CS SIMRANJEET SINGH CS EXECUTIVE

Lesson 14
Industrial Disputes Act 1947
Introduction

 The Employers and Workmen’s (Disputes) Act, 1880 was the first law dealing with
industrial disputes in India,
 The Trade Disputes Act, 1929, replaced this Act.
 The Industrial Disputes Act, 1947 came in place of the 1929 Act to give more coverage
to the industries disputes in the country.
 The Act came into force on the 01.04.1947.
 The Act extends to the whole of lndia.
 It applies to all industries whether owned by private owners or by the Government

Objectives

Workman of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate, AIR
(1958) SC 353 . The Supreme Court laid down the following principal objectives of the Act:

 Promotion of measures for securing and preserving amity and good relations between the
employer and workmen.
 Investigation and settlement of industrial disputes between employers and employers,
employers and workmen, or workmen and workmen.
 Prevention of illegal strikes and lock-outs.
 Relief to workmen in the matter of lay-off and retrenchment.
 Promotion of collective bargaining.
 Providing machinery or authority for settlement of industrial disputes.
 Relief to workmen in case of transfer and closure of undertaking.
 Improving service conditions of labor.

Workman [Section 2(5)]

Any person (including an apprentice) employed in any industry to do any manual, unskilled,
skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms
of employment is express or implied.

For the purposes of any proceeding under the Act. Workmen includes any such person who has
been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute
or whose dismissal, discharge or retrenchment has led to that dispute.

Workman does not include the following :

 Any person who is subject to the Air Force Act, 1950,0r the Army Act, 1950, or the Navy
Act, 1957.
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 Any person who is employed in the police service or as an officer or other employee of a
prison.
 Any person who is employed mainly in a managerial or administrative capacity.
 Any person who, being employed in a supervisory capacity, draws wages exceeding
10,000 p. m Any person who exercises functions mainly of a managerial nature.

Wages Section 2 (rr)

Wages means all remuneration capable of being expressed in terms of money, which would, if
the terms of employment, expressed or implied, were fulfilled, be payable to a workman in
respect of his employment or of work done in such employment.

Wages includes the following :

 Allowances (including dearness allowance) as the workman is for the time being entitled
to.
 The value of any house accommodation or of supply of light, water, medical attendance
or other amenity or of any service or of any concessional supply of food-grains or other
articles.
 Any travelling concession.
 Any commission payable on the promotion of sales or business or both.

Industry [Section 2(i)]

Industry means any business, trade, undertaking, manufacture or calling of employers and
includes any calling, service, employment, handicraft, or industrial occupation or evocation of
workmen.

Case Laws; Bangalore Water Supply v. A Rajappa (1978) 2 SCC 213 [Triple Test]

A bench of the Supreme Court consisting of seven judges exclusively considered the scope of
industry and laid down that "Where there is

 systematic activity,
 organised by co-operation between employer and employee,
 for the production and/or distribution of goods and services calculated to satisfy human
wants and wishes,
prima facie, there is an "industry" in that enterprise." This is known as the ‘Triple Test’ for
defining an enterprise as industry.

Industrial Dispute [Section 2(k)

Industrial dispute means any dispute or difference between

 employers and employers or

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 employers and workmen, or

 workmen and workmen,

which is connected with the employment or non-employment or the terms of employment or

with the conditions of labour of any person.

The two crucial limitations are

 the dispute must be a real dispute between the parties capable of settlement or
adjudication and
 the person against whom the dispute is raised must be one in whose employment, non-
employment, terms of employment, or conditions of labour, the parties to the dispute
have a direct or substantial interest.

Individual Dispute or Collective Dispute

An industrial dispute may be individual dispute or collective dispute. Any dispute between an
individual worker and the management is an individual dispute.

Where any dispute relates to the overall workers like dispute relating to hours of work, leave,
wages, retrenchment, closure etc., these are collective disputes.

Case Laws : Workmen v. Cotton Greaves Co. Ltd. (1971) An industrial dispute can be raised
for non-workmen.

Industrial Dispute by individual (Section 2A)

Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an
individual Workman, the dispute or difference between that workman and his employer shall be
deemed to be an industrial dispute even when no other workman nor any union of workmen is a
party to the dispute.

Works Committee [Section 3]

 In case of any industrial establishment in which 100 or more workmen are employed or
have been employee; on any day in the preceding 12 months, the appropriate Government
may order the employer to constitute a Works Committee.
 The Committee shall consist of representatives of the employer and workmen engaged in
the establishment.

Duties of the Works Committee:

 To promote measures for securing and preserving amity and good relations between the
employer anq workmen.
 To comment upon matters of their common interest.
 To endeavour to compose any material difference of opinion in respect of any matters.

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Conciliation Officer [Section 4]

 Appropriate government to appoint conciliation officers.

 The conciliation officers shall be charged with the duty of mediating and promoting the
settlement of industrial disputes.
 A conciliation officer may be appointed for a specified area or for specified industries in
a specified area or for one or more specified industries either permanently or for a limited
period.

Powers of Conciliation Officer

 The conciliation officer may enter the premises of any establishment to which the dispute
relates after giving reasonable notice for holding conciliation proceeding.
 The conciliation officer may enforce the attendance of any person for the purpose of
examination of such person
 The conciliation officer may call for and inspect any documents which are relevant to the
industrial dispute or for verifying the implementation of any award or carrying out any
other duty.

Duties of Conciliation Officers

 Where any industrial dispute exists or is apprehended, the conciliation officer may hold
conciliation proceedings to settle the dispute.
 Where the dispute relates to a public utility service and a notice has been given, the
conciliation officer shall hold conciliation proceedings to settle the dispute.
 The conciliation officer shall investigate the dispute and may do all such things as he
thinks ht for the purpose of inducing the parties to come to a fair and amicable
settlement.
 A report shall be submitted within 14 days of the commencement of the conciliation
proceedings or within such shorter period as may be fixed by the appropriate
Government. The time may be extended by such period as may be agreed upon in writing
by all the parties to the dispute.

Duties of Court

 A Court shall inquire into the matters referred to it and report thereon to the appropriate
government ordinarily within a period of six months from the commencement of its
inquiry.
 Every report of a Court together with any minute of dissent shall, within a period of 30
days from the date of its receipt by the appropriate government, be published in such
manner as the appropriate government thinks tit.
 The award so published shall be final and shall not be called in question by any Court.

Power of Labour Courts

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 A member of a Labour Court may, after giving reasonable notice, enter the premises
occupied by any establishment to which the dispute relates for the purpose of inquiry.
 The Court shall have the same powers as are vested in a Civil Court,.
 A Labour Court may appoint one or more persons having special knowledge of the matter
under consideration as assessor to advise it.
 The Labour Court shall have full power to determine by and to whom and to what extent
and subject to what conditions, if any, such costs are to be paid.
 Where an industrial dispute relating to the discharge or dismissal of a workman has been
referred to a Labour Court, and if it is satisfied that the order of discharge or dismissal
was not justihed, it may set aside the order of discharge or dismissal and direct
reinstatement of the workman on such terms and conditions as it thinks tit.
 The Labour Court shall rely only on the materials on record and shall not take any fresh
evidence in relation to the matter.

Reference of Disputes to the Board Court or Tribunals [Section 10]

Where the appropriate government is of opinion that any industrial dispute exists or is
apprehended, it may refer the dispute to different adjudication authorities as under for
adjudication:

 To Board of Conciliation - For settlement of any dispute.

 To a Court for inquiry - Any matter appearing to be connected with the dispute. (c) To
a Labour Court if the dispute relates to any matter specified in the Second Schedule.
 To a Labour Court - Where the dispute relates to any matter specified in the Third
Schedule and is not likely to affect more than 100 workmen.
 To a Tribunal -The dispute or any matter appearing to be connected with the dispute,
whether it relates to any matter specified in the Second Schedule or the Third Schedule.
 To National Tribunal -Where the Central Government is of opinion that any industrial
dispute involves any question of national importance or is of such a nature that industrial
establishments situated in more than one State are likely to be affected, the Central
Government may, whether or not it is the appropriate Government in relation to that
dispute, at any time refer the dispute.

THE SECOND SCHEDULE

Matters within the Jurisdiction of Labour Courts

1. The propriety or legality of an order passed by an employer under the standing orders; 2. The
application and interpretation of standing orders;

3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen
wrongfully dismissed;

4. Withdrawal of any customary concession or privilege;

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5. illegality or otherwise of a strike or locklout; and

6All matters other than those specified in the Third Schedule.

THE THIRD SCHEDULE

Matters within the Jurisdiction of Industrial Tribunals

1. Wages, including the period and mode of payment;

2. Compensatory and other allowances;
3. Hours of‘ work and rest intervals;
4. Leave With wages and holidays;
5. Bonus, profit sharing, provident fund and gratuity;
6. Shift working otherwise than in accordance with standing orders;
7. Classification by grades;
8. Rules of discipline;
9. Rationalisation;
10. Retrenchment of workmen and closure of establishment; and
11. Any other matter that may be prescribed.

Voluntarily Reference of Disputes to Arbitration [Section 10A]

 Where any industrial dispute exists or is apprehended and the employer and the workmen
agree to refer the dispute to arbitration, they may, at any time before the dispute has been
referred to a Labour Court or Tribunal or National Tribunal, by a written agreement refer
the dispute to arbitration.

 The reference shall be as per the arbitration agreement.

Award

 As per Section 2(b), award means an interim or a final determination of any industrial
dispute or of any question relating thereto by any Labour Court, industrial Tribunal or
National Industrial Tribunal. It includes an arbitration award. The report of a Board or
Court shall be in writing and shall be signed by all the members of the Board or Court
 The award of a Labour Court or Tribunal or National Tribunal shall be in writing and
shall be signed by its presiding officer. ‘
 Every report of a Board or Court together with any minute of dissent, every arbitration
award and every award of a Labour Court, Tribunal or National Tribunal shall, within 30
days from the date of its receipt by the appropriate Government, be published in such
manner as the appropriate Government thinks fit.
 The award published shall be final and shall not be called in question by any Court.

Settlement [Section 2(p)]

 Settlement means a settlement arrived at in the course of conciliation proceeding.

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 It includes a written agreement between the employer and workmen arrived at otherwise
than in the course of conciliation proceeding.
 The agreement has to be signed by the parties.
 A Copy the agreement has to be sent to an officer authorised in this behalf by the
appropriate Government and to the conciliation officer.

Period of operation of Settlement Section 19

 Such settlement shall be binding for such period as is agreed upon by the parties.

 If no such period is agreed upon, it shall be binding for a period of six months from the
date on which the memorandum of settlement is signed by the parties to the dispute.

Change in Conditions of Service

No change without notice section 9A

 An employer, who proposes to effect any change in the conditions of service in respect of
any matter specified in the Fourth Schedule, shall not effect such change without giving
to the workmen a notice of the nature of the change proposed.
 Such change shall not be effective within 21 days of giving such notice.

No notice shall be required under the following circumstances as provided in section 9A

 Where the change is effected in pursuance of any settlement or award.

 Where the workmen are persons to whom the Fundamental and Supplementary Rules,
Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary
Service) Rules, Revised Leave Rules. Civil Service Regulations, Civilians in Defence
Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment
apply. '
No Action against Protected Workmen

 No employer shall, during the pendency of any proceeding in respect of an industrial

dispute, take any action against any protected workman concerned in dispute by altering
the service conditions applicable to him immediately before the commencement of such
proceedings.

 No employer shall discharge or punish, whether by dismissal or otherwise, such protected

workman.

Unfair Labour Practice [Section 25T]

 No employer or workman or a trade union shall commit any unfair labour practice.
 Any person who commits any unfair labour practice shall be punishable with
imprisonment up to six months or with fine up to 1000 or with both.

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Strikes [Section 2(q)]

Strike means cessation of work by a body of persons employed in any industry acting in
combination, or a concerted refusal, or a refusal under a common understanding of any number
of persons who are so employed to continue to work or to accept employment.

Prohibition of Strikes Section 23

No workman shall go on strike in breach of contract under the following situations:

 During the pendency of conciliation proceedings before a Board and within 7 days after
the conclusion of such proceedings.
 During the pendency of proceedings before a Labour Court, Tribunal or National
Tribunal and two months after the conclusion of such proceedings.
 During the pendency of arbitration proceedings before an arbitrator and two months after
the conclusion of such proceedings.
 During any period in which a settlement or award is in operation, in respect of any of the
matters covered by the settlement or award.

Illegal Strikes Section 24

 A strike is legal if it does not violate any provision of the statute.

 A strike shall be illegal if it is in contravention of section 22 or section 23.
 Strike is also illegal if it is continued in contravention of an order made under section
10(3) or section 10A(4A).
 Where a strike is in existence at the time of reference of the dispute to a Board,
Arbitrator, Labour Court, Tribunal or National Tribunal, the continuance of such strike
shall not be deemed to be illegal if such strike was not in contravention of the provisions
of the Act or not prohibited under section 10(3) or section 10A(4A) at commencement.
 A strike declared in consequence of an illegal lock-out shall not be deemed to be illegal.

Dismissal of Workman for illegal Strike

 lf workers participate in illegal strike. the employer can dismiss them.

 Before, dismissal proper inquiry should be held and the worker be given an opportunity
to represent his case.

Wages for the Strike Period

 The workmen shall be entitled to wages for the period of strike, where it is found that the
strike is neither illegal nor unjustified.
 A strike is legal if it does not violate any provision of the law.

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 And a strike cannot be said to be unjustified unless the reasons for it are entirely perverse
or unreasonable.

In this connection, it is pertinent to note that in the case of Bank of indie Vs T.S. Kelawala and
Dre. the Supreme Court had observed that the workmen are not entitled to wages for the strike
period. irrespective of whether the strike is legal or illegal. However, a larger bench of the
Supreme Court had earlier upheld the claim for wages for the strike period, where the strike was
held to be neither illegal nor unjustified. And. where there are two pronouncements of the
Supreme Court, suggesting or indicating contrary views, the ruling of the decision rendered by
the larger Bench should be adopted.

Strikes in Public Sector Undertaking Section 22

The Act prohibits strike in public utility service

 Without giving notice of strike to the employer six weeks before striking; or
 Within fourteen days of giving such notice ; or
 Before the expiry of the date of strike specified in any such notice
 During the pendency of any conciliation proceedings and 7 days after the conclusion of
such proceedings.
 If an employer receives any such notice he shall within five days report to the appropriate
Government

Lock-out [Section 2(l)]

Lock-out means the following:

 Temporary closing of a place of employment or the suspension of work, or the refusal by

an employer to continue to employ any employee.
 Termination of the service of the workman due to non-renewal of the contract of
employment on its expiry or the contract being terminated in terms of the contract.
 Termination of the service of a workman on the ground of continued ill health.
 Lock out is opposite to and an antithesis of strike.

Prohibition of Lock-out Section 23

No employer shall declare a lock-out

 During the pendency of conciliation proceedings before a Board and 7 days after the
conclusion of Such proceedings;
 During the pendency of proceedings before a Labour Court. Tribunal or National
Tribunal and two months. after the conclusion of such proceedings;
 During the pendency of arbitration proceedings before an arbitrator and two months after
the conclusion of such proceedings; or

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 During any period in which a settlement or award is in operation, in respect of any of the
matters covered by the settlement or award.

Illegal Lockout [Section 24)

 Lock-out shall be illegal if it is commenced or declared in contravention of section 22 or

section 23 or it is continued in contravention of an order made under section 10(3) or
section 10A(4A).
 A lock-out declared in consequence of an illegal strike shall not be deemed to be illegal.

Lay -Off

As defined in Section 2(kkk), lay-off with its grammatical variations and cognate expressions
means the failure, refusal or inability of an employer on account of shortage of coal, power or
raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity
or for any other reason to give employment to a workman whose name is borne on the muster
rolls of his industrial establishment.

Compensation to workmen laid-off Section 25C

 Whenever a workman (other than a badli workman or a casual workman) whose name is
borne on the muster rolls and has completed one year of continuous service is laid-off, he
shall be paid for all days during which he is so laid-off except for weekly holidays.
 The compensation shall be equal to 50% of the total of basic wages and dearness
allowance.
 If during any period of twelve months, a workman is laid-off for more than 45 days, no
such compensation shall be payable in excess of the first 45 days if there is an agreement
between the workman and the employer.

Non-entitlement of Compsensation for laid off Section 25E

 No compensation shall be paid to a workman if he refuses to accept any alternative

employment in the same establishment, or in any other establishment belonging to the
same employer situate in the same town or village or situate within a radius of five miles
from the establishment to which he belongs,
 Such alternative employment should not require any special skill or previous experience
and can be done by the workman.
 The wages should be that normally have been paid to the workman.
 If he does not present himself for work at the appointed time during normal working
hours at least once a day no compensation shall be paid.
 If such laying-off is due to a strike or slowing-down of production on the part of
workmen in another part of the establishment, no compensation shall also be paid.

Prohibition of lay-off Section 25M

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 Where the workman of a mine has been laid off, the employer shall, within a period of 30
days from the date of commencement of such lay-off, apply to the appropriate
Government for permission to continue the lay-off.

Retrenchment

As defined in Section 2(oo), retrenchment means the termination of the service of a workman by
the employer for any reason whatsoever otherwise than as a punishment inflicted by way of
disciplinary action.

Exception Retrenchment does not include the following :

 Voluntary retirement of the workman.
 Retirement of the workman on reaching the, age of superannuation.
 Termination of the service of the workman as a result of the non-renewal of the contract
of employment.
 Termination of the service of a workman on the ground of continued ill health.
 Retrenchment may be for surplus age, redundancy due to advanced machinery, slowdown
in business. Reason does not matter.

Retrenchment Compensation Section 25F

A workman who has been in continuous service for not less than one year under an employer
shall not be retrenched by the employer under the following circumstances :

 Until the workman has been given one month's notice in writing indicating the reasons
for retrenchment or the workman has been paid wages in lieu of such notice.
 Until the workman has been paid compensation equivalent to 15 days' average pay for
every completed year of continuous service or any part thereof in excess of six months.
 Until notice is served on the appropriate Government.

Notice of Retrenchment Section 25N

In case of an industrial establishment (not being a seasonal establishment or in which work is

performed only intermittently) in which not less than 100 workmen were employed on an
average per working day for the preceding 12 months no workman employed in any such
establishment, who has been in continuous service ,for not less than one year under an employer
shall be retrenched by that employer until the workman has been given three months' notice in
writing indicating the reasons for retrenchment and the period of notice has expired or the
workman has been paid in lieu of such notice, wages for the period of the notice.

Re-employment of retrenched workmen Section 25H

 Where any workman is retrenched and the employer proposes to employ any persons, he
shall give an opportunity to the retrenched workmen who are citizens of india for re-
employment.

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 Such retrenched workmen who offer themselves for re-employment shall have preference
over other persons.

Closure of Undertaking

 As defined in Section 2(cc) ‘closure’ means the permanent closing down of a place of
employment or part thereof.
 Section 25FFA of the Act provides that an employer who intends to close down an
undertaking shall serve a notice on the appropriate Government stating clearly the
reasons for the closure at least 60 days before the date of the intended closure.

Compensation in case of Closure Section 25FFF

 Where an undertaking is closed, every workman who has been in continuous service for
not less than one year in that undertaking immediately before such closure shall be
entitled to notice and compensation as if the workman had been retrenched.
 Where the undertaking is closed down on account of unavoidable circumstances beyond
the control of the employer, the compensation shall not exceed average pay for 3
months.

Penalties

An employer shall be liable to the following penalties for offences under the Act:

 Lay-off without previous permission " [Section 25Q] Imprisonment for a term up to
one month or with fine up to 1000, or with both.

 Retrenchment without previous permission [Section 25Q] Imprisonment for a term up

to one month or with fine up to 1000, or with both.

 Closure without permission [Section 25R] Imprisonment for a term up to six months or
with fine up to 5000 or with both.

 Closure if not permitted by authority -[Section 25R] Imprisonment up to one year, or

with fine up to 5000, or with both. In case of continuing offence, further fine up to 2000
for every day during which the contravention continues.

 Committing unfair labour practices [Section 25U] Imprisonment up to six months or

with fine up to IOOO or with both.

 Illegal strikes and lock-outs [Section 26] Imprisonment up to one month, or with fine
up to 50, or with both.

 Furtherance of illegal lock-outs [Section 26] Imprisonment up to one month, or with up

to 1000, or with both.

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 Instigating strike etc. [Section 27] Imprisonment up to six months, or with up to 1000,
or with both.

 Giving financial aid to illegal strikes and lock-outs [Section 28] Imprisonment up to
six months, or with fine up to 1000, or with both.

 Committing breach of settlement or award [Section 29] Imprisonment up to six

months, or with tine, or with both, and in case of continuing one, further tine up to 200
for every day during which the breach continues.

 Disclosing confidential information [Section 30] Imprisonment up to six months, or

with fine up to 1 000, or with both. '

 Closure without notice [Section 30A] Imprisonment up to six months, or with fine up to
5000, or with both.

 Other offences -[Section 31] Any employer who contravenes the provisions for
changing conditions of service, etc. during pendency of proceedings, shall be punishable
with imprisonment up to six months, or with fine up to 1000, or with both. Where no
penalty is provided by the Act for any contravention fine up to 100.

 Offence by companies, etc [Section 32] Where company commits an offence, every
director, manager, secretary, or other officer or person concerned with the management
thereof shall, unless he proves that the offence was committed without his knowledge or
consent, be deemed to be guilty of such offence.

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1.A workman who has been in 4.For lay-off without previous

continuous service for not less than permission, penalty is
one year under an employer shall imprisonment for a term up to one
not be retrenched by the employer month or with fine up to ......... ..., or
until the workman has been paid with both.
compensation equivalent to .............
average pay for every completed (a) Rs. 500
(b) Rs.1000
year of continuous service or any
(c) Rs.5000
part thereof in excess of …… (d) Rs.10000
(a) 7 days, 30 days
(b) 15 days, 2 months
5.For retrenchment without
(c) 15 days, 3 months previous permission, penalty is
(d) 15 days, 6 months imprisonment for a term up to one
2.In case of an industrial month or with fine up to. Rs...........
establishment (not being a seasonal or with both.
establishment or in which work is (a) Rs.500
(b) Rs.1000
performed only intermittently) in (c) Rs.5000
which not less than ............. (cl) Rs.10000
workmen were employed on an 6.For closure without permission,
average per working day for the penalty is imprisonment for a term
preceding 12‘ months no workman up to six months or with fine up
employed in any such to......... Or with both.
establishment, shall be retrenched (a) Rs.500
until the workman has been given (b) Rs. (1000
............. notice in writing. (c) Rs.35000
(a) 10, 15 days' (c!) Rs. :10000
(b) 20, 30 days' 7.Prior intimation to the
(c) 100, three months'
(d) 250, three months'
appropriate Govt to lay off,
3.An employer who intends to close retrench or close down an
down an undertaking shall serve a establishment is required
notice on the appropriate under the Industrial Disputes
Government stating clearly the Act, 1947 where there are
reasons for the closure at least ............ workers
............ before the date of the (a) 100
intended closure. (b) 1000
(a) 30 days ' (c) 50
(b) 45 days (d) 500
(c) 60 days 8.As per the provisions contained in
(d) 80 days Chapter VB of the Industrial
Dispute Act, 1947 establishment
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employing ................ persons or 13.Which of the following statement

more are required to seek prior is true about the Constitutional
permission of Appropriate validity of section 10 of the
Government before effecting lay- industrial Dispute Act, 1 947?
off, retrenchment and closure. (a) it is ultra-vitae the Constitution
(a) 50 (b) It is intra-vires the Constitution
(b) 100 (c) Both (a) 8. (b)
(c) 250 (d) None of the above
(d) 500 14.............Means the temporary
9...............have been set up under closing of a place of employment or
the provisions of Industrial Dispute suspension of work or the refusal
Act, 1947 for adjudication of by an employer to continue to
industrial disputes in an employ any number of persons
organisation. employed by him.
(a) Lok-Adalat (a) Lay-off
(b) Industrial Tribunal (b) Retrenchment
(c) Labour Court (c) Closure
(d) All of the above (d) Ail of the above
10.Forming of a' Works Committee 15...............Means the termination
under the industrial Disputes Act, is by the employer of the services of a
mandatory where the number of workman for any reason
employees is................... whatsoever otherwise than as a
(a) 1000 punishment inflicted by way of
(b) 100 disciplinary action.
(c) 500 (a) Lay-off
(d) 250 (b) Retrenchment
11.Lay off compensation is to be (c) Closure
paid .......... of average wages. (d) All of the above
(a) 15 days 16.An ‘arbitrator' under the
(b) 50% Industrial Disputes Act, 1947
(c) 60%
(d) 75 %
includes an ................
(a) lndividual
12.Award means an interim or a
final determination of any (b) Partnership
industrial dispute determined (6) Corporate entity
by...... . ' (d) None of the above
17.Which of the following is
(a) Labour Court considered an ‘industry’ under the
(b) Arbitrator Industrial Disputes Act, 1947?
(c) Both (a) & (b) (a) Posts and Telegraph Department
(d) None of the above (b) Central institute of Fisheries

