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Supreme Court has given directions regarding the manner in which children working in hazardous occupations are to be withdrawn from work and rehabilitated.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(1990), has given certain directions regarding the manner in which children working in hazardous occupations are to be withdrawn from work and rehabilitated, and the manner in which the working conditions of children working in non-hazardous occupations are to be regulated and improved:-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