Working kids

The Tribune, New Delhi, 23 December 2014

Working kids

The editorial “2014, devastating for children” (December 11) says that children below the age of 14 cannot be employed in hazardous occupations. Does it mean that in non-hazardous occupations, like domestic work, they can be employed? No. The Supreme Court has given directions regarding the manner in which children working in hazardous occupations are to be withdrawn from work and rehabilitated. Hopefully, the conferment of the Nobel Peace Prize on Kailash Satyarthi will sensitise the government and public to improve the lot of children.

Dr Rajender Goyal, Bahadurgarh

The original write-up sent to The Tribune read thus:

Domestic work is hazardous occupation for children below 14 years

The editorial, “2014, devastating for children” (Dec 11) raises a poser that “Children below the age of 14 cannot be employed in hazardous occupations, does that mean in non-hazardous occupations, like domestic work, even a five-year-old can be employed?” The answer is categorical no in view of Government notification effective from 10 October 2006 whereby the Government enlisted children working in the domestic households as well as roadside eateries and motels under the prohibited list of hazardous occupations. Earlier only Government servants were prohibited from employing children as domestic servants.  Moreover, the Supreme Court of India, in the M.C. Mehta vs State of Tamil Nadu case (1990), has given certain directions regarding the manner in which children working in hazardous occupations are to be withdrawn from work and rehabilitated, and the manner in which the working conditions of children working in non-hazardous occupations are to be regulated and improved:-

 1. Employment of children within the match factories directly connected with the manufacturing process upto final production of match sticks or fireworks should not at all be permitted. They can, however, be employed in the process of packing which should be done in an area away from

the place of manufacture to avoid exposure to accident.

2. They should be given at least 60 per cent of the prescribed minimum wage for an adult employee in the factories doing the same job.

3. Under the Factories Act, there is a statutory requirement for providing facilities for recreation and medical attention. The respondent State is directed to enforce these two aspects so that the basic requirements are attended to. Attention may also be given to ensure provision of a basic diet to these children during the working period with a view to ensuring sound physical growth. Facilities for general education as also job oriented education should be made available to them and the school time should be so adjusted that employment is not affected.

4. The State shall take appropriate steps in the matter of creating the welfare fund and finalising the method of contribution and collection thereof by 1st January, 1991 so that the consolidated money would be available for implementing welfare schemes.

5. The State shah also ensure that every employee working in these match factories is compulsorily insured for a sum of Rs.50,000. The premium for the insurance policy should be the liability of the employer to meet as a condition of service.

6. A committee consisting of the District Judge of the area, the District Magistrate of the District, a public activist operating in the area, a representative of the employees and local labour officer to oversee all the direct ions of the Court.

Hopefully, conferment of Nobel Peace Prize- 2014  on Sh. Kailash Satyarthi   will sensitize the government and general public alike to improve the lot of children in true sense.

Dr Rajender Goyal, Advocate

Bahadurgarh

Governor can act independently of/without the aid and advise of elected govt (ie eo nomine) in the matter of appointment etc in Universities

In the matter of  appointment etc in Universities , Governor can act independently of State Government being a Statutory Authority as envisaged in the given University Act as borne out by under noted judgments:-

In State of Gujrat v Justice RA Mehta (2013) the SC held that “under the scheme of our Constitution, the Governor is synonymous with the State Government, and can take an independent decision upon his/her own discretion only when he/she acts as a statutory authority under a particular Act, or under the exception(s), provided in the Constitution itself.

In Hardwari Lal v. G.D. Tapase & Ors., AIR 1982 P & H 439, the powers of the Governor, with respect to the appointment/removal of the Vice-Chancellor of Maharshi Dayanand University, Rohtak under the Maharshi Dayanand University (Amendment) Act, 1980, were considered, wherein a direction was sought with regard to the renewal of the term of the Vice-Chancellor of the said University. Certain promises had been made in connection with the same, while making such appointment. The Court held that, as the Governor was the ex-officio Chancellor of the University, therefore, by virtue of his office, he was not bound to act under the aid and advice of the Council of Ministers.

In Vice-Chancellor, University of Allahabad & Ors. v. Dr. Anand Prakash Mishra & Ors., (1997) 10 SCC 264, the Supreme Court dealt with the power of the Governor of the State of U.P. ex-officio, with respect to all the Universities established under the provisions of the U.P. State Universities Act, 1973 (hereinafter referred to as `the Act 1973). Section 68 of the Act, 1973 empowers the Chancellor to entertain any question, related to the appointment, selection, promotion or termination of any employee in the University.The Supreme Court held that, when the Governor ex-officio, acts as the Chancellor of a University, he acts under Section 68 of the Act, 1973, and discharges statutory duties as mentioned under the Act, 1973

Whether a convicted person can be appointed as Chief Minister or can a person continue to function as Chief Minister after conviction?

