Modi Government to kickstart labour reforms; 2 key Bills likely to be introduced in Rajya Sabha on Tuesday

The winter session of Parliament that commenced on November 24 and is expected to continue until December 23 has 22 working days and a packed legislative business to transact.

Some 37 bills are up for introduction and passage ranging from labour reforms to the passage of the long-delayed goods and services tax and insurance reforms. 

Among these bills to be introduced in the winter session of Parliament , the Labour Laws (Exemption from Furnishing Returns and maintaining Registers by Certain Establishments) Amendment Bill and the Apprentices (Amendment) Bill were scheduled to be introduced in the Rajya Sabha on Monday, but likely to be taken up for consideration only on Tuesday as both Houses of Parliament adjourned for the day after obituary references. 

The Labour Laws (Exemption from Furnishing Returns and maintaining Registers by Certain Establishments) Amendment Bill seeks to amend the principal Act, namely the Labour Laws (Exemption from Furnishing Returns and maintaining Registers by Certain Establishments) Amendment and Miscellaneous Provisions Act, 1988 by widening the ambit of the principal Act to more establishments and adding more laws from the purview of which the establishments are exempted. The Bill amends the definition of 'small establishment' to cover establishment that employ between 10 and 40 employees. While the principal Act provided for the employer having to file returns and maintain registers at the workplace in a specified format, the amendment sought to be made now provides that the employer may maintain the returns filed and registers maintained on a computer, computer disk or other electronic media, print-outs of which will have to be made available to the Inspector on demand or sent to the inspector by electronic mail. Further, in what is seen as a watering down of the stringent provisions of the Act, the Bill amends the list of Acts which exempt the small establishments thereunder from maintaining registers and filing returns and adds seven more to the list. The salient features of the Labour Laws (Exemption from Furnishing Returns and maintaining Registers by Certain Establishments) Amendment Bill can be read here

The Apprentices (Amendment) Bill, 2014 sets the minimum age of apprenticeship in designated trades related to hazardous industries as 18 years. Among the more controversial provisions of  the Bill, is the proposed amendment that leaves the hours of work and leave for apprentices at the discretion or policy of the employer.The highlights of the Apprentices (Amendment) Bill, 2014 which seeks to amend the Apprentices Act, 1961 can be read here .

Delhi Special Police Establishment Act to be amended; Amendment Bill to be introduced in Lok Sabha on Monday

The Union Ministry of Law and Justice has finalised a proposal of the Department of Personnel and Training (DoPT)to amend the Lokpal and Lokayuktas Act and the Delhi Special Police Establishment Act, 1946 to ensure that there is no requirement of "quorum" in the respective selection panels for choosing the anti-corruption ombudsman or the CBI Chief.

The law as at present prescribes the inclusion of the Leader of the Opposition of the Lok Sabha as a member of the panels which select the Lokpal and the CBI Chief under the Lokpal and Lokayuktas Act and the Delhi Special Police Establishment Act, 1946 respectively. 

But with no Leader of the Opposition in the 16th Lok Sabha which has stalled the appointment of the CBI chief, the Government will introduce the Delhi Special Police Establishment (Amendment) Bill in the Lok Sabha on Monday to amend the clause providing for the inclusion of the Leader of Opposition (LoP) in the selection panel by providing for inclusion of the leader of the single largest Opposition Party to be a member of the selection panel that chooses the Director of the CBI. Another amendment that is sought to be introduced is the insertion of a clause to ensure that there is no requirement for a quorum in the matter of appointment of Director of the CBI. The amendment, if made, would mean that lack of quorum will not be a ground to invalidate the appointment made. The proposed amendments are sought to be made to provide for adequate legal safeguards against any possible challenge to the validity of an appointment made to the post of the Director of the CBI, since the law at present is silent on the question of quorum in the selection panel and the Government thought it fit to remove the ambiguity that had left the door open for a possible judicial invalidation of an appointment made under the existing provisions.

The list of business of the Lok Sabha on Monday lists Dr. Jitendra Singh as moving the Amendment Bill. If however the lower House adjourns after paying obituary references to 8 members of whom 2 were sitting members, the Bill to amend the Delhi Special Police Establishment Act, 1946 may be taken up only on Tuesday.