Page 15
CS SIMRANJEET SINGH
(c) Construction and maintenance of
National and State highways
(d) Dock Labour Board. (CS EP June 2012)
18.Which of the following type of
strike is not called a primary
strike?
(a) Stay in strike
(b) Tool down strike
(c) Pen down strike
(d) Go slow. (08 EP June 2013)
19.Under section 2(oo) of the
industrial Disputes Act, 1947
termination of the services of a
workman by the employer for (any
reason whatsoever, otherwise than
as a punishment inflicted by way of
disciplinary action, but not
including voluntary retirement; or
superannuation; or non renewal of
contract of employment; or
termination of service on the
ground of continued ill-health is
known as –
(a) Settlement
(b) Retirement
(c) Suspension
(d) Retrenchment (CS EP Dec. 2014)
20.The preamble of the industrial
Disputes Act, 1947 states that it is
an Act to make provision for the
and of industrial disputes and for
certain other purposes.
(a) Investigation; settlement
(b) Inquiry; arbitration
(c) Investigation; safety
(d) Inquiry; welfare. (CS EP Dec. 2014)
21.Under section 3 of the industrial
Disputes Act, 1947 the appropriate
Government may be general or
special order require the employer
to constitute in the prescribed
CS EXECUTIVE
manner in industrial
establishments, where or more
workmen are employed or have
been employed on any working day
in the preceding 12 months and
such Committee will be comprised
of the representatives of employers
and workmen engaged in the
establishment.
(a) AnAppropriate Committee; 300
(b) An Employer’s Committee; 200
(c) A Works Committee; 100
(d) A GovernmentCommittee; 500. (CS EP
Dec. 2014)
22.Under of the industrial Disputes
Act, 1947 unfair labour practices on
the part of_ employers and trade
unions of employers are specified in
~
(a) Second schedule
(b) Third schedule
(c) Fourth schedule
(d) Fifth schedule (CS EP Dec. 2014)
23.The Supreme Court carried out
an indepth study of the definition of
the term ‘industry' in a
comprehensive manner and laid
down the tests to determine
whether an activity is covered by
the definition of 'lndustry’ or not.
Also referred to u the triple test, it
was laid down in the can of
(a) Workman oi Dimakuchi Tea Estate v
Dimakuchi Tea Estate.
(b) Hospital Employees Union v. Christian
Medical College.
(c) Bangalore Water Supply and Sewerage
Board v. A Raiappa
(d) Corporation of City of Nagpur v.
Employee. (CS EP Dec. 2014)
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CS SIMRANJEET SINGH
24.Under the industrial Disputes
Act, 1947 which of the following
matter does not fail within the
jurisdiction of industrial Tribunals-
(a) Classification by grades
(b) Rationalisation
(c) Leave with wages and holidays
(d) illegality or otherwise of a strike or lock-
out. (CS EP Dec. 2014)
25.As per section 22 of the
industrial Disputes Act, 1947 no
person employed in a public utility
service shall go on strike in breach
of contract without giving to the
employer a notice of strike, within
before striking or within fourteen
days of giving such notice.
(a) Three weeks
(b) Six weeks
(c) Eight weeks
(d) Five weeks. (CS EP Dec. 2014)
26.Under the industrial Disputes
Act. 1947 which of the following
matter does not fall within the
jurisdiction of Labour Courts
(a) Hours of work and rest intervals
(b) The application and interpretation of
standing orders
(c) Withdrawal of any customary concession
or privilege
(d) The propriety or legality of an order
passed by an employer under standing
orders. (CS EP Dec. 2014)
27………..means any dispute
between employers and workmen,
or between workmen and workmen,
or between employers and
employers, which is connected with
the employment or no employment,
or the terms of employment or the
conditions of labour, of any person,
and 'workmen’ means all persons
CS EXECUTIVE
employed in trade or industry
whether or not in the employment
of the employer with whom the
trade dispute arises as defined
under the
(a) Trade dispute; Industrial Disputes Act,
1947
(b) Industrial dispute; Industrial Disputes
Act, 1947
(c) Trade dispute; Trade Union Act, 1926
(d) Company dispute; Companies Act, 1956.
(CS EP Dec. 2014)
28.Under the Industrial Disputes
Act, 1947 means the temporary
closing of a place of employment or
suspension of work or the refusal
by to continue to employ any
number of persons so employed.
(a)Lay-off; an employer
(b) Lock out; an employer
(c) Strike; Government
(d) Retrenchment; an employer. _(cs EP
Dec. 2014)
29.Which of the following person is
not included in the definition of
‘workman’ under the industrial
Disputes Act, 1947 --‘
(a) Who is employed in a supervisory
capacity drawing more than € 6,500 but less
than ? 7,500 per month as wages '
(b) Who is employed in a supervisory
capacity drawing more than 2' 1,600 but less
than 2‘ _ 6,500 per month as wages
(c) Who is employed in a supervisory
capacity drawing more than ? 10,000 per
month as wages
(d) Who is employed in a supervisory
capacity drawing less than 1,600 per month
as wages (CS EP June 2015)
30.Which of the following is
included in the definition of
‘Wages’ under the Industrial
Disputes Act, 1947 -
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CS SIMRANJEET SINGH
(a) Any bonus
(b) Any traveling concession
(c) Any gratuity payable on the termination
of the service
(d) Any commission payable on the
promotion of sales or business or both (cs
EP June 2015)
31.Any industrial dispute or any
matter appearing to be connected
with, or relevant to the dispute
specified in the Second Schedule of
the Industrial Disputes Act, 1947
the appropriate Government, by
order in writing may make a
reference for adjudication to -
(a) Labour Court
(b) Court of Inquiry
(c) Industrial Tribunal
(d) National Tribunal (CS EP June 2015)
32.In terms of section 25N of the
Industrial Disputes Act, 1947 a
workman employed in any
industrial establishment shall be
retrenched by the employer by
giving notice in writing indicating
the reasons for retrenchment.
(a) One month
(b) Three months
(c) Fifteen days
(d) Twenty-one clays (CS EP June 2015)
33.In the case of Workman of
Dimakuchi Tea Estate v.
Dimakuchi Tea Estate, which of the
following objectives of the
industrial Disputes Act, 1947 are
not laid down by the Supreme
Court -
(a) Promotion of measures of securing and
preserving amity and good relations between
the employer and workmen
CS EXECUTIVE
(b) Investigation and settlement of industrial
disputes between employers and employees
(c) Promotion of collective bargaining
(d) Promotion of lay-off and lock-outs (CS
EP June 2015)
34.Under the Industrial Disputes
Act, 1947 which of the following
matter does not fall within the
jurisdiction of Labour Courts --
(a) Hours of work and rest intervals
(b) The application and interpretation of
standing orders
(0) Withdrawal of any customary concession
or privilege
(d) The propriety or legality of an other
Passed by an employer under standing order.
(CS EP June 2015)
35.Under the Industrial Disputes
Aet, 1947 failure, refusal or
inability of an employer to give
employment, to a‘ workman whose
name appears on the muster-rolls of
his industrial establishment and
who has not been retrenched due to
break-down of machinery is defined
as –
(a) Lay-off
(b) Look out
(c) Retrenchment
(d) Termination (CS EP June 2015)
36.The principal objects of the
Industrial Disputes Act, 1947 as
analysed by the Supreme Court of
India in Workmen of Dimakuchi
Tea Estate v. Dimakuchi Tea Estate
are:
(1) The promotion of measures for
securing and preserving amity and good
relations between the employer and
workmen
(2) The prevention of illegal strikes and
lockcuts
Page 18
CS SIMRANJEET SINGH
(3) The prevention of collective
bargaining
Which of the above islare incorrect -
(a) Only (1)
(b) Only (2)
(c) Only (3)
(d) Only (1) and (2) (03 EP Dec. 2015)
37.Triple Test’ and ‘Dominant
Nature Test’ for determination of
industry were propounded by the ~
(a) Government of India
(b) Parliament of lndia
(c) Supreme Court of India
(d) All of the above (CS EP Dec. 2015)
38.The order making a reference
under section 10(1) of the Industrial
Disputes Act, 1947 is ~
(a) An administrative act
(b) Ajudicial act
(c) A quasi~judicial act
(d) All of the above (CS EP Dec. 2015)
39.The Supreme Court of India
taking note of various previous
judicial decisions and exhaustively
considering the scope of ‘industry’
evolved a new concept of the term
‘industry’ in 1978 in the following
case --
(a) State of Bombay v. Bombay Hospital
Mazdoor Sabha
(b) Bangalore Water Supply and Sewerage
Board v. A. Rajappa
(c) D. N. Banerji v. P. R. Mukherji
(d) University of Delhi v Ram Nath (CS EP
Dec. 2015)
40.Under section 7B of the
Industrial Disputes Act, 1947 one or
more “National Tribunals’ may be
constituted for adjudication of
industrial disputes which are of
such nature that industrial
establishments situated in more
CS EXECUTIVE
than one states are likely to be
interested in, or affected by, such
disputes. National Tribunal may be
constituted by
(a) Central Government
(b) Affected parties
(c) Appropriate government
(d) All of the above. (CS EP Dec. 2015)
41.In which of the following cases a
Division Bench of the Supreme
Court held that whether the strike
is legal or illegal, the employees are
not entitled for wages for the period
of strike
(a) Management of Churakulam Tea Estate
(P) Ltd. v. The Workmen
(b) Bank of India v. T.S. Kelawala
(c) Cromption Greaves Ltd. v. lts Workmen.
(d) All of the above. (CS EP Dec. 2015)
42.The legality of a strike is
determined
(a) With reference to the legal provisions
enumerated in the lndustrial Disputes Act,
1947
(b) With reference to the purpose for which
the strike was declared
(c) On the basis of its justification, i.e.,
fairness and reasonableness of demands
made by workmen declaring strike
(d) None of the above. (CS EP Dec. 2015)
43.According to the Industrial
Disputes Act, 1947, no workman or
employer or trade union shall
commit any ‘unfair labour
practice’. Any person who commits
any ‘unfair labour practice’ shall be
punishable with imprisonment and
fine as per provisions of
(a) Section 25T
(b) Section 25U
(c) Section 26(1)
(d) Section 26(2) (CS EP Dec. 2015)
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CS SIMRANJEET SINGH
44.'Malis' looking after the garden
attached to the bungalows provided
by the employer to its officers and
directors are workmen even though
their work Is not directly concerned
with the main work or operation of
the industry. This was held by the
Supreme Court of India in the case
of
(a) Piparaich Sugar Mills Ltd. v. Pipraich
Sugar Mills Mazdoor Union
(b) J. K. Cotton Spinning and Weaving
Mills Co. Ltd. v. L. A..T.
(c) Both (A) and (B) above
(d) Neither (A) nor (B). (CS EP Dec. 2015)
45.Under the industrial Disputes
Act, 1947 the factors which may
constitute the ground for ‘iay-off’ is
refusal or inability to give
employment due to following
reasons :
(1) Shortage of coal, power, raw,
materials
(2) Breakdown of machinery
(3) Financial stringency
Which of the above is incorrect
(a) Only (1)
(b) Only (2)
(6) Only (3)
(d) None of the above (CS EP Dec. 2015)
46.Which one of the following is
true in relation to courts of inquiry
under section 6 of the ‘industrial
Disputes Act, 1947?
(a) The court of inquiry is constituted by the
State Government by notification in the
official gazette .
(b) The court always consists of five
independent persons and out of them one
person is appointed as Chairman
CS EXECUTIVE
(c) The court enjoys power to consider and
decide any matter under the provisions of
this Act
(d) The period within which the report is to
be submitted is not mandatory and the report
may be submitted even beyond the period of
six months without affecting the legality of
the inquiry. (CS EP June 2016)
47.Under the provisions of the
Industrial Disputes Act, 1947,
which of the following is not a valid
reason for an employer to declare
lay-off -?
(a) Break-down of machinery
(b) Financial stringency
(c) Accumulation of stocks
(d) Shortage of raw materials. (CS EP June
2016)
48.In the case of Workmen of
Dimakuchi Tea Estate v.
Dimakuchi Tea Estate (1958), the
Supreme Court laid down the
following objectives of the
Industrial Disputes Act, 1947:
(i) Promotion of measures for securing
and preserving amity and good relations
between the employer and workmen
(ii) Investigation and settlement of
industries
(iii) Prevention of collective bargaining
(iv) Relief to workmen in the matters of
layoff and retrenchment
Select the incorrect answer from the
option given below --
(a) and (ii)
(b) (ii) and (iii)
(c) (iii) and (iv)
(d) (iv) and (i) (cs EP June 2016)
49.Which one of the following
activities would fall under
‘industry’ under the industrial
Disputes Act, 1942?
Page 20
CS SIMRANJEET SINGH
(a) Welfare activities or economic
adventures undertaken by government or
statutory bodies
(b) A charitable institution that makes no
profit but hires the services of employees as
in any other business but the goods and
services which are the output, are made
available at a low or no cost to the indigent
poor
(c) Physical Research Laboratory,
Ahmedabad. Carrying on research not for
the benefit of others and not engaged in
commercial activity
(d) Posts and Telegraphs Departments. (CS
EP June 2016)
50.Under the provisions of the
industrial Disputes Act, 1947 no
workman who is employed in any
industrial establishment shall go on
strike in breach of contract and no
employer of any such workman
shall declare a lock-out during the
pendency of ~
(a) Conciliation proceedings before a Board
and two months after the conclusion of such
proceedings (b) Proceeding before a Labour
Court and two months after the conclusion
of such Proceedings
(c) Proceeding before a Tribunal or
National Tribunal and two months after the
conclusion of such proceedings
(d) Arbitration proceedings before an
arbitrator and seven days after the
conclusion of such proceedings. (CS EP
June 2016)
51.The second schedule appended
to the Industrial Disputes Act, 1947
relates to matters within the
jurisdiction of the Labour Court.
Which one of the following matters
is not covered in the said schedule -
(a) The illegality or otherwise of a strike or
lockout
CS EXECUTIVE
(b) Discharge or dismissal of workmen
(c) The application and interpretation of
standing orders
(d) Leave with wages and holidays. (CS EP
June 2016)
52.The term ‘award’ is defined in
the Industrial Disputes Act, 1947 as
-
(a) An interim determination of any
industrial dispute by any Labour Court.
Industrial Tribunal or National Industrial
Tribunal
(b) A final determination of any industrial
dispute by any Labour Court, Industrial
Tribunal or National Industrial Tribunal
(c) An interim or a final determination of
any industrial dispute by any Labour Court,
Industrial Tribunal or National Industrial
Tribunal
(d) An interim or a final determination of
any industrial dispute by any Labour court,
Industrial Tribunal and not National
Industrial Tribunal (CS EP June 2016)
53.‘Retrenchment’ under the
Industrial Disputes Act, 1947
includes --
(a) Voluntary retirement of the workman
(b) Retirement of the workman reaching the
age of superannuation as per the contract of
employment
(c) Termination by the employer of the
service of a workman as a punishment
inflicted by way of disciplinary action
(d) Termination by the employer of the
service of a workman for any other reason.
(CS EP June 2016)
1. D
2. C
3. C
4. D
5. B
6. C
7. C
8. B
9. C
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CS SIMRANJEET SINGH CS EXECUTIVE

10. B
11. B
12. B
13. B
14. A
15. B
16. A
17. D
18. D
19. D
20. A
21. C
22. D
23. C
24. D
25. B
26. A
27. B
28. B
29. C
30. B
31. A
32. B
33. D
34. A
35. A
36. D
37. C
38. A
39. B
40. A
41. B
42. A
43. B
44. B
45. C
46. C
47. B
48. D
49. D
50. B
51. D
52. C
53. C

Page 22
CS SIMRANJEET SINGH CS EXECUTIVE

Page 23
CS SIMRANJEET SINGH CS EXECUTIVE

Lesson 15
Trade Union Act 1926
objectives

 Trade unions are essential for safeguarding the rights of labourers when there is a
struggle between the labourers and the management.
 In order to regulate the trade union movement in India, the Trade Unions Act, 1926 was
enacted on the recommendation of the Royal Commission of Labour.
 The Act came into force on 01.06.1927.

The following are the main objects of the trade unions:

 To secure fair wages for workers and improve their opportunities for promotion and
training. To safeguard security of tenure and improve their conditions of service.
 To improve working and living conditions of workers.
 To provide educational, cultural and recreational facilities.
 To facilitate technological advancement by broadening the understanding of the workers.
 To help them in improving levels of production, productivity, discipline and high
standard of living.
 To promote individual and collective welfare and thus correlate the workers‘ interests
with that of their industry.

Scope and Coverage

 The Act extends to the whole of India.

 Its main objective is to provide for the registration of trade unions and to define law
relating to registered trade unions.
 In order that the union may fight for its legitimate rights fearlessly, certain immunities
from criminal and civil actions are granted to the members of a registered trade union to
ensure a healthy trade union movement in India.

Trade Union [Section 2(h)]

 Trade union means any combination, whether temporary or permanent, formed primarily
for the purpose of regulating the relations between workmen and employers or between
workmen and workmen, or between employers and employers, or for imposing restrictive
conditions on the conduct of any trade or business.
 It includes any federation of two or more Trade Unions.
 Employees only engaged in business are eligible to form union.

Minimum requirement about Membership of a Trade Union

Page 24
CS SIMRANJEET SINGH CS EXECUTIVE

A registered Trade Union of Workmen shall at all times continue to have not less than 10% or
100 of the workmen whichever is less subject to a minimum of seven engaged or employed in an
establishment or industry with which it is connected as its members. [Sec9A]

Who can be a member?

Any person who has attained the age of 15 years, is eligible to be a member of a registered trade
union, subject to the rules of the union. [Sec -21]

Registration of Trade Union [Section 4]

 At least seven members of a Trade Union may, apply to the Registrar of Trade Unions for
registration of the Trade Union
 No Trade Union shall be registered unless at least 10% or 100 of the workmen,
whichever is less, engaged or employed in the establishment or industry with which it is
connected are the members of such Trade Union on the date of making of application.
 At least 7 persons should be workmen engaged or employed in the establishment or
industry on the date of application.

The application shall not become invalid even if after the date of the application but before the
registration, half of the total applicants have ceased to be members of the Trade Union or have
given notice in writing to the Registrar dissociating themselves from the applications.

Cancellation of Registration Section 10

 A certificate of registration of a Trade Union may be withdrawn or cancelled by the

Registrar on the application of the Trade Union.
 The registration may be withdrawn or cancelled if the Registrar is satisfied that the
certificate has been obtained by fraud or mistake, or that the Trade Union has ceased to
exist or has wilfully contravened any provision of the Act or allowed any rule to continue
in force which is inconsistent with any such provision.
 The registration may be withdrawn or cancelled if the Registrar is satisfied that a
registered Trade Union ceases to have the requisite number of members.
 Not less than two months' previous notice in writing specifying the ground is required.

Legal Status of a Registered Trade Union

 A registered trade union is a body corporate with perpetual succession and a common
seal.
 it can acquire, hold, sell or transfer any movable or immovable property and can be a
party to contracts.
 A registered trade union can sue and be sued, in its own name. [Sec -13]
 No civil suit or legal proceeding can be initiated against a registered trade union in
respect of any act done in furtherance of a trade dispute under certain conditions. [Sec -
18]

Page 25
CS SIMRANJEET SINGH CS EXECUTIVE

 No agreement between the members of a registered trade union shall be void or voidable
merely on the ground that any of its objects is in restraint of trade. [Sec -19]

Offences and Penalties

Offence Penalty
(1) if the registered trade union/its office- Fine upto 5 plus additional fine upto 5 per
bearers or members fail to give any notice or week in case of continuing offence. (Maximum
send any statement as required under the fine imposable 50)
Act[Sec -31(1)].
(2) if any person willfully makes any false Fine upto 500
entry in the annual statement of the union or its
rules. [Sec 31 (2)]
(3) if any person, with intent to deceive, gives Fine upto 200.
an incorrect copy of rules of the union to any
member or a prospective member. [Sec -32]

Dissolution of Trade Union [Section 27]

When a registered Trade Union is dissolved, notice of the dissolution signed by 7 members and
by the Secretary of the Trade Union shall, within 14 days of the dissolution, be sent to the
Registrar, for dissolution of the Trade Union.

Page 26
CS SIMRANJEET SINGH
1.In order to regulate the trade
union movement in India, the
Trade Unions Act, 1926 was
enacted on the recommendation of
the .......................
(a) British Parliament
(b) Royal Commission of Labour
(c) Labour Commissioner
(d) None of the above
2.The Trade Unions Act, 1926 came
into force on...............
(a) 01.04.1926
(b) 01.07.1926
(0) 01.04.1927
(d) 01.06.1927
3.‘Trade Union is defined in ............
of the Trade Unions Act, 1926.
(a) Section 2(e)
(b) Section 2(h)
(c) Section 2(k)
(d) Section 2(h)
4.Trade union means any
combination formed primarily for
the purpose of regulating the
relations between . ...............
(a) Workmen and employers
(b) Workmen and workmen
(c) Employers and employers
(d) Any of the above
5.The following islare the main
object(s) of the trade unions:
(a) To secure fair wages for workers and
improve their opportunities for promotion
and training
(b) To improve working and living
conditions of workers
(6) To provide educational. cultural and
recreational facilities
(d) All of the above
6.Minimum number of person
required to apply for registration of
a trade union is.........
CS EXECUTIVE
(a) 3
(b) 7
(c) 10
(d) 30
7.At least applicants for registration
of trade union should be workmen
engaged or employed in the
establishment or industry on the
date of application.
(a) 3
(b) 7
(c) 10
(d) 30
8.No Trade Union shall be
registered unless at least ....... of the
workmen, whichever is less,
engaged or employed in the
establishment or industry with
which it is connected are the
members of such Trade Union on
the date of making of application.
(a) 10% or 100
(b) 10% or 250
(c) 20% or 100
(d) 20% or 500
9.The following Act(s) shall not
apply to any registered Trade
Union.
(i) The Societies Registration Act, 1860
(ii) The Co-operative Societies Act, 191-2
(iii) The Companies Act, 1956 ,
(iv) The Code of Civil Procedure, 1860
(a) (i) & (ii)
(b) (ii) & (iv)
(c) (iii) & (iv)
(d) (i). (ii). (iii) & (iv)
10.The application for registration
of Trade Union shall not become
invalid even if after the date of the
application but before the
registration, ............. of the total
applicants have ceased to be
Page 27
CS SIMRANJEET SINGH CS EXECUTIVE

members of the Trade Union or (a) Maintenance of list of the members of

have given notice in writing to the the Trade Union
(b) Admission of ordinary members
Registrar dissociating themselves
(c) Both (a) and (b) '
from the applications. (d) None of (a) and (b)
(a) one tenth
15................ Manages the trade
(b) one fifth
(c) half union
(d) None of the above. (a) Executive body
(b) Office Bearers
11.Where a Trade Union has been (c) Secretary
in existence for more than........ (d) Company
Before the making of an application 16.Office-bearer in the case of a
for registration, a general statement Trade Union includes any member
of the assets and liabilities of the of the executive committee. But
Trade Union shall be given with the does not include
application. (a) Vice Chairman
(a) three month (b) Treasurer
(b) six month (c) Auditor
(c) one year (d) None of the above
(d) two year 17. Trade dispute means any
12.The registration may be dispute ………
withdrawn or cancelled if the (a) between employers and workmen
Registrar is satisfied that a (b) between workmen and workmen
registered Trade Union ceases to (c) between employers and employers
have the requisite number of (d) any of the above
members. Not less than .......... 18.An amalgamation of two or
previous notice in writing more registered Trade Unions shall
specifying the ground is required. not prejudice any right of any of
(a) two months such Trade Unions or any right of a
(b) three months creditor of any of them.
(c) 15 days (a) True
(d) 7 days (b) False
13.The rules of the Trade Union (c) Partly true
shall provide the following (d) None of the above
matter(s): 19.Audited receipts and
(a) Name of the Trade Union expenditure statement for the year
(b) Objects of the Trade Union and the assets and liabilities as on
(c) Purposes for which the general funds of ............ of every registered Trade
the Trade Union shall be applicable Union shall be sent annually to the
(d) All of the above
Registrar.
14.The rules of the Trade Union (a) 31st March
shall provide the following (b) 30th June
matter(s): (c) 30th September
Page 28
CS SIMRANJEET SINGH
(d) 31st December
20.Any registered Trade Union
may, with the consent of not less
than ............. of the total number of
its members change its name.
(a) One-third
(b) two-thirds
(c) three-fourth
(d) one-tenth
21.A copy of every alteration made
in the rules of a registered Trade
Union shall be sent to the Registrar
within................. of the making of
the alteration. '
(a) 7 days
(b) 10 days
(c) 15 days
(d) 30 days
22.A person shall be disqualified as
a member of the executive or any
other office-bearer of a registered
Trade Union if he has not attained
the age of..
(a) 14 years. ‘
(b) 15 years.
(c) 18 years;
(d) 21 years
23.Not less than ...... of the total
number of the office bearers of
every registered Trade Union shall
be persons actually engaged or
employed in an industry with which
the Trade Union is connected.
(a) One-half
(b) One-third
(c) Two-thirds
(d) One-tenth
24.As per the Trade Unions Act,
1926 a registered trade union of
workmen shall at all times continue
to have not less than ‘or of the
workmen, whichever is less subject
CS EXECUTIVE
to a minimum of seven, engaged or
employed in an establishment or
industry with which it is connected,
as its members.
(a) 7%; 70
(b) 10%; 100
(c) 10%; 120 .
(d) 15%; 100. (CS EP Dec. 2014)
25.As per section 27 of the Trade
Unions Act, 1926 when a registered
trade union is dissolved, notice of
the dissolution signed by seven
members and by the of the trade
union shall be sent to the Registrar,
within of the dissolution.
(a) Manager; one month
(b) Director; twenty-one days
(c) Managing Director; twenty-one clear
days
(d) Secretary; fourteen days. ' (CS EP Dec.
2014)
26.The body, by whatever name
called, to which the management of
the affairs of a trade union is
entrusted is defined as --
(a) Body corporate under the Trade Union
Act, 1926
(b) Agent under the Trade Union Act. 1926
(c) Office-bearer under the Trade Union
Act, 1926 (d) Executive under the Trade
Union Act, 1926 (CS EP June 2015)
27.Which of the following body
registers a Trade Union --
(a) Controller of Trade Union
(b) Registrar of Trade Union
(c) Registrar of Societies
(d) Controller of Societies (CS EP June
2015)
28.Under the trade union Act 1926
a registered trade union shall be a
body corporate by the name under
which it is registered and it:
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CS SIMRANJEET SINGH
(1) Shall have imperpetual succession
(2) Shall have a common seal with power
to acquire and hold the property
(3) Shall have power to contract.
Which of the above is incorrect -
(a) Only (1)
(b) Only (2)
(6) Only (3)
(d) None of the above (CS EP Dec. 2015)
29.According to section 2(9) of the
Trade Unions Act, 1926, trade
dispute means any dispute between:
(1) Employer and workmen
(2) Workmen and workmen
(3) Employer and public servant
Which of the above islare correct
(a) Only (1) and (2)
(b) Only (2) and (3)
(c) Only (1) and (3)
(d) All of the above (CS EP Dec. 2015)
30.As per section 5 of the Trade
Unions Act, 1926, where a trade
union has been in existence for
more than one year before the
making of an application for its
registration, which of the 'following
shall be delivered to the Registrar,
together with the application ----
(a) A general statement of the assets and
liabilities of the trade union
(b) A general statement of the income and
expenditure of the trade union
(c) A general statement of the profit and loss
of the trade union
(cl) A general statement of the balance sheet
of the trade union. (CS EP Dec. 2015)
31.The provision relating to mode
of registration of trade union is
given in
(a) Section 3 of the Trade Unions Act, 1926
(b) Section 4 of the Trade Unions Act, 1926
(c) Section 6 of the Trade Unions Act, 1926
(d) Section 7 of the Trade Unions Act, 1926.
(CS EP Dec. 2015)
CS EXECUTIVE
32.Which one of the following
statements is correct under the
Trade Unions Act, 1926 -
(a) A certificate of registration is not a
conclusive evidence that the trade union has
been duly registered under the Act .
(b) A certificate of registration of a trade
union may be cancelled by the Registrar if
he is satisfied that the certificate has been
obtained by fraud
(c) Any fifteen or more members of a trade
union may apply for registration of the trade
union
(d) The Act does not protect a trade union
from civil or criminal liability. (CS EP June
2016)
33.Consider the following
statements under the provisions of
the ‘Trade Unions Act, 1926: -
(i) A federation of two or more trade
unions is not deemed to be a trade union
(ii) Trade unions are the most suitable
organisations for balancing and
improving relations between the
employers
(iii) Every registered trade union is a
body corporate but not having perpetual
succession
(iv) A registered trade union has power to
acquire and hold movable and immovable
properties.
Select the incorrect answer from the
options given below –
(a) (i), (ii) and (iii)
(b) (ii), (iii) and (iv)
© (iii) (iv)and (i)
(d) (iv) (i) and (ii) (CS EP June 2016)
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CS SIMRANJEET SINGH CS EXECUTIVE

1. B
2. D
3. B
4. D
5. D
6. B
7. B
8. A
9. D
10. C
11. C
12. A
13. D
14. C
15. A
16. C
17. D
18. A
19. D
20. B
21. C
22. C
23. A
24. B
25. D
26. D
27. B
28. D
29. A
30. A
31. B
32. B
33. A

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CS SIMRANJEET SINGH CS EXECUTIVE

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CS SIMRANJEET SINGH CS EXECUTIVE

Lesson 16
The Labour Laws (Exemption from Furnishing Returns
and Maintaining Register by Certain Establishments) Act
1988
Introduction

 The Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by
certain Establishments) Amendment Act, 2014 passed by the Rajya Sabha on November
26, 2014; the Lok Sabha on November 28, 2014 and received the assent of the President
on the 9th December, 2014 amended the Labour Laws (Exemption from Furnishing
Returns and Maintaining Registers by certain Establishments) Act, 1988.

