Arresting RSS cadres in violation of its Nov. 7 judgment, at the most, an act of bad taste and bad faith, but no contempt of Court made out, says the Madras High Court, while dismissing a contempt petition filed by the RSS

The Madras High Court, dismissing a contempt petition filed by the Rashtriya Swayamsevak Sangh (RSS), held that the act of police in arresting RSS cadres during processions over their attire on November 9, seemed at the most "an act of bad taste and bad faith on the part of authorities" and cannot be taken as constituting contempt of Court. 

Earlier, after being denied the permission by the authorities to conduct procession on its Foundation Day on the ground that in view of the amendment to Section 41-A of the Chennai City Police Act, the Commissioner of Police had the power to prohibit any drill, training or assembly with arms, the RSS had approached the High Court filing a writ petition, seeking a direction to the police authorities to permit its annual foundation day procession in Chennai, Karur, Coimbatore, Tuticorin, Thackalay, Thiruvarur and Tenkasi, in the state of Tamil Nadu, on 9 November. 

(File Picture: Swayamsevaks taking out procession. Picture courtesy: indiatvnews)

The petitioners contended that RSS is a patriotic, nationalistic and cultural organization which is patronised by majority of the people in the country, and that while the procession (route march) was being permitted by all state governments, including Jammu and Kashmir, it was "unfortunate that only in Tamil Nadu the permission is refused." Rejection of permission to hold the procession in the seven places was discriminatory when such clearance was given to all political parties, the petitions contended. Relying on various court orders, the petitions said "while police had power to control and regulate processions, they did not have power to forbid or ban processions. The power to control does not include the power to forbid."

 

The police authorities had also contended that the RSS volunteers wore a uniform resembling that of the police force and also carried lathis. Hence, permission could not be granted.

A learned Single Judge the Madras High Court, Justice V Ramasubramanian, allowed the writ petition filed by the RSS holding that fundamentally, the orders passed by the authorities were not as per the mandate of Section 41-A of the Chennai City Police Act, 1888 . This was because this provision had no application to holding of processions but only to drill, training, assembly with arms or assembly in uniform. It was claimed that the uniform of the volunteers was designed in 1920s. Therefore, the authorities appeared to have raised a bogey as no member of the police force today wore short-pants. They had taken recourse to a wrong provision of law. Hence, the impugned orders were liable to be set aside. Accordingly, the learned Single Judge had directed the police to grant permission to the RSS to take out a procession and hold a public meeting at seven places in the State on November 9. (The observations regarding the uniform were however not incorporated in the operative portion of the judgment of the learned Single Judge). Justice V Ramasubramanian permitted RSS processions (route marches) in all the seven towns, saying participating cadres should not carry any weapons or lathis and should not raise slogans hurting sentiments of others.

Authorities in various districts, acting on the court order, had permitted the RSS activists to take out processions, subject to certain conditions, one of which was they should not wear uniform resembling that of the Armed Forces or police. The action was based on the amendment to the Chennai City Police Act, 1888, which empowered the police to prohibit training or assembly by groups with arms or in uniform that resembles that of the armed forces or the police. Most of the RSS workers were in the ‘khaki’ uniform. Under Section 41(A) of the Act, to ensure public peace and safety, the police may prohibit any drill with arms by five or more persons at any place or carrying of arms in any procession. The word ‘arms’ meant any type of offensive weapon and included ‘lathi’ or stick. This was however contrary to the observations in the order of the learned Single Judge of the Madras High Court allowing the RSS to take out procession at seven places in Tamil Nadu. 

However, thousands of Swayamsevaks were later arrested across Tamil Nadu when they defied police orders and tried to take out processions to mark their foundation day.

It was in this context that the RSS had filed a contempt petition before the High Court of Madras.

Considering the contempt petition, the Court held : "At the most what has been made out is an act of bad taste and bad faith on the part of the authorities. Something more is required to attract an action for contempt of Court. Hence the contempt petition is dismissed. "Justice V. Ramasubramanian further said, "Unfortunately for the petitioners and fortunately for the authorities, the observations made by me in the order relating to the uniform worn by RSS volunteers was not incorporated in the operative portion of the order." The judge said a clear case of wilful disobedience of an order can be made out without an iota of doubt only where its operative portion has something which has been violated by the authorities. The judge said that if authorities had misunderstood the effect of his directions, it could at most be termed as something done in bad taste and an ingenious method to overreach the order of the Court.

Accordingly, the contempt petition filed by the RSS was dismissed by the Madras High Court.

Employee, in discharge of his duties, whether employed as driver or otherwise, would be entitled to compensation under clause (a) of the Proviso to Section 147 of the M.V. Act if the accident has occurred out of and in the course of his employment, holds the Full Bench of the Kerala High Court

A Full Bench of the High Court of Kerala affirming the decision in National Insurance Co. Ltd. v. Nimmy & Ors.¹ has held in United India Insurance Co. Ltd. v. P.R. Surendran² that if an employee in discharge of his duties, is engaged in driving a vehicle as permitted by his employer, irrespective of whether he is employed as driver or not, the employee would be entitled to the coverage of the proviso to Section 147 of the Motor Vehicles Act, 1988 (‘the M.V. Act’ for short), provided the accident has occurred out of and in the course of his employment.