An amendment similar to the one being made to the Delhi Special Police Establishment Act, 1946, will be introduced in the Lokpal and Lokayuktas Act, 2014 though the same has not been listed for consideration of the House on Monday. It is however expected to be introduced in the course of the Winter Session of the Parliament itself.

Provisions regarding arrest of a vessel do not extend to the arrest of an Indian ship by an admiralty Court in India, rules the High Court of Kerala

The High Court of Kerala, has held in Chembolaparambu General Engineers Pvt. Ltd. v. M.V. KAVARATHI¹ that what is contemplated under Admiralty Jurisdiction of a High Court in India is only with regard to the arrest of a foreign ship which happens to be in Indian waters. When it is confined to a foreign ship which happens to be in Indian waters, any ship owned by the President of India or the Union of India, or by a Indian company incorporated or situated in India or by a partnership firm in India or even by a Citizen in India cannot be arrested by invoking the admiralty jurisdiction or any High Courts in India.

The Court was considering the prayer of the plaintiff in Admiralty Suit No. 4 of 2014, Chembolaparambu General Engineers, who had filed an interlocutory application filed under Section 151 of the Code of Civil Procedure seeking an order of arrest of M.V. KAVARATHI, a vessel owned by an Indian and represented by her master, which was within the waters of India/Cochin port and to keep the vessel under safe arrest until further orders of the Court. The case of the plaintiff was that it had carried out repairs/engineering works on the vessel, M.V. KAVARATHI, and out of a total sum of Rs. 82,87,508.45/- due towards the cost of the said works done, the owner of M.V. KAVARATHI had made only a part payment of Rs.26,55,615/- and that despite several demands througn notices, the owner of the vessel had not cared to settle the liability. It was in this context that the plaintiff had preferred the application seeking arrest of the said vessel till the obtaining of sufficient security for the plaint claim. The claim of the plaintiff was resisted by the owner of the vessel on the ground that the provisions regarding arrest of a vessel do not extend to the arrest of an Indian ship by an admiralty court of India. 

Justice B. Kemal Pasha accepted the contention of the defendants and relying on the ratio formulated by the Apex Court in M.V. Elisabeth & Ors. v. Harwan Investment and Trading Pvt. Ltd.., etc² held that the presence of a foreign ship in Indian waters is a condition precedent for invoking the admiralty jurisdiction of a High Court in India and that it is evident that arrest of such a ship can be made only when it is a foreign ship, and further, when it happened to be in Indian waters.

The Court accordingly dismissed the said interlocutory application, and also ordered return of the plaint under Order VII R.10 C.P.C. to be presented to the Court in which the suit ought to have been instituted, as the Court held, in an application filed by the first defendant seeking rejection of the plaint, that the questions involved in the suit were questions which arise from a contract for repair works of an Indian ship by the plaintiff which does not involve any jurisdiction for the arrest of such an Indian ship and that the suit is merely an ordinary money suit which is triable by an ordinary civil court competent to try it. 

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1. 2014 (4) KLT 246

2. AIR 1993 SC 1014

High Court stays decision of ‘Tree Protection Committee’ to cut down trees standing in front of Church for construction of its compound wall, following a challenge by an environmental activist

The High Court of Kerala has passed an interim order dated 19.11.2014 staying the decision taken by the ‘Tree Protection Committee’ to cut and remove the trees standing in front of the St Antonys Church Ammadom, Thrissur for construction of the compound wall for the St.Antonys Church, Ammadom, Thrissur.

The writ petition, filed by Mothy D. Pellissery who claims to be an environmental activist, through Adv: Lindons C. Davis, challenges the decision of the ‘Tree Protection Committee’ granting permission to fell the trees standing in front of the St Antonys Church Ammadom, Thrissur and the consequent publication of advertisement by the Assistant Engineer, Public Works Department for auction of the trees so felled.

