LB – 401 : CONSTITUTIONAL LAW 2
TOPIC 1: RESERVATION IN EMPLOYMENT UNDER ARTICLE 16
- Petitioners invoked Article 32 of the Constitution for a writ for quashing and declaring constitutional amendments null and and void because of attaching consequential seniority to the accelerated promotion, as it violated Article 14 read with Article 16(1) and also impaired efficiency under Article 335. Decide it with the help of relevant decided cases.
- In view of instructions issued in Office Memorandum dated 21-2-2002 by Union Government of the Republic of Eastros, the Government of the State of Summerfell passed a Resolution dated 21-3-2002. According to the said Resolution, while withdrawing the earlier instructions, for fixation of seniority of Government Servants belonging to Scheduled Castes and Scheduled Tribes, on promotion by virtue of rule of reservation, the State Government has issued instructions to the effect that the “Catch up Rule” adopted earlier by the State Government shall not be followed any longer. It is further ordered that the Government servants belonging to SCs/STs shall retain their seniority in case of promotion by virtue of rule of reservation. In the said order, it is further clarified that Government servants belonging to the General/OBC category promoted later will be placed junior to SC/ST Government servants who were promoted earlier, by virtue of rule of reservation. The Association of Government servants belonging to the General category of the State of Summerfell, filed a writ petition in the Apex Court of Eastros and challenged the benefit of promotion with consequential seniority to SC/ST candidates. Decide and give your judgment by taking help of the constitutional provisions and recently decided case laws.
- In order to make the public employment in the State more representative, State ‘X’ enacts a law containing the following provisions:
(1) Reservation of an additional 20 percent of posts for “most backward” among the OBC based on the report of a Commission set up for surveying the population and identification of such “most backward” OBC groups. This additional reservation is in addition to the existing 20 percent posts reserved for OBC and 15 percent posts for SC/ST communities.
(2) Reservation of 15 percent of all promotion posts for SC/ST with the additional stipulation that the principle of ‘consequential seniority’ shall apply to such promotions.
This law is challenged by a group of petitioners who allege their fundamental right to equality of opportunity to public employment is adversely affected by such reservations. Further, a group of intervenors representing the “most backward” ОВС communities state that they have a fundamental right to obtain reservations in order to ensure that they are adequately represented in public employment. Discuss the constitutional validity of the law made by State ‘X’ and the contentions put forward in light of constitutional principles and decided cases. - X joined Department of Child Welfare of Government of Rajasthan in 1990 as general candidate on the post of LDC. In 1998, he was promoted to the higher post of UDC. He was further promoted to the post of Section Officer in 2012.
Y and Z joined Department of Child Welfare of Government of Rajasthan in 1994 as LDC. Y and Z belong to Scheduled Caste and Scheduled Tribe respectively. At Levels 2 (i.e., UDC) and 3 (i.e., Section Officer), Y and Z were given accelerated promotions as reserved candidates in 2000 and 2013 respectively. Y has been now promoted to the post of Under Secretary, a single cadre post, in the department.
X has approached to you for seeking your legal opinion as regards to his entitlement to promotion to the post of Under Secretary. Tender your legal opinion.
TOPIC 2: Right to Freedom of Religion Article 25
- “The protection under Articles 25 and 26 of the Constitution extends to guarantee for rituals and observances, ceremonies and modes of worship which constitute an external and integral part of a religious or religion practice…” N. Adithyan v. Travancore Devasam Board, (2002) 8 SCC 106.
In the light of the above, discuss the scope of freedom of religion in relation to individuals and religious denominations under the aforemention Articles of the Constitution. - A petitioner, chief priest in an ancient and renowned Hindu Temple of Tirupati and Balaji Temple challenged validity of Andhra Pradesh Charitable and Hindu Religions and Endowments Act abolishing hereditary rights of archka and other on the ground that it violated his right under Articles 25 and 26 of the Constitution. Decide the petition with help of suitable decided case of Apex Court.
- A woman devotee named Phewriosa of religion Pith is denied entry in a shrine on the ground of custom which has been practiced since the time immemorial. According to this custom, menstruating women are forbidden to visit the shrine of a deity who is said to be a celibate as per the mythology of religion Pith. Distressed by the discriminatory behaviour, Phewriosa filed a writ petition in the Court and prayed for abrogation of the said customary practice. Discuss and decide the writ petition in the context of constitutional provisional and cases.
- An ancient usage in the State ‘Z’ provides that only the eldest son of a priest/pujari can become the next-in-line priest of the denominational Hindu temple. The State ‘X’ enacts law providing that next-in-line succession will be replaced by open selection from persons well-versed in conducting puja and ceremonies of such a temple. The law also indicates that the priest so appointed can belong to any caste, and further that such priest appointed can be of any gender. A person belonging to the denomination challenges the law on the ground that while a priest appointed can be from among qualified candidates, irrespective of caste, such a priest must belong to the Hindu denomination to which the temple belongs. He also argues that only a male candidate can be appointed a priest, and while women can enter the temple and worship, a woman cannot be appointed as a priest. Examine the constitutional validity of the law with reference to the fundamental right to profess, practice and propagate religion, the fundamental right of religious denominations, and the fundamental right to gender equality.
