Dilemma of what to do or not to do?

By Parmanand Pandey

This is the second part of my previous post which is completely based on my personal experience. The aforementioned workers-Durga Prasad Tewari and Subodh Prakash- got the cheque for Rs. 59,000/- each on 28th May of 2010 on the instructions of the Hon’ble High Court of Delhi. When I asked them to pay my remuneration for working continuously on this case fore more than a decade as I have run from pillar to post; spent money on attending the dates; getting hundreds of pages typed on my expenses; got them photocopied, then they kept mum. I had worked on days for preparing the case and in research of case laws to argue in different courts. I also told them that generally remuneration is taken by the advocates irrespective of the fate of the case in the courts. But in this case, the fee is being asked when they have got the money. Although, it is highly improper to claim for the wages when the workmen are already in employment, which they are in this case, yet since natural sympathies remain with workmen, therefore, advocates from workers’ side always and invariably request the courts for back wages. Both have been earning from other employment as well. Thus this money has come as bonanza to them.
It would, therefore, be highly appropriate for them to have parted with certain amount to a person, who not only constructed their case but helped all through to get them reinstated. But it had no effect on them at all. I also assured them that would they would be getting some more money from the management in compliance with court’s order, but that too, did not bring any salubrious effect on them. Both of them gave me the lesson of Lord Gautam that ‘one bird in hand is always better than two in bushes’. They told me that would rather remain content with the money which had come into their hands than contest further for more money or even be reinstated. They said that they were no longer interested in reinstatement as they were already drawing more than minimum wages to which they were entitled to withy court’s order.
The sum and substance is that now they have stopped taking my call. I am on the horns of dilemma- what to do- go for another round of litigation for my remuneration against those whom I defended and espoused against the management or forget about it and remain silent to maintain the respect of the working class?
Hopefully, I may come to any conclusion after a few days of broodings.

Morality of the workers in India

By Parmanand Pandey

I am a victimised employee of a newspaper organisation. After victimisation I decided that I would use my law degree to fight for the cause of workers only; within and outside courts as well. The mode of fighting for the workers would be through trade unionism and legal cases. It is a matter of great satisfaction for me that almost all cases that were filed by me in different courts brought relief for the workers. It is not because that I am a very brilliant lawyer but because of the illegalities committed by the managements in their dealings with workers, which were set right by the courts. I can also say that my tenacity, honesty and sincerity to learn and understand the law and do the necessary research work for furtherance of my work helped me to a great extent in achieving the objective.
It is a common allegation of frustrated workmen (frustration is very understandable) that their advocates have colluded with the managements and as a result of it they have lost their cases. This allegation is not unfounded also. There are many unscrupulous lawyers who do not baulk at indulging in such malpractices. But my experience has been very different. I have come across many workers who after winning their cases, taking the cheques from the managements have forgotten their lawyers. What to say of paying the fees, they do not show the courtesy to meet their lawyers thereafter. If the fee is asked, they will come out with such alibis and even allegations that one feels ashamed in asking for the same.
I have a very recent experience. Two workmen, of Asian Age, who worked for the news paper on daily wages in the dispatch section of the newspaper, came to me on a reference of a friend. Let me tell their names. One is Durga Prasad Tiwari and the other is Subodh Prakash. They were getting a meagre wages of Rs. 1200/- per month way back in 1996. When the office of the news paper was shifted to some other places, they were asked not to come to office from the next day. They had been given an identity card to facilitate their entry in the Railway Stations.
When they came to me some fourteen years ago, I asked them what proof they have to show that they had been working with newspaper. They had none except the card for entry. However, I took the chance and sent a notice, which was, as usual, not replied by the management. In those days it was not possible to approach the court directly, so I raised the dispute before the conciliation officer of the Delhi Government. On one or two occasions the management’s representative attended the proceedings but later the presumptions management refused to attend them. The conciliation officer had no choice but to refer the case to the Labour Court. There also the management’s representative attended the two-three times but not thereafter. After giving enough opportunities the Labour Court’s Presiding Officer, an upright judge, passed ex parte award in favour of these workmen directing the management to pay them full back wages with all consequential benefits. The award came in the year 2000. It was a virtual windfall and the management threw the towel before entering the arena. They took the case in a most callous and indifferent way.
Now the question was of recovery arose. After winning the case in the Labour Court, a fresh case was to be filed in before the Execution Officer of the Delhi Government.
It has to be done with in 30 days of the publication of the award by the Government. I promptly filed the case for execution. Here also nobody came from the management even after the service of the notice by the registered post. The Execution Officer sent it to the ADM concerned for the recovery of Rs. 1,76,000/- , which was calculated at the rate of minimum wages, application at that time i.e. the year 2001.
It took nearly a more than a year to coax the ADM office to start the recovery proceedings. When the recovery proceedings started; the management woke up from the deep slumber and filed a writ petition in the Hon’ble High Court of Delhi. The main plea of the management was that the case was decided ex parte without affording any opportunity to it contest the case.
This is a very feeble logic particularly in Delhi, where all courts from Lower Courts to the High Court do not move even a millimetre till the proof of service is not produced and put on record file. Nevertheless, the High Court admitted the petition on the ground that at least 50 per cent of the amount to be recovered is deposited with the registry. The management accepted the condition with alacrity and deposited the money. Hon’ble High Court called for records from the Labour Court but in the meantime I made an application under 17B of the Industrial Disputes Act, which means that workmen will be entitled to minimum wages or the last drawn wages, whichever is higher, till the pendency of the case in the High Court. This is also known as Interim Relief. This was granted but in the meantime the management’s lawyer requested the court to be recused from the case. After two or three hearings, which if seen from the angle of duration, will be after nearly a year, he (the management’s advocate) was discharged.
I pressed for the final arguments and early disposal of the case, the Hon’ble High Court agreed to it. Three opportunities were again given to the management but it was the same old habit and tendency of the management that reflected in the High Court. Ultimately, the Hon’ble High Court dismissed the petition of the Management and thereby upheld the award of the Labour Court. Rs. 88,000/- , deposited by the Management at the time of the admission of the case, had matured to 1, 17,000/- were released in favour of both workmen.
My shocking and sad experience stars from here, which I will narrate in the next post.

