulated by Section 38 of

Specific Relief Act, 1963.

A temporary injunction is such as is to continue until a specified time or until the further orders

of the court. It may be granted at any stage of the suit.

A perpetual injunction can only be granted by a decree made under hearing and upon the merits

of the case. In case of a perpetual injunction the defendant is permanently restrained from doing

any act which is against the right of the plaintiff.

Summary Procedure

Order 37 of Civil Procedure Code provides for a summary procedure in respect of certain suits.

The essence of the summary suit is that the defendant is not, as in an ordinary suit entitled to

defend the suit. The object underlying the summary procedure is to prevent unreasonable

obstructions by defendant who has no defence.

Summary suit can be filed in the following cases:

Suits relating to Promissory Notes, Bill of Exchange Cheques, Hundis.

Suit in which the plaintiff seeks only to recover a debt.

In summary suit, the defendant is not entitled to defend the suit until he enters appearance and

makes an application for leave to defend the suit, within 10 days from the date of summons leave

to defend may be granted to him unconditionally or upon such terms and conditions as the courts

thinks fit. However, leave to defend the suit shall not b granted in the following cases:

Where the defence of the defendant is frivolous or vexations.

Where part of the amount claimed by the plaintiff and accepted by the defendant has

not been deposited by the defendant in the court.

Suits By or Against Minor

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Order 32 of Civil Procedure Code deals with the provision relating to suits by or against minor.

The basic rule as regard suits by or against minor is that the law protects minors against their

immaturity and inexperience and also against the matured and experienced person.

Every suit by a minor shall be instituted in his name by a person who in such suit shall be

Called the next friend of the minor. Where a suit is instituted by minor without the next friend,

then the defendant may apply for dismissal of the suit. Where the defendant is a minor, the court

shall appoint a proper person to be a guardian for the suit of such minor.

A minor plaintiff, on attaining majority, shall elect whether he will or will not proceed with the

suit. Where he elects to proceed with the suit, he shall apply for an order discharging the next

friend and for leave to proceed in his own name. Where he elects to abundant the suit, he shall

apply for an order to dismiss the suit, on repayment of the costs incurred by the defendant.

Section 12

Section 12 of Civil Procedure Code provides that abatement of suit or its dismissal, for not

bringing the legal representative on record, bars further suit.

Lesson 24

Criminal Procedure Code, 1973

Introduction

The Criminal Procedure Code, 1973 is the general law relating to criminal procedures. The

Code prescribes the procedure for the trial of offences specified in the Indian Panel Code, 1860.

Thus, the main object of Criminal Procedure Code is to supplement the substantive law

contained in Indian Penal Code, by prescribing the suitable procedure.

Important Concepts

Offence [Section 2(n)]

Offences mean any act or omission made punishable by any law for the time being in force.

In simple terms, and offence is a wrong committed by any individual in a society. Following are

the four elements which constitute the offence:

A human being;

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Mens Rea (guilty mind or intention);

Illegal act i.e.; Actus Reas; and

Injury to another person

Bailable and Non-Bailable Offecne [Section 2(a)]

Bailable offence means an offence which is shown as bailable in the first schedule of the

Criminal Procedure Code or which is me bailable by any other law for the time being in force.

Non-bailable offence means any other offence.

Bailable offences are less serious than non-bailable offences. A Bail, in the case of bailable

offence, is a matter of right whereas a Bail, in case of non-bailable offence, depends upon the

discretion of the court.

Bail means the release of an accused from the custody of the officer of law and entrusting him to

the private custody of person who become bound as surety to produce the accused

to answer the charge at the stipulated time and date.

Anticipatory Bail [Section 438]

Anticipatory bail is a bail which is granted to a person who apprehends arrest but has not yet

been arrested. Where any person has reason to believe that he may be arrested on an accusation

of having committed a non-bailable offence he may apply to the High Court or the Court of

Sessions for a direction u/s 438. On such application, the Court may, if it thinks fit, direct that in

the event of such arrest, he shall be released on bail.

The Court grants the anticipatory bail subject to the following conditions:

That the accused shall make himself available for interrogation by a police officer as and

when required;

He shall not threaten the witness so as to make them hostile; and

He shall not leave India without the prior permission of court.

Cognizable and Non-Cognizable Offence/ Cases [Section 2(c) and 2(1)

Cognizable offence means an offence in which a person can be arrested by a police officer

without warrant. Cognizable offences are generally more serious in nature and heavily

punishable. In such cases, the police have hardly any time to obtain a warrant of arrest from a

court, as the offender may escape by the time of warrant is obtained or he may tamper with the

material evidence. Examples of cognizable offences are Murder, Dacoity, etc.

Non-Cognizable offence means an offence in which the police can’t arrest a person without

warrant. Non-Cognizable offences are less serious in nature as compared to cognizable offence.

In cause of these offences injury cause to the society is comparatively small. Examples of non-

cognizable offences are simple hurt, undue influence at an election, etc.

Complaint [Section 2(d)]

Complaint means any allegation made orally or in writing to a Magistrate with the view to his

taking action under Criminal Procedure Code, that some person, whether known or unknown,

has committed an offence.

It may be noted that the term complaint doesn’t include a police report. Police report means a

report forwarded by a police officer to a Magistrate.

Investigation, Inquiry and Trial

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Investigation [Sec. 2 (h)] : As per Criminal Procedure Code, investigation is to be conducted

always by a police officer or by any other authorized person. Investigation process consists of

the following steps:

Proceeding to the spot;

Ascertainment of facts and circumstances;

Discovery and arrest of the suspected person; and

Collection evidence.