- The issue was decided in negative by the Hon'ble SC in the B.R. KAPOOR v STATE OF TAMIL NADU AND ANR. DOJ 21/09/2001 (Ms. J. Jayalalitha Case) 

- The SC held that “ person who is convicted for a criminal offence and sentenced to imprisonment for a period of not less than two years cannot be appointed the Chief Minister of a State under Article 164(1) read with (4) and cannot continue to function as such.

- It may be noted that vide s. 8 (m) of the RPA, 1951 wef 2003 in cases qua the PCA, 1988 –no minimum stipulation of 2 years 

Gubernatorial Office and Change of Government at the Centre

B.P. Singhal vs Union of India & Anr (WRIT PETITION (CIVIL) NO.296 OF 2004) decided on May 7, 2010 by the Constitution Bench of the Supreme Court of India:

(i) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office  at any time without assigning any reason and without giving any opportunity to show cause.

(ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. THE COMPELLING REASONS ARE NOT RESTRICTED TO THOSE ENUMERATED BY THE PETITIONER (THAT IS PHYSICAL/MENTAL DISABILITY, CORRUPTION AND BEHAVIOUR UNBECOMING OF A GOVERNOR) BUT ARE OF A WIDER AMPLITUDE. What would be compelling reasons would depend upon the facts and circumstances of each case.

 (iii) A GOVERNOR CANNOT BE REMOVED ON THE GROUND THAT HE IS OUT OF SYNC WITH THE POLICIES AND IDEOLOGIES OF THE UNION GOVERNMENT OR THE PARTY IN POWER AT THE CENTRE. NOR CAN HE BE REMOVED ON THE GROUND THAT THE UNION GOVERNMENT HAS LOST CONFIDENCE IN HIM. IT FOLLOWS THEREFORE THAT CHANGE IN GOVERNMENT AT CENTRE IS NOT A GROUND FOR REMOVAL OF GOVERNORS HOLDING OFFICE TO MAKE WAY FOR OTHERS FAVOURED BY THE NEW GOVERNMENT.

(iv) As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, malafide, capricious or whimsical, the court will call upon the Union Government to disclose to the court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or malafide, the court will interfere. However, the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient.

NOTE: The Supreme Court directions had come on a petition filed by Uttar Pradesh ex-DGP and the then BJP MP BP Singhal (Rajya Sabha 1998-2004) and brother of Vishwa Hindu Parishad’s Ashok Singhal.  BP Singhal had filed a PIL in 2004 challenging the removal of NDA appointed Governors of Uttar Pradesh, Gujarat, Haryana and Orissa by the new UPA government. It would be interesting to see as to  whether the current regime will repeat the history of UPA or it will accord honour in letter and spirit to said judicial pronouncement of SC that came into being at the instance of an erstwhile BJP Member of Parliament impugning the action of the then UPA-1 Government????

Private School under RTI: CIC Rules

In a major boost to transparency in private schools, the Chief Information has ruled that private schools governed by laws like the Delhi Education Act will also be governed by provisions of the Right To Information Act, 2005. In the significant decision,Ms. Sadhana Dixit Vs. Directorate Of Education, the Central Information Commission (CIC) ruled that private schools cannot deny to provide information on service records and salaries.

The Appellant an ex-employee of Jindal Public School under the Directorate of Education hadfiled an RTI seeking a certified copy of service book, copies of her appointment letter issued by Jindal Public School and staff statements of all the employees. The Directorate of Education provided all the information available with them but the school did not share any of the information asked by the appellant on the grounds that the RTI Act did not apply to a private institution.

The Appellant preferred a second appeal before the Commission after she was unsatisfied with the information provided by the Public Information Officer (PIO) of the Directorate. Information Commissioner Sridhar Acharyulu directed the school to provide her with the information requisitioned under Section 2(f) of the RTI Act and said that the school “has a duty under sections 4 and 8 of the Delhi Education Act 1973, to abide by the regulatory conditions of service, payment of salaries as prescribed, etc for which the school has to maintain the records, which provide an inherent and implied right to information to their employees”

The Commissioner also noted that, “Under Right to Education Act 2009 also, the recognized school is under an obligation to appoint eligible teachers and provide them with prescribed wages. This also reveals that it has given inherent Right to Information to the teachers from their employers.”The Commissioner then directed the school to furnish the information sought by the appellant under the lawto the Directorate of Education who in turn would provide it to the appellant.