 The Amendment Act now includes 7 more Labour Acts under the purview of the
Principal Act. Also, the coverage of Principal Act has been expanded from the
establishments employing upto 19 workers to 40 workers. The Amendment Act also
gives an option to maintain the registers electronically and to file the returns
electronically which leads to ease of compliance as well as better enforcement of the
labour laws.

Objectives

 From time to time a number of labour laws have been enacted for regulating employment
and conditions of service of workers.
 Whenever a new law was enacted, it prescribed certain registers to be maintained by the
employers and also for furnishing various returns by the employers to the authorities.
 The Labour Laws (Exemption from Furnishing Returns and Maintaining Register by
Certain Establishments) Act, 1988 was enacted exempting from maintaining registers and
filing returns by some establishments.
 Act also provides for the simplification of procedure for furnishing returns and
maintaining registers in relation to establishments employing a small number of persons
under certain labour laws.
 The Act came into force on 27.09.1988.

Scope and Coverage

 The Act extends to the whole of India.

 The Act was enacted to provide exemption to certain establishments given in the
Schedule to the Act (Scheduled Act) employing a small number of persons from
furnishing returns and maintaining registers under some labour laws.

Definitions

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CS SIMRANJEET SINGH CS EXECUTIVE

Scheduled Act

The following acts are specified in the Schedule:

 The Payment of Wages Act, 1936

 The Weekly Holidays Act, 1942
 The Minimum Wages Act, 1948
 The Factories Act, 1948
 The Plantations Labour Act, 1951
 The Working Journalists and other Newspaper Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955
 The Motor Transport Workers Act, 1961
 The Payment of Bonus Act, 1965
 The Beedi and Cigar Workers (Conditions of Employment) Act, 1966
 The Contract Labour (Regulation and Abolition) Act, 1970
 The Sales Promotion Employees (Conditions of Service) Act, 1976
 The Equal Remuneration Act, 1976
 The Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979
 The Dock Workers (Safety, Health and Welfare) Act, 1986
 The Child Labour (Prohibition and Regulation) Act, 1986
 The Building and Other Construction Workers (Regulation of Employment and
Conditions of Service) Act, 1996

Small Establishment Section 2 (e)

Small establishment means an establishment in which not less than 10 and not more than 40
persons are employed or were employed on any day of the preceding twelve months

Very Small Establishment Section 2(f)

Very small establishment means an establishment in which not more than 9 persons are
employed or were employed on any day of the preceding twelve months.

Compliances

The employer has to comply with the following:

 Section 4(1) of the Act provides that it shall not be necessary for an employer in relation
to any small establishment or very small establishment to which a Scheduled Act applies,
to furnish the returns or to maintain the registers required to be furnished or maintained
under that Scheduled Act.
 It may be noted that such employer furnishes, in lieu of such returns, annual return in
Form I; and
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CS SIMRANJEET SINGH CS EXECUTIVE

 maintains at the work spot, in lieu of such registers,— (i) registers in Form II and Form
III, in the case of small establishments, and
 a register in Form III, in the case of very small establishments,
 Every such employer shall continue to issue wage slips in the Form prescribed in the
Minimum Wages (Central) Rules, 1950 made under sections 18 and 30 of the Minimum
Wages Act, 1948 and
 slips relating to measurement of the amount of work done by piece-rated workers
required to be issued under the Payment of Wages (Mines) Rules, 1956 made under
sections 13A and 26 of the Payment of Wages Act, 1936; and
 file returns relating to accidents under sections 88 and 88A of the Factories Act, 1948 and
sections 32A and 32B of the Plantations Labour Act, 1951.
 Furnishing or maintaining of returns and registers in electronic

Penalty

Any employer who fails to comply with the provisions of the Act shall be punishable-

 in the Case of the first conviction, with fine up to ? 5 000; and

 in the case of any second or subsequent conviction with imprisonment not less than one
month but which may extend to six months or with fine not less than ?10,000 and may
extend to 25,000 or with both.

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CS SIMRANJEET SINGH
1.The Labour Laws (Exemption
from Furnishing Returns and
Maintaining Register by Certain
Establishments) Act, 1988 came
into force on.............
(a) 01.04.1988
(b) 01.07.1988
(c) 27.09.1988
(d) 27.12.1988
2.The Labour Laws (Exemption
from Furnishing Returns and
Maintaining Register by Certain
Establishments) Act, 1988 was
enacted exempting from ..............
(a) maintaining registers
(b) filing returns by some establishments
(c) maintaining registers and filing returns
by some establishments
(d) maintaining registers and filing returns
by all establishments
3.The Labour Laws (Exemption
from Furnishing Returns and
Maintaining Register by Certain
Establishments) Act, 1988 was
enacted to provide . exemption to
establishments given in the .........
(a) Industrial Disputes Act
(b) Factories Ac‘t
(c)‘ Both (a) and (b)
(d) Schedule to the Act
4.Under the Labour Laws
(Exemption from Furnishing
Returns and Maintaining Register
by Certain Establishments) Act,
1988, establishment is defined
in.................
(a) Section 2(b)
(b) Section 2(C)
(C) Section 2(I)
(d) Section 4
5.The following Act(s) islare
specified in the Schedule to the
CS EXECUTIVE
Labour Laws (Exemption from
Furnishing Returns and
Maintaining Register by Certain
Establishments) Act, 1988:
(a) The Payment of Wages Act, 1936
(b) The Weekly Holidays Act, 1942
(c) The Minimum Wages Act, 1948
(d) All of the above
6The following Act(s) islare
specified in the Schedule to the
Labour Laws (Exemption from
Furnishing Returns and
Maintaining Register by Certain
Establishments) Act, 1988:
(a) The Factories Act, 1948
(b) The Plantations Labour Act. 1951
(c) The Working Journalists and other
Newspaper employees (conditions of
service) and Miscellaneous Provisions Act,
1955
(d) All of the above
7.The following Act(s) islare
specified in the Schedule to the
Labour Laws (Exemption from
Furnishing Returns and
Maintaining Register by Certain
Establishments) Act, 1988:
(a) The Contract Labour (Regulation and
Abolition) Act, 1970
(b) The Sales Promotion Employees
(Conditions of Service) Act, 1976
(c) The Equal Remuneration Act, 1976
(d) All of the above
8.A very small establishment under
the Labour Laws (Exemption from
Furnishing Returns and
Maintaining Register by Certain
Establishments) Act, 1988 means an
establishment in which not more
than ……….
Page 36
CS SIMRANJEET SINGH
(a) 9 persons are employed or were
employed on any day of the preceding
twelve months.
(b) 10 persons are employed or were
employed on any day of the preceding
twelve months.
(c) 50 persons are mployed or were
employed on any day of the preceding
twelve months.
(d) 100 persons are employed or were
employed on any day of the preceding
twelve months
9.Small establishment under the
Labour Laws (Exemption from
Furnishing Returns and
Maintaining Register by Certain
Establishments) Act, 1988 means an
establishment in which........... are
employed or were employed on any
day of the preceding twelve months.
(a) not less than 10 and not more than 19
(b) not less than 9 and not more than 20
(c) not less than 10 and not more than 20
(d) none of the above
10.A small establishment exempted
under the Labour Laws (Exemption
from Furnishing Returns and
Maintaining Register by Certain
Establishments) Act, 1988 for
maintenance of register shall
maintain.....................
(a) three registers
(b) four registers
(0) seven registers
(d) None of the above
11.Under the Labour Laws
(Exemption from Furnishing
Returns and Maintaining Register
by Certain Establishments) Act,
1988 small establishments shall
maintain register(s) in................
CS EXECUTIVE
(a) Form B
(b) Form C
(c) FormD
(d) All of the above
12.Under the Labour Laws
(Exemption from Furnishing
Returns and Maintaining Register
by Certain Establishments) Act,
1988 very small establishments
shall maintain register(s)
in..................
(a) Form A
(b) Form D
(c) Form E
(d) Both (b) & (c)
13.As per the Labour Laws
(Exemption from Furnishing
Returns and Maintaining Registers
by Certain Establishments) Act,
1988, an employer of any small
establishment or very small
establishment required to furnishes
a Core Return in ..............
(a) Form A
(b) Form F
(C) Form K
(d) Form M'
14.Any employer who fails to
comply with the provisions of the
Act shall be punishable in the case
of the first conviction, with fine
Which may extend to . ......... .
(a) RS.500
(b) RS. 1,000
(c) RS.5, 000
(d) RS. 10,000
15.The Labour Laws (Exemption
from Furnishing Returns and
Maintaining Register by Certain
Establishments) Act, 1988 was
enacted that provides exemption to
Page 37
CS SIMRANJEET SINGH
certain establishments employing a
small number of persons from
furnishing returns and maintaining
registers under some labour laws.
(a) True
(b) False
(c) Partly true
(d) None of the above
16.In terms of the Labour Laws
(Exemption from Furnishing
Returns and Maintaining Registers
by Certain Establishments) Act,
'1988 ‘small establishment’ means
an establishment in which not less
than and not more nineteen persons
are employed or were employed on
any day of the preceding twelve
months and ‘very small
establishment’ means an
establishment in which not more
than persons are employed or were
employed on any day of the
preceding twelve months’.
(a) Ten; fifteen
(b) Ten; twenty
(c) Ten; nine
(d) Twenty; nine. (CS EP Dec. 2014)
17.As per the Labour Laws
(Exemption from Furnishing
Returns and Maintaining Registers
by Certain Establishments) Act,
1988 employer of very small
establishment is required to furnish
a core return in -
(a) Form A
(b) Form B
(c) Form C
(d) Form D (CS EP Dec. 2014)
18.Which establishment is defined
as ‘small establishment’ under the
CS EXECUTIVE
Labour Laws Exemption from
Furnishing Returns and
Maintaining Registers by certain
Establishments) Act, 1988 -
(a) The establishment in which not less than
9 and not more than 20 persons are
employed or were employed on any day in
preceding 12 months
(b) The establishment in which not less than
10 and not more than 19 persons are
employed
or were employed on any in preceding 12
months
(c) The establishment in which not more
than 9 persons are employed or were
employed on any day in preceding 12
months
(cl) The establishment IN which not more
than 10 persons are employed or were
employed on any day in preceding 12
months (cs EP June 2015)
19. Which of the following Act is
not 3 Scheduled Act as specified in
the First Schedule to the Labour
Laws (Exemption from Furnishing
Returns and Maintaining Registers
by Certain ‘ Establishments) Act,
1988 ‘
(a) The Payment of Wages Act, 1936
(b) The Weekly Holidays Act. 1942 ‘
(C) The Minimum Wages Act, 1948
(d) The Employees’ State insurance Act
1948. (CS EP June 2015)
20 Which of the following is a
‘Scheduled Act’ as per First
Schedule of the Labour Laws
(Exemption from Furnishing
Returns and Maintaining Registers
by Certain Establishments) Act,
1988 ”
(a) The Trade Unions Act, 1926
(b) The Payment of Bonus Act. 1965
(c) The Minimum Wages Act 1948
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CS SIMRANJEET SINGH CS EXECUTIVE

(d) The Maternity Benefit Act 1961. ‘ (CS

EP Dec 2015)
21. The Labour Laws (Exemption
from Furnishing Returns and
Maintaining Registers by Certain
Establishments) Act, 1988-'
(a) Provides for the exemption of employees
employed In small establishments.
(b) Is applicable to establishments in which
not less than fifteen and not more than
twenty . persons are employed
(c) Provides for the exemption of employers
of small establishments in‘relation to their
tax liability
(d) Is applicable to establishments in which
not less than ten and not more than nineteen
persons are employed. (CS EP June 2016)

1 c
2 c
3 d
4 a
5 d
6 d
7 d
8 a
9 a
10 a
11 d
12 d
13 a
14 c
15 a
16 c
17 a
18 b
19 d
20 c
21 d

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CS SIMRANJEET SINGH CS EXECUTIVE

Lesson 17
Employment Exchange (Compulsory Notification of
Vacancies) Act 1959
Objectives

 The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was

enacted to provide for compulsory notification of vacancies to the Employment
Exchanges and for the rendition of returns relating to employment situation by the
employers. '
 The act came into force on 01.05.1960.

Scope and Coverage

The Act extends to whole of India.

It applies to all establishments in the public sector and to establishments in the private sector
engaged in non-agricultural activities employing 25 or more workers.

Unskilled office work [Section 2(i)]

Unskilled office work means work done in an establishment by any of the following categories
of employees:

 Daftri.
 Jemadar, orderly and peon.
 Dusting man or farash.
 Bundle or record lifter.
 Process server.
 Watchman.
 Sweeper.
 Any other employee which the Central Government may declare to be unskilled office
work.

Establishment in Public Sector [Section 2(f)]

 Establishment in public sector means an establishment owned, controlled or managed by

 the Government or a department of the Government;
 a Government company
 a corporation (including a co-operative society) established by or under a Central or State
Act, which is owned, controlled or managed by the Government;
 a local authority.

Establishment in Private Sector [Section 2(9)]

Page 40
CS SIMRANJEET SINGH CS EXECUTIVE

Establishment in private sector means an establishment which is not an establishment in public

sector and where ordinarily 25 or more persons are employed to work for remuneration.

Act not apply to in certain vacancies

The Act shall no apply in8 relation to the following vacancies:

 In any employment in agriculture (including horticulture) in any establishment in private

sector other than employment as agricultural or farm machinery operatives. ‘
 In any employment in domestic service.
 Inany employment the total duration of which is less than 3 months.
 In any employment to do unskilled office work.
 In any employment connected with the staff of Parliament.
 In case of promotion or absorption of surplus staff.
 Any employee carrying remuneration of less than t 60 per month.

Unless the Central Government otherwise directs by notification in the Official Gazette, the Act
shah not also apply in relation to the following:

 Vacancies which are proposed to be filled through promotion or by absorption of surplus

staff of any branch or department of the same establishment or on the result of any
examination conducted or interview held by, or on the recommendation of any
independent agency, such as the Union or a State Public Service Commission.
 Vacancies in an employment which carries a remuneration of less than 60 in a month.

Notification [Section 4]

 The employer in every establishment in public sector shall, before filling up any vacancy
in any employment, notify the vacancy to the employment exchanges.
 The appropriate Government may, by notification in the Official Gazette, require that the
employer it every establishment in private sector shall, before filling up any vacancy in
any employment, notify the vacancy to the employment exchanges and the employer
shall comply with such requisition.
 There is, however, no obligation to recruit any person through the employment
exchanges.

Rights of access to records and documents [Section 6]

 Any authorized officer shall have access to any relevant record or document in the
possession of any employer required to furnish any information or returns.
 He may enter at any reasonable time any premises where he believes such record or
document to be kept
 He may also inspect or take copies of relevant records or documents or ask any question
necessary for obtaining any information.

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CS SIMRANJEET SINGH CS EXECUTIVE

Power to Make Rules

The Central Government for carrying out the purposes of the Act framed the Employment
Exchanges (Compulsory Notification of Vacancies) Rules, 1960, which came into force w. e. f.
1.5.1960.

Penalties

lf any employer fails to notify to the employment exchanges, he shall be punishable for the first
offence with hne up to t 500 and for every subsequent offence, with fine up to 111,000.

If any person required to furnish any information or return

 refuses or neglects to furnish such information or return, or

 furnishes any information or return which he knows to be false, or
 refuses to answer, or gives a false answer to any question; or
 impedes the right of access to relevant records or documents, he shall be punishable for
the first offence with fine upto a 250 and for every subsequent offence with fine up to
500.

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CS SIMRANJEET SINGH CS EXECUTIVE

1.The Employment Exchanges (b) Watchman

(Compulsory Notification of (c) Sweeper
(d) All of the above
Vacancies) Act, 1959 came into
force on................ 6.Employment exchange is defined
(a) 01.01.1959 in.........Of the Employment
(b) 01.01.1960 Exchanges (Compulsory
(c) 01.05.1960 Notification of Vacancies) Act,
(d) 01.04.1959 1959.
2.The Employment Exchanges (a) Section 2(d) ' '
(Compulsory Notification of (b) Section 20)
Vacancies) Act, 1959 does not apply (c) Section 2(m)
(d) Section 2(r)
to employees belonging to
(a) Clerks 7.As per the Employment
(b) Supervisors Exchanges (Compulsory
(c) Watchman Notification of Vacancies) Act, 1959
(d) Accountants establishment in private sector
3.Unskilled Office Work is defined means , an establishment which is
under ......... of the Employment not an establishment in public
Exchanges (Compulsory sector and where ordinarily ............
Notification of Vacancies) Act, persons are employed to work for
1959. remuneration.
(a) Section 2(d) (a) 10 or more
(b) Section 2(i) (b) 25 or more
(c) Section 2(m) (c) 50 or more
(d) Section 2(r) (d) None of the above
4.Under the Employment 3 8.The Employment Exchanges
Exchanges ‘(Compulsory (Compulsory Notification of
Notification of Vacancies) Act, 1959 Vacancies) Act, 1959 shall not
unskilled office work means work apply. To vacancies in any
done in an establishment by ............. employment the total duration of
(a) Delhi which is less than............
(b) Jamadar orderly and peon i (a) 1month
(c) Dusting man (b) 3 months
(d) All of the above (c) 6 months
(d) None of the above
5.Under the’ Employment 9.The Employment Exchanges
Exchanges (Compulsory (Compulsory Notification of
Notification of Vacancies) Act, 1959 Vacancies) Act, 1959 shall not apply
unskilled office work means work to any employee carrying
done ‘in an establishment by remuneration of less than .............
................. per month. ,
(a) Process server (a) Rs.50
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CS SIMRANJEET SINGH
(b) Rs.60
(c) Rs.100
(d) Rs.500
10.Employment ' Exchanges
(Compulsory Notification of
Vacancies) Act, 1959 does not apply
to vacancies in any employment
……
(a) In domestic service;
(b) To do unskilled office work;
(c) Connected with the staff of Parliament
(d) All of the above
11.Local Employment Exchange
shall be notified at
least...........Before the date on which
applicants will be interviewed.
(a) 7 days
(b) 10 days
(c) 15 days
(d) 30 days
12.If any employer fails to notify to
the employment exchanges, he shall
be punishable for the first offence
with fine up to ............ and for every
subsequent offence, with fine up
to............
(a) ) Rs. 100, Rs. 500
(b) ) Rs. 500, Rs.1,000
(c) ) Rs. 5000, ) Rs. 10,000
(d) ) Rs. 5000, ) Rs. 25,000
13.As per the Employment
Exchanges (Compulsory
Notification of Vacancies) Act,
1960 in case of ‘vacancies in posts of
a technical and scientific nature
carrying a basic pay of ......... ‘Or
more per month occurring in
establishment’s .in respect of which
the Central Government is. The
appropriate Government
notification shall be given to the
CS EXECUTIVE
Central Employment Exchanges.
In other case notification is to be
made to the Local Employment
Exchange
(a) ) Rs.1000/-
(b) ) Rs.1400/-
(c) Rs.1800/-
(d) ) Rs.2500/-
14.All employer shall furnish to the.
Concerned Employment Exchange,
the results of selection within
...................from the date of
selection.
(a) 7 days
(b) 10 days
(c) 15 days
(d) 30 days
15.The Employment Exchanges
(Compulsory Notification of
Vacancies) Act, 1959 applies 'in
relation to vacancies in any
employment-'
(a) In domestic services
(b) To do unskilled office work
(c) Where the period of employment is less
than three months ‘
(d) in an establishment in public sector
(CSEP Dec. 2014)
16.Under section ' 2(9) of the
Employment Exchanges
(Compulsory Notification of
Vacancies) Act, 1959 ‘establishment
in private sector’ means an
establishment which is not an
establishment in public sector and
where ordinarily or more persons
are employed to work for
remuneration“
(a) Ten
(b) Twenty-five
(C) Fifty
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CS SIMRANJEET SINGH
(d) One hundred. (CS EP Dec. 2014)
17.Under the Employment
Exchanges (Compulsory
Notification of Vacancies) Act, 1959
an establishment which is not an
establishment in public sector and
where ordinarily twenty-five or
more persons are employed to work
for remuneration is defined as--
(a) Employment exchange
(b) Establishment in public sector
(c) Establishment in private sector
(d) Public company (CS EP June 2015)
18.Who is responsible for giving
notification of vacancies to
employment exchanges under the
Employment Exchanges
(Compulsory Notification of
Vacancies) Act, 1959 --
(a) Employment exchange
(b) The employer
(c) The employee
(d) Establishment in private sector (CS EP
June 2015)
19.The Employment Exchanges
(Compulsory Notification of
Vacancies) Act, 1959 does not apply
in relation to vacancies in following
employment,’
(1) In agriculture and horticulture in any
establishment in private sector
(2) Where the period of employment is
lessthan six months
(3) In domestic services
Which of the above islare correct –?
(a) Only (1) and (2)
(b) Only (1) and (3)
(c) Only (2) and (3)
(d) All of the above (CS EP Dec. 2015)
20.The Employment Exchanges
(Compulsory Notification of
Vacancies) Act, 1959 provides for: ‘
CS EXECUTIVE
(1) Compulsory notification of vacancies
by the employers to employment
exchanges
(2) Submission of employment returns by
the employers in prescribed manner to
the employment exchanges
(3) Recruitment of persons through the
Employment exchanges only to fill any
vacancy
Which of the above islare correct
(a) Only (1) and (2)
(b) Only (2) and (3)
(c) Only (1) and (3)
(d) All of the above (CS EP Dec. 2015)
21.The Employment Exchanges
(Compulsory Notification of
Vacancies) Act, 1959 ~
(a) Provides for compulsory notification of
vacancies and submission of employment
returns by the employers to the employment
exchange
(b) Provides that the main activity of the
employment exchange is appointment of job
seekers in the establishments in the public
sector
(c) Applies to all establishments in the
private sector and establishments engaged in
agricultural activities
(d) Applies to all establishments in the
private sector employing 250 or more
workers. (CS EP June 2016)
22.Consider the following
statements under the Employment
Exchanges (Compulsory
Notification of Vacancies) Act,
1959:
(i) ‘Employer’ includes any person
entrusted with the supervision and
control. of employees in such
establishment
(ii)Establishment in private sector means
an establishment which is not an
establishment in public sector and where
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CS SIMRANJEET SINGH CS EXECUTIVE

ordinarily twenty five or more persons

are employed to work for remuneration
(iii)The Act is applicable in relation to
vacancies in any employment connected
with the staff of Parliament.
(iv)The Act imposes punishment by way
of fine and imprisonment both.
Select the incorrect answer from the
options given below -
(a) and (ii)
(b) (ii) and (iii)
(c) (iii) and (iv) .
(d) (M and (i). (cs EP June 2016)
1. C
2. B
3. D
4. D
5. A
6. B
7. B
8. B
9. D
10. C
11. B
12. B
13. B
14. D
15. B
16. C
17. B
18. B
19. A
20. A
21. A
22. A

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CS SIMRANJEET SINGH CS EXECUTIVE

Lesson 18
Apprentice Act 1961
Obiectives

 The Apprentices Act 1961 was enacted with the objective of regulating the programme of
training of apprentices in the industry by utilising the facilities available therein for
imparting on-the-job training.
 The Act was amended in 1973 and 1986 to include training of graduates, technicians and
technician (vocational) apprentices respectively under its purview.
 It was further amended in 1997 and 2007 to amend various sections of the Act as regards
definition of “establishment”, “worker”, number of apprentices for a designated trade and
reservation for candidates belonging to Other Backward Classes, etc.
 Comparing the size and rate of growth of economy of India, the performance of
Apprenticeship Training Scheme is not satisfactory and a large number of training
facilities available in the industry are going unutilised depriving unemployed youth to
avail the benefits of the Apprenticeship Training Scheme.
 Employers are of the opinion that provisions of the Act are too rigid to encourage them to
engage apprentices and provision relating to penalty creates fear amongst them of
prosecution and they have suggested to modify the Apprentices Act suitably.
 In order to make the apprenticeship more responsive to youth and industry, the
Apprentices Act, 1961 has been amended and brought into effect from 22nd December,
2014.
 These amendments have been made with the objective of expanding the apprenticeship
opportunities for youth.
 Non engineering graduates and diploma holders have been made eligible for
apprenticeship.
 A portal is being setup to make all approvals transparent and time bound.
 Apprenticeship can be taken up in new occupations also.