Justice Balakrishnan’s appointment as NHRC Chairman is uninspiring

Appointment of Justice K. G. Balakrishnan as the Chairman of the National Human Rights Commission was spawned by TINA (There is no alternative) factor. In fact, this post has been lying vacant for the last more than a year after the retirement of Justice S Rajendra Babu. The main pre-requisite for the appointment to the post of Chairman of the NHRC is that the person should have been the retired Chief Justice of India and there were only three former Chief Justices namely: Justice Khare, Justice Lahoti and Justice Sabharwal, who could have filled the slot. Justice Khare and Justice Lahoti had already refused to take up the assignment and Justice Sabharwal’s name was not even considered for the post because if the controversies that surrounded him.

In all fairness to Justice Sabharwal, it can be said that his judicial acumen was above average. He had delivered certain landmark judgements for example; Raja Ram Pal vs Speaker of the Lok Sabha, Kuldip Nayar vs Union of India and the land ceiling case etc. It must be mentioned to his credit that he was able to convince other companion judges that such important cases were unanimously decided. There were no dissenting judgements by any other judge in many of the cases. This is something remarkable because those judgements had been written by Justice Sabharwal alone. His sons, however, spoiled his image and today he is the leading the life of tainted judge. Therefore, the government did the right thing by not even considering his name for the NHRC Chairman. Image fore runs the post. If such a sullied person is appointed then the organisation is bound to lose the esteem of the public.

What is really intriguing is that why Justice Balakrishnan was considered a fit person to occupy this post? Justice Balakrishnan has comparatively had a very long career as the CJI for more than three years. But he had hardly left any imprint on the Supreme Court of India. He had hardly delivered any judgement which could he considered to be a leading one. As for as the functioning of the Supreme Court of India was concerned, it renamed as lack lustre. Even the full benefits of computerisation could not be availed. It may sound surprising but it is a realty that there are many High Courts or even District Courts where the computerisation has transformed their functioning especially of the registry but not in the Supreme Court of India.

To top it all, Justice Balakrishnan will be known more for his stubborn and opaque attitude than for his sagacity and transparency. The appointment of some High Court judges made during his tenure raised more controversies than during the tenure of any other Chief Justice. All sorts of allegations flew thick and fast with regard to the appointment of many judges. More than this his attitude towards not bringing the Supreme Court Judges within the ambit of Right to Information Act was very shocking and embarrassing; to say the least. And that too, when the Delhi High Court and before that the Chief Information Commissioner had unequivocally ruled that the office of the CJI and other Judges of Supreme Court was amenable to RTI.

At long last he had to submit to the growing public demand and declared his assets along with other fellow judges of the Supreme Court of India. But he brought ridicule to the judiciary in general and for himself in particular. In this backdrop the appointment of Justice Balakrishnan to the post of Chairman of NHRC will not inspire any confidence.