This decision by the Information Commission will now ensure transparency in the service records of teachers and other staff among private schools governed by the Delhi Education Act.

(Source: Live Law)

Delhi High Court on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

In an order pronounced on January 16, 2014 in a case titled Swatanter Kumar vs  The Indian Express Ltd. & Ors (I.A. No.723/2014 in CS(OS) No.102/2014), the Delhi High Court vide para 57 opined that  in view of the recent stringent provisions incorporated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which provides for a mechanism of dealing with the cases of sexual harassment, strict view  would have to be applied equally to both the sides, i.e. complainant as well as alleged accused specially in cases where the complaint is filed after the lapse of long period. The Hon’ble Court further lamented that there should be a limitation of time for the purpose of filing of such complaints, otherwise no one would know when the complaint ought to have been filed and decided. Thus, a balanced approach has to be taken, particularly, in these types of matters.

        It is brought out that said Act of 2013 takes care of both the above counts highlighted by the Court. Section 9 thereof, stipulates the time period of three months from the date of incident further extendable up to three more months if the circumstances were such which prevented the woman from filing a complaint within said period. Further, Section 14 thereof provides for punishment for false or malicious complaint and false evidence.

         However, it is noteworthy that whereas the alleged incident occurred in May 2011, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 passed in February 2013 came into force from December 9, 2013. Moreover, notwithstanding its own binding guidelines of the Vishakha case (1997), the Supreme Court did not have a mechanism to receive such complaints in 2011. 

Dr. Rajender Goyal, Advocate, Bahadurgarh

Faux pas lies in the law of the land

 Protagonists of women’ rights  have strongly discountenanced the disclosure of the name of the intern concerned at many places in the operative portion of three-judge Supreme Court Panel Report in the Justice Ashok Ganguly case.  They seem to be highly indignant as to how such a faux pas/ gaffe could have been allowed by the highest court of the land. However, I feel that it is ripe time to put the record straight from the standpoint of the law of the land. The Supreme Court inquiry panel arrived at a conclusion that the statement of the intern, both written and oral, prima facie discloses an act of unwelcome behavior (unwelcome verbal/non-verbal conduct of sexual nature) by Mr. Justice (Retd) A.K. Ganguly with her and that said intern was not an intern on the roll of the Supreme Court and that concerned judge had already demitted office on account of superannuation on the date of incident.

     Hence, it can be culled out that alleged  act of grave impropriety and misdemeanour  i.e.sexual harassment reportedly by Justice Ganguly does not come with in the purview of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and further section 16 whereof prohibits the disclosure of the identity and addresses of not only of  the aggrieved woman but also of  respondent (person against whom aggrieved woman makes a complaint) and contravention of this provision has been made punishable under section 17 thereof.

            Moreover, alleged act attracts section 354A of the Indian Penal Code, 1860 inserted recently by the Criminal Law (Amendment) Act, 2013. It is also brought out that section 228A of the IPC also further amended by the Act of 2013 forbids the disclosure of identity of the victim of offence of rapes in its various degrees as held punishable in various sections 376, 376A, 376B, 376C, 376D, 376E of the IPC.  Further, section 327 of the CrPC mandates that inquiry into and trial of rape cases shall be conducted in camera. Thus, it can be said that law of the land except in the cases of rape and sexual harassment as envisaged by  Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 does not enjoin upon, in other cases of sexual crimes against women, to keep secrecy, more so, in a case where said law intern hereself ventured out to bring to fore her plight in the virtual world that has attracted lot of well-deserved attention in the real world.

However, dithering shown by the Delhi police in registration of FIR in the case inspite of a formal complaint by Ex Dean of Faculty of law of Delhi University squarely goes against the recent constitution bench pronouncement of the Hon’ble Supreme court that mandates   registration of FIR either on the basis of the information furnished by the informant or on any information received other than by way of an informant.

Moreover, it is no gainsaid to emphasize that sexual harassment results into violation of fundamental rights of women to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.