- Article 25 and 26 of the Constitution deals with freedom of religion, How these two Articles differ in their operation? Has the Judiciary in the name of Interpreting these Articles become clergy? Provide sound reasons for your answer.
TOPIC 3: State under Article 12
- (a) Explain the concept of State’ under Article 12 of the Constitution and its importance in the context of enforcement of Fundamental Rights.
(b) Discuss whether:
(i) A society registered under the Society Registration Act is a state within the meaning of Art 12
(ii) A university set up under the Private University Act of a State qualifies to be included in the definition of State under Art 12. - Why was Article inserted in the chapter of fundamental rights? Explain the expanded meaning of term “other authorities” with the help of decided cases which widened the area of definition of ‘State’ in a welfare State. Is judiciary included in the word ‘State’?
- The State ‘M’ set up a Society registered under the Societies Registration Act for undertaking research in crops such as rice and sugarcane. The Society initially received considerable government funding and several buildings and assets belonging to the government were also transferred to the Society. The membership of the Society earlier comprised only government officials with the Agricultural Minister of the State as its ex-officio Chairman. In recent years, State grants have reduced, and 60 percent of the budget of the Society is contributed by the sales of high yielding seeds produced by it and fees charged from training programmes. The membership has also expanded and representatives of several private, large-scale commercial companies who buy its seeds in bulk are now members. The Society has recently decided to rationalize its staff requirements and has decided to abolish experimental farms file a writ petition against the Society in the Supreme Court challenging the arbitrary decision to abolish their posts as a violation of their rights under Article 14 of the Constitution.
The Society raises a preliminary objection that a writ petition would not be maintainable against it as it was not ‘State’ under Article 12. Decide, giving reasons and citing relevant precedents.
TOPIC 4: Right to Freedom of Speech and Expression Article 19
- Describe the nature of restrictions which could be imposed on the freedom of speech and expression as provided under Article 19(2) of the freedom.
- Do you agree that at present electronic media is the most effective means of communications, citizens have fundamental rights to use it and in new dimensions of freedom of speech and expression, Government has no monopoly on electronic media?
- The government issues a notification that in view of misinformation being spread on social media and the need to curb its use of social media for incitement to an offence and threatening public order, internet services will be withdrawn from the State ‘Y’ for a period of three months.
Ms. B is a publisher of a newspaper and a frequent user of social media for putting forward her views seeks to challenge this notification issued by State ‘Y’ as infringing her fundamental right to speech and expression. Based on judicial precedents and constitutional provisions, advise, Ms. B on the grounds to challenge the constitutional validity of this constitution.
TOPIC 5: Amendment of constitution and the 9th Schedule
- Since the enforcement of Constitution, Article 368 has seen in tug of war between constituent power and the power of judicial review. Discuss this development in detail.
- Petitioner X challenged the validity of various Central and State laws which were inserted in the Ninth Schedule including the Reservation for the People of State of Crypton Act. Petitioner argued before the Court that the Ninth Schedule was introduced to the Constitution through Article 31(b) by the First Constitution Amendment Act, 1951. According to the petitioner, the object of the Ninth Schedule was to save Agrarian Reform Laws enacted by various States from being challenged in the Courts, but nowadays it has become an omnibus because every kind of law whether its related to elections, mines, general insurance, reservation etc., had been inserted under it. Decide the petition with reference to Constitution previsions and relevant case laws.
- “The expression ‘amendment of this Constitution’ does not enable Parliament to abrogate or take away, fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.”
In the light of the above statement discuss the methodology used by the Supreme Court to identify the basic features of the Indian Constitution. Can a law not included in Ninth Schedule be declared unconstitutional on the ground that it violates doctrine of basic structure?
TOPIC 6: Doctrine of Reasonableness and Non Arbitrariness Article 14
- The state shall not deny to any person equality before law… Briefly make a critical examination of this provision.
- Under Article 246(2), Parliament by law is empowered to set up Special Courts and to provide special procedure for the trial of certain ‘offences’ or ‘class of offences’. Such a law will not be violative of Article 14. Discuss in brief in the light of decided cases.
- In order to curb the rising menace of crimes such as ‘finger cutting’, ‘nose cutting’ and ‘ear cutting’, the State of Pandora made a law to “give speedier trial to the crimes mentioned above by curtailing some of the rights of the accused persons”, which were otherwise permissible under the ordinary law. Also, under the new legislation so enacted, Special Courts were established. An accused named Meytiri, who was prosecuted under the newly enacted law challenged the constitutional validity of this legislation and her prosecution. Decide the fate of her petition and prosecution with the help of constitutional provisions and relevant precedents.