(Representational picture)

A Full Bench of the Kerala High Court comprising Justices Antony Dominic, K. Ramakrishnan and Anil.K. Narendran was answering a reference made by a Division Bench of the High Court of Kerala doubting the correctness of the ratio in National Insurance Co. Ltd. v. Nimmy & Ors. (supra). In Nimmy’s case (supra), the deceased was employed by the 5^th respondent therein. While he was riding a scooter provided by his employer, an accident occurred out of and in the course of his employment. Following the accident, the claim was filed under the Workmen's Compensation Act. The Insurance Company contended that to get coverage of Clause (a) to the first proviso to Section 147, the employee mentioned in Clause (a) should be employed as a permanent driver of the owner of the vehicle. Repelling that contention, the Division Bench had held:

“It is not stated in the section that to get protection under this section one should be permanently employed as driver or the sole duty entrusted on him is driving. We are of the opinion that when an employee in driving the vehicle as part of his duty, he will come within the first proviso to Section 147(1) of the M.V. Act.”

The Division Bench, referring the appeals before it to the Full Bench, found, prima facie, that the coverage under the proviso to Section 147 of the M.V. Act is available only to those persons who are employed as drivers and are engaged in driving and not to other employees who were engaged in driving at the time of the accident. It was on this basis that it had doubted the correctness of the view taken in National Insurance Co. Ltd. v. Nimmy & Ors. (supra).

The appeals were filed filed by the United India Insurance Company Limited and the Oriental Insurance Company Limited against the awards passed by the Commissioner for Workmen's Compensation, Thrissur in W.C.C.Nos.361/2000 and 374/2003. The claimants in the workmen's compensation claims before the Commissioner for Workmen's Compensation, Thrissur were sales representatives employed by their respective employers. As part of their conditions of service, their employers had provided them two wheelers. While riding the vehicles in their course of their employment, they met with accidents, resulting in bodily injuries. This led the injured to file claims under the Workmen's Compensation Act, claiming the benefit of coverage of the insurance policy. This was in view of proviso (i) to Section 147 of the Motor Vehicles Act, 1988.

The Commissioner for Workmen's Compensation overruled the objection raised by the Insurance Companies that they are not liable under the proviso (i) to Section 147 of the M.V.Act and awarded compensation against the Insurance Companies. It is aggrieved by these awards that the aforesaid insurance companies had filed the appeals to the Division Bench of the High Court of Kerala, which were then referred to the Full Bench in the circumstances stated above.

The Insurance Companies contended that in order to get the coverage of

Clause (a) to the proviso to Section 147, an employee should be employed as a driver and should be engaged in driving.

The Full Bench referring to clause (a) of the proviso to Section 147 of the M.V. Act³, negatived the contention of the Insurance Companies on the ground that it is the settled position of law that when the language of a statute is unambiguous, the Courts are bound to literally interpret the statute and give full effect to the provisions. Writing the judgment for the Bench, Justice Antony Dominic held that “In so far as Clause (a) to the proviso to Section 147 is concerned, Section only uses the expression 'engaged in driving the vehicle' without specifying either the class of the vehicle which is covered by this provision or the nature of the employment of the person engaged in driving the vehicle, unlike clauses (b) and (c) to the proviso, which specifies the nature of the employment to claim coverage of the said provision. This, therefore, means that to claim coverage of Clause (a) to the proviso to Section 147 of the Act, the employee need only be engaged in driving the vehicle, irrespective of whether he was employed as driver or not…such coverage would be available only if the accident arose out of and in the course of his employment and only if the other requirements of the Workmen's Compensation Act are also satisfied.”

In reasoning this, the Full Bench relied, inter alia, on the judgment of a learned Single Judge in Oriental Insurance Co. Ltd. v. Davis⁴  wherein it was held thus:

“the legislative intention is clear that any injury sustained by an employee during the course of his employment has to be compensated if bodily injury or death has occasioned during his engagement in driving the vehicle. So much so, the word “engaged” in Clause (a) of proviso (i) indicates the duty or activity carried on by the workman at the time of suffering the accident, resulting in his death or in injuries to him. Hence, it would be an impermissible and an extremely restricted approach to hold that a person, who was employed as a driver, would alone fall under Clause (a) of Proviso (i). Therefore, the only manner in which Proviso (i) (a) of S.147(1) can be interpreted is by holding that it is not necessary for a person to be employed exclusively as a driver under an employer to sustain a claim referable to the said provision and one who is engaged in driving the vehicle, thereby meaning, driving the vehicle at the time of the accident, is entitled to compensation and insurance covered under the said proviso, provided he was in the employment of the employer and therefore a workman and still further, that he was driving the vehicle at the time of the  accident under due authorisation of the employer.”

