Sale of mortgaged property must be transparent : Bombay H.C.

The Bombay high court has set aside the order of the Mumbai Debt Recovery Appellate Tribunal in the sale of the Mysore unit of Jay Electric Wire Corporation, now closed, and asked the recovery officer to issue public advertisements inviting fresh bids. The earlier sale was challenged by the employees’ union, Central Bank of India and Standard Chartered Bank, who were secured creditors. According to them, the sale did not fetch fair market value and was vitiated by irregularities. Allowing their writ petitions, the court observed that “it is necessary that the sale process must be conducted with transparency and in accordance with law. In the present case, we find that the element of transparency was completely lacking. The grounds which weighed with the appellate tribunal are misconceived. Its conclusion that there was no material irregularity is specious.”

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Plan reforms with consensus: Manmohan

Recently Prime Minister Manmohan Singh indicated the government's plan to introduce labour reforms with “consensus.” This statement assumes significance as the labour unrest in Maruti Suzuki India Limited plants near Delhi had forced the management to declare two days shutdown. Dr. Singh, affirmed the government's commitment to do “everything possible to ensure good industry-labour relations.” He said:“Recently we have witnessed some incidents of industrial unrest. This is a matter of serious concern to me and I believe we need to address this issue with alacrity and sincerity. “Workers and management had a symbiotic relationship and both sides should work in a spirit of collaboration and cooperation, without losing sight of the overall national objective of progress.

“There is a view that the labour laws are sometimes felt to be too rigid and are a constraint on our growth impulses… There was also a contrary view that the labour legislation needed to protect the interests of workers, particularly in the unorganised and the contract labour sectors. Clearly, there were areas where there was a need to strike a balance between the needs of a growing economy and the interests of working people.”

The Prime Minister said the Center was aware that there were many areas of labour legislation that might require reform to encourage business and enterprise. “We will move ahead only in those areas where a broad consensus for reform is built and will ensure that the interests of our workers are fully protected in doing so.” He also highlighted the government's plans to increase skill development programmes and expand the workers' health insurance scheme such as the Rashtriya Swasthya Bima Yojana, which was already benefiting about 25 million labourers.

Labour and Employment Minister Mallikarjun Kharge said the objectives of maximum utilisation of resources, quantum increase in productivity and efficiency could not be achieved unless the managements, workers and trade unions came together and helped evolve an ethos and work culture. His Ministry had constituted a National Social Security Board for recommending formulation of Social Security Schemes.

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Govt. Intends to extend all benefits to contract workers as permanent workers

The Labour Ministry is making efforts to extend all benefits available to permanent workers to contract workers, keeping in mind the interests of all stakeholders. This was stated by the Union Labour and Employment Minister, Mr Mallikarjun Kharge, at the Standing Labour Committee meeting here on Monday.

Mr Kharge was responding to the demand of trade unions to amend the Contract Labour Act, 1970 to provide for automatic absorption of contract labour in the event of prohibition of employment of contract labour and opposition by employers' organisations.

On the issue of trade union ‘recognition', especially in the backdrop of the Maruti unrest, Mr Kharge said “the present system of verification (of trade unions) like secret ballot, check off, etc., needs to be closely examined further for evolving an improved system which is more transparent and brings out the proper representation.”

The Minister also hinted at the need to have a National Labour Code, as suggested by the Arjun Sengupta Committee, to lay down “a floor of substantive labour rights or standards such as minimum wages, maximum hours of work, minimum standards of safety and health at workplace and so on.”

The tripartite meeting was attended by representatives from Central ministries, State Labour Ministers, industry bodies, employers' organisations and trade unions.

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Judges should not shy

Judges should not shy away from constructive criticism of their actions and decisions as such review leads to the development of law, Chief Justice of India S.H. Kapadia has said.

Chief Justice Kapadia said this here Tuesday while releasing a book, "The Kesavananda Bharati case: The untold story of struggle for supremacy by the Supreme Court and Parliament", written by eminent jurist T.R. Andhyarujina.

"We judges are not afraid of constructive criticism of our actions and decisions by the bar," Chief Justice Kapadia said.

He regretted that senior counsel are too engaged in their professional pursuits to pay attention to the development of statutory and constitutional law.

He declined to be part of the discussion on the plea that judges should not get involved in debatable issues.

The book recounts the "tensions and conflicts in the Kesavananda Bharati case - not only between the rival sides but also among the judges, some of whom had preconceived views because of being judges in earlier cases and others by reason of their selection by the government."

The book reveals "the stratagems of the (then) Chief Justice S.M. Sikri on the date of the judgment on 24 April, 1973 by which he formulated a paper hurriedly prepared by him 'The Views of Majority'".



"This paper was signed in Court by 9 judges, 4 other refusing to ascribe their signatures to it." This has come to be known as a majority decision in the Kesavananda Bharati case.

Andhyarujina said the book deals with the actual account of how the case developed and dealt with and the decision arrived in a "dubious manner".

His account of the case is based on his "recollections and notes maintained by him as a counsel in the case and on later interviews by him with some of the judges in the case".

The book was described by various speakers as a maiden attempt in Indian judicial history to see beyond the pronouncement of a judgment and how it was arrived at.

In the case, the Supreme Court held that parliament cannot tinker with the basic structure of the constitution.

It laid down 35 parameters to define the basic structure of the constitution that include rule of law, secularism and separation of powers between the three organs of the state -- legislature, executive and judiciary.