In the writ petition, a copy of which has been made available to and accessed by the Kerala Law Review, the petitioner states that the Asst. Engineer, PWD roads Division, Cherpu, Thrissur had submitted an application to the Assistant Conservator of Forests Social Forestry for cutting and removing of the trees in the road side (standing in front of St. Anatonys Church) for building a compound wall for the said church. The Assistant Conservator of Forests Social Forestry has inspected the site and found that there is no need to cut down the trees. The petitioner claims that there is no public purpose such as widening of road or development of road in this regard to justify felling of trees. The petitioner has averred in his writ petition that the existence of tree is not at all a hindrance for construction of compound wall, and that the church was renovated and to get the show to the Church the trees are proposed to cut down. “The trees are standing in between the house of the petitioner and church. It is settled law that the citizens have fundamental right for the pure air and good environment. The felling of the trees without any authority infringes the fundamental right of the citizens.”

The petitioner contends that as per “The Kerala Promotion of Tree Growth in non Forest Areas Act, 2005” , social forestry, especially the trees in the road sides are to be protected and planted by including the local public. Also as per the project “vazhiyora Thanal” of Forest department, the local people has got a duty and right to preserve the trees on the road sides.

The petitioner has contended that the committee which took the decision to fell trees standing in front of the Church has neither conducted a site inspection nor called for any complaints against the proposed felling of trees from the local public. “The petitioner’s complaint was also not heard. The committee has not even cared to prepare a report. The feasibility of the alternates other than felling of trees was not considered. The committee has not considered the protection of other trees in that area. The committee has not taken the census of the trees to be protected in the proposed area. The committee has also not even takes the specification of the trees.”, the petition says.

The petitioner has also assailed the decision taken by the ‘Tree Protection Committee’ (of which the District Panchayath president is the Chairman and the Assistant Conservator of Forests Social Forestry is the Convener) on the ground there is no application of mind by the committee on the requests forwarded to them for felling of trees, and that the committee has not been convened properly. The petitioner also alleges that the committee has taken the decision on the pressure of the Panchayath president and the Church, and there is no independent decision by the committee.

The writ petition which has been admitted by the Kerala High Court on 19.11.2014 has been listed for further consideration of the court on 25.11.2014.

Service of order of termination does not give rise to cause of action but only a right of action; writ petition maintainable only in the territorial jurisdiction of the HC where an 'integral part of the cause of action has arisen', rules a Full Bench of the Kerala High Court

A Full Bench of the Kerala High Court comprising Justice Antony Dominic, Justice K. Ramakrishnan and Justice Anil K. Narendran has overruled the dictum laid down in Selvin Abraham v. Punjab & Sind Bank¹ and held in Registrar, Indian Maritime University v. V. Viswanathan² that a writ petition can be entertained only in a High Court within the territorial jurisdiction of which an 'integral part of the cause of action has arisen'. 

 The Full Bench was answering a reference made by a Division Bench of the Kerala High Court which had doubted the correctness of Selvin Abraham (supra) on the ground that the same is apparently in conflict with the principles laid down by a Full Bench of the Kerala High Court in Nakul Deo Singh v. Deputy Commissioner³. The Division Bench which made the reference was considering an appeal filed by the Indian Maritime University against the order dated 27.11.2013 of the learned Single Judge in W.P. (C) No. 22184/2013 holding the writ petition as maintainable after rejecting the objection of the respondent-University that since the entire cause of action had arisen outside Kerala, the writ petition was not maintainable. 

In Selvin Abraham (supra), the correctness of which was doubted by the Division Bench making the reference, while working as Assistant Manager in the Punjab & Sind Bank at Coimbatore, the appellant Selvin Abraham was proceeded against for certain misconduct which culminated in an order of dismissal issued by the Disciplinary authority which order was served on him at his native place in Kerala. His appeal and review against the order of dismissal were also dismissed, whereupon he had filed a writ petition before the Kerala High Court challenging the said orders. The learned Single Judge accepted the objections raised by the Bank that the High Court lacked the territorial jurisdiction to entertain the writ petition as the entire cause of action arose outside the State.  Selvin Abraham, assailing the judgment of the  learned Single Judge contended before the Division Bench that the order of dismissal became effective only when it was served on him at his address at Kottayam in Kerala and therefore, an integral part of the cause of action arose within the jurisdiction of the Kerala High Court. The Division Bench accepted the contention of the appellant and held that “an order of dismissal when it becomes effective definitely forms an integral part of the cause of action, and that service of notice of an order of dismissal is not mere service of notice, it definitely gives rise to a cause of action and such service of notice forms an integral part of the cause of action.”