News Report is wrong and shocking

The News Report “Wll invalid unless signed by 2 witnesses & registered : SC”  published in the "TRIBUNE" ,March 30, 2013 purportedly to the effect that Supreme court of India held that any will not signed by two witnesses and un-registered was “only a piece of paper in the eyes of law, having no legal effect” is factually and legally wrong and is the brainchild of serious misquotation of the clear & unambiguous dictum of Hon’ble Supreme Court on the part of legal correspondent.  The question before the Supreme Court was whether the alleged document  was a will or in the nature of transfer of property.  The Court held that “it was neither in the nature of a Will nor in the nature of transfer of the property because the said writing was neither registered as required under the provisions of the Indian Registration Act, 1908 (as it must have been so in case of transfer of immovable property of the value of one hundred rupees and upward, S. 17(1)(b) of the Registration Act, 1908) nor was attested by two witnesses as it should have been done, had it been a Will.”

      It is to be noted that as per section 18 (e) of the said Act the registration of will is optional and Supreme Court of India nowhere throughout the judgment discountenanced it.  The record needs to be put straight by publishing a necessary corrigendum and clarification so that public at large is not misinformed & misled by such erroneous and preposterous news report particularly in the back drop that news report carried in this esteemed daily are taken with utmost earnestness and credibility.

Quota crutches

The Tribune, New Delhi , March 27, 2012

Quota crutches

I endorse DR Chaudhry’s views in the article, “Reservation stir in Haryana” (March 23) that reservation was meant for a period of 10 years, hoping that deprived sections would climb up the social ladder and would no longer be in need of a quota crutch”.

The founding fathers’ vision of reservation policy was like that of the crutches lent to a limbless person until his limbs grow up and he stands on his own legs The time has come at such a pass, paradoxically, where we see that the erstwhile limbless person, now having fully-grown limbs, does not want to let go off the borrowed crutches, and the inherently able-bodied person has also started clamouring for the crutches.

It is time now to gradually phase out reservations. The concept of creamy layer in the SC/ST should be introduced. The income from any other source including salaries should be included while computing annual income.

Other modalities of affirmative action like financial help in the form of various scholarships, fee reimbursements, dedicated training programmes etc should be stressed on.

Some other criteria in addition to caste factor for entitlement to reservation should be put in place.

Dr RAJENDER GOYAL, Delhi

Divine merchants

THE TRIBUNE, NEW DELHI, MAY 10, 2012

Divine merchants

Godmen and religious gurus like Nirmal Baba and Dinakaran Paul being exposed is the proverbial tip of an iceberg. The grim situation has built a strong aversion to self-styled godmen, astrologers, palmists, numerologists, sooth-sayers and other cognate persons and entities working in innumerable forms. These uncouth people perpetrate a very subtle, systemic, insidious design among unsuspecting, credulous, gullible and feeble-minded persons or those who are rapacious and desperate for worldly attainments.

The scourge is deep-seated and widespread. It calls for well-concerted and incessant endeavors from the rationalists. Superstition in any form and style is anathema to human dignity and existence.

Dr RAJENDER GOYAL, Bahadurgarh

RESERVATION EMBROGLIO

                                            THE TRIBUNE, MAY 04, 2012

Jats vs non-Jats

After Haryana was formed in November 1966, for most of the time the Chief Minister of the state is from the Jat community. Intermittently, if there have been non-Jat Chief Ministers, they were either a protégé of some powerful Jat leader of the time or seen hankering after Jat support for political survival. It bears testimony to the political clout of Jats in Haryana. Hence, it sounds quite queasy to hear the shrieks of demand for reservation from within the Jat community.

The common refrain of the protagonists of the Jat reservation is that some other peasantry castes in Haryana are already enjoying benefits of reservation, then why not Jats? Two wrongs do not make a right, they constitute a blunder. The remedy lies in denotifying and dis-entitling any such caste from reaping the fruits of reservation, if after an objective appraisal found that they do not qualify for it.

We must be alive to the hard fact that reservation is a state's charity and it is highly unbecoming of any self-respecting person to live of anybody’s alms unless physically handicapped.

Dr Rajender Goyal, Delhi


PS CAVEAT:- I have been misquoted by News Paper The Tribune in certain material aspects:-

1. I never entitled my write up as “Jats vs non-jats as published. Rather the write up  I had sent was entitled as  “RESERVATION EMBROGLIO”.
2. The words “Unless physically handcapped” in the last line are the  concoction of the News paper in the guise of necessary editing. I had used the expression "Be that as it may be, we must be alive to the hard fact that reservation is a state's charity and it is highly unbecoming of any self-respecting person to live off anybody’s alms unless it is not at all possible to stand on one's own legs due to some insurmountable present or historical reasons".  

                It is crystal clear that expression "due to some insurmountable present or historical reasons" enables the extension of the reservation benefits not only to the physically handicapped persons but also to SC/ST/BC/OBC/Widows/victims of riots and natural calamities etc in genuine cases.