TOPIC 7: Meaning and Interpretation of Article 21
- While determining the scope of the rights guaranteed under Article 21 in Maneka Gandhi v. Union of India, AIR 1978 SC, the Supreme Court gave an expansive meaning to the expression ‘personal liberty’. It also held that the expression ‘procedure established by law’ is pervaded by the concept of due process clause.
Examine the above statement in detail. - “The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19.”
Critically examine the above statement with the help of the leading case laws.
LB- 402: ADMINISTRATIVE LAW
TOPIC 1: Delegated Legislation
- Explain the concept of delegated legislation from the point of view of nature of power conferred under the following heads citing relevant case laws:
(a) Skeleton legislation
(b) Power of extension
(c) Power of restrictions and modifications
d) Power to impose tax. - Mr. AZ, a businessman was prosecuted under clause 3 of the impugned order issued by the Central Government under the Parent Act by a notification dated 17th May, 2019.
Section 3(5) of the Parent Act provides that: “Every Notification issued under the Act shall be laid, as soon as may be after it is issued, before both Houses of Parliament”. Section 3(6) provides that:
“The Notification shall be published in the Official Gazette and shall also be published in a daily newspaper.”
Mr. AZ contests that the impugned Order and the Notification which formed the basis of his prosecution did not have force of law as they have not been laid before the Houses of the Parliament as required under section 3(5) of the said Act. Further, the Notification was published in the Official Gazette but was not published in a daily newspaper. Decide the above stated case with the help of case laws. - The Central Government by a notification in the Official Gazette nationalized a few inter-State Bus routes. The impact of the notification was that only the Government buses could ply on those routes and the private bus operators were ousted. The Government had taken all steps with respect to estimation and expenditure of funds but there was no legislation empowering the Government to carry on the business of plying buses.
The private business owners challenged the notification on the ground that the Union of India does not have the power to take up any business activity of plying the buses without an authorization from a specific legislation. Argue the case for Union of India. - By virtue of section 15 of the Khanpur Municipal Council Act, 2016, the Municipal Council levied a theatre tax of Rupees 100 per show in all the Class I cinemas. The said section 15 reads as “In addition to other taxes specified in this Act, the Municipal Council shall for the purpose of this Act and subject to the provisions thereof impose any of the following taxes, namely (i) a theatre tax; (ii) property tax; (iii) tax on trade.” The Petitioner challenged that the said section 15 as unconstitutional because the legislature has abdicated its function by delegating essential legislative powers upon the Municipal Council to levy all or any of the taxes enumerated in the said section. In the facts and circumstances stated above, decide the case with important case laws.
- “…The British Parliament exercises unfettered rights of delegation in respect of its legislative powers, the conclusion does not follow that such right of delegation is an inseparable adjunct of the legislative power itself. The position simply is this that in England, no matter, to whichever department of the powers exercisable by the British Parliament the right of delegation of legislative authority may be attributed and there is no dispute that all the sovereign powers are vested in the Parliament no objection can be taken to the legality of the exercise of such right. But in India the position even at the present day is different. There being a written Constitution which defines and limits the rights of the legislature, the question whether the right of delegation, either limited or unlimited, is included within, and forms an integral part of, the right of legislation is a question which must be answered on a proper interpretation of the terms of the Constitution itself. We need not for this purpose pay any attention to the American doctrine of separation of powers; we must look to the express language of our own Constitution and our approach should be to the essential principles underlying the process of law-making which our Constitution envisages”. Discuss with the help of judicial decisions, the broad limits within which delegation of legislative powers is permissible in India.
TOPIC 2: Exercise of Discretionary Powers (Judicial Review)
- Examine the validity of conferment/exercise of discretionary powers in the following cases:
(a) By the virtue of Coal Control Order power was conferred on DM to issue license for trading into coal and charcoal. By virtue of section 3 ‘No person shall stock, sell, store for sale or otherwise utilize or dispose of coal in the State except under a license. It is further stated that DM reserves right to exempt any person or class of persons from the application of said order. The said order also conferred power on DM that he may grant, refuse to grant, renew or refuse to renew the license and his decision would be final.
(b) One time exemption to sugar industries under cooperative sector only from the purview of taxation law authorizing the Government to grant exemption to newly established and expanded sugar industries for a period not exceeding 3 years. - There were 55 shops/stalls situated at Lodi Road Complex which were to be allotted by the Minister of Urban and Housing Development. The Minister framed a policy on 30-3-2018 whereby the allotments were to be made to weaker sections of the society based on the applications filed by them. Thereafter the Minister did not issue any public Notice/inviting applications from the eligible persons. The Order of allotment was passed by the Minister whereby allotments were made to her own relatives/employees of relatives/grandson/maid and driver of grandson. The allotments were challenged on the ground that the Minister had misused the power. Decide and write a well-reasoned judgment.