In Nakul Deo Singh v. Deputy Commissioner (supra), the Full Bench had considered the question whether the decision rendered by an authority located outside the jurisdiction of the Kerala High Court, when communicated to the party while he is within the jurisdiction of the Kerala High Court is a fact in the bundle of facts constituting the cause of action. The Full Bench in Nakul Deo Singh (supra) observed that what really arose for its decision was whether the fact that on communication of the order, it becomes effective as far as the person is concerned, gives him the right to approach the High Court for relief. Answering the reference in that case, the Full Bench had held that receipt of communication by itself does not constitute a cause of action and that at best, receipt of the order or communication only gives the party right of action based on the cause of action which already arose out of the action complained of. On that basis the Full Bench in Nakul Deo Singh (supra) took the view that when the action complained of takes place outside the territorial jurisdiction of the High Court and an appeal therefrom is also dismissed by an authority located outside the jurisdiction of the High Court, cause of action wholly arises outside the jurisdiction of the High Court and Article 226(2) of the Constitution cannot be invoked to sustain a writ petition on the basis that an integral part of the cause of action has arisen within the jurisdiction of the Kerala High Court. The Full Bench also held that the fact that until it is published or made known, an order does not become effective is not a ground to hold that the communication of the order to the aggrieved person forms part of the cause of action. It was also found by the Full Bench in Nakul Deo Singh (supra) that the fact that a person who was dismissed from service while he was in service outside the State, would have to suffer the consequence of the dismissal when he is in his native place is not a fact which constitutes the bundle of facts giving rise to a cause of action in his favour. 

In holding that a writ petition can be entertained only in a High Court within the territorial jurisdiction of which an 'integral part of the cause of action has arisen', the Full Bench in Registrar, Indian Maritime University v. V. Viswanathan (supra) inter alia referred to and relied on the principle laid down in the judgment of the Apex Court in Kusum Ingots & Alloys Ltd. v. Union of India⁴ to the effect that  (i) the facts pleaded in the writ petition must have a nexus, on the basis whereof, the prayer can be granted and when those facts have no nexus, it cannot be said to be given rise to a cause of action which would confer jurisdiction on the Court, and (ii) even if a small part of the cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merits, and that in appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. The Full bench also held that it is also a settled principle of law that in a service dispute, issue of an order of termination gives rise to cause of action and service of that communication, though is necessary to give effect to the order, does not amount to a part of the cause of action much less an integral part of the cause of action. In other words, the issue of the order gives rise to the cause of action and the service of the order gives rise to a right of action. 

The Full Bench in Registrar, Indian Maritime University v. V. Viswanathan (supra) after thus considering a catena of decisions on the point held that Selvin Abraham (supra) does not lay down good law as the principles laid down therein are contrary not only to the Full Bench judgment in Nakul Deo Singh (supra) but also to the Apex Court judgments referred to and therefore, overruled the same.  

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1. 2013 KHC 404: 2013 (3) KLT 481

2. 2014 (4) KHC 451 (FB)

3. 1999 KHC 647: 1999 (3) KLT 629

4. 2004 KHC 1435 : 2004(6) SCC 254

Judgment in Cherian’s case permitting registration of transport vehicle as non-transport vehicle depending on user of the vehicle under challenge in writ appeal filed by Transport Authorities

The decision of the learned Single Judge of the Kerala High Court in Cherian v. Transport Commissioner and others¹  has now been challenged at the instance of the Transport authorities in writ appeal filed as W.A. No. 51 of 2014 before a Division Bench of the Kerala High Court. The delay of 1679 days occasioned in preferring the appeal by the Transport authorities was earlier condoned by the Court.