Scope and Coverage

 The Act extends to the whole of India.

 Its provisions apply to areas or industries specified by the Central Government by
notification in the Official Gazette.
 The Act shall not apply to an area or an industry until it is specified by notification.

Power to Make Rules

The Central Government has the powers to make rules, after consultations with the Central
Apprenticeship Council, for enforcement of the provisions of the Act.

Definitions
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CS SIMRANJEET SINGH CS EXECUTIVE

Apprentice Section 2(aa)

Apprentice means a person who is undergoing apprenticeship training in pursuance of a contract

of apprenticeship

Apprentice Training Section 2 (aaa)

Apprenticeship training means a course of training in any industry or establishment undergone in

pursuance of a contract of apprenticeship and under prescribed terms and conditions which may
be different for different categories of apprentices.

Trade Apprentice Section 2(q)

Trade Apprentice means an apprentice who undergoes apprenticeship training in any designated
trade

Designated Trade Section 2(e)

Designated trade means any trade or occupation or any subject field in engineering or non-
engineering or technology or any vocational course which the Central Government, after
consultation with the Central Apprenticeship Council, may, by notification in the Official
Gazette, specify as a designated trade for the purposes of this Act.

Graduate or Technician Apprentice Section 2(j)

Graduate or technician apprentice means an apprentice who holds, or is undergoing training in

order that he may hold a degree or diploma in engineering or non-engineering or technology or
equivalent qualification granted by any institution recognised by the Government and undergoes
apprenticeship training in any designated trade.

Technician (Vocational) Apprentice Section 2(pp)

Technician (vocational) apprentice means an apprentice who holds or is undergoing training in

order that he may hold a certificate in vocational course involving two years of study after the
completion of the secondary stage of school education recognised by the All-India Council and
undergoes apprenticeship training in designated trade.

Optional Trade Section 2(ll)

Optional trade means any trade or occupation or any subject field in engineering or non-
engineering or technology or any vocational course as may be determined by the employer for
the purposes of this Act.

Qualifications of Apprentice [Section 3]

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CS SIMRANJEET SINGH CS EXECUTIVE

A person shall not be qualified for being engaged as an apprentice to undergo apprenticeship
training -

 in any designated trade, unless he is not less than 14 years of age, and
 for designated trades related to hazardous industries, not less than 18 of age; and
 satisfies such standards of education and physical fitness as may be prescribed:
 Provided that different standards may be prescribed in relation to apprenticeship training
in different designated trades and for different categories of apprentices.

Contract of Apprentices [Section 4]

 No person shall be engaged as an apprentice to undergo apprenticeship training in a

designated trade unless such person or, if he is minor, his guardian has entered into a
contract of apprenticeship with the employer.
 The apprenticeship training shall be deemed to have commenced on the date on which the
contract of apprenticeship has been entered into.
 Every contract of apprenticeship may contain such terms and conditions as may be
agreed to by the parties to the contract
 Provided that no such term or condition shall be inconsistent with any provision of this
Act or any rule made thereunder.
 Every contract of apprenticeship shall be sent by the employer within 30 days to the
Apprenticeship Adviser until a portal-site is developed by the Central Government, and
 thereafter the details of contract of apprenticeship shall be entered on the portal-site
within 7 days, for verification and registration.

Objection in contract of apprentice (4A)

In the case of objection in the contract of apprenticeship, the Apprenticeship Adviser shall
convey the objection to the employer within fifteen days from the date of its receipt.

Registration of Contract (4B)

The Apprenticeship Adviser shall register the contract of apprenticeship within 30 days from the
date of its receipt.

Period of training [Section 6]

As per section 6 the period of apprenticeship training, which shall be specified in the contract of
apprenticeship, shall be as follows-

 In the case of trade apprentices who, having undergone institutional training in a school
or other institution recognised by the National Council, have passed the trade tests or
examinations conducted by that Council or by an institution recognised by that Council ,
the period of apprenticeship training shall be such as may be prescribed.

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CS SIMRANJEET SINGH CS EXECUTIVE

 In the case of trade apprentices who, having undergone institutional training in a school
or other institution affiliated to or recognised by a Board or State Council of Technical
Education or any other authority or courses approved under any scheme which the
Central Government may, by notification in the Official Gazette specify in this behalf,
have passed the trade tests or examinations conducted by that Board or State Council or
authority or by any other agency authorised by the Central Government, the period of
apprenticeship training shall be such as may be prescribed;
 In the case of other trade apprentices , the period of apprenticeship training shall be such
as may be prescribed;
 In the case of graduate or technician apprentices, technician (vocational) apprentices and
the period of apprenticeship training shall be such as may be prescribed.

Termination of Apprenticeship Contract [Section 7]

 The contract of apprenticeship shall terminate on the‘expiry of the period of

apprenticeship training.
 Either party to a contract of apprenticeship may make an application to the
Apprenticeship Adviser for the termination of the contract earlier
 After considering the application and the objections, if any, the Apprenticeship Adviser
may terminate the contract

Number of apprentice for a designated trade [Section 8]

 Central Government to prescribe the number of apprentices to be engaged by the

employer for designated trade and optional trade.
 Several employers may join together either themselves or through an agency, approved
by the Apprenticeship Adviser, according to the guidelines issued from time to time by
the Central Government in this behalf, for the purpose of providing apprenticeship
training to the apprentices under them.

Practical Training of Apprentices [Section 9]

 Every employer shall make suitable arrangements in his workplace for imparting a course
of practical training to every apprentice engaged by him.

 Any of the trade apprentices who have not undergone institutional training in a school or
other institution recognised by the National Council or any other institution affiliated to
or recognised by a Board or State Council of Technical Education or any other authority
which the Central Government may, by notification in the Official Gazette, specify in this
behalf, shall, before admission in the workplace for practical training, undergo a course
of basic training and the course of basic training shall be given to the trade apprentices in
any institute having adequate facilities.

Cost of training

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CS SIMRANJEET SINGH CS EXECUTIVE

 Recurring costs (including the cost of stipends) incurred by an employer in connection

with basic training, imparted to trade apprentices shall be borne-
 If such employer employs two hundred and fifty workers or more, by the employer;
 If such employer employs less than two hundred and fifty workers, by the employer and
the Government in equal shares up to such limit as may be laid down by the Central
Government and beyond that limit, by the employer alone;
 Recurring costs (excluding the cost of stipends) incurred by an employer in connection
with the practical training imparted to graduate or technician apprentices technician
(vocational) apprentices shall be borne by the employer and the cost of stipends shall be
borne by the Central Government and the employer in equal shares up to such limit as
may be laid down by the Central Government and beyond that limit, by the employer
alone except apprentices who holds degree or diploma in non-engineering.

Obligation of Employers

Every employer shall have the following obligations in relation to an apprentice:

 To provide the apprentice with the training in his trade in accordance with the provisions
of the Act and the rules made thereunder.
 if the employer is not himself qualified in the trade, he shall ensure that a person who
possesses the prescribed qualifications is placed in charge of the training of the
apprentice.
 To provide adequate instructional staff, possessing prescribed qualifications for imparting
practical and theoretical training and facilities for trade test of apprentices.
 To carry out his obligations under the contract of apprenticeship.

Obligations of Trade Apprentice

Every trade apprentice shall have the following obligations:

 To learn his trade conscientiously and diligently and endeavour to qualify himself as a
skilled craftsman before the expiry of the period of training.
 To attend practical and instructional classes regularly.
 To carry out all lawful orders of his employer and superiors in the establishments.
 To carry out his obligations under the contract of apprenticeship.

Hours of Work, Overtime, Leave and Holidays [Section 15]

 The weekly and daily hours of work of an apprentice while undergoing practical training
in a workplace shall be as determined by the employer subject to the compliance with the
training duration, if prescribed.
 No apprentice shall be required or allowed to work overtime except with the approval of
the Apprenticeship Adviser who shall not grant such approval unless he is satisfied that
such overtime is in the interest of the training of the apprentice or in the public interest.

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CS SIMRANJEET SINGH CS EXECUTIVE

 An apprentice shall be entitled to such leave and holidays as are observed in the
establishment in which he is undergoing training

Records and Returns [Section 19]

 Every employer shall maintain records of the progress of training of each apprentice
undergoing apprenticeship training in his establishment in such form as may be
prescribed.
 Until a portal-site is developed by the Central Government, every employer shall furnish
such information and return in such form as may be prescribed, to such authorities at such
intervals as may be prescribed.
 Every employer shall also give trade-wise requirement and engagement of apprentices in
respect of apprenticeship training on portal-site developed by the Central Government in
this regard.

Offence and Penalties [Section 30]

If any employer contravenes the provisions of the Act relating to the number of apprentices
which he is required to engage under those provisions, he shall be given a month’s notice in
writing, by an officer duly authorised in this behalf by the appropriate Government, for
explaining the reasons for such contravention.
In case the employer fails to reply the notice within the period specified under subsection or the
authorised officer, after giving him an opportunity of being heard, is not satisfied with the
reasons given by the employer, he shall be punishable with fine of five hundred rupees per
shortfall of apprenticeship month for first three months and thereafter one thousand rupees per
month till such number of seats are filled up.
If any employer or any other person-
(a) required to furnish any information or return-
(i) refuses or neglects to furnish such information or return, or
(ii) furnishes or causes to be furnished any information or return which is false and which is
either knows or believes to be false or does not believe to be true, or
(iii) refuses to answer, or give a false answer to any question necessary for obtaining any
information required to be furnished by him, or
(b) refuses or wilfully neglects to afford the Central or the State Apprenticeship Adviser or such
other person, not below the rank of an Assistant Apprenticeship Adviser, as may be authorised
by the central or the State Apprenticeship Adviser in writing in this behalf any reasonable facility
for making any entry, inspection, examination or inquiry authorised by or under this Act, or
(c) requires an apprentice to work overtime without the approval of the Apprenticeship Adviser,
or
(d) employs an apprentice on any work which is not connected with his training, or
(e) makes payment to an apprentice on the basis of piece-work, or
(f) requires an apprentice to take part in any output bonus or incentive scheme.
(g) engages as an apprentice a person who is not qualified for being so engaged, or
(h) fails to carry out the terms and conditions of a contract of apprenticeship he shall be
punishable with fine of one thousand rupees for every occurrence.

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CS SIMRANJEET SINGH CS EXECUTIVE

(2A) The provisions of this section shall not apply to any establishment or industry which is
under the Board for Industrial and Financial Reconstruction established under the Sick Industrial
Companies (Special Provisions) Act, 1985.

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CS SIMRANJEET SINGH CS EXECUTIVE

undergo apprenticeship training in any

Apprentice Act designated trade, unless he .....
(a) is not less than 14 years
1. Apprentice in defined in Section of the (b) is not less than 15 years
Apprentice Act. 1961. (c) is not less than 18 years
(a) 2(a) (d) is not less than 21 years
(b) 2(aa) 8. The contract of apprenticeship shall
(c) 2(eea) terminate on............
(d) None of the above (a) the apprentice attaining 15 years of age
2. As provided in the Apprentice Act, (b) the apprentice attaining 18 years of age
1961 every State Council shall be (c) the apprentice attaining 21 years of age
affiliated to ……….. (d) the expiry of the period of apprenticeship
(a) National Council training
(b) Central Apprenticeship Council 9. Where an employer employs ............
(c) All India Council workers, basic training shall be imparted
(d) Any of the above to the trade apprentices either in separate
3. Apprenticeship training is defined in parts of the workshop building or in a
section........Of the Apprentice Act, 1961. separate building which shall be set up by
(a) 2(a) the employer himself. '
(b) 2(38) (a) 100 or more
(c) 2(aaa) (b) 500 or more
(d) None of the above (c) 1000 or more
4. Designated trade is defined in section (d) 2500 or more
...... of the Apprentice Act, 1961. 10. Where an employer employs less than
(a) 2(d) .......... workers, the basic training shall be
(b) 2(6) imparted to the trade apprentices in
(c) 2(k) training institutes set by the Government.
(d) None of the above (a) 100
5. Graduate or technician apprentice is (b) 500
defined in section of the Apprentice Act, (c) 1000
1961. (d) 2500
(a) 2(0) 11. Any person aggrieved by the decision
(b) 20) of the Apprenticeship Adviser may.
(c) 2(m) Within ..... From the date of
(d) 2(k) communication to him of such decision,
6. Technician (vocational) apprentice is make an appeal to the Apprenticeship
defined in section........... of the Apprentice Council.
Act. 1961. (a) 7 days
(a) 2(m) (b) 15 days
(b) 2(p) (c) 30 days
© 2(pp) (d) 90 days
12. Apprenticeship Council, may, by
(d) None of the above notification -in the Official Gazette,
7. A person shall not be qualified for specify any establishment as .......... for the
being engaged as an apprentice to purposes of Apprentices Act, 1961. '
(a) Designated trade

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CS SIMRANJEET SINGH
(b) Apprenticeship training.
(c) Both (a) & (b)
(d) None of the above
13............... Means any trade or
occupation or any subject field in
engineering or technology or any
vocational course which the Central
Government, after consultation with the
Central Apprenticeship Council, may, by
notification in the Official Gazette, specify
as a designated trade.
(a) Apprenticeship
(b) Apprenticeship training
(c) Designated trade
(d) All of the above
14. Under the Apprentices Act, 1961,
apprentice entitled for casual leave for the
maximum period of........... days in a year.
(a) 12
(B) 10
(c) 15
(d) 45
15. Every apprentice is trainee and not a
worker. ' The statement is .......
(a) True
(b) False
(c) Partly true
(d) None of the above
16. It be obligatory on the part of the
employer to offer any employment to‘any
apprentice.
(a) shall
(b) shall not
(C) may
(d) may not
17. Under the Apprentices Act, 1961 any
disagreement or dispute between an
employer and an apprentice arising out of
the contract of apprenticeship shall be
referred for decision to the
(a) Apprenticeship Director
(b) Apprenticeship Adviser"
(c) Apprenticeship Committee
(d) Apprenticeship Tribunal. (CS EP Dec.
2014)
CS EXECUTIVE
18. As per the Apprentices Act, 1961 a
person shall not be qualified for being
engaged as an apprentice to undergo
apprenticeship training in any designated
trade, if such person is not less than -
(a) 14 years of age and satisfies prescribed
standards of education and physical fitness
(b) 16 years of age and satisfies prescribed
standard of education
(c) 18 years of age and satisfies prescribed
standards of physical fitness
(d) 21 years of age and satisfies prescribed
standards of education and physical fitness.
(CS EP Dec. 2014)
19. Under the Apprentices Act, 1961
every apprentice undergoing
apprenticeship training in a designated
trade in an establishment shall be ‘and
not a worker and the provisions of any
law with respect to labour shall to or in
relation to such apprentice.
(a) Employee of the establishment; apply
(b) Trainee; apply
(c) Trainee; not apply
(d) Employee of the establishment; not
apply. (CS EP Dec. 2014)
20. ………means any trade or occupation
or any subject held in engineering or
technology or any vocational course
which the Central Government, after
consultation with the Central
Apprenticeship Council, may, by
notification in the Official Gazette.
Specify as a-------- for the purposes of
Apprentices Act, 1961.
(a) Technical trade; technical training
(b) Technical trade; apprenticeship training
(c) Designated trade; apprenticeship training
(d) Designated trade; designated trade. (CS
EP Dec. 2014)
21. As per section 3A and: 18 and of the
Apprentices Act, 1961 in every designated
trade, training. Places shall not be
reserved for------
(a) Scheduled castes
(b) Scheduled tribes
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CS SIMRANJEET SINGH
(c) Other backward classes
(d) Minority community (CS EP June 2015)
22. Under the Apprentices Act, 1961 any
industry or business in which any trade,
occupation or subject field in engineering
or technology or any vocational course
may be specified as a designated trade is
defined as ------
(a) Industry
(b) Business
(c) Trade
(d) Designated trade (CS EP June 2015)
23. Every State Council. Constituted
under the Apprentices Act, 1961 should
be affiliated to the
(a) State Council
(b) State Apprenticeship council
(c) National Council
(d) Central Apprenticeship Council (CS EP
June 2015)
24. Who eligible to become an apprentice
under the Apprentices Act, 1961’
(a) Any person who is of 14 years or above,
fulfils the basic physical and educational
standards as defined in the Apprentices Act,
1961
(b) Any person who is of 16 years or above,
fulfils the basic physical or educational
standards as defined in the Apprentices Act,
1961
(c) Any person who is of 18 years of above
fulfils the basic physical and educational
standards as defined in the Apprentices Act.
1961
(d) Any person who is of 21 years or above
fulfils the basic physical and educational
standards as defined in the Apprentices Act,
1961. (cs EP June 2015)
25. Under the Apprentices Act, 1961 an
‘apprentice' is a person who is -
(a) Learner and is undergoing apprenticeship
training in pursuance of ‘a contract of
apprenticeship’
(b) An employee
(c) Both (A) and (B) above ’
(d) Neither (A) nor (B). (CS EP Dec. 2015)
CS EXECUTIVE
26. under the Apprentice Act. 1861 every
trade apprentice undergoing
apprenticeship training shall have:
(1) To attend practical classes regularly
(2) To carry out all lawful orders of his
employer and superiors in the
establishment
(3) To carry out his obligations under the
contract of Apprenticeship.
Which of the above is/are correct?
(a) Only (1) and (2)
(b) Only (2) and (3)
(c) Only (1) and (3)
(d) (1). (2) And (3) (cs EP Dec. 2015) ‘
27. According to section 3 of the
Apprentices Act, 1961. a person shall be
qualified for being engaged as an
apprentice to undergo apprenticeship
training in any designated trade “ if such
person: ‘ .
(1) is not less than 18 years of age
(2) Satisfies prescribed standard or
education’
(3) Satisfies prescribed physical fitness
Which of the above is/are correct -?
(a) Only (1) and (2)
(b) Only (2) and (3)
(c) Only (1) and (3)
(d) All of the above (CS EP Dec. 2016)
28. as per the provisions of section 20 of
the Apprentices Act, 1961. Any person
aggrieved ) by the decision of the
Apprenticeship l Adviser may. Within
____________ from the date at
communication to him of such decision,
prefer an appeal against the decision to
the f Apprenticeship Council.
(a) 15 Days
(b) 30 Days
(c) 60 Days
(d) 90 Days (cs EP June 2018) ‘
29. Which one of the following statements
is incorrect under the Apprentices Act.
1961
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CS SIMRANJEET SINGH CS EXECUTIVE

(a) The stipend is to be given to an 4. B

apprentice at the rate specified by the 5. B
appropriate government. 6. C
(b) Any disagreement or dispute between an 7. A
employer and an apprentice arising. Out of 8. D
the apprenticeship contract is referred to 9. B
Apprenticeship Council’ 10. B
(c) The National Council is not an authority 11. C
under the Apprentices Act, 1961 12. A
(d) An offence cannot be committed by a 13. C
company under this Act. (CS EP June 2016) 14. A
30. Which one of the following is not an 15. A
obligation oi apprentices under the 16. C
Apprentices Act, 1961 - 17. B
(a) To qualify himself as a skilled craftsman 18. A
before the expiry of the period of training 19. C
(b) To attend practical and instructional 20. D
classes regularly 21. D
(c) To carry out all orders of his employer 22. A
(d) To carry out his obligations under the 23. C
contract of apprenticeship. (CS EP June 24. A
2016) 25. A
26. D
27. B
28. B
29. B
30. A

1. B
2. A
3. C

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CS SIMRANJEET SINGH CS EXECUTIVE

Lesson 19
Audit Under Labour Legislations
Objectives

 The legislatures have, from time to time enacted numerous laws and legislations to
protect the interest of labourers
 Lack of legal awareness amongst the working population as well as the employers Is the
major impediment In proper compliance with the laws and regulations
 Business corporations have recognized the importance of legal compliance of the
provisions of the labour laws.
 For this purpose labour law audit is essential.

Scope and Coverage

 The scope of labour law audit includes in depth examination of various applicable laws,
company records, facilities, policies practices and procedures to ensure proper and
complete compliance with applicable labour laws
 Labour law audit also suggests a remedial action if something Is in violation or not In line
with the provisions of the applicable labour laws '

Areas of Labour Audit

 Registration and licenses (eg Factory, Shops and Establishment, Contract Labour, P F,
E.S.l., etc)
 Preparation and submission of various returns.) ' ‘
 Updatation/maintenance of records and registers.
 Display of notices and extracts of Acts.
 Process of disciplinary action.
 Handling audits and inspections.
 Apprising of the corporations of any amendments and important judgments on various
labour laws for compliance
 Engaging law practitioners to appear in any matter or disputes before the industrial and
labour court and . other authorities
 Any other measures required under the special circumstances of your business.

Company Secretary as Labour Law Auditor

 The institute of Company Secretaries of indie has mooted the concept of audit of
compliance of labour laws‘.
 The course content of the institute is such that qualified company secretaries are well
versed with the legal aspect in a broader way.

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 It would be easy for the practicing company secretaries to have the labour law audit as
independent professionals.
 Similar to compliance certificate under the Companies Act, compliance certificate can be
given the PCS to the government within specified time. *

Provisions in the Companies Act, 2013

 The Companies Act, 2013 provides provisions for compliance of various laws and
empowers the Company Secretary to ensure that the company has made compliances
with the provisions of the Act, the rules made thereunder and other laws applicable to the
company.
 To ensure this, complete check list is to be maintained by a Company Secretary.
 This will serve some aspects. But for strict compliance, labour law audit is essential and
will support the Company Secretary to ensure strict compliances by various departments
of the company dealing with such compliances.

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Audit Under Labour
Legislations
1.Lack of , amongst the working
population as well as the employers is the
major impediment in proper compliance
with the laws and regulations.
(a) legal awareness
(b) legal knowledge
(c) adequate courts
(d) adequate professionals
2.The scope of ........... includes in depth
examination of various applicable laws,
company records, facilities, policies,
practices and procedures to ensure
proper and complete compliance with
applicable labour laws.
(a) labour law audit
(b) inquiry
(c) investigation
(d) search
3.................... suggests a remedial action if
something is in violation or not in line
with the provisions of the applicable
labour laws.
(a) labour law audit
(b) inquiry
(c) investigation
(d) search
4.Areas of labor law audit is/are............
(a) Registration and licences (e.g.) Factory,
Shops and Establishment, Contract ‘Labour.
P.F., E.S.l.,Etc.)
(b) Preparation and submission of various
returns '
(c) Updatation/maintenance of records and
registers
(d) All of the above
5.Areas of labor law audit is/are
(a) Display of notices and extracts of Acts
(b) Process of disciplinary action
(c) Handling audits and inspections
(d) All of the above '
6.Compliance with labour laws may bring
the following benefit(s):
(a) it will boost the moral of the labourer
(b) It will increase social security of the
labourer
(c) it will serve timely payment of wages
and other benefits to the labourer
(d) All of the above
7.Compliance with labour laws may bring
the following benefit(s):
(a) No threat of legal action/industrial
dispute which may damage the reputation.
image or goodwill of the establishment
(b) No legal or administrative action against
the Directors, Board of Members or
Management of the establishment
responsible to manage day to day affairs for
non-compliance of labour laws
(c) Smooth running of business
(d) All of the above
8.Compliance with labour laws may bring
the following benefit(s):
(a) Regular payment of dues/contributions
for the employees
(b) Timely filing of returns helps in
generating statistical data smoothly
(c) Compliance with rules and regulations
increases the image of the government in
international forum
(d) All of the above
9.By undertaking labour law audit, :3
Company Secretary can achieve the
following:
(a) Compliance with labour laws and
regulations
(b) Set up adequate internal control system
to minimize risks
(c) Identify gaps and adequate measures to
rectify the same
(d) All of the above
10............. prevent lawsuits and penalties
for noncompliance.
(a) Labour law audit
(b) inquiry
(c) investigation
(d) Search

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11.Under the Factories Act. labour audit
is to be done for:
(a) Whether the factory is registered or not
(b) Whether manufacturing process is
carried on
(c) Whether any hazardous process is
carried on
(d) All of the above
12.Under the Minimum Wages Act,
labour audit is to be done for:
(a) Whether minimum wages if prescribed is
paid .
(b) Whether proper records are being
maintained
(c) Certificate that all statutory requirements
are complied with
(d) All of the above
13.Under the Payment of Wages Act,
labour audit is to be done for:
(a) Number of employees employed
(b) What is the wage period?
(c) Whether proper records are maintained
(d) All of the above
14.Under the ESl Act, labour audit is to
be done for:
(a) Whether registration has been made
(b) Whether contribution regularly paid
(c) Whether all eligible employees are
covered
(d) All of the above
15.Under the EFF Act, labour audit is to
be done for:
(a) Whether contributions regularly paid
(b) Whether returns regularly filed
(c) Whether proper records are maintained
(d) All of the above
16.Under the Payment of Bonus Act,
labour audit is to be done for:
(a) Whether all eligible employees getting
bonus
(b) Whether bonus is paid within time
(c) Whether minimum bonus is paid
(d) All of the above
17.Under the Payment of Gratuity Act,
labour audit is to be done for:
(a) Whether trust is maintained
CS EXECUTIVE
(b) Whether gratuity is paid as per rules
(c) Whether claims settled timely
(d) All of the above
18.Under the Employee Compensation
Act, labour audit is to be done for:
(a) Whether any occupational disease
suffered by employees
(b) Whether any fatal accident occurred
(c) Whether compensation is paid timely
(d) All of the above
19.Under the Maternity Benefit Act,
labour audit is to be done for:
(a) Whether women employees are getting
proper leave
(b) Whether benefits are paid
(c) Whether ESl covered employees are
getting benefits
(d) All of the above
20.Under the industrial Disputes Act Act,
labour audit is to be done for:
(a) Number of disputes referred to
Arbitration
(b) Number of protected workmen
(c) Whether unfair labour practice followed
(d) All of the above
21.The benefits of ‘labour audit’ to the
labour are-
(a) it increases their social security
(b) It inculcates in workers a sense of
belongingness towards their employer
(c) it secures timely payment of wages,
bonus, overtime and compensation, etc. of
workers
(d) All of the above (CS EP Dec. 2015)
22.Labour audit provides benefits to the
labour, to the employer and to the
government. Which one of the following is
not a benefit of labour audit to the labour
~
(a) Labour audit boosts the morale of the
workers
(b) lt increases social security of the labour
(c) it increases status of the employer in
society
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(d) Labour audit secures timely payment of

wages (CS EP June 2016)

1. A
2. A
3. A
4. D
5. D
6. D
7. D
8. D
9. D
10. A
11. D
12. D
13. D
14. D
15. D
16. D
17. D
18. D
19. D
20. D
21. D
22. c

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Lesson 20
CONSTITUTION OF INDIA
Introduction
Constitution is a document which provides a basic legal framework by which the entire country I
regulated. In the context of India, a constituent Assembly was set up in the year 1946 to frame the
Constitution of India, It appointed number of committees for suggesting recommendations in
framing the Constitution of India and finally the Constitution of India was adopted by Constituent
Assembly of 26th January 1950.
The constitution of India contains 395 Articles, which are divided into 22 Parts and 12 Schedules.
The Constitution deals with Structure of the Government, Right of the Citizens, Principles to be
followed by the State in the governance of the country, etc. Constitution of India is considered all
supreme and has the overriding effect over all the laws governing the various aspects of our system.
The Constitution of India is said to be mother of all laws i.e. all the laws have their origin in the
Constitution of India.
Preamble To Constitution of India
Preamble to the Constitution of India reads as:
WE THE PEOPLE OF INDIA. Having solemnly resolved to constitute India into a
SOVERIN, SOCIALIST, SECULAR, DEMOCRATIC AND EPUBLIC and to secure to all its
citizens:
JUSTICE, social, economic and political:
LIBERTY of thought, expression, belief, faith and worship:
EQUALITY of status and opportunity:
And to promote among them all
FRATERNITY assuring the dignity of the Individual and unity and integrity of the Nation.
Although Preamble does not contain any substantive law, yet it is considered to be the most sacred
part of the Constitution of India, if any provision of Constitution of India is ambiguous, then that
provision has to be interpreted in the light of the contents of Preamble. The Supreme Court, in
number of causes, has held that Constitution is to be read and interpreted in the light of visions and
values, pledges and sentiments expressed in the Preamble. The preamble truly represents the soul of
our Constitution.