- Lord Reid states: “But the circumstances in which discretions are exercised vary enormously and that passage cannot be applied literally in every case. The general rule is that anyone who has to exercise a statutory discretion must not “shut (his) ears to the application”. Comment on ‘imposing fetters on exercise of discretion’ in the light of the said statement.
TOPIC 3: Rule Against Bias (Nemo Judex in Causa Sua)
- Is there any exception(s) to the rule against bias and also state whether there is any recognized and accepted variant of bias, with the help of decided case laws.
- The M, State Public Service Commission (MSPSC) advertised 80 posts of Civil Service. 1000 candidates applied for the same. 800 candidates qualified for the viva voce test by scoring 45 percent or more marks in the written examination. The MSPSC interviewed all the 800 candidates and 80 candidates were selected and recommended for the said post to the State Government. However, some candidates (the petitioners) who had obtained very high marks in the written examination were not selected for the said posts owing to poor marks obtained by them in the viva voce test. The petitioners filed a Writ Petition challenging the validity of the selections and seeking a writ for quashing and setting aside the same on the ground that 4 of the selected candidates were relatives of Mr. TM, Mr. XZ, Mr. OT and Dr. FN respectively, who were members of the MSPSC. On the other hand, the MSPSC argued that Mr. TM, Mr. XZ, Mr. OT and Dr. FN did not participate at all. In interviewing the said 4 selected candidates and retired from the room when the interviews of their respective relatives were held. Argue with the help of case laws for and on behalf of the petitioners.
- Mr. Kumar, head of the department, for the purpose of departmental promotion, wrote the confidential report of his employees Mr. Mishra and Mr. Yadav. He praised the work of Mr. Mishra and gave excellent ratings. For Mr. Yadav he gave only average ratings. Both Mr. Mishra and Mr. Yadav appeared for the departmental Committee in which Mr. Kumar was a member. Mr. Mishra was selected for promotion and Mr. Yadav was rejected. You are the lawyer for Mr. Yadav in a Writ Petition alleging the selection of Mr. Mishra as biased. Argue with the help of relevant case laws for your client Mr. Yadav.
- Comment on the following with the help of case law:
(a) It is very difficult to prove the state of mind of a person. Therefore, the real question is Is there is any reasonable ground for believing that he is likely to have been biased.
(b) “It is not every kind of bias which in law is taken to vitiate an act. It must be a prejudice which is not founded on reason, and actuated by self-interest – whether pecuniary or personal.”
TOPIC 4: Writs {Certiorari, Mandamus, Quo warranto, Prohibition & Habeas Corpus}
- Court can compel the authority to exercise the discretion, yet the writ of mandamus can’t be issued for exercise of the discretionary power. Also State where mandamus can be issued to private bodies.
- Conditions under which a writ of Certiorari can be issued.
- A registered Co-operative Society started a college by the name Vaish Degree College in 2017. An Executive Committee (EC) was formed for the management of the College. The EC advertised for the post of the Principal and after due process appointed Prof. Dixit as the Principal. A contract for a term of five years was signed between the Principal and EC on 1-1-2018. A lot of ego and personal issues started arising between Prof. Dixit and the members of the EC within a year of the appointment of the Principal. On 20-2-2020 the EC removed Prof. Dixit from service on ground of inefficiency.
Prof. Dixit wants to file a writ of Mandamus against the College for getting a direction from the Court for his reinstatement and thus enforcing the contract of service. He also wants to file a writ of Certiorary for quashing the Order of termination passed by the EC. Advise Prof. Dixit with the help of legal principles and decided case law. - By a Notification issued by the University, all the Colleges affiliated to University were directed to pay the 12 Pay Scale to the teachers. Kings College affiliated to the University was run by Swami Trust. On being demanded by the teachers to comply with the University Notification, the Swami Trust closed down the Kings College, surrendered the affiliation to the University and the service of all teachers and staff were terminated. The teachers prayed before the High Court to issue a writ of mandamus directing the trust to pay terminal benefits together with arrears of the 12 Pay Scale. The Trust contended that it is not subject to the writ jurisdiction of the High Court as it is not a statutory body. Decide the case.
TOPIC 5: Administrative Tribunal
- Whether the Tribunals, constituted either under Article 323A or under 323B of the Constitution possess competence to test the validity of a statutory provision/ rule? Also state the questions which were required to be examined by the Law Commission in its 272 Report of 2017.
- The Parliament by an amendment inserted the following clauses in the powers of Tribunal:
(A) the Tribunal shall have the same powers as the High Court;
(B) exclude the jurisdiction of all Courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to the Tribunal.
You being a lawyer, the Petitioner approached you to challenge the said amendment as unconstitutional. Argue for your client with the help of relevant case laws on the legislative competence to vest intrinsic and supplementary judicial functions in Tribunals.
