"Workmen" in today's context: Bombay High Court reexamines the law

In a recently delivered decision, the Bombay High Court has defined the meaning of 'workmen' in the context of industrial relations in the modern day context. The call for revival and rethink of the industrial disputes legislation in the country has been in vogue for long ever since the liberalization era redefined the parameters and symbolism associated with the working culture in which the archaic legislation were framed. The High Court in this recent decision has clarified and sought to adopt the meaning of workmen to define the contours of the term in a manner befitting the current era. 

The High Court was dealing with a challenge to the decision of an industrial tribunal which had directed Standard Chartered Bank to reinstate an employee in employment with back wages. It was argued in the High Court that since the said employee could not be considered as a workmen therefore the decision of the Tribunal could not be sustained. It was shown that the said employee had been employed in management cadre wherein the job description included “achieving allocated business targets, ensuring high quality customer service, ensuring external and internal compliance on all branch transactions, handling difficult customer situations and contributing to the overall achievement of business growth”. 

The High Court declared that it was settled law that a well settled principle of law that the burden lies on the person who asserts the status of a workman to establish with reference to the dominant nature of his / her duties that the work which is performed falls within one of the stipulated categories viz. manual, unskilled, skilled, technical, operational, clerical or supervisory. Thereon the High Court declared that a Personal Financial Consultant cannot be regarded as work of a clerical nature. The High Court inter alia declared as under;

On the contrary the work which was assigned to the First Respondent clearly shows that she was intrinsically associated with the provision of a high level of customer service to the customers of the bank. At one level the First Respondent constituted a public interface for the bank with its customers while at another level the First Respondent had to ensure that all the processes and mechanisms of the bank were duly complied with in relation to banking transactions. ... What the Court must have due regard to, however, is the overall nature of the duties and responsibilities that are attached to the job. The duties and responsibilities that were attached to the job of the First Respondent were not of a clerical nature. As an employee engaged in contributing to the business of the bank the First Respondent was recruited to perform duties which cannot be regarded of a clerical nature.

Virtual offices are now a reality and paperless transactions are no longer a novelty. Managerial organisation today is radically different from the preliberalization era. Tests of control which were appropriate to a society thirty years ago have become relics of an era which India has left behind in the annals of history. The law has kept pace with the times by recognizing that in order to determine whether a person is a workman under Section 2(s), contemporary notions of business cannot bestratified by notions of economic organisation developed for an era which is no more.

The fact that in an organizational structure the employee, in the course of the decision making process, is subject to checks and balances is not a matter which would establish that she / he is a workman within the meaning of Section 2(s). Modern forms of business in corporate organizations put into place a carefully crafted process of checks and balances. Rarely, if ever, would an employee have authoritarian control over business decisions. Employees are made subject to checks and balances both at the lateral and vertical level. Managerial decisions are subject to verification and approval. The fact that decisions of an employee are subject to verification or subject to a system of controls and balances does not establish that the employee is a workman within the meaning of Section 2(s). Managers do not become workmen because their decisions are structured by processes and approvals. Absolute autonomy is not the norm in managerial decision making. Nor does the law insist on absolute discretion or absolute autonomy for a person to be a manager. Basically the answer to the question must depend upon the dominant nature of the duties and responsibilities.

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Lack of truth in litigation: Rues the Supreme Court

Noting the woeful misrepresentation of facts made by a party, a recent decision of the Supreme Court emphatically asserts the degeneration which has taken places in the masses in this land of Buddha and Mahavira in as much as truthful conduct is concerned. The Court rued the fact that the citizens have resorted to hide or misstate the truth before the Courts and declared that such parties are not entitled to any relief/sympathy from the Court as under 

1. For many centuries, Indian society cherished two basic values of life i.e., `Satya' (truth) and `Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

2. In Hari Narain v. Badri Das AIR 1963 SC 1558, this Court adverted to the aforesaid rule and revoked the leave granted to the appellant by making the following observations: "It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue and misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterizes as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."

3. In Welcome Hotel and others v. State of Andhra Pradesh and others etc. AIR 1983 SC 1015, the Court held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case.

4. In G. Narayanaswamy Reddy and others v. Governor of Karnataka and another AIR 1991 SC 1726, the Court denied relief to the appellant who had concealed the fact that the award was not made by the Land Acquisition Officer within the time specified in Section 11-A of the Land Acquisition Act because of the stay order passed by the High Court. While dismissing the special leave petition, the Court observed: "Curiously enough, there is no reference in the Special Leave Petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter affidavit. In our view, the said interim orders have a direct bearing on the question raised and the nondisclosure of the same certainly amounts to suppression of material facts. On this ground alone, the Special Leave Petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the Special Leave Petitions."

5. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others JT 1993 (6) SC 331, the Court held that where a preliminary decree was obtained by withholding an important document from the court, the party concerned deserves to be thrown out at any stage of the litigation.

6. In Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC 449, it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under article 226 of the Constitution is duty bound to place all the facts before the court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R v Kensington Income Tax Commissioners (1917) 1 K.B. 486, and observed: "In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."

7. In A.V. Papayya Sastry and others v. Government of A.P. and others, AIR 2007 SC 1546, the Court held that Article 136 does not confer a right of appeal on any party. It confers discretion on this Court to grant leave to appeal in appropriate cases. In other words, the Constitution has not made the Supreme Court a regular Court of Appeal or a Court of Error. This Court only intervenes where justice, equity and good conscience require such intervention.

8. In Sunil Poddar & Ors. v Union Bank of India (2008) 2 SCC 326, the Court held that while exercising discretionary and equitable jurisdiction under Article 136 of the Constitution, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court will non-suit him on the ground of contumacious conduct.