STRUCTURE OF THE CONSTITUTION – WHETHER FEDERAL OR UNITARY

The constitution generally may be unitary type of federal type. Under unitary type of constitution,
all powers flow from a single top authority. But under federal system, there
Are different layers of authority and each layer has separate powers, all decided by the constitution.
Our constitution is basically federal but with certain unitary features.
The federal futures of our constitution are:
 Dual authority: We have two sets of government i.e., government. At the centre and
government, at various state levels.
 Distribution of power: The constitution distributes the power to make law by way of Union
List (where only union can make law) State List where only states can make laws) and
Concurrent List (where both the union and the states can make laws).
 Supremacy of Constitution : The three pillars of our legal system i.e., legislature, executive
and judiciary all are subordinates to the Constitution of India, i.e., none of them can surpass
the provisional of constitution of India.
 Independence of Judiciary: The judiciary of our country is totally independent and neither
the legislature not the executive can control the judiciary.

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 Written Constitution: The Constitution of India is a written document.

However, even our constitution has aforesaid federal features, in times of need, it becomes unitary
i.e., union has more powers than the state under the following circumstances:
 The union list contains 97 entries out of which 96 have been specifically names and the 97th
item has bee left blank and is unknown as residuary item under which any new item which
has not found a place in any of the list can be included, This being in the union list, it
effectively means that on any new subject, only parliament can make a law.

 Under state list, only state can pass law but Article 246 permits the Parliament to pass law on
state list matters under five circumstances, These circumstances are a matter of:
 National Interest:
 Emergency:
 Dispute between two or more states:
 To give effect to an international agreement: and
 Breakdown of constitutional machinery in a state.

This parliament has more powers under these five circumstances ever in the state list.
 Under concurrent list, if any law is pass on a particular matter by Union as well as State and
if there is an inconsistency between two laws then the union law will prevail over the state
law.

 In India, we have a single citizenship system unlike in the case of USA where there is a
concept of dual citizenship.

Professor K.C.Wheare thus held that the Indian Constitution establish a system of government which
is at the most Quasi-Federal (not strictly federal). Jennings also characterized Indian constitution as
a federation with a strong centralized tendency.
FUNDAMENTAL RIGHTS
Introduction
A man, by birth, has certain rights which are universal and inalienable i.e., e can not be deprived of
them. It is the function of the State to recognize these rights and allow then of free play so that the
human liberty is preserved, human personality is developed and an effective cultured, social and
democratic life is promoted. The aforesaid rights are recognized in the form of fundamental rights in
Part III of the constitution of India.
Constitution of India guarantees six categories of fundamental rights. The are:
 Right to equality ( Articles 14 to 18)
 Right to freedom (Articles 19 to 22)
 Right against exploitation (Articles 23 & 24)
 Right to freedom of religion (Articles 25 to 28)
 Cultural and educational right (Articles 29 & 30)
 Right to constitutional remedies (Articles 32)

Concept of State
The term “State” a defined in Article 12 of the Constitution of India. As per this unless the context
otherwise provides, the term “state” includes:
 The Government and Parliament of India
 The Government and legislature of each of the state; and
 All local or other authorities:

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 Within the territory of India; of

 Under the control of the Government of India

The expression ‘Local authority’ includes the following:

 Municipalities;
 District Boards;
 Panchayats, etc.

The expression ‘other authority’ includes the following:

 Electricity authorities;
 Universities;
 Income tax Department, etc.

The expression ‘under the control of the Government of India’ covers into the definition of State,
not only every authority within the territory of India, but also those functioning outside India
provided such authorities are under the control of the Government. Of India.
The question, whether a corporation acting as instrumentality or agency of Government is ‘state’ or
not, was decided by the Supreme Court in the case of R.D.Shetty v. International Airport
Authority and later on followed in the case of Ajay Hasia v. Khalid Mujib. It was decided in the
aforesaid cases that in general a corporation acting as an instrumentality or agency of the
government is not a state within the meaning of Article 12 of the Constitution of India. However,
following are some the instance where a corporation acting as a instrumentality or agency of the
Government. Can be regarded as a State within the meaning of Articles 12 of Constitution of India:
 If the entire share capital is held by the government
 If the Government exercises deep and persuasive control over the corporation
 Where the corporation enjoys monopoly status
 If the function of the corporation are of public importance and closely relates to
Government functions.
 If a department of Government is transferred to a corporation.

Where court exercises a judicial function, it can not be regarded as State as the expression ‘State’
covers only legislature and executive and executive and not judiciary. However, where a court
exercises non-judicial function, it can be considered as State {A. R. Antulay v. R .S. Nayak}
The significance of concept of ‘State’ in the context of fundamental rights is that generally the
fundamental rights are available against the State.
Justifiability/ amenability of Fundamental Rights
Article 13 of Constitution of India invalidates any pre or post constitutional law which is against the
fundamental rights. It also restricts the amenability of Fundamental Rights.
The question whether a fundamental right can be amended, abridge or taken away has been
examined in various cases and finally settled in the Golaknath case. In this case it was held that
fundamental rights can neither be abridged or amended nor taken away by the law and for this
purpose, the term law includes a Constitutional Amendment. Thus fundamental rights can’t be
affected ever by constitutional amendment.
The aforesaid decision was set aside by inserting a provision in Article 13 i.e., Article 13(4) which
ways that “Nothing in Article 13 shall apply to any amendment of this Constitution.
Further, the aforesaid provisions of Article 13(4) were challenged in the case of Keshavanand
Bharti v. State of Kerala, where the Supreme Court has dismissed the petition and upheld the

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validity of Article 13(4) and held that fundamental rights can be affected by a Constitutional
Amendment by the basic structure of the constitution can not be amended.
Article 13 came up from judicial review in number of cases and the courts have enclosed carious
doctrines like doctrine of severability, doctrine of eclipse, doctrine of waiver of right, etc of
interpreting the provisions of Article 13.
Doctrine of Severability:
It provides that only that part of the law will be declared invalid which is inconsistent with the
fundamental rights and the rest of the law will stand. However, invalid part of the law will be
severed only if it is severable, i.e., if after separating the invalid part, the valid part is capable of
giving effect to the legislature’s intent, then only it will survive otherwise the court shall declare the
entire law as invalid.
Doctrine of Eclipse :
It provides that a law made before the commencement of the constitution remains eclipsed or
dormant to be extent in comes under the shadow of fundamental rights i.e., is inconsistency brought
about by the fundamental rights is removed by the amendment to the Constitution of India.
Doctrine of Waiver of Right:
It provides that a person has the liberty to waive the enjoyment of such rights as are conferred on
him by the state, provide that such person must have the knowledge of his rights and the waiver
should be voluntarily, However, citizens cannot waive of any of the fundamental rights { Basheshar
Nath v. I T Commissioner}
RIGHT TO EQUALITY [ARTICLES 14 TO 18]
Right to equality is on of the basic fundamental human rights afforded by the constitution of modern
democratic states including India. The constitution of our country is espouses the principles of
equality of status and opportunity in its very Preamble and further gave a practical effect in Article
14 to 18, which are as follows:
 Equality before the law (Article 14)
 Prohibition of discrimination on grounds only of religion, race, caste, sex, place of
birth. (Article 15)
 Equality of opportunity in matters of public employment (Article 16)
 Abolition of untouchability (Article 17)
 Abolition of Titles (Articles 18)

Equality before the law

Article 14 of Constitution of India Provides:
“The State shall not deny to any person equality before law or equal protection of the laws within the
territory of India.”
The expression ‘equality before law’ is a negative concept and it implies the absence of any special
privilege in favors of any individual, whatever be his rank or status, and the equal subjection of all
classes to the ordinary law.
The expression ‘equal protection of the law’ is a positive concept and it implies equality of treatment
in equal circumstances. In other words same law should be applicable among equals or some law
should not be applicable among unequal. In order that “right to equal treatment in similar
circumstances” should make sense, the law shall have to make a classification between persons who
are equally situated. Thus, if there is a reasonable basis of classification, the legislature would be
entitles to treat different classes differently.
In Ramkishan Dalmiya v. Justic Tendulkar , the Supreme Court has summarized he rules with
respect to permissible classification, which are as follows:
 Article 14 forbids class legislation, but does not forbid classification
 Permissible classification must satisfy following two conditions

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o The distinction between those who are included and those who are left out
from the provisions of an Act should be clear and
o Such distinction should have a reasonable relationship with purpose of the
Act.
 The classification may be founded on different basis, namely geographical or
according to the objects or occupation or the like.
 Even a single individual may be treated as a class by himself on account of some
special circumstances or reasons applicable to him ad not applicable to other.
 It is not necessary for the state to proof that the law provides equality but it is up to the
affected persons to prove whether equality is violated or not.

It may be noted that Article 14 applies to any person and is not limited to citizens alone. Thus, a
corporation, which is only on artificial person by not a citizen is also entitled to the benefit of this
Article.
Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth
Article 15 provides that the State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex or place of birth or any of them. Further no citizen shall be deprived of the
following right on ground only of religion, race, caste, sex, place of birth
 Access to shop, public restaurants, hotels and places of public entertainment:
 The use of wells, tanks bathing ghats, roads and places of resorts, maintained out of State
funds.
The significance of the word ‘only’ used in Article 15 is that if there are any grounds on
discrimination other than ground of religion, race, caste, sex, place of birth then such discrimination
is not prohibited [ Yusuf v. State of Bombay]
The rights guaranteed in Article 15 are subject to the following exceptions:
 The State can make any special provision for women and children;
 The State can make any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Schedule Castes and Schedule Tribes.

Equality of Opportunity in Matters of Public Employment

Article 16 guarantees equality of opportunity to all citizens in the matter of appointment to any
office under the State. The aforesaid rule is subject to the following exceptions:
 The Parliament can make any law prescribing any requirement as to resident in a State in
respect of any particular class or classes of employment in that state.
 The State can make provisions for the reservation of post in favor of any backward classes
of citizens.
 Offices connected with religious institutions may be reserved for he persons of a particular
religion

Abolition of untouchability
Article 17 provides that untouchability is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of untouchability shall be an offence punishable in
accordance with law.
Abolition of Titles
Articles 18 abolishes all the titles conferred on various Indian Citizens by British Government and
the use of those titles is prohibited as it results in creating superior and inferior classes of citizens.
However, Military titles, Academic titles or Titles recognizing merit or work of an extra-ordinary
nature can be conferred and used.
RIGHT TO FREEDOM [ARTICLS 19 TO 22]

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Article 19

Article 19 guarantees the following six freedoms to the citizens of India:

1. Right to freedom of speech and expression.
2. Right to assemble peacefully and without arms.
3. Right to form associations or unions.
4. Right to move freely throughout the territory of India.
5. Right to reside and settle in any part of territory of India.
6. Right to practice any profession or to carry on any trade, business or occupation.

It may be noted that the aforesaid rights are not absolute and hence reasonable restrictions may be
imposed on them. The phrase reasonable restrictions connotes that the limitation imposed upon a
person in the enjoyment of a right should not be arbitrary or of an excessive nature. In determining
the reasonableness of statute, the court would see both the nature of the restrictions and procedures
prescribed by the statute for enforcing the
Restrictions on the individual freedom. The reasonableness of restriction has to be determined in an
objective manner and from the point of view of the interest of the general public and not from the
point of view of the persons upon whom the restrictions are imposed. The court is required to
ascertain the reasonableness of the restrictions and not of the law which permits the restrictions.
The word ‘restriction’ also includes cases of prohibition and the state can establish that a law,
thought purporting to deprive a person of his fundamental right, under certain circumstances
amounts to a reasonable restriction only.

Right to freedom of Speech and Expression [Articles 19(1)(a)]: Freedom of speech and
expression is a very important aspect of democracy, The freedom of speech and expression means
the right to express one’s convictions and opinions freely by words of mouth, writing, printing,
pictures or any other mode.
The right speech and expression includes right to make good or bad speech. One may express
oneself even by sign. It also includes the expression of idea through dramatic performance,
cinematographic and any other mode of expression.
In Maneka Gandhi v. Union of India, it was decided that the freedom of speech and expression
includes the freedom of press and thus imposition of pre-censorship on publication of views, ideas,
analysis, etc is violative of freedom of speech and expression.
In the case of Bijoe Emmanuel v. State of Kerala, it was held that the right to freedom of speech
and expression also includes the right to remain silent. It was decided that a person can not be
compelled to sing a National Anthem of he does not want to do so because of some religious
objections.
Permissible restrictions
 Sovereignty and integrity of India
 Security of the state
 Friendly relations with foreign States
 Public order
 Decency and morality
 Contempt of court
 Defamation
 Incitement to an offence

Right to assemble peacefully and without arms [Article 19(1)(b) :

It is the right to citizens to assemble peacefully and without arms.

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However reasonable restrictions may be imposed on this right in the interest of:
 The sovereignty and integrity of India;
 Public order.

Right to form association and union [Article 19 (1)©] :

Right to form associations and union is guaranteed so that the people can form a group of people
having the similar view, In Sitharamachary v. Dy, Inspector of School, it was held that this right
necessarily implies a right not to be a member of an association. Thus, no one can be compelled to
become member of an association.
The right is subject to reasonable restrictions which may be imposed in a interest of:
 Sovereignty and integrity of India;
 Public order;
 Morality

Right to move freely throughout the territory of India [Articles 19(1)(d) :

Right to move freely is confirmed only to the territory of India and it can not be extended to travel
abroad.
This right is also subject to some reasonable restrictions which may be imposed:
 In the interest of the general public ;
 For the protection of interest of any scheduled tribe.

Right to reside and settle in any part of territory of India [Article 19 (1)(e):
The right to freedom of residence is intended to remove internal barriers within the territory of India
to enable every citizen to travel freely and settle down in any part of the state or Union territory.
This freedom is also subject to reasonable restrictions which may be imposed:
 In the interest of general public;
 For the protection of interest of any scheduled tribe.

Right to practice any profession or carry on any trade, business or occupation [Article 19
(1)(g):
Article 19 (1)(g) provides that all citizens shall have the right to practice any profession or to carry
on any occupation, trade or business.
This right is also subject to reasonable restrictions which may be imposed:
 In the interest of the general public;
 To prescribe professional or technical qualification necessary for carrying on any profession,
trade or business;
 To enable the State to carry on any trade or business to the exclusion of Private Citizens.
This means that the creation of State monopoly shall not be considered to deprive a citizen of
the freedom of trade and occupation.

Banking Business will be done only by the state and not by any private person was challenged
before the Supreme Court. However the Supreme Court rejected the petition and held that the law is
valid as State has got the power to create a monopoly in its favour, [ R.C.Cooper v. Union of
India]
Article 20
Article 20 guarantees to all persons, whether citizens or non-citizens, the three rights. They are as
follows:

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 Protection against ex-post facto laws : Ex post facto laws are laws which punishes what
had been lawful when done. If a particular act was not an offence according to the law of the
land at the time when the person did that act, then he can not be convicted under a law which
with retrospective declares that act as a offence. Even the penalty for the commission of an
offence can not be increased with retrospective effect.

Thus the meaning of the above two provisions is that so far as criminal law creates a new offence or
increases the penalty, it shall be applicable only to those offences which are committed after its
coming into force and can not cover those offences which have already been committed in the past.
Exceptions:
 Protection under this Article is available only for offences and their punishments under
criminal law and not for any civil liability, where retrospective law can be passed.
 Article 20 prohibits the conviction under ex-post facto law only in respect of substantive
law but not in respect of procedural law as no one has vested right in procedure [ Shiv
Bhadur Singh v. State of Vindhya Pradesh]

 Protection against double jeopardy : No person can be prosecuted and punished for the
same offence more than once, However if a person has been let off after prosecution,
without being punished, he can be prosecuted again.

 Protection against self-incrimination: A person accused of any offence can not be

compelled to be a witness against himself. In other words, an accused can not be
compelled to state anything which goes against him.

Article 21
Article 1 of the constitution confers on every person the fundamental right to life and personal
liberty. It says that “No person shall be deprived of his life or personal liberty except according to
the procedure established by law”
Thus Article 21 seeks to prevent encroachment upon personal liberty by the executive except in
accordance with law and in conformity with the provisions of the law. The scope, application and
effect of Article 21 may be well understood through the following important judicial decisions.
In Philips Alfred Malvin v. Y.J. Gonsalvis, it was held that right to life includes those things
which make life meaningful. For instance, the right of a couple to adopt a son.
In one of the leading cases, “life” has been interpreted as a decent life in a democratic society.
In A.K.Gopalan v. State of Madras, a very narrow meaning was given to the expression personal
liberty confining it to the liberty of the persons i.e., of the body of a person. It was held that only if
the person’s otherwise his personal liberty would be restricted in any way without violating Article
21.
That the expression “personal liberty” is not limited to bodily restraint or to confinement to prison
only is well illustrated by Kharak Singh v. State of U.P. In this case, the question raised was of
the validity of the police regulation authorizing the police to conduct what are called domiciliary
visits against bad characters and to have surveillance over them. The court held that such visits were
an invasion on the part of the police, of the sanctity of a man’s house and intrusion into his personal
security and his right to sleep, and therefore violative of personal liberty of the individual, unless
authorized by a valid law.
In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi. It was held that right to
travel abroad is included within the expression ‘personal liberty’ and therefore, no person can be
deprived of his right to travel except according to the procedure established by law. Since a passport
is essential for the enjoyment of this right, the denial of a passport amounts to deprivation of

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personal liberty. The view of this case was reiterated in Meanka Gandhi v. Union of India by the
Supreme Court.
At present, personal liberty includes various other liberties like right to bail, public interest,
litigation, right to free legal aid, right to speedy trial, etc.
The expression “procedures establish law” means procedure laid down by statute or prescribed by
the law of the State.
Article 22
Article 22 lays down certain specific safeguards against arbitrary arrest and detention.
These safeguards are:
 A person who is arrested cannot be detained in custody, unless he has been informed of the
grounds for such arrest;
 Such person shall have the right to consult and to be defended by lawyer of his choice. Such
person must be produced before the nearest Magistrate within 24 hours of arrest, excluding
the time of journey; and
 Such person shall not be detained in custody beyond 24 hours without the authority of the
Magistrate.

It may be noted that aforesaid safeguards are not available to:

 Alien enemies; and
 Persons arrested or detained under preventive detention law.

RIGHT AGAINST EXPLCITATION [ARTICLES 23 & 24]

Introduction
Articles 23 and 24 guarantee certain right to weaker section of the society to prevent their
exploitation by unscrupulous individuals or even by the State. Article 23 imposes a complete ban on
traffic in human beings and forced labour, Article 24 prohibits employment o children in factories,
etc.
Articles 23
Articles 23 provide that traffic is human beings and begar and other similar forms of forced labour
are prohibited and any contravention of this provision shall be an offence punishable in accordance
with law.
Traffic in human beings means to deal in men and women like goods such as to sell or let otherwise
dispose off them. It includes not only slavery but also traffic in women or the crippled for immoral
or other purposes.
Begar is a system where a person is complied to render involuntary and free service. Even if there is
payment of wages, a person cannot be compelled to work against his will.
Article 24
Article 24 provides that no child below the age of 14 years shall be employed to work in any factory
or mine or engaged in any other hazardous employment.
RIGHT TO FREEDOM OF RELIGION [ARTICLES 25 TO 28]
Article 25
It guarantees to every person freedom of conscience and the right to profess, practice and propagate
any religion freely.
Article 26
It guarantees to every religious denomination the following rights:
 The right to establish and maintain institution for religious and charitable purpose
 The right to manage its own affairs in maters of religion.
 Right to own and acquire movable and immovable property.
 Right to administer that property in accordance with law.

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Article 27
It provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular religion or
religious denomination.
Article 28
It provides that no religious instructions shall be provided in any educational institution wholly
maintained out of State funds. However, this prohibition shall not apply to any educational
institution which is administered by the State by has been established under any endowment or trust
which requires that religious instruction shall be imparted in such institution.
CULTURAL AND EDUCATIONAL RIGHT [ARTICLES 29 & 30]
Articles 29
It provides the following:
 Any section of the citizens residing in the territory of India having distinct language. Script
or culture of its own shall have the right to conserve the same; and
 No citizen shall be denied admission into any educational institution maintained by the state
on grounds only of religion, race, cast, language or any of them.

Article 30
It provides the following:
1. All minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice; and
2. The state shall not in granting aid to educational institution, discriminate any educational
institutions, discriminate any educational institution on the ground that it is under the
management of the minority whether based on religion or language.

RIGHT TO CONSTITUTIONAL REMEDIES [ARTICLES 32]

Article 32 guarantees the enforcement of fundamental rights. Article 32 makes it a fundamental
right that a person, whose fundamental right is violated, has a right to move the Supreme Court for
the enforcement of his fundamental rights, Thus, a person nee not first exhaust the other remedies
and then go to the Supreme Court. On the other hand, he can directly raise the matter before the
highest court of the land and the Supreme Court may pass the appropriate orders and writs for the
enforcement of the right, the violation of which has been alleged.
DIRECTIVE PRINCIPLES OF STATE POLICY
Meaning of Directive Principle of State Policy
Directive principles of State Policy are contained in Part IV, Articles 37 to 51, of the Constitution of
India. They are declared as fundamental to the governance of the country. The State shall apply
these principles in framing the law. But these can’t be enforced by the intervention of the Court.
IMPORTANT Directive Principles of State Policy
Following are some of the important directive principles of state policy:
 State to secure a social order for the promotion of the welfare of the people.
 Certain principles and policies to be followed by the State, such as :

 Equal pay for both men and women:

 The ownership and control of the material resources of the community are so
distributed as best to sub-serve the common goods;
 Prevention of concentration of economic wealth to the common detriment.
 Equal justice and free legal aid.
 Organization of village panchayats.

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 The State shall endeavour to secure the citizens a uniform civil code through out the territory
of India.
 The State shall endeavour to protect and improve the environment and to safeguard the forest
and wildlife of the country.
 The State shall take steps to separate the judiciary from the executive.
 The State shall endeavour to promote international peace and security.

Relationship of directive principles of state policy with fundamental rights.

There is no conflict between Fundamental Right (FR) and Directive Principles of State Policy (DP).
Both are important to achieve the objectives of the Constitution. But what will be the legal position
if a law is enacted to enforce a DP which violates the FR. To understand the correct position, we
may look into the various stages of development.
In the initial stages, if any law was passed giving effect to FR but violating DP then DP was totally
ignored. In State of Madras v. Champakam Dorairajan, it was held that the DP cannot override
the ER. The DP has to conform and to run as subsidiary to the FR. Subsequently, the Supreme
Court applied the principle of harmonious construction by which whenever any law involves with
FR and DP, an attempt was made to give effect to both, to the extent possible, and when it become
impossible. DP was ignored.
Subsequently, Article 31-C was inserted in the Constitution of India by an amendment, which
provided that any law passed to give effect to the directive principles of prevention of concentration
of economic wealth to the common determent (MRTP Act) cannot be challenged even it violates
Article 14 or 19.
Subsequently, Article 31-C was amended and its scope was widened in the sense that any law passed
to give effect to any DP cannot be challenged even if it violates FR under Article 14 or 19.
In Keshavanand Bharti v. Union of India, the court observed that the FR and DP are meant to
supplement each other. It can well be said that the DP prescribes the goals to be attained and FR
lays down the means to achieve them.
Therefore the present position is that the violations of FR is legally enforceable but if it is due to any
law giving effect to DP, it can not be enforced as far as Article 14 to 19 are concerned.
FUNDAMENTAL DUTIES
Rights and duties go hand in hand. Thus, Article 51A of Constitution of India imposes the number of
Fundamental duties on every citizen of India. However, they are not enforceable in the court of law.
Following are some of the important fundamental duties:
 To abide by the Constitution and respect its ideals and institutions, the National Flag and the
National Anthem.
 To hold and protect the sovereignty, unity and integrity of India.
 To defend the country and render National service when called upon to do so.
 To promote harmony and spirit of common brotherhood amongst all the people of India
transacting religious, linguistic and regional or sectional diversities.
 To renounce practices derogatory to the dignity of women.
 To value and preserve the rich heritage of our composite culture.