TOPIC 6: Rule of Fair Hearing (Audi Alteram Partem)
- Every law has to satisfy the minimum criteria of natural justice. Yet no general principle valid in all cases be enunciated. In the backdrop of above cited statement examine:
(a) The right to cross-examine in disciplinary action against students.
(b) The right of representation by a lawyer in a disciplinary proceedings. - In a enquiry against Mr. Z, an employee of the K.K. Corpn. Ltd. Mr. Z was not permitted to engage a service lawyer whereas the presenting officer of the employer was a legally qualified person.
- Mr. Ajay, a senior government servant hired Civil Transport Company (CTC) for supply of materials to construction sites spread over the territory of India, including remote areas. A complaint was filed by his colleague against the hiring of CTC alleging corruption and irregularity in the hiring of CTC.
A Board of Officers was constituted on 10-1-2019 to enquire into the complaint and ascertain the truthfulness of the allegations therein. The aforementioned Inquiry Board seized all the documents and submitted a Report to the Disciplinary Committee on 10-10-2019 for taking action as the Inquiry Board was only a recommendatory body. One of the members of the Disciplinary Board was Mr. Bisht who had five years ago conducted an inquiry against Mr. Ajay and found him guilty of corruption. On the basis of that Report Mr. Ajay was suspended from service for a year.
on 20-10-2019 at 10 a.m. Mr. Ajay was called before the Disciplinary Board and the Report of the Inquiry Board was given to him. Mr. Ajay had to read the Report there only and thereafter show why his services shall not be terminated.
On 10-12-2019 Mr. Ajay received an Order from the Disciplinary Board terminating his services. Mr. Ajay wants to challenge the Order of termination in a Court of law. Argue the case on his behalf clearly stating the grounds on which the Order can be challenged.
TOPIC 7: Separation of Powers
- The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity, and also not every time a specific legislation is required to give effect to the policy. In light of above statement can we say that doctrine of separation of powers has become a redundant concept with the growth of administrative law? Comment.
- Section 7 of the State of Kylan Public Security Act, 2019 empowers the State Government to impose restrictions on the movement and actions of persons in the interest of public safety and security of the State. By virtue the said section 7, the State of Kylan passed an order directing the Petitioner-(i) not to be in any place in the district of Mayapur and (ii) to reside only in the Municipal limits of Koyapur and to report everyday at 9 a.m. and 9 p.m. at the police station of Koyapur. The Petitioner challenged the said order of the State as ultra vires on the ground that the State or its officers cannot arbitrarily exercise the executive authority to infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issued. On the other hand, the State of Kylan defended citing Rai Sahib Ram Jawaya Kapur v. The State of Punjab, AIR 1955 SC 549 that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken. With special emphasis on the theory of separation of powers, decide the case with the help of relevant case laws.
TOPIC 8: Right to Information
- Discuss the significance and source of the Right to Information Act, 2005. Examine the rationale behind the disclosure of accounts and funding of political parties under Right to Information Act, 2005.
LB – 403: LABOUR LAW
TOPIC 1: Immunity (Civil & Criminal) Extent
- Discuss the concept of Civil Immunity to the workers given under section 18 of the Trade Unions Act.
- Short note on Immunity from Criminal conspiracy under Section 17 of the Trade Unions Act.
- The workers of a company engaged in manufacture of light bulbs raise a demand for bonus which is not accepted by the management. The workers then proceed on illegal strike on the call of the registered Trade Union in the company. Later the strike is withdrawn and the matter is referred to an Industrial Tribunal by the appropriate government. Before the Tribunal, the management contends that because the workers went on an illegal strike, the Trade Union has pay compensation to the management for the loss of production due to the strike.
You are appointed as a lawyer for the Trade Union. What arguments and precedents will you put forward on behalf of the registered Trade Union and its office bears to claim immunity from this claim of the management. Elaborate. - In R.S. Ruikar v. Emperor case, the Court observed that
“Trade Union have the right to declare strike and to do certain acts in furtherance of mule disputes. They are not liable civilly of such acts or criminally for conspiracy in the furtherance of such acts as Trade Unions Act permits, but there is nothing in that Act which apart from immunity from criminal conspiracy allows immunity from, any criminal offences.”
Explain the statement with specific reference to the section 17 of the Trade Unions Act, 1926.
TOPIC 2: Definition and Registration of Trade Union
- With the object of securing better service conditions through collective bargaining, members of the teaching staff of Government Medical College, Delhi form themselves into an association called Government Medical College Teaching Staff Association’ and apply for registration of the Association as a trade union the Trade Unions Act, 1926. The Registrar refuses registration to the Association on the ground that teachers are not ‘workmen’ and the aforesaid medical college is not an ‘industry’.
The Association wants to file an appeal against the order of the Registrar. You are required to advise in the light of the legal provisions and the judicial decisions on the correctness of the order of the Registrar. - L, an Advocate, started a solicitors firm, Juris & Co., to give legal aid to indigent persons at a very nominal fee.