It is beyond any body’s comprehension as to why the qualification of being the CJI has been made necessary for the post of NHRC. Even a person having the rudimentary knowledge of the constitution knows that all judges of the Supreme Court of India are equal. CJI is not even first among equals. S (he) enjoys only certain administrative powers of constituting benches etc. So, why should there be law that only the CJI be appointed on this post is inexplicable? This shows the myopic view of the legislature. In the light of such experiences it is hoped that legislature must have become wiser and it will take necessary steps to amend it, so that the scope of better persons being appointed is widened.

Justice Kapadia’s first day as the CJI was disappointing

By Parmanand Pandey

On assuming the august office of the Chief Justice of India on 11th of May, 2010, Justice S. H. Kapadia did two important things, one; he disposed off 39 Special Leave Petitions in 30 minutes that means, he took less than a minute for disposing off a petition. And the second thing which did was ,of course; more worrying for most of us and that was the warning to those who file “frivolous” Private Interest Litigation cases. Let me take the first point first. Anybody who is having any acquaintance with the practice and procedure of the Supreme Court will vouchsafe the fact that it takes lot of time and labour to file an SLP in the Supreme Court and the slaughtering of any SLP without affording any hearing is really very painful.
There is no gainsaying that are some judges in the Supreme Court who want to put a sluice gate for filing of the SLPs. These Hon’ble justices are of the view that the wide ranging spectrum of Article 136 be narrowed down and it must be confined to only to the constitutional matters. For the rest of the cases, the High Court should be treated to be a final court. This may not materialise in near future because most of Legislators, Lawyers and Judges of the Supreme Court and the High Courts are not amenable to the idea of constricting the width and ambit of the SLPs in the Supreme Court. Therefore, the SLPs would continue to flood the Supreme Court in the days to come and the Supreme Court would have to evolve any methodology to cope with inundation of the cases.
In fact, when the Supreme Court came in to existence in 1950 not many cases were being filed. The reasons were obvious; there was not much awareness among the people about their rights. It was embryonic stage of the assertion of the fundamental rights and secondly; the population of India was not even one fourth of what it is today and thirdly; the economic status of most of the Indians was so miserable that they could not think of filing the cases in the Supreme Court. If there is flood of cases in the Supreme Court or for that matter in any court of the country, it must be hailed. This is the index of the awakening and prosperity of the people. If there is no infrastructure, no modern technical support for justice delivery or not adequate number of judges then don’t blame litigants and don’t try to stifle the upsurge of the public by misadventures amendment of the constitution.
Anyway, the point I was intending to discuss was that disposal of the cases in the manner Justice Kapadia, who is known for his probity and uprightness, cannot be appreciated. If Justice delayed amounts to justice denied then Justice hurried is no better than justice buried. No person will countenance the attitude of Justice Kapadia in butchering the cases the way he did on 11th of May 2010. What is most shocking is that the Indian media presented it as the rare feat of Justice Kapadia. No My Lord, this is cruelty with the cases and we don’t expect it from you.
Now let me come to the issue of PILs. I shall discuss in detail about it on some other day but here I just want to say to that so long any clear cut guideline has not been prepared, it would be difficult to say what is genuine and serious PIL and what is frivolous and publicity interested or personal interest litigation. Shall we think that any PIL on which notice has been issued is serious and if notice by the court has not been issued then it is frivolous? It is the wrong and arbitrary way of measuring the weight of any PIL. The stern warning of Justice Kapadia will certainly throw cold water on the public spirited lawyers. Therefore, it is expected that Kapadia should make clear either through his judgment of from any public forum as to what constitutes a frivolous litigation. PILs have rendered yeoman service to the country and they should not be derided, that too; from the highest seat of the judiciary.

MF Hussain's Act is Disgrace to Freedom and Liberty

By Parmanand Pandey

It is really shocking and unfortunate that MF Hussain, a famous painter has, with his own volition; decided to relinquish the Indian citizenship to become the citizen of Qatar, an Islamic country, where freedom of expression is as removed as the sky is from the earth. As a matter of fact, singing, dancing and painting is anti-Islamic and satanic because they supposedly cause deviation from worship. That is why, it is beyond anybody's imagination that a person like MF Hussain, who claims to be the votary of freedom of expression would salivate for the citizenship of a tyrannical and intolerant country. This shows that his advocacy for freedom and speech and expression is not only phoney but a complete trash. He has proved to be a suspect by his conduct.