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Farmula One: SC notice to UP Govt, Jaypee Group on tax exemption

India's Formula One ambition has hit its first hurdle just two weeks ahead of the first Indian Grand Prix. The Supreme Court sought explanation from the Uttar Pradesh government for granting tax exemption to Jaypee group, the company organising Formula 1 event in Greater Noida.

A bench headed by Justice D K Jain also issued notice to Jaypee Group, organiser of the sporting event, and asked them to file their response by Friday on why the event was given exemption from entertainment tax.

The notices were issued by the apex court on the basis of a public interest litigation (PIL) which challenged the exemption of entertainment and luxury tax for organising the F1 event.

The court passed the order on a PIL challenging the state government decision to grant tax exemption to the event.

India's first Formula 1 event is scheduled to be held in Greater Noida, adjacent to the national capital, on October 30.

The Uttar Pradesh government and the Jaypee group have been asked to file their replies by Friday.

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Book on Kesavananda Bharati case will be released on Tuesday

A 13-judge Bench of the Supreme Court, the largest so far, decided the Kesavananda Bharati case after hearing arguments by eminent lawyers spread over 66 days. The judgment, delivered by a majority of 7:6 on April 24, 1973, held that Parliament could not alter the basic structure of the Constitution by an amendment.

Chief Justice of India S.H. Kapadia will release a book dealing with this case at a function here on October 18. The senior advocate and former Solicitor- General, T.R. Andhyarujina, has written the book, explaining the culmination of a struggle for supremacy over the power to amend the Constitution between Parliament and the government on the one hand, and the Supreme Court on the other.

Mr. Andhyarujina says: “This book is a gripping story of the conflict and tensions in the Kesavananda Bharati case and its aftermath, which has not been disclosed so far. It is based on the author's recollection and [the] detailed notes maintained by him as counsel in the case, and on later interviews by him with some of the judges in the case.”

The book reveals that prior to the hearing, the government attempted to influence the court by appointing judges who it expected would decide in its favour. It shows the preconceived views of some of the judges on Parliament's power to amend the Constitution, the internal conflicts and factions among the judges, and the charged atmosphere in the court till the delivery of their judgments.

In the words of Mr. Andhyarujina, the battle began when the Supreme Court, in the Golak Nath case in 1967, held that fundamental rights could not be amended by Parliament. Parliament and the government were not reconciled to the ‘view by majority' in the Kesavananda case and were determined to get it overruled. On the day of the judgment (April 24, 1973), the government superseded three senior-most judges, who had decided against the government and appointed Justice A.N. Ray as the next Chief Justice on the retirement of Chief Justice S.M. Sikri. In 1975, with the help of Mr. Ray, the government tried in vain to reverse the majority view in the Kesavananda case by another Bench of 13 judges.

However, during the emergency, the government nullified the Kesavananda case judgment by the 42nd amendment, but this was overruled in the Minerva Mills case in 1980, when Y.V. Chandrachud was the Chief Justice.

Mr. Andhyarujina says the purpose of the book, coming as it does after 38 years of the event, was “an interaction of constitutional law with the politics of the day; the story of the Kesavananda case requires to be widely known.” Though such an exercise is being done in the United States, it has not been done in respect of any leading case in India, hence his attempt.

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Negotiable Instruments Act could be amended : Supreme Court

The Supreme Court has suggested that the Negotiable Instruments Act, 1881, could be amended so that a convict in a cheque bounce case is made to pay a fine from which the complainant can be paid a compensation.

"One other solution is a further amendment to the act so that in all cases where there is a conviction, there should be a consequential levy of fine of an amount sufficient to cover the cheque amount and interest thereon, at a fixed rate of 9 percent per annum, followed by award of such sum as compensation from the fine amount," said the apex court bench of Justice R.V. Raveendran (since retired) and Justice R.M. Lodha in a recent judgment.

Speaking for the bench Justice Raveendran said: "This would lead to uniformity in decisions, avoid multiplicity of proceedings (one for enforcing civil liability and another for enforcing criminal liability) and achieve the object of Chapter XVII of the act, which is to increase the credibility of the instrument."

"This is, however, a matter for the Law Commission of India to consider," the judgment said.

The judges said that the act "strongly leant towards grant of reimbursement of the loss by way of compensation".

"The courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9 percent per annum as the reasonable quantum of loss) and direct payment of such amount as compensation".

The apex court said that the compensation by way of restitution on account of dishonour of the cheque should be "practical and realistic".

"Uniformity and consistency in deciding similar cases by different courts not only increase the credibility of cheque as a negotiable instrument, but also the credibility of courts of justice," the judgment said.

"In same type of cheque dishonour cases, after convicting the accused, if some courts grant compensation and if some other courts do not grant compensation, the inconsistency, though perfectly acceptable in the eye of law, will give rise to certain amount of uncertainty in the minds of litigants about the functioning of courts," the judgment said.

Citizens will not be able to arrange or regulate their affairs in a proper manner, as they will not know whether they should simultaneously file a civil suit or not.

The problem is aggravated since in spite of provisions for concluding such cases within six months from the date of the filing of the complaint, these seldom reach finality before three-four years, the judgment said.

These cases give rise to complications where civil suits have not been filed within three years on account of the pendency of the criminal cases.

"While it is not the duty of criminal courts to ensure that successful complainants get the cheque amount also, it is their duty to have uniformity and consistency, with other courts dealing with similar cases," the judgment underlined.

The court said this while dismissing an appeal challenging the Kerala High Court's verdict that the trial court verdict of imposing fine and awarding compensation could not co-exist.

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