The Juris & Co. attained a good reputation because of its effective legal services to poor clients. Because of heavy load of work L employed Junior advocates, stenographers, clerks and peons in the firm. In all L employed 20 such persons in his firm ‘Juris & Co.’
With the object of improving their conditions of employment and entering into collective bargaining, the employees of ‘Juris & Co.’ formed an association and are desirous of getting their association registered under the Trade Unions Act, 1926. They seek legal opinion on the following matters:
(i) Whether their Association is a ‘Trade Union’ under section 2(b) of the T.U. Act, 1926?
(ii) What steps they are required to take to get their Association registered under the Trade Unions Act, 1926. - Tarala Society is a religious institution which runs a school (upto Class X) and a seminary (to train devotees about a postulate of a new faith “Tarala”. The school and the seminary were mainly run by the priests, who did not receive any remuneration for their work. They had 30 workers who rendered paid services in the school and seminary as clerks, peons, cleaning staff etc. They also had 25 teaching staffs who were appointed to teach in the school. One of the priests, came to know about Trade Unions, and decided to form a Trade Union in the school. All the staff the priests and the paid workers including teachers were organized as Tarala Staff Association and an application was made before the Registrar of Trade Unions for registering the same. The application was rejected on the ground that Tarala Society was a religious institution. If you were the Registrar of Trade Unions, what would have been your decision. Enumerate the grounds for your decisions citing legal provisions and case laws.
- With the object of securing better service conditions through collective bargaining, members of the teaching staff of Government Law College of State ‘Luxe’ form themselves into an association called ‘Government Law College Teachers’ Association’, GLTA. On application for registration under the Trade Unions Act, 1926, the Registrar refuses registration to GLTA on the ground that teachers are not workmen and that a law college of the State Government is not an industry under the Trade Unions Act, 1926. The GLTA wants to file an appeal against the order of the Registrar. Advise GLTA in light of the legal provisions and the judicial decisions on the correctness of the order of the Registrar. Can the GLTA call on its members to proceed on ‘Strike’ as an unregistered Trade Union?
- With the object of securing better service condition and to facilitate collective bargaining with the Government, the members of Delhi Government Non-Gazetted Government officers’ Association applied for registration of the Association as a Trade Union under the Trade Unions Act, 1926. The Registrar rejected the application for registration on the ground that they are not workman. The appeal was filed against the order of Registrar. Discuss and decide the appeal.
TOPIC 3: Retrenchment (Legal or Illegal)
- Explain the concept of retrenchment under the I.D. Act, 1947 in the light of judicial precedents. Explain also consequences of illegal retrenchment.
- In a company ABC, a peon Bala was dismissed from service in 2001. He raised an industrial dispute and the Labour Court found that the termination was bad in law and hence awarded compensation of a lump sum amount in lieu of reinstatement in service. Both the parties were dissatisfied with the award and thus filed a writ before the High Court. The High Court rejected both the writs, and consequently Bala accepted the retrenchment compensation. In 2012, ABC advertised for a post of peon, to which Bala made a representation claiming reemployment in the services in terms of section 25(H) of the Industrial Disputes Act, 1947. On refusing the reinstatement, Bala raised an industrial dispute and the Labour Court held was not entitled to benefits under section 25(H). On appeal, the High Court set aside the award of the Labour Court. The Division Bench also upheld the order of the Single Judge. Then the matter was brought before the Supreme Court by a Special Leave Petition. If you were to argue the matter, what would be the point of law and case laws you would refer. Give your arguments for both parties.
- Every kind of termination of services cannot be considered to be retrenchment under the Industrial Disputes Act, 1947. Nevertheless, ‘termination for any reasons whatsoever’ are the key words in 2(00) of the Act. Analyse this view and decide the validity of the following action of the employer:
‘X’ was a regularized driver in a company of 50 employed people and had been working for over two years. In March 2020, a nation-wide lockdown was declared due to COVID-19 pandemic and the employer terminated his services along with 10 others stating that due to reduced production, the services of ‘X’ were surplus. No compensation was paid to him. Examine the validity of the termination of ‘X’. What would be your answer if the termination order was passed after holding a disciplinary enquiry for misconduct?
TOPIC 4: Definition & Concept of Workman
- (a) Explain the definition of ‘Workman’ under the Industrial Disputes Act, 1947.
(b) Are the following ’employees’ covered by the definition of ‘workman’ under Section 2(s) of the Industrial Disputes Act, 1947?
(i) A school teacher in a secondary school
(ii) A medical representative in a pharmaceutical company getting salary of Rs. 9000 per month. - Are the following employees covered by the definition of ‘Workman’? Give reasons.
(a) Professor of Medicine teaching students in a medical college run by the Central Government.
(b) An Architect employed by a firm of architects for planning civil construction and interior design.
(c) A sales representative employed by a pharmaceutical firm for promoting sales of the firm.