India, by all means; a country of liberal and tolerant society, has made him what he is. His works have been admired and eulogised not by Muslims but Hindu intellectuals, although his works are of very ordinary and average standards. There are hardly two opinions that most of the Hindu intellectuals have often gone overboard in praising the works of MF Hussain; not because they are good connoisseurs of art but because they suffer from acute inferiority syndrome. The purpose of this piece, however; is not to assess and evaluate the paintings of MF Husain but to nail his lies that he is a secular and strives for freedom. One question has always remained unanswered why does he relish in paining nude only Hindu Gods and Goddesses. Accepted, that imaging of Prophet Mohammed would be a blasphemy but why could he not paint others as he did in the case of Mrs. Indira Gandhi? And if his nude painting of Hindu deities are objected; then Mr. Hussain tries to adopt the specious logic of freedom of expression. Does it not show his mala fides and duplicity? He also cites that example of temples of mediaeval times, where there are plenty of exotic frescoes on the walls but he conveniently forgets that those carvings are not of deities.

Now when he has accepted the citizenship of an Islamic state, his intentions become abundantly clear that it is more to offend and hurt the religious feelings and sensibilities of Hindus than to espouse the cause of art and culture. There are some newspapers, intellectuals and politicians of India, who have become so blind with irrationality that they do not have any sense of shame left in them that they consider this act of MF Hussain as a shame for Indians. In fact, it is the other way round and should be a matter of shame for MF Hussain that he has decided to forego the citizenship of the country of his birth and which has given him so much including the prestigious membership of the Rajya Sabha but now he is unabashedly maligning the same motherland. He has, undoubtedly; let this country down. It is an affront to the civic society. If he had gone to settle in any democratic and civilised country, then it could have mitigated his misdemeanours and misconduct to some extent. But the drama and ruckus that he has created in preference to an Islamic country betrays his hatred and disliking for the culture and values of India. This is shameful indeed and he deserves to be squarely condemned, derided and deprecated in Gandhian way of non-violence. Those who support this reprehensible act of MF Hussain's are no better than senseless and insane people.

Nearly three fold raise in gratuity ceiling-will it augur well or bode ill?

The literal meaning of gratuity is: something voluntarily given in return for favour or service, as a recompense or acknowledgment. It is paid in addition to salary, bonus, commission etc; when the employee leaves the service of employer. It is lump sum payment made based on the service of an employee either on retirement or death. It shows gratefulness and appreciation on the part of employer rewarding employee for hard work and also ensuring excellent service in future. Way back in 1968 the Supreme Court in Delhi Cloth and General Mills Company Ltd. said that the object of providing a gratuity scheme is to provide a retiring benefit to the workmen whop have rendered long and unblemished service to the employer and thereby contributed to the prosperity of the employer.

In industrial jurisprudence, however, it has been described as deferred wages. Before the enactment of Payment of Gratuity Act, 1972, its payment was very vague and uncertain. It has now to be compulsorily given. Like all other labour laws, it is also a social-welfare piece of legislation. The government has now decided to enhance the ceiling of gratuity for private sector employees from Rs.3.5 lakh to Rs. 10 lakh. The government has taken this decision with view to bringing parity with public sector employees, where the limit was already enhanced courtesy Sixth Pay Commission.

While this decision has brought cheers among many employees, it is bound to bring host of problems. The government says that in view of the erosion in the value of rupee, this increase is fully justified. Some say that it will slow down the attrition rate of employees but others hold the contrary opinion that it will further accelerate the problem. As on date Gratuity is payable on the completion of five years of continuous service. The service of five years shall not be necessary where the termination of the employment of any employee is due to death and disablement.

Of late, it is seen that young employees have developed the tendency of job hopping for better pastures. This is more in the field of Information Technology sector, which is expanding with break-neck speed. In other fields also the demand for deserving candidates has increased manifold. That is why; the enhancement of gratuity ceiling will hardly be any inducement for retaining the talented youngsters in one employment for five years. The concept of loyalty to any organisation has actually become the thing of the past. But then the other opinion is that almost threefold increase will work as glue for not so qualified employees and they will prove to be albatross in the neck of employers in order to avail the hefty amount of gratuity.

All said and done, the government seems to be completely oblivious of the trend sweeping across the world of leaving the matter of employment to employees and employers on themselves; and they should be allowed to go by the mutual agreement in this regard. This will keep the government and other players like; employees and employers free from unnecessary disputes and litigation. But will it think in that direction?