In Cherian², the petitioner had approached the High Court aggrieved by the stand taken by the Regional Transport Officer, Kozhikode and the Regional Transport Authority, Kozhikode that a vehicle ‘Mahindra Bolero Camper 4WD’ which he intended to purchase and use as a private vehicle for non-commercial purposes, could not be registered as a Light Motor Vehicle (LMV)/Motor Car and consequently, preferred the writ petition seeking a direction to the transport authorities to register the said vehicle as a Light Motor Vehicle (LMV)/Motor Car. The petitioner had contended that : (i) the refusal of the respondents to register the Mahindra Bolero Camper 4WD’ is illegal and without jurisdiction inasmuch the same ran contrary to the clarification issued by the Transport Commissioner in his circular to all transport authorities in the State; (ii) the Automotive Research Association of India (ARAI) having certified that the vehicle can be registered as a private vehicle which was accepted by the Transport Commissioner, there could be no justification for the Regional Transport Officer, Kozhikode to deny or delay registration, (iii) “the definition in the Motor Vehicles Act clearly shows that the vehicle which the petitioner intends to purchase is a Light Motor Vehicle, a motor vehicle which is a private service vehicle” and “therefore it cannot be a transport vehicle which means...a public service vehicle”; and (iv) the said vehicle is being registered in every other place in Kerala as well as in other states as a Light Motor Vehicle (LMV)/Motor Car.

The learned Single Judge relying on the ratio in Alex Thomas v. State of Kerala³ held that with respect to a vehicle which is constructed and adapted not for carriage of goods alone, the user of the vehicle is the prime aspect which needs to be considered for deciding the question whether it is to be treated as a transport vehicle or non-transport vehicle, and that in Cherian, since the vehicle in question is a light motor vehicle, it need to be given registration as light motor vehicle provided it is not used as a goods carriage. The learned Single Judge said : “If it is not used as a transport vehicle, it cannot be treated as a transport vehicle, but only as a non-transport vehicle”. Accordingly, the learned Single Judge passed judgment dated 13.03.2009 with directions to the Regional Transport Officer, Kozhikode and the Regional Transport Authority, Kozhikode to “issue registration to ‘Mahindra Bolero Camper 4WD’, if any brought by the petitioner for registration as a non-transport light motor vehicle.”

It is this judgment of the learned Single Judge in Cherian, a decision followed and relied upon in several cases of similar nature, that has now been impugned by the Transport authorities before the Division Bench of the Kerala High Court. 

The Transport authorities have inter alia, contended that : (i) the judgment of the learned Single Judge in Cherian was one passed without noticing or considering the judgment of the Division Bench in Saramma v. Regional Transport Officer, Ernakulam⁴ wherein the Court had held that it is for the authorities to take into account all relevant factors before classifying the vehicles as omnibus or transport vehicle and it is not open to the owners of the vehicle to convert the vehicles to suit their convenience; (ii) the vehicle in question has a gross vehicle weight not exceeding 3.5 tonnes and therefore comes under the N1 category according to the notification issued by the Central Government under sub-section (4) of Section 41 of the central Act, and the learned Single Judge’s findings are without considering the certificate issued by the ARAI; (iii) the judgment in Alex Thomas v. State of Kerala has no application to the case at all since the issues involved in both cases are dissimilar; (iv) when a vehicle is manufactured, built and prototype test conducted for the carriage of goods, which has much sanctity, the same cannot be altered for the carriage of passengers, unless so certified, and that no deviation can be permitted to be made by any registering authority from the classification approved by the manufacturer, based on the declaration of the individual purchaser since certification is an authentic document which determines the class of vehicle to which a particular vehicle can be categorized and (v) as the motor vehicles tax for goods version of vehicle is lesser compared to passenger vehicle certain persons have purchased the goods version of such vehicles in order to evade Sales tax, Excise duty, Customs duty, and motor vehicles tax, which is causing revenue loss to the State Exchequer. The Appellants have also disputed the findings of the learned Single Judge, on facts.

The appeal, when it came up for admission before a Division Bench comprising Acting chief Justice Ashok Bhushan and A.M. Shaffique, today, was listed for further consideration of the Court on 04.12.2014.

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1. 2009 (2) KLT 583

2. ibid

3. 2008 (4) KLT 603

4. 1995 (2) KLT 450