9. In K.D. Sharma v. Steel Authority of India Ltd. And others (2008) 12 SCC 481, the court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the Writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayshree and others v. Bhagwandas S. Patel and others (2009) 3 SCC 141.

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Stamp duty payable on corporate amalgamation: Delhi High Court

In a recently delivered comprehensive decision, the Delhi High Court has declared that a scheme of amalgamation of companies is also an instrument in terms of the Stamps Act and therefore liable for payment of stamp duty. The Court in arriving at this conclusion extensively discussed the nature of amalgamation in terms of its implications on corporate legal personality and also examined the nature of transfer of interest which takes place between the corporate entities upon the amalgamation exercise. The High Court took note of the various decisions of the Supreme Court and High Court on the subject to conclude as under;

The order approving the scheme for amalgamation passed by the Company Court in exercise of jurisdiction under sub-section 2 of Section 394 which have the impact of transferring of all assets and liabilities including the property of the transferor company to the transferee company would be therefore exigible to stamp duty under the Indian Stamp Duty Act.

The Court further declared that;

an approved scheme of amalgamation amounts to a transfer inter-vivos between two companies who were juristic persons in existence at the time of passing of the order and sanctioning of the scheme whereby right, title and interest in the immoveable property of the transferor company are transferred to the transferee company. The transfertakes place in the present and is not postponed to any later date and is covered under the definition of conveyance under sub-section 10 of section 2 of the Stamp Act.

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Woman cannot be prosecuted for crime of rape: Supreme Court

Giving a literal meaning to the offence of 'rape' provided for under Section 375 and 376 of the Indian Penal Code, the Supreme Court has declared that a woman cannot be prosecuted for a crime of rape. The Supreme Court declared as under;

7. A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of subsection (2)(g) provides that "whoever commits `gang rape" shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this subsection (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. "Common intention" is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. "Common intention" denotes action in concert and necessarily postulates a prearranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression "in furtherance of their common intention" as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g).

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No PIL on issues of economic policy: High Court

In an emphatic decision, the Bombay High Court declined to interfere on a public interest litigation declaring that no PIL would lie on the issue of economic policy. The petition had prayed for the following reliefs before the High Court;

(a) the issuance of an appropriate writ directing the Reserve Bank to transfer the amount lying with it in the Market Stabilization Scheme Account to the Consolidated Fund of India; (b) a direction to the Comptroller and Auditor General of India to audit the account of the Reserve Bank especially from the accounting year 2004-05 till 2007-08; (c) a direction to the Comptroller and Auditor General to estimate the profit or loss to the country in view of the depletion in the Currency and Gold Revaluation Account of the Reserve Bank and the interest on the Scheme paid over the years and to file a detailed report before this Court and to the President of India for being laid before both the Houses of Parliament.

In regard to the non-maintainability of PILs on such matters, the High Court declared as under;

13. Having examined the grievance that has been urged in the Petition, we have found no reason to grant the reliefs that have been sought before the Court. Before concluding, however, it would be necessary for this Court to define the parameters for judicial intervention in such cases. The parameters which operate in a case such as the present arise both on account of a recourse to legal proceedings being taken in the form of a public interest petition in the first place and the substantive scope of challenge, in the second place, involving as it does a matter which is in the realm of economic policy. The jurisdiction of the Court, when it is invoked in a petition filed in the public interest is exercised with a view to ensuring that there is no dereliction of constitutional or statutory duties by those who are vested with the discharge of such powers. In entertaining such a petition it would be inappropriate for the Court either to supplant the role and functioning of a constitutional authority or to substitute its judgment for the policy making authority or the discretion of a constitutional functionary. Litigation instituted in the public interest is directed towards ensuring governance in accordance with constitutional and statutory mandate. Public interest litigation cannot provide an avenue for substituted governance nor can the Court, in a democratic set up governed by separation of powers assume to itself the task of governance which the Constitution leaves to elected representatives or to expert bodies who are accountable to the collective wisdom of the legislature. The role of the Court is directed towards ensuring that the process of governance accords with the parameters which are laid down by the Constitution and by governing statutory requirements. Once the Court is satisfied that this has been so, there must be an element of deference particularly in matters involving technical expertise or policy making functions, upon which there is a conferment of power to constitutional or statutory authorities. That leads to the second facet of the matter. The consistent thread which underlies our constitutional jurisprudence is that in matters involving economic policy the Court must recognize that there is a wide area of discretion which rests in the executive. Both in the enunciation and in the implementation of economic policy the issues which arise – complex as they may be – are generally not amenable to the application of judicial standards. The law recognizes that there is a large field open for experimentation and for modification of policy in the light of experiences gained and perhaps from the failures reported. Dealing with economic problems cannot be a matter of scientific exactitude. There are successes achieved and, perhaps, failures despite good faith decisions. These in a democratic society are subject to accountability – accountability of the expert functionaries to Government and accountability of Government to Parliament and the people. Judicial learning over the last six decades which defers to the decisions that the Government may take in matters of economic policy is therefore based on a strong foundation. In approaching this case we have borne in mind both of these facets. It has become necessary for the Court to advert to them if only because there is a growing belief that every ill that plagues society can be brought before the Court in the form of a public interest petition. Moreover, rapidly changing economic circumstances and the complex problems of the day are liable to give rise to the belief that the Courts should intervene. The jurisdiction of the Court is exercised where there is a breach of a constitutional or statutory prescription. Absent such a breach the exercise of administration should be left to where it is intended to belong in a democratic set up based on the separation of powers.

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