Inquiry [Sec. 2(g)] : According to Criminal Procedure Code, inquiry is always conducted by

the Magistrate or by the court. An inquiry before trial to ascertain whether any offence has been

committed and whether he should be put upon the trial.

Trial: The word ‘trial’ has not been defined under Criminal Procedure Code. It means the

judicial process in accordance with law, whereby the question of guilt or innocence of the person

accused of an offence is determined. Thus a trial ends either in conviction or acquittal.

Mens Rea

Mens Rea is one of the principles o criminal law that a crime is not committed if the mind of the

person doing the act in question is innocent. It is said that “ACTUS NON FACIT TEAM HISI

MENS SIT REA’ i.e., the intention and act must both concur to constitute the crime and that is

why it is said that guilty mind is necessary for liability in Criminal law. The general rule to be

stated is “there must be a mind at fault before there can be a crime”

Summons Cases and Warrant Cases [Section 2 (w) and 2(x)

Warrant case means a case relating to an offence punishable with death, imprisonment for life or

imprisonment for a term exceeding 2 years. Summons case means a case relating to an offence

and not being a warrant case.

Thus, it can be seen that the distinction between two terms is based on the quantum of the

Punishment that can be awarded. In other words, cases which are punishable with imprisonment

up to 2 years are summons cases and the rest are all warrant cases.

Further in a summons case, the court order is directly issued to a person to produce himself

before the court, whereas in a warrant case, the court order is issued to the police to produce the

person concerned before the court.

Summary Trial [Section 260]

Summary trial means speedy disposal of cases.

Sec.260 provides that summary trial can be conducted in respect of those offences which are not

punishable with death or imprisonment for life or imprisonment exceeding 2 years. In simple

words, we can say summary trial can be conducted only in respect of those offences which are

punishable with imprisonment for a term not exceeding two years.

Further, summary trials can be conducted only in respect of those offences in which the value of

property does not exceed Rs.200/-.

It may be noted that Summary Trial can be conducted only by a Chief Judicial Magistrate.

Section 262 provides that if in a summary trial the accused is found to be guilty, he shall not be

sentenced to imprisonment for a period exceeding 3 months.

Information to the Police

Section 154

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Any person aware of any cognizable offence may give information to the police. The

information so received shall be recorded in the manner prescribed under CrPC. The information

so recorded u/s 154 is known as First Information Report (FIR).

Where the concerned Police Officer doesn’t record the aforesaid information, then the person

giving the information can do the following:

Inform the Superintendent of Police regarding the refusal of the concerned police officer.

In such a case, the Superintendent of Police himself shall record the information and

investigate the mater.

Inform the concerned Magistrate which, in turn, will take the action against the

concerned Police officer.

Section 155

If any person gives information to an Officer-in-Charge of the concerned police station of the

commission of a non-cognizable offence, the Officer shall enter the substance of such

information in a particular book prescribed by the State Government. The Officer, thereafter,

shall refer the information to the Magistrate for appropriate direction.

Sec. 155 (2) Provides that no Police Officer shall investigate a non-cognizable case without the

order of Magistrate having the power to try such offence.

Sec. 155 (4) Provides that where a case relates to two or more offences and one of them is

cognizable, the case shall be deemed to be a cognizable offence irrespective of the fact that other

offences are non-cognizable.

Arrest of a Person

Arrest without Warrant [Section 41]

Section 41 of the Criminal Procedure Code lays down the circumstances in which police officer

may arrest a person without warrant. As per this, following persons can be arrested by a Police

Officer without warrant:

Who has been concerned in any cognizable offence; or

Who has in his possession without lawful excuse, the burden of proving which excuse

shall lie on such person, any implement of housebreaking ; or

Who has been proclaimed as an offender either under this code or by order of the State

Government; or

In whose possession anything is found which may reasonably or suspected to be stolen

property; or

Who obstructs a police officer while in the execution of his duty, or who has escaped, or

attempts to escape, from lawful custody; or

Who is reasonably suspected of being a deserter from any of the Armed Forces of the

Union; or

Who has committed any act at any place out of India which, of committed in India, would

have been punishable as an offence, and for which he is liable to be apprehended or

detained in custody in India: or

Who being a released convict, commits any breach of any rule, relating to notification of

residence or change of or absence from residence; or

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For whose arrest any requisition, whether written or oral, has been received from another

Police officer, provided that the requisition specifies the person to be arrested and the

offence or other causes for which the arrest is to be made it appears there from that the

person might lawfully be arrested without a warrant by the officer who issues the

requisition.

Arrest on Refusal to Give Name and Residence [Section 42]

If any person who is accused of committing a non-cognizable offence doesn’t give his name,

residence or gives a name and residence which the police officer feels to be false, he may be

taken into custody. However, such person can’t be detained beyond 24 hours if his true name and

address cannot be ascertained or fails to execute a bond or furnish sufficient sureties. In that

event he shall be forwarded to the nearest Magistrate having Jurisdiction.

Arrest by a Private Person [Section 43]

A private person may arrest or cause to be arrested any person who is his presence commits a

non-bailable or cognizable offence or who is a proclaimed offender.

Miscellaneous Provisions

Sentence of Imprisonment in Default of Fine [Section 330]

Where a fine has been imposed on an accused but the same has not been paid, them he can be

imprisoned in lieu of fine. However, this imprisonment shall not exceed 1/4th of the period of

imprisonment, which the Magistrate cab award as maximum imprisonment.

Limitation Period [Section 470]

In calculating the limitation period, the following period shall be excluded:

The period during which the offender has been absent from India.

The period during which the offender has avoided arrest by absconding.