ORDINANCE MAKING POWERS OF THE PRESIDENT OF INDIA

Normally, parliament has legislative powers and it alone can pass laws on Union list matters.
However, our constitution under Article 123 gives special legislative powers to President of India by
promulgating ordinance under certain circumstances.
Following are the important provisions regarding ordinance making powers of the President of India:
 The President gets the powers only when the Parliament is not functioning. Even if one house
of Parliament is not functioning, the President can pass on ordinance.

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 The President has powers to pass ordinance on the matters on which the Parliament has
powers.
 The Councils of Ministers should suggest the passing of an ordinance on such matters.
 The President himself should be satisfied about the need for the ordinance and he cannot be
compelled.
 Once an ordinance is passed, it should be placed before both the Houses of Parliament and
approved by then within six weeks of their respective dates of reassembly.
 The ordinance lapses if it is not approved within the aforesaid six weeks or if it is rejected
earlier or if the President himself withdraws the ordinance.
 The ordinance cannot be challenged except on the limited grounds of mala fide intention in
passing the ordinance. [Cooper’s Case]

WRITS
Writs are extra ordinary remedies in cases where there is either no remedy available under the
ordinary law or the remedy available is inadequate.
Articles 32 and 226 of our Constitution empower anyone, whose rights are violated, to seek writs,
Under Article 32; the Supreme Court can be moved for enforcement of fundamental right only.
However, under Article 226. High Court can be moved for enforcement of any right including
fundamental right.
Depending upon circumstance, the various types of merits can be issued. Which are discussed below
Writ of Habeas Corpus
The words ‘habeas corpus’ literally means ‘to have body. It is a remedy available to a person who is
confined without legal justification. Through this writ, the court let it know the reasons for detention
of the person and if there is no justification, order the authority concerned to se the person free. The
writ of hebeas corpus, thus, entails the authority to produce the person before the court. The
applicant of this writ may be the prisoner or any person on his behalf to safeguard his liberty. It
seeks immediate relief from unlawful detention whether in prison or private custody.
Writ of Mandamus
Mandamus literally means a command. This writ of command is issued by the Supreme Court of
High court when any government, court, corporation or any public authority has to do a public duty
but fail to do so. To invoke the performance of such duty this writ of mandamus is issued, It should
be noted that it should not be discretionary duty of the authority which is challenged. It should be a
compulsory one; the applicant too should have a legal right to enforce such performance. It may
further be noted that this writ can not be issued against President or the Governor.
Writ of Prohibition
Writ of Prohibition is issued by a superior court to subordinate court preventing latter from usurping
the jurisdiction which is legally not vested in it. The writ lies in both for access of jurisdiction or
absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of
the proceeding but before the order is made. It may be noted that this writ is available against
judicial and quasi-judicial body.
Writ of Certiorari
If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the effected party
can move this writ for a direction against such lower court or tribunal to ignore such decisions based
on wrong jurisdiction. The writ of certiorari issued to subordinate judicial or quasi- judicial body
when they act:
 Without or in excess of jurisdiction;
 In violation of the prescribed procedure;
 In contravention of principles of natural justice;
 Resulting in an error of law apparent on the face of record.

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The writs of prohibition and certiorari are of the same nature, the only difference being that the writ
of prohibition is issued at an earlier stage, before the order is made and the writ of certiorari is
available on a later stage i.e. after the order has been passed.
Writ of Quo Warranto
The term ‘Quo Warranto’ means “What is your authority”. Whenever any public office is held by
any one not qualified to hold it, it can be challenged by this writ by any person. An order issued by
the court to such an authority to explain under what valid grounds he is holding such a post. It is
found on investigation that he is not entitled to be office; the court may restrain him from acting in
the office and declare the office to be Vacant. The writ of quo-warranto to issue when:
 The office is public and of substantive nature;
 The office is created by the State or by the Constitution itself; and
 The respondent must have asserted his claim to the office.

DISTRIBUTION OF LEGISLATIVE POWERS

Important Provisions
Since India is a federal State, there is distribution of powers among the Centre and the state. In this
regard, Article 246 provides for the following lists:
 List 1 or the Union List: This list includes subjects over which Parliament has the exclusive
poser to legislate. The list contains 97 items, some of which are defence, foreign affairs,
citizenship, currency, judiciary, central taxes, etc.
 List II or the State List: This list contains 66 items over which the state legislature have the
exclusive power to legislate. Some of the important items are public health and sanitation,
pilgrimage, roads, agriculture, state taxes, etc.
 List III or the Concurrent List: This list contains 47 entries over which both Parliament
and the state legislatures can legislate, Some of the important items are marriage, economic
and social planning, trade union, stamp duties, etc.

It may be noted that Parliament has exclusive powers to make any law with respect to any matter
which is not covered in any of three lists. This is known as residuary powers of legislature.
Power of the Parliament to make Laws on State List Matters
Normally the state legislature has the exclusive powers to make laws with respect to subjects
enumerated in the state list. But Article 246 of our constitution empowers Parliament to make laws
even on state list matters under the following five circumstances;
 In the National Interest (Article 249) : National Interest has been defined but whenever
parliament feels that it is necessary to pass laws on state list matters in public interest, it is
covered under this Article.
 During proclamation of emergency (Article 250) : While proclamation of emergency is in
operation, Parliament shall have the power to make laws for whole or any part of the territory
of India on any matter in the state list. Here emergency includes period of internal
disturbances and external aggression etc.
 On request of two or more states (Article 252) : If there is a dispute between two or more
states and they pass a resolution in their assemblies to refer the matter to Parliament for any
law on state list matters concerning them, the Parliament can pass law.
 Legislation for enforcing international agreements (Article 253) : If there is any
international agreement between foreign country and India, and to give effect to such
agreement if a law is to be passed, the Parliament can pass the law ever if the matter is
contained in state list.

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 Breakdown of Constitutional machinery in a state (Article 356) : parliament can make

law with respect to all state matters as regard the state in which there is breakdown of
constitutional machinery and is under President Rule.

FREEDOM OF TRDE COMMERCE AND INTERCOURSE

The Constitution of India in Part XIII, wide Articles 301 to 305, deals with freedom of Trade,
Commerce and Intercourse. Out of these articles, Article 301 creates an overall limitation on all
legislative powers of the Union and the State legislature. The bar on state powers to interfere in the
free trade, commerce and intercourse (Article 301) is loosened by Article 302,303 and 304. Article
305 provides for state monopoly.
Study of the Articles 302 to 305 will reveal when and how the Constitution of India permits the
government to restrict freedom of trade, commerce and intercourse.
Article 301: The trade and commerce throughout the territory of India shall be free and without
restriction. The restriction can generally may be way of taxes. The taxes may be compensatory
where they are levied for any service provided it is not taken as restriction.
But if the tax is levied to regulate or to prevent certain people from carrying on business, it amounts
to restriction.
Thus the object of Article 301 is to break down the barriers between the states and to make the
country as one unit with a view to encourage trade and commerce.
Article 302: However, the Parliament can impose restrictions on freedom of trade commerce and
intercourse in public interest.
Article 303: The Parliament while imposing restrictions under Article 302, cannot discriminate
between different state. However, the parliament can discriminate in case of scarcity of goods.
Article 304: It enables state legislature to impose taxes on goods coming from other states, if goods
produced within the state are subjected to such taxes.
Article 305: Any law passed by the Union thereby creating the state monopoly shall not be affected
by the provision of Part XIII of the Constitution of India.
IMPORTANT TERMS

Pith and Substances Rule

The rule of pith and substance is applied when a law dealing with a subject in one list also touches a
subject in another list. In such cases the pith and substance of the legislation i.e., the true object of
legislation is to be determined. If on such examination, it is found that the legislation in its existence
is within the legislative competent of the legislature which enacted it, it is valid even if it
accidentally encroached on a subject in another list.
Colourabe legislation
The theory being this concept is “you cannot do indirectly what you cannot do directly”. The object
of distribution of legislative powers to different legislatures is that they ought to act within their
respective boundaries marked by the specific entries, The are some cases where the legislature
passes an Act which outwardly purports to be dealing with a subject within its legislative
competence but in substance it covers a subject not within its powers, Such type of law is called
colorable legislation and it will be struck down by the Court.
Delegated Legislation
It refer to all law making which take place outside the legislature and is generally expressed as rules,
regulations, orders, by-law etc. In other words, when an instrument of a legislative nature is made
by an authority in exercise of poser delegated by the legislature, it is called the delegated legislation.
The three relevant justifications for delegated legislation are:
 The limits of the time of the legislature:
 The limits of the amplitude of legislature; and

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 The need of some weapon for copying with situation created by emergency.

Lesson 21
INTERPRETATION OF STATUTES
GENERAL PRINCIPLES/RULES OF INTERPRETATIONS

Rule of literal construction/ Interpretation

According to this rule, the words phrases and sentences of a statute are ordinarily to be understood in
their natural, ordinary or popular and grammatical meaning unless such a construction leads to an
absurdity or the content or object of the statute suggests a different meaning.
The objectives natures, ordinary and popular are used interchangeably. They mean the grammatical
or literal meaning, except when the words are technical because technical words have technical
meanings.
In simple words, this rule means to give simple straightforward and fair meaning to the provision of
law. It is also known as golden or primary rule of interpretation.

Rule of reasonable Construction or Doctrine of Ut Res Magis Valeat Quam Pareat

The maximum Ut Res Magis Valeat Quam Pareat i.e., the rule of reasonable construction implies
that Statute must be constructed reasonably. A statute or any enacting provision therein must be so
construed so as to make it effective and operative. A construction should be rejected if it results in
hardship serious inconvenience, injustice, absurdity, etc.
In simple words, this rule means that if any word in a law can be given more than one meaning, then
the court gives the reasonable meaning relevant to the circumstances, If the litera-leegis i.e., the
letter of the circumstances, If the litera-legis i.e., the letter of the law is not clear, the interpretation
must be ratio-legis,i.e according to the purpose, policy, object or spirit of law.

Mischief Rule or Heydon’s Rule

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Numbers of laws are made to cure a mischief. The mischief rule of interpretation is based on this
reason and it states that interpretation should be made in such way that it is able to cure that mischief
for which the law had been made. Thus, law should be interpreted in such a way so that it
suppresses the mischief and advances the remedy.
It may be noted that mischief rule is applicable only when a particular rule is ambiguous and capable
of different meanings. In such a case, the meaning which can suppress the mischief and advance the
remedy should be taken and other meaning should be discarded. Thus where a law is clear and can
have only one meaning, this rule shall not apply. [CIT v. Sodra Devil]
Harmonious construction
When a different section is an enactment is to be interpreted, they should be done in such a way that
the Act as a whole serves a useful purpose. It may be possible that different sections may appear to
mean contrary to each other or contradicting each other. Under such circumstances, an attempt
should be made to reconcile the provisions of the Act and an effect should be made to give the effect
to both the apparently contradictory provisions. Thereby a head on clash between sections of the
Act is avoided. This is known as harmonious construction.
That effect should be given to both the law, is the very essence of the rule of harmonious
construction. Thus a construction that reduces one of the provisions to a dead letter is not
harmonious construction.
Rule of Ejusdem Generis
The literal meaning of the term ejusdem generic is “of the same kind or species”. If any general
words such a ‘like’,’ so on’. etc follow specific words, the general words should include only those
meaning which can be given to the specific words. For example, printing, bleaching, dying, etc.
The rule requires that where specific words are all of one genius, meaning of the general words shall
be restricted to that genus only, unless there is something to show that a wider meaning was
intended.
The rule of ejusdem generic applies only when the following conditions are satisfied:
 The statute contains an enumeration of specific words;
 The members of enumeration constitute a class or category;
 The class/ category is not exhausted by the enumeration;
 The general term follows the enumeration; and
 There is no indication of different legislative intent.

OTHER PRINCIPLE/RULES OF INTERPLRETATION

Expressio Unls Est Exclusio Alterius

The rule literally means that express mention of one thing implies the exclusion of another. In other
words, mention of one or more things of particular class may be regarded as silently excluding all
other members of the class. Thus where a statute uses two words or expressions, one of which
generally includes the other, the more general term is taken in a sense excluding the less general one;
otherwise they would have been little point in using the letter as well as the former.
It may be noted that this maxim ought not to be applied, where its application lead to inconsistency
or injustice.
Contemporanea Expositio Est Optima Et Fortissima Lege
The rule literally means that a contemporaneous exposition is the best and strongest in the law. It is
said that the best exposition of the statute or any other document is that which it has received from
contemporary authority. The language of the statute must be understood in the sense in which it was
understood when it was made.
It may be noted that the application of this doctrine is confined to the construction of ambiguous
language used in very old statutes where indeed the language itself might have had a rather a
different meaning on those days.

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Noscitur a sociis
The rule literally means that a word is known by its associates. In other words, the meaning of the
word is to be judged by the company it keeps. When two or more words having the analogous
meaning are coupled together, they are understood in their cognate sense. They take their colour
from each other.
The Supreme Court, while interpreting the expression “powers, privilege or immunities of a House
of the State Legislature”, held that the word ‘powers’ must take its colour from the words in
immediate connection with it and that it should be construed to refer not to legislative posers but to
powers of House which are necessary for the conduct of its business. [State of Karnataka v. Union
of India]
Strict and Liberal Construction
The words of a statute are to be constructed in the manner in which they are stated in the Act. The
state is not to be regarded as including any thing which is not within its letter and its spirit and which
is not clearly and manifestly described in the words of the statute itself. It may be noted that the
words of a Penal Statute which creates an offence or prescribes punishment are construed very
strictly.
Where the usual meaning of the words falls short of the object of the legislature, a more extended
meaning may be attributed to them. It has been held in many cases that it is the duty of the judge to
make such construction of a statute as shall suppress the mischief and advance the remedy or which
fulfills the objective thought behind in enactment of that law.
AIDS OF INTERPRETATION
There are two kinds of aids of interpretation i.e., internal & External aids of Interpretation.
Internal aids of interpretation
 Title : The long title is set out at the head of the statute and gives a fairly full description of
the general purpose, object and scope of the Act. It is now settled that the long title of an Act
is the part of the Act and it is legitimate to use it for the purpose of interpreting the Act as a
whole.
 Preamble: A preamble may afford useful light as to what a statute intends to achieve. It may
be noted that the preamble can be taken s an aid in interpretation of law only if that law is not
clear and ambiguous in nature, otherwise not.
 Headings : The headings prefix to sections, chapters and parts of statute can be used in
constructing the provision of an Act, but only in cases where the enacting words are
ambiguous.
 Marginal Notes : Marginal notes are often found printed at the side of the sections in an Act.
They purport to summaries the effect of the section and have sometimes be used as an aid to
interpretation.
 Interpretation Clause : Interpretation clause consists of definitions of various words which
are frequently used throughout the Act. Whenever a word has been defined in interpretation
clause, prima facie that definition governs whenever that word is used in the body of the
statute. However, if in a particular context, different meaning of a word is given, then the
different meaning will be used and general meanings will be discarded for the purpose of
interpretation.
 Provisos : Provisos are the various conditions appended to a section in an Act. A particular
section will be applicable only if the conditions specified in its provisio are satisfied.
 Illustrations: Illustrations attached to sections are part of the statute and they are useful so
far as they furnish some information which helps in interpretation.
 Explanation : An explanation is, at times, appended to a section to explain the meaning of
words contained in the section. It becomes the part and parcel of an enactment.
 Schedules : The schedules form a part of the statute and must be read together with it for the
purpose construction.

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 Statement of Objects and Reasons: The fact that Parliament has passed the provisions of
the statement of objects given sanction to them and thus they are a valid aid in the
interpretation of provisions.

External Aids of Interpretation

Following are important external aid of interpretation:
 Parliamentary History: The Supreme Court, on many occasions, has used this aid of
parliamentary history i.e., debates and discussions of the Parliament while making that law,
in resolving questions of construction.
 Historical facts and circumstances: It has already been established that the court is entitled
to take into account such external or historical facts as may be necessary to understand the
subject matter of the statute.
 Reference to reports of committee: The report of a select committee or other committees
on whose report an enactment is based, can be looked into for the interpretation of statute.
 Reference to other statutes: It has already been established that reference to other statutes
in “pari meteria” i.e., statutes dealing with the same subject matter, is permitted.
 Dictionaries: When a word is not defined in the Act itself, it is permissible to refer to
dictionaries to find out the general sense in which that word is understood in common
parlance.
 Use of Foreign decision: Use of foreign decisions of countries, following the same systems
of jurisprudence as ours, and rendered on statutes in ‘pari materia’, has been permitted by
practice courts.

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Lesson 22
Section-I
SPECIFIC RELIEF ACT 1963
INTRODUCTION
The term ‘relief’ means the remedy granted for some wrong or injury.
There are two types of remedies:
 Remedy by which the aggrieved party obtains the same thing to which he is entitled.
 Remedy by which the aggrieved party does not obtain the very thing to which he is entitled
but compensation for the loss.

The first remedy is to “Specific Relief”. While the second remedy is the “Compensatory Relief’s
Thus, specific relief is a relief in specie which aims at the “exact” fulfillment of an obligation. It is
also known as equitable relief.
The concept of specific relief is governed by various provision of Specific Relief Act, 1963.
PRINCIPLES UPON WHICH SPECIFIC RELIEF IS GRANTED
Following are the principles upon which remedy of specific relief is granted:
 Damages is not an adequate remedy: Where damages in money are not an adequate
remedy or relief, the court grants the remedy of specific relief.

 Dissertation of the Court: An aggrieved party can always apply for the specific relief but
whether specific relief will be granted or not it depends upon the discretion of the court. But
this discretion of the court is not arbitrary, depending upon the will and pleasure of the court.
It has to be exercised on sound and established principles of equity.

 Specific relief granted only for enforcing individual and civil rights and no for
enforcing Panel laws: Specific relief can be granted only for the purpose of enforcing
individual civil rights. Thus, enforcement of Penal law is not possible, except where
enforcement of a panel law is merely incidental to the grant of specific relief.

RECOVERY OF POSSESSION OF PROPERTY

The Specific Relief Act, 1963 lays down the law in this regard under the following two heads;
 Recovery of immovable property; and
 Recovery of movable property.

Recovery of immovable property

The Specific Relief Act, 1963 provides for the recovery of the possession of immovable property on
the strength of:
 Title; and
 Possession

Recovery on the strength of title [Section 5]:

A person entitled to the possession of specific immovable property may recover it in the manner
provided by the Code of Civil Procedure, 1908. According to this, he may file for ejectment on the
strength of his title of property within 12 years from the date of dispossession.
Recovery on the strength of Possession [Section 6]:

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A person may sometimes be dispossessed without his consent of immovable property otherwise than
in due course of law. Such a person may file a suit, within six months from the date of
dispossession, for the recovery of possession of such property.
Following are the important points in this regard:
 Plaintiff was disposed without his consent and otherwise than in due course of law.
 A suit can be instituted even against the rightful owner of the property.
 No suit under section 6 can be brought against the government.
 No appeal and no review of he order or decree passed under section 6 is allowed.

Recovery of possession of movable property

Section 7: A person who is entitled to the possession of specific movable property may recover the
possession of that property if he is disposed of that property, in the manner provided by the Code of
Civil Procedure, 1908.
To recover the possession under section 7, following points may be noted:
 The property to be recovered must be capable of being ascertained and identified.
 The person suing must have a right to the immediate possession of the property.
 Trustee may sue for the possession of movable property which is held by him in trust.
 A person having a special or temporary right to the possession of property may also file a
suit.

Section 8: This section deals with the liability of a person having the possession of a movable
property of which he is not a legal owner.
To apply Section 8, following conditions must be satisfied:
a) The defendant have the possession or control of the movable property;
b) The defendant is not the owner of the movable property; and
c) Plaintiff have the right to the immediate possession of the movable property
If the above conditions are satisfied, the defendant can be compelled to deliver the property to
the plaintiff in the following cases:
1) When the property or thing is held by defendant as an agent or trustee of the plaintiff.
2) When the compensation in money is not adequate for the property.
3) When it is not possible to ascertain the damage suffered from the loss of article.
4) When the possession of thing or article has been wrongly transferred from the plaintiff.

Difference between Section 7 and Section 8:

Following are the important points of difference between Section 7 and Section 8:
 Section 7 provides a general relief, whereas Section 8 provides a special relief.
 Under section 7, even the owner of the movable property can be sued. However, it is
not possible under Section 8.
 Under Section 7, money compensation may be alternative remedy, whereas specific
relief is the only remedy under Section 8.

SPECIFIC PERFORMANCE OF CONTRACT

Introduction
Specific performance is an equitable relief given by the court in cases of breach of contract. It is in
the form of judgment by the court ordering the defendant o actually perform the contract according
to its terms and condition. In the case of breach of contract, compensatory relief can also be granted
but in some cases such relief may not be adequate and hence specific relief is granted. However, the
defendant can also take the various defences in order to avoid the specific performance of contract.
The subject of specific performance may be discussed under the following heads:

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 Contract which may be specifically enforced.

 Contracts which cannot be specifically enforced.
 Defences to an action for specific performance.
 Parties to an action for specific performance.

Contracts which may be specifically enforced

Section 10: The specific performance of any contract may be enforced in the following cases:
 When there exists no standard for determining the actual damage caused as a result of non-
performance of contract.
 When compensation in money is not an adequate relief for the non-performance of the
contract.

Section 10 further provides that, until and unless the contrary is proved, the court shall presume the
following:
 In case of breach of contract of transfer of immovable property, the compensation in
money is not an adequate relief.
 In case of breach of contract of transfer of movable property, the compensation in money
is an adequate relief. However in the following cases, the court shall presume that the
compensation in money is not an adequate relief:
 When compensation in money is not an adequate relief.
 When the property is of special value or interest to the plaintiff.
 Where the property consists of goods which are not easily available in the market.
 Where the property is held by the defendant as the agent/ trustee of the plaintiff.

Section 11: Specific performance of the contract may be enforced when the act agreed to be done is
the performance of a trust.
Specific performance of part of contract [Section 12]:
The general rule is that the court normally does not grant the specific performance of only a part of a
contract. However, the court may direct the specific performance of a part of a contract in the
following cases:
 Part left underperformed proportionately small and can be compensated in money.
 Part left unperformed considerably large, if the plaintiff relinquishes all claim to further
performance and all rights to compensation.
 Separate and independent part.

Contracts which can not be specifically enforced

Section 14: Following contracts can not be specifically enforced:
 A contract in which compensation in money is an adequate relief for the nonperformance of
such contract.
 A contract requiring supervision of the court as the court’s time is precious.
 A contract depending upon personal qualification or volition of parties.
 A contract which runs into such minute and numerous details which court could not enforce.
 A contract of such nature that court cannot enforce its specific performance.
 A contract which by it nature is a determinable contract. A determinable contract is a
contract which can be terminated by any of the parties to a contract.
 A contract to refer present future disputes to arbitration except provided by the arbitration
law.

Contract to sell or let property by one who has no title [Section 17]:

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A contract to sell or let any immovable property cannot be specifically enforced in the following
cases where
 A seller or a lesser does not have any title to the property;
 Where the seller or lesser cannot give the purchases/ lessee a free title at the time fixed by the
parties or court.

Section 20:
In the following cases, the court can use its discretion and may reject the specific relief:
 Contract giving unfair advantages to the plaintiff.
 Performance involving hardships on the dependant.
 When the enforcement makes it inequitable.

Section 14(3):
It lays down the exceptions where the court may enforce the specific performance in the following
cases:
 Where the suit is for the enforcement of a contract to execute a mortgage or furnish a security
for securing the repayment of a loan which the borrower is not willing to repay.
 Where the suit is for the performance/ enforcement of a contract to take up and pay for the
debentures of a company.
 Where the suit is for the executing the formal deed of partnership and the parties have
commenced the business OR purchasing of shares of parties in a firm,
 Where the suite is for the performance of contract for the construction of any building or the
execution of any other work on land provided the following conditions are satisfied:
 The building or other work is described sufficiently in the contract:
 The plaintiff has substantial interest in the performance of a contract:
 Compensation in money is not an adequate relief for the non-performance of contract;
and
 The defendant has obtained the possession of land where the work is to be done.

Defences to an action for specific performance

The following defences may taken by a defendant against a suit for specific performance of contract:
 Contract by trustee in excess o his powers,
 Specific performance of a part of a contract where unperformed part is large or substantial.
 Unperformed part of a contract not separate and independent.
 Contracts not specifically enforceable.
 Non enforcement except with variations,

For example. A sues B to compel specific performance of contract in writing to buy a house. B
proved that he assumed that the contract included house and adjoining garage and a contract was so
framed as to leave it doubtful weather the garage was included or not. The court will refuse to
enforce the contract except with the variations set up by B,
Delay or laches:
If time is the essence of the contract and there is failure on the part of the plaintiff to perform his part
of the contract, then the defendant can take a defence to an action for specific performance of
contract,
Parties to an action for specific performance
The law on the parties to an action may be discussed under the following two heads:
A. Persons who may obtain specific performance; and
B. Persons against whom contracts maybe specifically enforced.

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Parties who may obtain specific performance [Section 15]:

 Parties to the contract: The general rule is that the specific performance of the contract may
be obtained by parties to the contract.
 Representative in Interest: The specific performance of a contract may also be obtained by
the representative in interest or the principle of any party therein.
 Any person beneficially entitled: Where the contract in settlement of marriage or a
compromise of doubtful right between the members of some family, any person beneficially
entitled there under may claim specific performance.
 Remainder Man: Remainder man means a man to whom the remaining interest in a property
vast office the happening of a certain specified event.
 Reversioner: Person having the Reversionary Interest.

However in the following case, a specific performance of a contract cannot be enforced against a
person. [Section 16]:
 A person who would not to be entitled to recover compensation for its breach.
 A person who has become incapable of performing.
 A person who violates any essential terms of contract.
 A person who act in a fraudulent manner.
 A person who varies the terms and conditions of the contract in a wrongful manner.
 A person who fails to perform his part of the contract or fails to prove that he is willing to
perform his part of the contract.