(d) A pilot drawing a salary of rupees two lakhs per month for flying Air Carrier and also imparting training to young pilots. - Asha and Preetam worked at KLC and Associates, a Chartered Accountant firm. The firm discharged functions mainly of auditing and tax consultation. Asha was the IT Manager in the firm who had five other IT executives reporting to her. She was in-charge of overall maintenance of the IT department and was responsible inter alia, to sketch his job specification of the executives, their training, and leave sanctioning. Preetam. was the MIS in-charge in the firm. The senior partners of the firm. In this regard, a show cause was issued to both Asha and Preetam and consequently their job was terminated. The firm did not have any Union operating. But both Asha and Preetam were aggrieved with the decision and wanted to challenge the termination order and raise an industrial dispute.
Advise both Asha and Preetam about their position and rights under the labour laws. Explain with reference to appropriate provisions and case laws to support your views bringing out clearly if they are ‘workmen’ covered by the provisions of the Industrial Disputes Act, 1947 and if they can file an individual disputes under the law. - Ms. Gomthi completed her Masters in Engineering in 2015. However, she joined a private enterprise as District Sales Engineering Executive in the Sales Department. Her technical knowledge was required for her work. For past two years, the company has not paid her any increment as promised despite her several applications.
Can Ms. Gomthi be considered as a ‘workman’ and raise an industrial dispute under the Industrial Disputes Act, 1947? Decide with the help of case law.
TOPIC 5: Conceptual Analysis of Industry
- Examine whether the following activities fall within the definition of industry under Section 2(j) of the Industrial Disputes Act, 1947:
(a) Delhi University
(b) Post and Tele-Communication Department
(c) Law Firm Employing Junior Lawyers and Para-legal Staff
(d) All India Institute of Medical Sciences. - Discuss the ‘Triple Test’ formulated by the Supreme Court in the Bangalore Water Supply and Sewerages Board case. Examine whether the following activities would be ‘Industry’ or not. Give reasons for your answer.
(a) University of Delhi.
(b) Telecommunication Department, Government of India. - M/s. Krishna is a Khadi Spinning Mill in Rajkot, Gujarat. The Mill would employ persons from the local villages on temporary basis and payment would be made based on the area of the cloth spun by the people on daily basis. The Mill was owned by a single person Kumkum, and the management was handled by herself and her two children Kiran and Ramesh. There were three other persons who were employed to maintain the records of employment and payment of their wages, etc., and they were paid a salary on Rs. 12,000 monthly. The workers working in the Mill raised a demand seeking increase in their rate of wages and for improvement of the work conditions in the Mill which is not accepted by the owner.
The appropriate government refuses to refer the dispute for conciliation or adjudication on the ground that the Khaki Spinning Mill is not an ‘industry’ and that the Industrial Disputes Act, 1947 is not applicable.
Based on the facts of the case, give your legal opinion elaborating the appropriate provisions and case laws to support your views. - A Private Hospital “HOPE” was converted to Covid Only Facility Hospital by the Government in April 2021 and the rates for Covid related tests and treatment were fixed according to CGHS rates. The services of two nurses, Mary and Martha, were terminated before the conclusion of their contract. The nurses raised a dispute which was refuted by the employer on grounds that the hospital is not giving any ‘material’ service so it is not an industry under section 2(j) Industrial Disputes Act, 1947. Further the employer argued that as the government had fixed the rates it was no longer working for profit, and that the nurses were working on contractual basis only.
Examine and decide the position of Hospitals as Industry in light of the decision in Bangalore Water Supply and Sewerage Board v. A Rajappa, AIR 1978 SC 548.
TOPIC 6: Scope of “Any Person” in definition of Industrial Dispute Section 2(k)
- “It seems fairly obvious that if the expression ‘any person’ occurring in the third part of the definition of Industrial Dispute (Sec 2(k)] is given its ordinary meaning, then the definition clause will be so wide as to become inconsistent not merely with the objects and other provisions of the Act, but also with the other parts of that very clause ….”
[Das, C.J., in Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, AIR, 1958 SC 353.] Explain the statement. - (a) Explain the difference between ‘individual dispute’ and ‘industrial dispute’. What are the circumstances under which an individual dispute may become an industrial dispute.
(b) Examine whether the following would amount to industrial dispute under the Industrial Disputes Act, 1947. Substantiate your answer.
(i) The workmen of a private company demand the management that due to wide disparity in the income between the workmen and the management cadre the salary of the management staff be reduced by Rs. 10,000 from the existing salary.
(ii) A workman in a public utility service demands the management to promote him to next grade, which the management turned down. - X’ was appointed a Assistant Medical Officer in Iceland Tea Estate. His terms of employment plainly stated that his appointment was subject to a clear medical report and a period of probation of six (6) months, and his permanent appointment was to be considered during that period. Found involved in some misdemeanours, ‘X’ was removed from work without due notice of fourteen (14) days as mentioned in his contract. Cluseless as to what to do next, he approached the Union of tea garden workmen and sought their help. The Union raised an industrial dispute and demanded his reinstatement. The Employer objected that the Union cannot ‘espouse’ the cause of the Medical Officer. The Union argued that an industrial dispute can be raised for ‘any person’ under section 2(k), Industrial Disputes Act, 1947.