The Bench also relied on the decisions of the High Court of Kerala in Benz Automobiles Ltd. v. Thomas⁵ and the judgment in M.A.C.A. No.1271/07 in holding that if an employee, in discharge of his duties, is engaged in driving a vehicle as permitted by his employer, irrespective of whether he is employed as driver or not, the employee would be entitled to the coverage of the proviso to Section 147, provided the accident has occurred out of and in the course of his employment.

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1. 2002 (1) KLJ 811

2. Judgment dated 12.11.2014 in MFA.No. 191 of 2005

3. “Provided that a policy shall not be required :

(i) to cover liability in respect of the death, arising out of and in the course of his

employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such

employee--

(a) engaged in driving the vehicle.”

4. 2006 (4) KLT 1013

5. 2008 (3) KLT 1015

Retrenchment of UPSA/LPSA: Seniority to be followed is the seniority in the respective category and not the common seniority, rules the Full Bench of the High Court of Kerala

A Full Bench of the High Court of Kerala comprising Justices Antony Dominic, K. Ramakrishnan and Anil K. Narendran, has held vide judgment dated 13.11.2014 in W.A.No. 1108 of 2011, that in the event of retrenchment of Upper primary School Assistant/Lower Primary School Assistant, the seniority is to be followed is the seniority in the respective category and not the common seniority, as teachers in the U.P. Section and the teachers in the L.P. Section of a school belong to two different and separate categories. 

The Full Bench was answering a reference made by a Division Bench of the High Court of Kerala which had doubted the correctness of the judgments in Mary George v. State of Kerala¹ Rejimol v. Asst.Educational Officer², W.A. No.1903/11and the Full Bench judgment in S.N.D.P. L.P.School v. Roy³. 

The issues that arose for consideration of the Full Bench was whether retrenchment of teachers is to be based on the combined seniority list of LPSAs and UPSAs of L.P.Section and U.P. Section of the school under the same management or whether the retrenchment should be based on separate seniority list of LPSAs and UPSAs.In Mary George (supra), Rejimol (supra) and WA No.1903/11, the High Court had taken the view that the post of LPSAs and UPSAs belong to two different grades and categories, and therefore, separate seniority list of LPSAs and UPSAs should be the basis for reckoning the seniority for the purpose of retrenchment.

Referring to the provisions in Chapter II and Chapter XXIII of the Kerala Education Rules, the Full Bench observed that the said provisions of the Kerala Education Rules indicate that for all purposes, teachers in the Lower Primary Section and Upper Primary Section are treated as separate category of teachers with separate and distinct qualifications. The Court also observed that apart from Rule 34(b) of Chapter XIV A KER, there is no other provision in the Kerala Education Act or the Rules, for maintenance of combined seniority list of UPSAs and LPSAs. "Reading of the unamended Rule 34(b)⁴ shows that the combined seniority list was meant to be for all purposes and amended Rule 34(b)⁵ shows that the purpose of the combined seniority list is only to determine the position of persons eligible for promotion as Primary School Headmaster by virtue of length of service and prescribed qualifications for promotion as such. Once the purpose of the combined seniority is thus specified in the rule itself, it has to be concluded that the combined seniority list cannot be made use of for any purpose other than that is specified by the Rule making authority. Therefore, Rules show beyond any doubt that UPSAs and LPSAs, except for the purpose indicated in Rule 34(b), are treated for all other purposes as different categories and that the combined seniority list maintained in terms of Rule 34(b) as amended w.e.f. 18/12/1984, is for the limited purpose of determining the position of persons eligible for promotion as Primary School Headmaster and nothing else", said the Full Bench. 

The Full Bench observed that the principles laid down in the judgment of the Full Bench in S.N.D.P. L.P.School v. Roy (supra) held no relevance to the case at hand as the question that fell for consideration of the Full Bench in  S.N.D.P. L.P.School (supra) was whether a Lower Primary School Assistant possessing B.Ed degree but not TTC is qualified for the post of Headmaster of a Lower Primary School governed by the Kerala Education Rules, and is therefore totally different from what arises for resolution in the present cases before the Full Bench. 

The Court accordingly concluded that "the judgments noticed above lay down the correct principle of law that the teachers in the U.P.Section and the teachers in the L.P.Section of a school belong to two different and separate categories and that, therefore, if there is occasion for retrenchment of an UPSA or a LPSA, the seniority that is to be followed is the seniority in the respective category and not the common seniority."

The Full Bench thereafter proceeded to dismiss the writ appeals before it.
 

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1. 1999 (3) KLT 912

2. 2004 (2) KLT 899

3. 2006 (4) KLT 497

4. "34(b) In the case of Upper Primary School an Lower Primary school a combined       seniority list of teachers if any, specified in clauses (iii), (iv) and (v) of Rule 3, Chapter        XXIII shall be prepared."

5. "34(b) In the case of Upper Primary Schools and Lower Primary Schools, a combined seniority list of Upper Primary School Assistants, Lower Primary School Assistants, Junior Language Teachers and Specialist Teachers specified in Rules 3 and 4 chapter XXXI, shall be prepared. The purpose of the seniority list will be only to determine the position of persons eligible for promotion as Primary School Headmaster by virtue of length of service and prescribed qualifications for promotion as Primary School Headmaster."