Persons against whom contract may be specifically performed [Section 19]:

Specific performance of a contract may be enforced against the following person:
 Either party thereto;
 Any other person claiming under him by a title arising subsequently to the contract. However
against a transferee for value who has paid his money in good faith and without notice of
original contract, specific performance can not be granted;
 Any person claiming under a title which, though prior to the contract and known to the
plaintiff, might have been displayed by the defendant.

For example, A, a tenant for life of the property, with remainder to B, in due exercise of the power
conferred by the settlement under which he is tenant for life; contract to sell the property C, who has
notice of the settlement. Before the sale is completed, A dies, C may enforce specific performance of
a contract against B
DECLARATORY DECREE

Meaning of declaratory decree [Section 34]

A declaratory decree of the court is a decree which declares that the plaintiff is entitled to any legal
character or any legal right as to any property against the defendant who denies his title to such
character or right.
The main object of section 34 is to dispel a cloud cast upon the legal character or title of the plaintiff
who seeks the aid of the court to get the declaration so that he can peacefully enjoy the legal
character or title without any fear or disturbance.
Requisites for the purpose of declaratory decree
The court may issue a declaratory decree, if the following conditions are fulfilled:
 The plaintiff is entitled to any property.
 The defendant denies the plaintiff’s title to such legal character or right;

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 The declaration asked for is for legal character or right to property only;
 The plaintiff is not able to claim further relief other then declaration: and
 The court is satisfies that the relief is proper.

Effect of Declaration [Section 35]:

A declaration decree passed under Section 34 is binding only on the following persons:
 The parties to the suit;
 The persons claiming through them respectively; and
 The persons for whom any of the parties to the suit are trustees.
Thus, declaration under section 34 is a judgment in personam and not a judgment in rem. Hence, it is
not binding on strangers.
For example, A, a Hindu in a suit to which B, his alleged wife and her mother seeks a declaration
that his marriage was duly organized and an order for the restitution of conjugal rights. The court
makes the declaration and order, C, claiming that N is his wife then sues A for the recovery of B.
The declaration made in the former suit is not binding upon C.
PREVENTIVE RELIEF/INJUCTION
Meaning
Preventive relief means the relief where a party to the contract is prevented from doing particular
act, which he is under an obligation not to do. Preventive relief is granted under the discretion of
court by way of Injunction. Injunction is a judicial process whereby a party is ordered to refrain
from doing or to do a particular act or thing.
Types of Injunction
 Temporary injuction: A temporary injuction means an injuction which is to continue until a
specific time or until the further orders of the court. It may be granted at any stage of the suit
and does not conclude or determine the right. This is also known as interlocutory or interim
injuction.
 Perpetual Injuction: A perpetual injuction can be granted by decree made at the hearing and
made upon the merits of the suit. It is granted only after full trial or hearing or the case,
when a right is firmly established.
 Mandatory Injuction: Sometime to prevent the breach of an obligation, it may be necessary
to compel the performance of certain acts. If a court is capable of enforcing the performance
of those acts, it may grant an injuction to prevent the breach complained of and also to
compel the performance of the requisite act. This injuction is known as mandatory injuction.
 Ex-parte Injunction : Where the facts and circumstances of the case require that an
injunction should be granted in favour of one party without hearing the other party, the court
may do so. This is known as ex-parte injunction.

Injunction to perform Negative Agreement [Section 42]

Sometime a contract may comprise of two agreements i.e., an affirmative agreement, to do a
particular act and a negative agreement, not to do a certain at. In such a case, if the court is unable to
compel the specific performance of the affirmation agreement, it may grant an Injunction to perform
the negative agreement.
Following are the essential requirements of Section 42:
 The contract must consist of two agreements i.e., positive and negative agreement;
 The contract must be divisible and the negative part must be capable of being separated from
the rest of the contract: and
 The applicant must not have failed to perform the contract so far as it is binding on him.

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Lesson 22
Section II
LAW RELATING TO TORTS
INTRODUCTION
 The word ‘tort’ is a French equivalent of English word ‘wrong’. The word tort is derived
from Latin language from the word Tortum. Thus, simply stated ‘tort’ means wrong. But
every wrong or wrongful act is not a tort. Tort is really a kind of civil wrong as opposed to
criminal wrong. Wrongs, in law, are either public or private.
 Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not
exclusively a breach of contract or breach of trust.”
GENERAL CONDITIONS OF LIABILITY FOR A TORT
Wrongful act:

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The act complained of, should under the circumstances, be legally wrongful as regards the party
complaining. In other words, it should prejudicially affect any of the above mentioned interests, and
protected by law. Eg. right of reputation, right of bodily safety and freedom, and right to property are
violated without legal excuse, has a right of action against the person who violated them, whether
loss results from such violation or not.
Legal damages:

As was stated in Ashby v. White, (1703) 2 Ld. Raym. 938 legal damage is neither identical with
actual damage nor is it necessarily pecuniary. Two maxims, namely :

Damnum Sine Injuria

 The maxim means a man may have suffered damage and yet have no action in tort, because
the damage is not to an interest protected by the law of torts.
 Thus, if I own a shop and you open a shop in the neighbourhood, as a result of which I lose
some customers and my profits fall off, I cannot sue you for the lose in profits, because you
are exercising your legal right.
Injuria Sine Damno
 Where there is no damage resulted yet it is an injury or wrong in tort, i.e. where there is
infringement of a legal right not resulting in harm but plaintiff can still sue in tort.
 The leading example is the case of Ashby v White referred to above where a person was
wrongfully not allowed to vote and even though it has not caused him any damage, since his
legal right to vote was denied, he was entitled to compensation.
Legal remedy:

 The third condition of liability for a tort is legal remedy. This means that to constitute a tort,
the wrongful act must come under the law. The main remedy for a tort is an action for
unliquidated damages, although some other remedies, e.g., injunction, may be obtained in
addition to damages or specific restitution may be claimed in an action for the detention of a
chattel.
 For example, if “A” finds a drunken stranger in his room who has no business to be there in
it, and is thus a trespass, he (A) is entitled to get rid of him, if possible without force but if
that be not possible with such force as the circumstances of the case may warrant.
Mens Rea
 The General principle lies in the maxim “actus non facit reum nisi mens sit rea” i.e. the act
itself creates no guilt in the absence of a guilty mind.
 It does not mean that for the law or Torts, the act must be done with an evil motive, but
simply means that mind must concur in the Act, the act must be done either with wrongful
intention or negligence.
 For example, under criminal law, mens rea must be proved. However, to this principle cases
of absolute or strict liability are exceptions.
KINDS OF TORTIOUS LIABILITY
The following types of tortuous liability may be noted:

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(A) STRICT OR ABSOLUTE LIABILITY

In some torts, the defendant is liable even though the harm to the plaintiff occurred without intention
or negligence on the defendant’s part. In other words, the defendant is held liable without fault.
These cases fall under the following categories:
 Liability for Inevitable Accident – Such liability arises in cases where damage is done by the
escape of dangerous substances brought or kept by anyone upon his land. Such cases are
where a man is made by law an insurer of other against the result of his activities.
 Liability for Inevitable Mistake – Such cases are where a person interferes with the property
or reputation of another.
 Vicarious Liability for Wrongs committed by others – Responsibility in such cases is
imputed by law on grounds of social policy or expediency. These case involve liability of
master for the acts of his servant.
The facts of this case were as follows:
 B, a mill owner employed independent contractors, who were apparently competent to
construct a reservoir on his land to provide water for his mill.
 There were old disused mining shafts under the site of the reservoir which the contractors
failed to observe because they were filled with earth.
 The contractors therefore, did not block them. When the water was filled in the reservoir, it
bursted through the shafts and flooded the plaintiff’s coal mines on the adjoining land.
 It was found as a fact that B did not know of the shafts and had not been negligent, though
the independent contractors, had been, B was held liable. Blackburn,
 J., observed; “We think that the true rule of law is that the person, who for his own purposes
brings on his lands and collects and keeps there anything likely to do mischief if it escapes,
must keep it at his peril and if, he does not do so is, prima facie answerable for all the
damage which is the natural consequence of its escape.”
Exceptions to the Rule of Strict Liability
The following exceptions to the rule of strict liability have been introduced in course of time, some
of them being inherent in the judgment itself in Ryland v. Fletcher:
 Damage due to Natural Use of the Land
In Ryland v. Fletcher water collected in the reservoir in such large quantity, was held to be
non-natural use of land. Keeping water for ordinary domestic purpose is ‘natural use’. Things
not essentially dangerous which is not unusual for a person to have on his own land, such as
water pipe installations in buildings, the working of mines and minerals on land, the lighting
of fire in a fire-place of a house, and necessary wiring for supplying electric light, fall under
the category of “natural use” of land.
 Consent of the plaintiff
Where the plaintiff has consented to the accumulation of the dangerous thing on the
defendant’s land, the liability under the rule in Ryland v. Flethcher does not arise. Such a
consent is implied where the source of danger is for the ‘common benefit’ of both the
plaintiff and the defendant.
 Act of Third Party

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If the harm has been caused due to the act of a stranger, who is neither defendant’s servant
nor agent nor the defendant has any control over him, the defendant will not be liable. Thus,
in Box v. Jubh (1879) 4 Ex. D. 76, the overflow from the defendant’s reservoir was caused
by the blocking of a drain by stranger, the defendant was held not liable. But if the act of the
stranger, is or can be foreseen by the defendant and the damage can be prevented, the
defendant must, by due care prevent the damage. Failure on his part to avoid such damage
will make him liable.
 Statutory Authority
Sometimes, public bodies storing water, gas, electricity and the like are by statute, exempted
from liability so long as they have taken reasonable care. This is based on the principle that
they act in public interest.
 Act of God
If an escape is caused, through natural causes and without human intervention circumstances
which no human foresight can provide against and of which human prudence is not bound to
recognize the possibility, there is then said to exist the defence of Act of God.
 Escape due to plaintiff’s own Default
Damage by escape due to the plaintiff’s own default was considered to be good defence in
Rylands v. Fletcher itself. Also, if the plaintiff suffers damage by his own intrusion into the
defendant’s property, he cannot complain for the damage so caused.
VICARIOUS LIABILITY
Normally, the tortfeasor is liable for his tort. But in some cases a person may be held liable for the
tort committed by another. A master is vicariously liable for the tort of his servant, principal for the
tort of his agent and partners for the tort of a partner. This is know as vicarious liability in tort. The
common examples of such a liability are:
 Principal and Agent [Specific authority]
 Partners
 Master and Servant [Authority by relation]
 Employer and Independent Contractor
 Where Employer is Liable for the acts of Independent Contractor
 Where Employer is not Liable for the acts of an Independent Contractor
 Liability for the acts of Servants
TORTS OR WRONGS TO PERSONAL SAFETY AND FREEDOM
An action for damages lies in the following kinds of wrongs which are styled as injuries to the
person of an individual:
Battery
Any direct application of force to the person of another individual without his consent or lawful
justification is a wrong of battery. To constitute a tort of battery, therefore, two things are necessary:
 use of force, however, trivial it may be without the plaintiff’s consent, and
 without any lawful justification.

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Even though the force used is very trivial and does not cause any harm, the wrong is committed.
Thus, even to touch a person in anger or without any lawful justification is battery.
Assault
Assault is any act of the defendant which directly causes the plaintiff immediately to apprehend a
contact with his person.
Thus, when the defendant by his act creates an apprehension in the mind of the plaintiff that he is
going to commit battery against him, the tort of assault is committed.
The law of assault is substantially the same as that of battery except that apprehension of contact, not
the contact itself has to be established.
Usually when there is a battery, there will also be assault, but not for instance, when a person is hit
from behind.
 To point a loaded gun at the plaintiff, or
 to shake fist under his nose, or
 to curse him in a threatening manner, or
 to aim a blow at him which is intercepted, or
 to surround him with a display of force

is to assault him clearly if the defendant by his act intends to commit a battery and the plaintiff
apprehends it, is an assault.
Bodily Harm
A willful act (or statement) of defendant, calculated to cause physical harm to the plaintiff and in
fact causing physical harm to him, is a tort.
False Imprisonment
False imprisonment consists in the imposition of a total restraint for some period, however short,
upon the liberty of another, without sufficient lawful justification. It means unauthorized restraint on
a person’s body.
What happens in false imprisonment is that a person is confined within certain limits so that he
cannot move about and so his personal liberty is infringed.
Malicious Prosecution
Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another,
maliciously and without reasonable and probable cause, which terminate in favour of that other and
which results in damage to his reputation, personal freedom or property.
The following are the essential elements of this tort: There must have been a prosecution of the
plaintiff by the defendant.
 There must have been want of reasonable and probable cause for that prosecution.
 The defendant must have acted maliciously (i.e. with an improper motive and not to further
the end of justice).
 The plaintiff must have suffered damages as a result of the prosecution.
 The prosecution must have terminated in favour of the plaintiff.

Nervous Shock

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This branch of law is comparatively of recent origin. It provides relief when a person may get
physical injury not by an impact, e.g., by stick, bullet or sword but merely by the nervous shock
through what he has seen or heard.
Causing of nervous shock itself is not enough to make it an actionable tort, some injury or illness
must take place as a result of the emotional disturbance, fear or sorrow.
Defamation
Defamation is an attack on the reputation of a person. It means that something is said or done by a
person which affects the reputation of another. It is defined as follows:

“Defamation is the publication of a statement which tends to lower a person in the estimation of
right thinking members of society generally; or which tends to make them shun or avoid that
person.
Defamation may be classified into two heads: Libel and Slander.
 Libel is a representation made in some permanent form, e.g. written words, pictures,
caricatures, cinema films, effigy, statue and recorded words. In a cinema films both the
photographic part of it and the speech which is synchronized with it amount to tort.
 Slander is the publication of a defamatory statement in a transient form; statement of
temporary nature such as spoken words, or gestures.
REMEDIES IN TORTS
Judicial Remedies
Three types of judicial remedies are available to the plaintiff in an action for tort namely:
 Damages or Compensation,
 Injunction, and
 Specific Restitution of Property.

Extra Judicial Remedies

In certain cases it is lawful to redress one’s injuries by means of self help without recourse to the
court. These remedies are:
Self Defence
It is lawful for any person to use reasonable forces to protect himself, or any other person against
any unlawful use of force.
Prevention of Trespass
An occupier of land or any person with his authority may use reasonable force to prevent trespassers
entering or to eject them but the force should be reasonable for the purpose.
Re-entry on Land
A person wrongfully disposed of land may retake possession of land if he can do so in a peaceful
and reasonable manner.
Re-caption of Goods

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It is neither a crime nor a tort for a person entitled to possession of a chattel to take it either
peacefully or by the use of a reasonable force from one who has wrongly taken it or wrongfully
detained it.
Abatement of Nuisance
The occupier of land may lawfully abate (i.e. terminate by his own act), any nuisance injuriously
affecting it. Thus, he may cut overhanging branches as spreading roots from his neighbour’s trees,
but
 upon giving notice;
 by choosing the least mischievous method;
 avoiding unnecessary damage.
Distress Damage Feasant
An occupier may lawfully seize any cattle or any chattel which are unlawfully on his land doing
damage there and detain them until compensation is paid for the damage. The right is known as that
of distress damage feasant-to distrain things which are doing damage. It is a legal seizure and
detention of cattle or chattel till compensation is paid for the damage.

Lesson 22
Section III
Limitation Act, 1963
Introduction:
The object of the Limitation Act, 1963 is to prescribe the period within existing rights can be
enforced in courts of law.
The principal in which the law of limitation is base is “vigilantibus non dormientibus leges
subvenient” i.e. the, law aids the diligent and not the indolent. This is because with passage of time
all evidence of the facts may be lost.
Limitation Bars Remedy But does not Extinguish right:

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The law of limitation only bars the remedy by way of the suit i.e., if the period of limitation expires,
the party entitled to file a suit for the enforcement of a right is debarred from doing so. However, the
original right on which the suit was to base is not barred. Thus, limitation only bars the judicial
remedy but it does not extinguish the right.
For example, where the recovery of a debt has become time barred by the lapse of the prescribed
period limitation, the right to the debt is not extinguished. If the debtor, without being aware of the
bar of time, pays the debt he cannot sue the creditor to refund the money to him on the ground that
his claims for the recovery of the debt had become time barred.
It may be noted that there is one exception to the aforesaid rule which is contained in Section 27 of
the Limitation Act, 1963. It provides that where a person’s right to institute the suit for the
possession of any property has become barred by limitation his riht to the property itself shall be
extinguished.
Limitation is the Statute of Repose, Peace and Justice:
The statutes of limitation are statute of repose because they extinguish stale demands and quite titles.
They lay, at rest; claims which might otherwise have disturbed the peace of community. They
secure peace by ensuring security of rights and secure justice as by lapse of time evidence may have
been destroyed.
In S.C. Parashar v.Vasant Sen, the Supreme Court has rightly observed that the statute of
limitation is a statute of repose, peace and justice.
The intention of the law of limitation is not to give a right where there is not one, but to interpose a
bas after certain period to a suit to impose an existing right. The object is to compel the litigant to be
diligent in seeking remedies in court of law.
Concept of Time Barred [Section3]
Concept of time barred is incorporated in Section 3 of Limitation Act, 1963. According to this
section, every suit must be instituted, appeal must be preferred and application must be made within
the period of limitation as specified in the schedule II of Limitation Act.
The provisions of this section are absolute and mandatory. The court will not proceed with the suit;
application made beyond prescribed period of limitation and is liable to be dismissed when the suit,
appeal or application has become time barred.
Doctrine of Sufficient Cause for Extension of Time or Condonation of Delay [Section 5]
The general rule is that the suit, appeal or application must be made within the prescribed period of
limitation. However, there is an exception to this general rule which provides that the court may
admit an application or appeal even after the expiry of prescribed period of limitation, if it is
satisfied that the applicant or the appellant has been prevented by some sufficient cause, from not
making the application or preferring the appeal within the prescribed period of limitation.
It may be noted that doctrine of sufficient cause is not applicable in the following cases:
 Application made under any of the provisions of Order XXI of CPC, 1908 and
 Suits.
The expression ‘sufficient cause’ had not been defined under the limitation Act, 1963. However, a
cause in order to be sufficient cause must be a cause which is beyond the control of the party
invoking this section.
For example, illness of the party, mistake of the counsel, mistake o law, and not ignorance of law,
etc. are some of the instance of sufficient cause.
The burden to prove sufficient cause for delay in filling an application or appeal lies on the party
applying for condonation of delay under section 5. However, it is the discretion of the court to grant
extension of time or not.
Period of Limitation in the case of Persons Under Legal Disability [Sec 6,7 & 8]
The period of limitation starts from the date on which the cause of action has arisen but in the case of
persons suffering from some legal disability, the period of limitation runs from the date of the
cessation of disability. The rules to this effect are contained in section 6, 7 and 8.

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Section 6
Section 6 provides that a person is under a legal disability if such person is a minor, (the term minor
includes child in the womb) insane and idiot. In such cases, the persons will be entitled to fresh
starting point of limitation from the date on which the legal disability ceases to exist subject to the
following conditions:
 Such a legal disability must be existing at the time from which the period of
limitation is to be commenced; and
 The person under legal disability must be entitled to institute the suit or make an
application.
Section 6 further provides the following:
 If a person is affected by several disability at one point of time, then the person may institute
o suit or make an application after all disabilities have ceased.
 If one legal disability is followed by another legal disability, then the person may institute a
suit or make an application after all disabilities have ceased.
 If the legal disabilities continue up to the death of the person under such disability, then his
legal representative may institute the suit or make the application within the same period
after the death, as would otherwise have been allowed from the time specified in the schedule
to the Act.
 It may be noted that section 6 does not apply to appeals.

Section 7
Section 7 is applicable where several persons are jointly entitled to institute the suit or make an
application for execution of a decree and out of the several persons, one or some of them are affected
by ‘ legal disability’.
The period of limitation in such a case is to be reckoned, depending upon whether discharge can be
made with or without the consent of the person under legal disability. If the discharge can be given
with the consent of such person, he period of limitation will start only after the disability is removed.
On the other hand, where consent of the person under legal disability is not required time will run
against them all.
I may be noted that section 7 is not applicable to appeals.
Section 8
Section 8 is an exception to section 6 and 7 controls both these sections. According to Section 8, the
period of limitation can not extend beyond three years from the date of cessation of legal disability.
However, if the ordinary period of limitation computed from the original accrual of the cause of
action expires more than 3 years after the cessation disability, such period will be allowed.
Continuous running of Time [Section 9]
Section 9 of the Limitation Act, 1963 provides that where the limitation period has started, no
subsequent disability or inability to institute a suit or make an application can stop it. The section
embodies the principle that once the time for filing suit or an application starts running, it will
continue to run till it has exhausted the full prescribed period. The running process can only be
stopped or suspended by express statutory exceptions.
‘Disability’ connotes legal disability. It is want of legal qualification to act i.e., want of capacity to
act. It is the state of being minor, insane and idiot. ‘Inability’, on the other hand, connotes want of
physical power to act. Illness, poverty, ignorance, etc. are some of the instances of inability.
It may be noted that section 9 is applicable only to suit and application. It does not apply to appeals.
Exclusion of Time in Legal Proceedings [Section 12]
Following period shall be excluded in computing the period of limitation for various proceedings
mentioned:

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 In computing the period of limitation prescribed for a suit, the day on which the time begins
to run shall be excluded.

 In computing the period of limitation prescribed for an appeal the following periods shall be
excluded:

 the day on which the period begins to run;

 the day on which the judgment was pronounced;
 the time required for obtaining the copy of decree, sentence, order; and
 the time required for obtaining he copy of judgment.

 In computing the period of limitation prescribed for an application for revision or review or
leave to appeal, the following shall be excluded:

 the day on which the period begins to run;

 The day on which the judgment was pronounced;
 the time required for obtaining the copy of decree; and
 the time required for obtaining he copy of judgment.

 In computing the period of limitation prescribed for an application to set aside an award, the
following period shall be excluded:

 the day on which the period begins to run; and

 the time required for obtaining a copy of the award.

 In computing the period prescribed for any other application, only the day on which the time
begins to run shall be excluded.

Effects of Announcement of a Liability on Period of Limitation [Section 18]

Sometimes a liability may be acknowledged by the party against whom the liability is alleged within
the period of limitation. If this acknowledgement is made in writing, it would give rise to a fresh
period of limitation and it would run from the date of acknowledgement.
It may be noted that it is not necessary that an acknowledgement must contain an express or implied
promise to pay. What is necessary is that these should be admission of the subsisting liability.
The essential requisites of a valid acknowledgement are as follows:
 The acknowledgement must have been made before the expiration of the prescribed period of
limitation;
 The acknowledgement must have been made by the party against whom the right is claimed;
 The acknowledgement must be in writing;
 The acknowledgement must be in respect of some liability or a particular property or right
claimed in the suit or application; and
 The acknowledgement is not required to be made to the creditors or the person entitled to the
property i.e. it may be made to any person, even to a stranger.

Effect of Part Payment of Principal Amount or Payment of Interest on Period of Limitation

[Section 19]
Section 19 of the Limitation Act stipulates the law for the extension of the period of limitation when
part payment of the principal amount or payment of interest is made. As per this section, where

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payment on account of the debt or of interest on a legacy is made before the expiration of the
prescribed period, by the person liable to pay the debt or legacy or by his agent duly authorized in
his behalf. A fresh period of limitation shall be computed from the time when the payment was
made. Further part payment of the principal amount or payment of interest money is also required to
be acknowledged and such acknowledgement must appear either in the hands writing of the person
making the payment or must appear in a writing signed by the person making the payment.
It may be noted that where mortgaged land is in the possession of the mortgagee, the receipt of the
rent or produce of such land shall be deemed to be a payment.
Thus according to this section, a fresh period of limitation become available to the creditor when
part payment of debt or payment of interest is made by the debtor before the expiration of the period
of limitation.
Important Limitation Periods:
 Suit for money payable or money lent – 3 years from the time when the loan is made.
 Suit for specific performance of contract – 3 years from the date fixed for performance. In
case where no such date is fixed, 3 years shall be calculated from the date when the plaintiff
has notice that the performance is refused.
 Appeal against the sentence of death passed by the Session Court or by the High court in
exercise or its original jurisdiction – 3- days.
 Suits relating to Contract – 3 years.
 Suit relating to movable property – 3 years.
 Suit relating to possession of immovable property mortgaged – 12 years.
 Suit for arrears of rent – 3 years.
 Suits for an account and a share out of profits of a partnership firm – 3 years.
 Suit in respect of wages due to seamen – 3 years.
 Suit in respect of wages due to other employees – 3 years.
 Suit in respect of price of food or drink sold by a hotel, restaurant, lodging house etc. – 3
years.
 Suit in respect of compensation for false imprisonment – 1 year.
 Suit in respect of compensation for malicious prosecution – 1 year.
 Suit to enforce payment of money secured by a mortgage – 12 years.
 Suit for possession of immovable property – 30 years.
 Suit for leave/ permission to appear and defend a suit under summary procedure – 10 days.

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Lesson22
Section IV
Indian Evidence Act, 1892
Introduction
Indian Evidence Act, 1872 contains the general rules of evidence, which are applicable both in
civil as well as in criminal mattes.
Section 3 of the Act recognizes the two categories of evidence i.e., oral evidence and
documentary evidence. Oral evidence means and includes all statements which the Court
permits or required to be made before it by witnesses, in relation to matters of fact under enquiry.
Documentary evidence means and includes all documents, produced for the inspection of the
Court.
For the purpose of evidence, facts are divided into the following two categories:
Fact of Issue: The facts which are constituent of a litigated right, liability, or disability are called
facts in issue.
Relevant Fact: In order to prove the existence or non-existence of facts in issue, certain other
inter-connected fact may be given in evidence. They are called relevant facts.
Relevancy of Facts:

Meaning of ResGestae
The term Res Gestae means surrounding or accompanying circumstances which are inseparable
from the fact in issue and are necessary to explain the nature of the main act.
They includes acts or declaration accompanying or explaining the transaction or fact in issue.
The area of events covered by Res Gestae depends upon circumstances of each case.
Relevancy of Facts Forming Part of the same Transaction Section 6
Section 6 lays down the requirement that the inter-connation between facts in issue and other
connected facts must be such that they form part of the same transaction. A transaction may be
defined as a group of facts so connected together so as to referred to by a single legal name as a
crime or a contract or a wrong or any other subject of enquiry which may be in issue.
In Rattan v. Queen, a man was prosecuted for murder of his wife. His defence was that the bullet
went off accidentally. There was evidence to the extent that he deceased, before her death,
telephoned to telephone operator and said “Get the police please”. Before the operator could
have connected the call to the police, the lady had given the address and the call suddenly ended.
Thereafter the police, the lady had given the address and the call suddenly ended. Thereafter the
police came to the house and found the dead body of the lady. Her call and the words she had
spoken to the telephone operator were held to be relevant as the part of the same transaction.
Motive, Preparation and Conduct [Section8]
Every crime can be divided into the following three stages i.e., Motive, Preparation and Conduct.
Motive: Motive is that part which induces or moves a Peron to act in a certain way. It is the
emotion supposed to have led to the act. There can be no action without a motive, which must
exist for every voluntary act.
The mere existence of the motive is by itself not an incriminating circumstance. In Tara Devi v.
State of U.P., it was held that motive of a woman to get rid of her husband was not enough to
convict particularly when her paramour was acquitted.