Discuss the maintainability of the above dispute and validity of the contentions raised by the parties to the dispute under the Industrial Disputes Act, 1947. What recourse is available, if any, to the Assistant Medical Officer under this Act. - The language of section 2(k) is wide enough to cover a dispute between an employer and a single workman provided such disputes must involve the right of the workmen as a class and not a dispute touching the individual rights of a workman. Discuss the conditions when does Individual Dispute becomes an Industrial Dispute with the help of the cases.
TOPIC 7: Ingredients of Strike
- A legal strike may be unjustified and an illegal strike may be justified.’ Discuss the legal validity of this statement in the context of law relating to strikes in India.
- “It has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour, but it is important to remember that indiscriminate and hasty use of this weapon should not be encouraged.” Critically examine the statement and explain the consequences of such ‘indiscriminate and hasty use of this weapon’ in the light of judicial decisions.
- The right to strike or the right to declare a lock out may be controlled or restricted by appropriate industrial legislation, and the validity of such legislation would have to be tested not with reference to criteria laid down in clause (4) of Article 19 of the Constitution of India but by totally different considerations. (All India Bank Employees Association v. National Industrial Tribunal, AIR 1962 SC 171). Subsequently it was held that (i) There is no fundamental right to go on strike; (ii) There is no legal or statutory right to go on strike; and (iii) There is no moral or equitable justification to go on strike. (T.K. Rangarajan v. Government of Tamil Nadu, 2003 (6) SCALE 84) However strike remains a powerful instrument in the hands of the employees and facilitates the right to undertake collective bargaining for wages, conditions of service and the like. What are the provisions under the Industrial Disputes Act, 1947 that regulate/restrict the right to strike? Give your own critical view of the State of law and judicial precedents as they stand today.
LB – 404: Interpretation of Statutes and Legislative Drafting
TOPIC 1: Golden Rule of Interpretation
WHAT IS INTERPETATION OF STATUTES?
LITERAL RULE OF INTERPRETATION
Golden Rule of Interpretation
Mischief Rule of Interpretation
- Section 154 of the English Companies Act, 1929 provided the machinery for the transfer of a company to a new company. Under the said section ‘transfer included all properties, rights, liabilities and duties of the transferor company which will vest in the trans-feree company. M was on a contract of service with W & Co. W & Co. was transferred to S & Co. in accordance with section 154. M continued to work at the same place. Neither he had knowledge transfer nor W & Co. or S & Co. informed him the transfer. M made wilful abstention for 3 days. As a result S & Co. brought an action against him under the Employer and Workesmen Act, 1875. M contended that he was not an em-ployee of S & Co. and he had no service of contract with them. Thus no action could be taken against him by S & Co. On the other hand, S & Co. argued that contract of service of M with W & Co. was property since all properties of W & Co. stood vested in S & Co. by virtue of section 154, which is plain and unambiguous. Therefore, S and Co. could bring an action against M. Decide in the light of the Golden Rule of Interpretation.
TOPIC 2: Mischief Rule of Interpretation
- An Act was passed with an avowed object “to control and regulate the prize competition.” Section 2(d) of the Act defines prize competition as any prize competition (whether called cross word prize competition, a missing word prize competition or picture prize competition or by any other name) in which prizes are offered for the solution of any puzzle based upon building up arrangements. Combination or permutation of letters, words of figures. In light of the above provision, decide whether the word ‘prize competition’ as defined in section 2(d) would confine only to the competitions in which success depends on chances or extend to those in which success depends on substantial degree of spill.
TOPIC 3: Strict Interpretation of Statutes
- The court must see that a person to be penalised comes fairly & squarely within the plain words of the enactment. But where having applied.all canons of inerpretation the matter is left in doubt whether a wide construction can be given to penal stat-utes and taxing statues. Explain the aforementioned statement with the help of Bowers Vs. Gloucester Corporation (1963) I.Q.B 881 and The Empress Mills, Nagpur Vs. The Municipal Com-mittee, Wardha. AIR 1958. SC. 341
TOPIC 4: Harmonious Construction
- When the two provisions are of equal authority, neither of them being subject to another, the questions is how the apparent conflict between them is to be resolved. The rule of constuction is well settled that when the two provisions cannot be reconciled with each other. They should be interpreted in a way whereby effect can be, given to both the provisions. Discuss by explaining rule of Harmonious construction. Also cite relevant case laws.
TOPIC 5: EJUSDEM GENERIS
- The rule that general words are to be construed generally is not applicable when they follow specific words. In the light of this statement explain the maxim Ejusdem Generis. Also state how it is different from Noscitur-a-sociis.