The original write up sent to the Tribune reads as follows:-

                    RESERVATION EMBROGLIO

Apropos the News report “Consensus on no reservation to Jat community”, (April 30, 2012), I would like to add that the Founding Fathers’ vision of reservation policy was like that of the crutches lent to a limbless person until his limbs grow up and he stands on his own legs. The time has come at such a pass, paradoxically, where we see that the erstwhile limbless person, now having fully grown-up limbs, does not want to let go of the borrowed crutches, and the inherently able-bodied person has also started clamouring for the crutches.
The political power is the magnet that attracts all other coveted temporal attributes like money, strength, status, recognition etc. in tow. In the context of jat agitation for reservation, we must know that after the formation of Haryana in November 1966, for most of the time, the Chief Minister of the state is from jat community. Intermittently, if there have been non-jat Chief Ministers, they were either a protégé of some powerful jat leader of the time or seen hankering after jat supports for survival. It bears out the pre-eminent position and stout political clout of jats in Haryana. Hence, it sounds quite queasy to hear the shrieks of demand for reservation from with in the jat community.
               The quota based reservation policy a part of the affirmative action was aimed as a tool of egalitarianism. It now stands catapulted as a prized booty. To grab upon reservation- one has to engage with the state and take casualties. The fumes billowed out of Gujjar agitation in Rajasthan have hardly died down, now jats are up in the arms in Haryana demanding reservation and guess who can be the next? Obviously only those daredevils who can muster up enough strength to block national highways, vandalise the public and private property, jeopardize others’ lives, chase away the police and security personnel, sacrifice precious lives at the altar of reservation cauldron and above the all, enjoy overt or covert political patronage from either side of the fence! The common refrain of the protagonists of the jat reservation is that some other peasantry castes in Haryana already enjoy the benefits of the reservation, then, why jat should not be? It must be brought home to them that two wrongs do not make a right, they constitute a plumb blunder. The remedy lies in denotifying and disentitling any of such castes to reap the fruits of the reservation, if after an objective appraisal, found that they do not qualify for it.
               Be that as it may be, we must be alive to the hard fact that reservation is a state's charity and it is highly unbecoming of any self-respecting person to live off anybody’s alms unless it is not at all possible to stand on one's own legs due to some insurmountable present or historical reasons. We should shun the path of confrontation and violence, and pledge to dedicate ourselves in the mission of nation-building to find our Country in the league of the developed countries in the next two decade.

Dr RAJENDER GOYAL, Visiting Faculty (Law)

CPJ College of Higher Studies and School of Law, Delhi

Stand-off between Private School Owners and Haryana Government over free Education to Students Belonging to Poor Families

There is a stiff stand-off between private schools owners and Haryana Government on the issue of provision of free education to the students belonging to poor families. The controversy hovers around the Rule 134A of Haryana Education Rules, 2003. and hence, it becomes imperative to put it in correct perspective.
Rule 134A added vide notification No. S.O.3/H.A.12/1999/S.24/ 2007 dated: 19-01-2007 sets out that “the recognized private schools shall reserve 25% seats for meritorious poor students. The school shall charge fee from these students at the rate as charged in Government schools. The deficit of difference of fee shall be charged from the other students of the school”. It is noteworthy that the said rule 134A was again amended in the year 2009 vide notification No S.O.24/H.A.12/1999/S.24 (1)/ 2009 dated: 21-02-2009 to the effect that “the recognized private schools shall reserve 25% seats for meritorious poor students. The school shall charge fee from these students at the rate as charged in Government schools”.
Hence, it is unequivocally clear that after the amendment of 2009 in Rule 134, no burden shall shift on the other students (i.e. remaining 75% students) for the recovery of deficit of difference of fee. Moreover, section 12(2) of the RTE Act, 2009 mandates that the private unaided school providing free and compulsory elementary education shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed provided that such reimbursement shall not exceed per-child-expenditure incurred by a government school provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation. Furthermore, under the Act vide section12 (1) (c) private unaided Schools are under an obligation to admit in class I only, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion.
Thus, neither extant Rule 134A of Haryana Education Rule, 2003 as amended in the year 2009 is prejudicial to the interest of the students of well-off family as it does not shift any financial burden on them nor the RTE Act, 2009 obligates the private school to make the provision for 25% quota for admission all across the board other than Class1. However, to keep up the financial health of private unaided school, it will be desirable if Rule 134A is suitably amended so that Government compensate the expanses incurred by said schools in bringing home the objective of Rule 134A.