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Preparation: Preparation means the means and measures necessary for the commission of any
offence.
Conduct: Conduct means attempt to commit the crime and actual commission of the crime.
Inconsistent Fact [Section 11]
Section 11 provides that the fact which ordinarily have nothing to do with the fact of the case,
become relevant because of the reasons that they are consistent with the fact in issue.
Admission and Confession

Meaning of Admission [Section 17]

Admission is a statement given by a person admitting a fact which suggests as to the existence of
his liability. For the applicability of this provision, admission must be against the interest of the
maker.
Meaning of Confession
The word ‘Confession’ is not defined in Indian Evidence Act, 1872. Hence the definition of
admission given in Sec. 17 is also applicable to confession. Thus, confession is a statement
given by an accused admitting his guilt.
If a confession is made to the Court, it is called the judicial confession, whereas where the
confession is made to any person outside the court, it is called extra judicial confession.
Important Provisions Pertaining to Confession
Confession must be free and on voluntarily basis [Sec.24]: Sec.24 provides that confession
should free and on a voluntary basis. It must not be caused by any inducement, threat or promise.
Confession made to police officer will be irrelevant and inadmissible [Sec. 25] Sec. 25
provides that confession made to a police officer will be irrelevant and inadmissible.
Section 26: Sec. 26 provides that a confession made to police officer in the immediate presence
of a Magistrate will be admissible.
It may be noted that a Civil Judge is not a Magistrate. A Civil judge has a power under CPC
where a Magistrate exercise poser under CrPC. Thus Sec 26 is applicable only when the
confession is made in a presence of Magistrate. It may further be noted that Sec. 26 is an
exception to Sec. 25.
Section 27: Sec. 27 provides that a statement in the form of confession to a police officer will be
admissible provided that the statement leads to the discovery of a fact connected with a crime.
For example, A confesses to Police that he has murdered B with a revolver and that the revolver
is with C. The police recovered the revolver from C. Thus, in such a case Section 27 will be
applicable.
Section 30: Sec. 30 provides that when a statement in the form of a confession is given by co-
accused, then such statement may be used against another co-accused.
For example, A and B together murder C. There is allegation on them and B confesses before a
Judge that he has murdered C along with A. This is a statement of co-accused and thus can be
used against another co-accused i.e., A
Conclusion: Section 24 to 30 provides that the court may accept the confession in toto and reject
in toto. The court can’t accept only the in-culpantory part while rejecting the ex-culpatory part.
For example, A wife is supposed to murder her husband; she said that she wrongly administered
the poison in place of the medicine to be given to her husband. In addition, she said that she
murdered her husband with the help of some other person and drowns the dead body in the well.
There are two part of this statement i.e., one is in-culpatory and another is ex-culpatory.
Difference between admission and confession

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Admissions are a genus of which confession are a specie. Confession is a special from of
admission. The main points of difference between them are as follows.
Admission Confession
1. Admission may be oral Confession even it is oral, it is
Recorded in writing and signed by
The parties.
2. Admission may be under compulsion also. Confession has to be voluntary.
3. Admission may be made by anybody Confession shall be by accused only.
Confession has to be done by self
Only.
5. It doesn’t arise in case of admission Confession can bind even the co
Accused.
6. Admission is allowed in civil & criminal cases. Generally it is available only in
Criminal cases.
7. All admissions need not be confessions. All confessions are admissions
Hearsay Evidence
Section 59 of Indian Evidence Act provides that except content of documents, all other facts may
be proved by oral evidence.
Section 60 further provides that the oral evidence must be direct and it should not be indirect or
hearsay. Thus it can be sated that in all cases the evidence has to be that of a person who himself
witnessed the happening of a fact. Such a witness is called eye witness. Therefore, it is normally
said ‘hearsay evidence is no evidence’
However, there are certain exceptions to the aforesaid rule that hearsay evidence is no evidence.
They are as under:
1. Res Gestae: As per this provision, statement of person may be proved through another
person who appears as a witness, if the statement is a part of transaction issue.

2. Admission and Confession: An admission of liability or confession of guilt is proved

through the testimony of the witness to whom such admission and confession was made.

3. Dying Declaration: As per Section 32, statements are proved through testimony of the
witness to whom such statement has been made. This provision covers the testimony
related to dying declaration as well as the statements relating to a person under disability.
It may be noted that where a person making a declaration survives then the statement
made by him can’t used as dying declaration.

4. The evidence given by witness in a judicial proceeding can be used as evidence in

subsequent proceedings.

Estoppel [Section 115]

Estoppels is a proposition of law by which a person is held by the representation made by him or
arising out of his conduct. The facts constituting the estoppel will be relevant and admissible.
Privilege Communication
There are certain mattes which a witness can’t be compelled to disclose or even if the witness is
willing to disclose, he will not be permitted to do so. Such mattes are known as privileged
communication.

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Following are the fact of which evidence can’t be given:

Communication During marriage [Section 122]
Section 122 prevents communication between husband and his wife from being disclosed. Thus
a wife or husband can’t be permitted to disclose what her husband or his wife respectively has
stated with regards to the matters in issue. Such communication remains protected even after the
divorce. However communications made before the marriage or after the divorce are not
protected.
Professional Communication [Section 126]
Communication made by a client to his advocate for the purpose of his professional work is not
permitted to be disclosed.
Witness [Section 118]
Every person is a competent witness provided such person understands the questions posed to
him and can give logical and rational answer to those questions.
A child can also be a competent witness provided such a child is intelligent enough to understand
the questions and answer them in a logical and rational manner.
A Judge or a Magistrate can also be a competent witness provided such judge or Magistrate is
personally aware of the facts of the case.
Evidence in Respect of Certain Documents
Section 93 provides that where the language of document is apparently defective on the fact of it,
oral evidence can’t be entertained to cure that defect.
Section 97 provided that where the language of a document applies partly to one set of facts or
partly to another set of facts, but doesn’t apply accurately to either set of fact, then evidence can
be given to show to which fact the document intended to apply.

Lesson23
Civil Procedure Code, 1908
Introduction
Civil Procedure Code is the general law relating to civil suits.
The Code consists of two divisions. The first division, containing 158 Section, is the substantive
law i.e., the law which determines the rights and obligation of the parties to a dispute. The
second division, containing 51 Orders, each of which contains several Rules, is the procedural
law i.e., the law which prescribes the procedure for the enforcement of rights and obligation of
the parties to the disputes.
The first division, containing substantive law, can be amended only be the Parliament whereas
the second division, containing procedural law, can be amended only by the High Courts.

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Concept of Decree, Order and Judgment

Decree
The term ‘decree’ has been defined u/s 2(2) of Civil Procedure Code, 1908. It means the formal
expression of an adjudication which conclusively determines the rights of the parties with regard
to all or any of the matter in controversy in the suit.
A decree may be either preliminary or final. A decree is preliminary when a further procedure
has to be taken before the suit can be completely disposed off. It is final when such adjudication
completely disposes of the suit.
It may be noted that the term ‘decree’ doesn’t include the following:
 Any adjudication from which an appeal lies as an appeal from an order.
 Any order or decision of the dismissal of the suit for default.

Order
The term ‘Order’ has been defined u/s 2 (14) of the Civil Procedure Code. It means the formal
expression of any decision of the Civil Court which is not a decree.

Judgment
The term judgment has bee defined u/s 2 (9) of the Civil Procedure Code. It means the statement
given by the Judge on the grounds of a Decree or Order. Thus a judgment sets out the ground
and the reason for the Judge to have arrived at the decision.

Difference between Decree and Order

 A Decree adjudicates and conclusively determines the rights of the parties, whereas an
Order doesn’t do so.
 A Decree is always appealable unless prohibited by the law, whereas an Order is not
appealable unless permitted by the law.
 Law may provide even for second appeal in case of Decree, whereas second appeal is
not possible in the case of an Order.
 A Decree may be final or preliminary whereas an Order can’t be preliminary and it is
always final.

Appearance of Parties [Order 9]

When a suit is filed by the plaintiff, a summon is issued to the defendant to appear on a particular
date fixed by the court. The defendant is further directed through the summon to file the written
statement (reply) to the suit filed by a plaintiff.
On the date of hearing by the court, both the plaintiffs as well as the defendant are required to
present themselves before the court. If the plaintiff doesn’t appear on the date of the hearing,
then the court may either dismiss the suit for default o decide it ex – parte on the merit of the
case. If the defendant doesn’t appear on the date of hearing, the court may either adjourn the
hearing or decide it ex – parte on the merits of the case.
The ex – parte order or the order relating to the dismissal of the suit can be set aside provided the
plaintiff or the defendant, as the case may be, gives a sufficient reason for his non-appearance on
the date of hearing.
Place of Filing of Suit

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Section 15
Every suit shall be instituted in the court of lowest grade.

Section 16
Suits regarding immovable property are instituted in the court within whose jurisdiction, the
Immovable property is situated.
Section 17
Where immovable property is situated in the jurisdiction of different courts, the suit may be filed
in any of such courts.
Section 18
Where there is apparent uncertainty regarding the jurisdiction of the court, the suit may be filed
in any of such courts.
Section 19
Suit with regards to the compensation for wrongs done to the persons or suit pertaining to
movable property can be filed in the court having the jurisdiction over the place where the wrong
was committed or where the defendant resides.
Section 20
Where above section i.e., Section 16, 17, 18 and 19 are not applicable, such suits may be filed in
the court having jurisdiction over the place where the defendant resides or where the cause of
action has arisen.
For instance, A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at
Varanasi; B and C make a joint promissory note payable on demand , and deliver it to A. A may
sue B and C at Varanasi, where cause of action arose. He may also sue them at Calcutta where B
resides or at Delhi where C resides, but in each cases, if the non-resident defendant objects, the
suit can’t be proceeded without the leave of the Court.
Section 20 further provides that in the case of a Company, the suit may be filed at any of the
following places:
 Place where the Principal office or the Head office of the Company is situated.
 Place where the cause of action has arisen, subject to the condition that the company
has a Branch office at such place.

Important Point
In the leading case of Hakam Singh v. Gammon (India) Limited, the Supreme Court held that
the parties, by an agreement, can not confer jurisdiction on a Court which it doesn’t possess
under the law. However, the parties can agree that only a particular Court will try a suit, where
the two courts have jurisdiction to try a suit.
Important Doctrines

Doctrine of Res Sub-Judice [Section 10]

Section 10 of the Civil Procedure Code provides the doctrine of res sub-judice or the rule with
regard to stay of suit where things are under consideration by court. It provides that no court
shall proceed with the trial of any suit in which the mater in issue is also directly and
substantially in issue in a previously instituting suit between the same parties where such suit is
pending in the same or any other court in India. However, the pendency of a

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Suit in Foreign Court doesn’t bat the courts in India from trying a suit founded on the same cause
of action.
For the application of the doctrine of res sub-judice, the following conditions must be satisfied:
 A previously instituted suit is pending in a Court;
 The matter in issue in second suit is also directly and substantially the same as in the
previous suit;
 The previously instituted suit is still pending in same court or any other court in India;
 The parties in two suits are same; and
 The court in which previous suit is pending has the jurisdiction to try such suit.

Section 10 is enacted to prevent courts of concurrent jurisdiction from simultaneously trying two
parallel suits in respect of same matter in issue.
A suit was instituted by the plaintiff company alleging infringement by the defendant company
by using trade name o medicine and selling the same in wrapper and carton of identical design
with same color combination etc. as that of plaintiff company. A subsequent suit was instituted
in different court by the defendant company against the plaintiff company with the same
allegation. The Court held that subsequent suit should be stayed as simultaneous trial of the suits
in different courts might result in conflicting decisions as issue involved in two suits was totally
identical.
[Wings Pharmaceuticals v. Swan Pharmaceuticals]

Doctrine of Res-Judicata [Section 11]

The doctrine of res-judicata or the Rule of conclusiveness of judgments is explained in Section
11 of the Civil Procedure Code. It provides that once the matter is finally decided by a
competent court, no party can be permitted to re-open it in subsequent litigation. The principle
underlines that no one shall be vexed twice for the same cause. It prevents two different decrees
on he same subject.
To apply this doctrine, the following condition must be fulfilled:
 The matters in both the former and the latter suits should be directly and substantially the
same.
 The former suit should have been decided;
 parties in two suit are same; and
 The court which determines the earlier suit must be competent to decide it.

The application of this doctrine is based on the public policy so that the patties would not be
harassed again and again on the same issue already decided. The court’s time will also not get
vested on matter already decided.
It may be noted the Sect. 11 will not be applicable in those circumstances where the first suit
have been dismissed on technical ground and has not been decided on merit of the case.
Concept of set off, Equitable Set off and Counter Claim

Set Off
Order 8, Rule 6 deals with set off which is a reciprocal acquittal of debts between the plaintiff
and he defendant. It has the effect of extinguishing the plaintiff’s climbs to the extent of the
amount claimed by the defendant.

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Where in a suit for the recovery of money, the defendant’s claims to set off against the plaintiff’s
demand, any ascertained sum of money legally recoverable by him from the plaintiff, the
defendant may present a written statement containing the particulars of the debt sought to be set
off.

Equitable Set Off

This is not a concept of CPC deals with the concept of equitable set off. Where the defendant
claims set off in respect of an unascertained sum of money, where the claim arises of the same
transaction, and then such set off is known as equitable set off. Generally, the suits emerge from
cross demands in the same transaction and this doctrine is intended to save the defendant from
having to take recourse to a separate cross suit.
Counter Claim
Order 8, Rule 6A of Civil Procedure Code deals with the Rule of Counter claim. This Rule
permits the defendant to set up the claim as a counter to the claim of the plaintiff, which arose
between the parties. This rule is applicable in the interest of public policy so as to minimize
litigation between the parties which could have been filed by the defendant separately.
Reference, Review and Revision [Section 113, 114 & 115]

Reference [Section 113]

A reference can be made by a lower court to the higher court where the question of law is
involved in the suit and the lower court has a reasonable doubt about such question of law. The
application for reference can be made by any of the parties to the suit. Further the lower court
may also, on its own, refer the mater to the higher court.
The purpose of Sec. 113 is to enable the sub-ordinate courts to obtain, in non- appealable cases,
the opinion of High Court on questions of law for doing justice to the parties.
Review [ Section114]
Section 114 of the Civil Procedure Code provides for the review of the case i.e., the
reconsideration of the decision given by a court.
The application for review can be filed where no appeal could be preferred against the order of
the court and also in those cases where the person concerned doesn’t want o prefer such an
appeal, though such an appeal is maintainable.
It may be noted that application to review has to be filled before the same court which has given
the decision. It may further be noted that a court can exercise the power of review only if it is
specifically authorized to exercise such power under some law.

Revision [Section 115]

A petition of revision can be made before the High Court when the subordinate Court:
 Exercises a jurisdiction not vested in it by law;
 Fails to exercise jurisdiction vested in it by law or
 Acted in the exercise of jurisdiction with material irregularity.

Appeals
Appeal is an application by which a party requests an appellate court to set aside or modify the
decision of the subordinate court.
The Civil Procedure Code provides for following four kinds of appeals:
Appeals from original decree
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Appeals from original decrees may be preferred from any decree, passed by any court exercising
original jurisdiction, to the court authorized the hear appeals from the decision of such courts on
point of law as well as on points of facts. In this case, there is always a right to appeal, until
unless there is a specific prohibition to such a right.
Second appeals
Second appeals lies to the High Court from any decree passed in appeal by any court subordinate
to the High Court, if the High Court is satisfied that the case involves a substantial question of
law.
Appeals against the orders
In general, appeals against the order are not allowed. However, if it is specifically permitted
under the provisions of law, appeal can be filed against the order on ground of defects or
irregularity of law.
Appeal to Supreme Court
An Appeal can be filed to the Supreme Court in respect of those decrees which have been passed
by High Court in their original jurisdiction.
Injunction
An injunction is a judicial process by which one, that has invaded or threatened to invade the
rights of another, is restrained form continuing or commencing such wrongful acts. This is a
preventive relief granted as discretion of court.
An Injunction may be a temporary or a perpetual Injunction. Temporary Injunction is regulated
by Order 39 of Civil Procedure Code whereas Perpetual Injunction is regulated by Section 38 of
Specific Relief Act, 1963.
A temporary injunction is such as is to continue until a specified time or until the further orders
of the court. It may be granted at any stage of the suit.
A perpetual injunction can only be granted by a decree made under hearing and upon the merits
of the case. In case of a perpetual injunction the defendant is permanently restrained from doing
any act which is against the right of the plaintiff.
Summary Procedure
Order 37 of Civil Procedure Code provides for a summary procedure in respect of certain suits.
The essence of the summary suit is that the defendant is not, as in an ordinary suit entitled to
defend the suit. The object underlying the summary procedure is to prevent unreasonable
obstructions by defendant who has no defence.
Summary suit can be filed in the following cases:
 Suits relating to Promissory Notes, Bill of Exchange Cheques, Hundis.
 Suit in which the plaintiff seeks only to recover a debt.
In summary suit, the defendant is not entitled to defend the suit until he enters appearance and
makes an application for leave to defend the suit, within 10 days from the date of summons leave
to defend may be granted to him unconditionally or upon such terms and conditions as the courts
thinks fit. However, leave to defend the suit shall not b granted in the following cases:
 Where the defence of the defendant is frivolous or vexations.
 Where part of the amount claimed by the plaintiff and accepted by the defendant has
not been deposited by the defendant in the court.

Suits By or Against Minor

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Order 32 of Civil Procedure Code deals with the provision relating to suits by or against minor.
The basic rule as regard suits by or against minor is that the law protects minors against their
immaturity and inexperience and also against the matured and experienced person.
Every suit by a minor shall be instituted in his name by a person who in such suit shall be
Called the next friend of the minor. Where a suit is instituted by minor without the next friend,
then the defendant may apply for dismissal of the suit. Where the defendant is a minor, the court
shall appoint a proper person to be a guardian for the suit of such minor.
A minor plaintiff, on attaining majority, shall elect whether he will or will not proceed with the
suit. Where he elects to proceed with the suit, he shall apply for an order discharging the next
friend and for leave to proceed in his own name. Where he elects to abundant the suit, he shall
apply for an order to dismiss the suit, on repayment of the costs incurred by the defendant.
Section 12
Section 12 of Civil Procedure Code provides that abatement of suit or its dismissal, for not
bringing the legal representative on record, bars further suit.

Lesson 24
Criminal Procedure Code, 1973
Introduction
The Criminal Procedure Code, 1973 is the general law relating to criminal procedures. The
Code prescribes the procedure for the trial of offences specified in the Indian Panel Code, 1860.
Thus, the main object of Criminal Procedure Code is to supplement the substantive law
contained in Indian Penal Code, by prescribing the suitable procedure.
Important Concepts

Offence [Section 2(n)]

Offences mean any act or omission made punishable by any law for the time being in force.
In simple terms, and offence is a wrong committed by any individual in a society. Following are
the four elements which constitute the offence:
 A human being;
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 Mens Rea (guilty mind or intention);

 Illegal act i.e.; Actus Reas; and
 Injury to another person

Bailable and Non-Bailable Offecne [Section 2(a)]

Bailable offence means an offence which is shown as bailable in the first schedule of the
Criminal Procedure Code or which is me bailable by any other law for the time being in force.
Non-bailable offence means any other offence.
Bailable offences are less serious than non-bailable offences. A Bail, in the case of bailable
offence, is a matter of right whereas a Bail, in case of non-bailable offence, depends upon the
discretion of the court.
Bail means the release of an accused from the custody of the officer of law and entrusting him to
the private custody of person who become bound as surety to produce the accused
to answer the charge at the stipulated time and date.
Anticipatory Bail [Section 438]
Anticipatory bail is a bail which is granted to a person who apprehends arrest but has not yet
been arrested. Where any person has reason to believe that he may be arrested on an accusation
of having committed a non-bailable offence he may apply to the High Court or the Court of
Sessions for a direction u/s 438. On such application, the Court may, if it thinks fit, direct that in
the event of such arrest, he shall be released on bail.
The Court grants the anticipatory bail subject to the following conditions:
 That the accused shall make himself available for interrogation by a police officer as and
when required;
 He shall not threaten the witness so as to make them hostile; and
 He shall not leave India without the prior permission of court.

Cognizable and Non-Cognizable Offence/ Cases [Section 2(c) and 2(1)

Cognizable offence means an offence in which a person can be arrested by a police officer
without warrant. Cognizable offences are generally more serious in nature and heavily
punishable. In such cases, the police have hardly any time to obtain a warrant of arrest from a
court, as the offender may escape by the time of warrant is obtained or he may tamper with the
material evidence. Examples of cognizable offences are Murder, Dacoity, etc.
Non-Cognizable offence means an offence in which the police can’t arrest a person without
warrant. Non-Cognizable offences are less serious in nature as compared to cognizable offence.
In cause of these offences injury cause to the society is comparatively small. Examples of non-
cognizable offences are simple hurt, undue influence at an election, etc.
Complaint [Section 2(d)]
Complaint means any allegation made orally or in writing to a Magistrate with the view to his
taking action under Criminal Procedure Code, that some person, whether known or unknown,
has committed an offence.
It may be noted that the term complaint doesn’t include a police report. Police report means a
report forwarded by a police officer to a Magistrate.
Investigation, Inquiry and Trial

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Investigation [Sec. 2 (h)] : As per Criminal Procedure Code, investigation is to be conducted

always by a police officer or by any other authorized person. Investigation process consists of
the following steps:
 Proceeding to the spot;
 Ascertainment of facts and circumstances;
 Discovery and arrest of the suspected person; and
 Collection evidence.

Inquiry [Sec. 2(g)] : According to Criminal Procedure Code, inquiry is always conducted by
the Magistrate or by the court. An inquiry before trial to ascertain whether any offence has been
committed and whether he should be put upon the trial.
Trial: The word ‘trial’ has not been defined under Criminal Procedure Code. It means the
judicial process in accordance with law, whereby the question of guilt or innocence of the person
accused of an offence is determined. Thus a trial ends either in conviction or acquittal.
Mens Rea
Mens Rea is one of the principles o criminal law that a crime is not committed if the mind of the
person doing the act in question is innocent. It is said that “ACTUS NON FACIT TEAM HISI
MENS SIT REA’ i.e., the intention and act must both concur to constitute the crime and that is
why it is said that guilty mind is necessary for liability in Criminal law. The general rule to be
stated is “there must be a mind at fault before there can be a crime”
Summons Cases and Warrant Cases [Section 2 (w) and 2(x)
Warrant case means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding 2 years. Summons case means a case relating to an offence
and not being a warrant case.
Thus, it can be seen that the distinction between two terms is based on the quantum of the
Punishment that can be awarded. In other words, cases which are punishable with imprisonment
up to 2 years are summons cases and the rest are all warrant cases.
Further in a summons case, the court order is directly issued to a person to produce himself
before the court, whereas in a warrant case, the court order is issued to the police to produce the
person concerned before the court.
Summary Trial [Section 260]
Summary trial means speedy disposal of cases.
Sec.260 provides that summary trial can be conducted in respect of those offences which are not
punishable with death or imprisonment for life or imprisonment exceeding 2 years. In simple
words, we can say summary trial can be conducted only in respect of those offences which are
punishable with imprisonment for a term not exceeding two years.
Further, summary trials can be conducted only in respect of those offences in which the value of
property does not exceed Rs.200/-.
It may be noted that Summary Trial can be conducted only by a Chief Judicial Magistrate.
Section 262 provides that if in a summary trial the accused is found to be guilty, he shall not be
sentenced to imprisonment for a period exceeding 3 months.
Information to the Police

Section 154

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Any person aware of any cognizable offence may give information to the police. The
information so received shall be recorded in the manner prescribed under CrPC. The information
so recorded u/s 154 is known as First Information Report (FIR).
Where the concerned Police Officer doesn’t record the aforesaid information, then the person
giving the information can do the following:
 Inform the Superintendent of Police regarding the refusal of the concerned police officer.
In such a case, the Superintendent of Police himself shall record the information and
investigate the mater.
 Inform the concerned Magistrate which, in turn, will take the action against the
concerned Police officer.

Section 155
If any person gives information to an Officer-in-Charge of the concerned police station of the
commission of a non-cognizable offence, the Officer shall enter the substance of such
information in a particular book prescribed by the State Government. The Officer, thereafter,
shall refer the information to the Magistrate for appropriate direction.
Sec. 155 (2) Provides that no Police Officer shall investigate a non-cognizable case without the
order of Magistrate having the power to try such offence.
Sec. 155 (4) Provides that where a case relates to two or more offences and one of them is
cognizable, the case shall be deemed to be a cognizable offence irrespective of the fact that other
offences are non-cognizable.

Arrest of a Person

Arrest without Warrant [Section 41]

Section 41 of the Criminal Procedure Code lays down the circumstances in which police officer
may arrest a person without warrant. As per this, following persons can be arrested by a Police
Officer without warrant:
 Who has been concerned in any cognizable offence; or
 Who has in his possession without lawful excuse, the burden of proving which excuse
shall lie on such person, any implement of housebreaking ; or
 Who has been proclaimed as an offender either under this code or by order of the State
Government; or
 In whose possession anything is found which may reasonably or suspected to be stolen
property; or
 Who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or
 Who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or
 Who has committed any act at any place out of India which, of committed in India, would
have been punishable as an offence, and for which he is liable to be apprehended or
detained in custody in India: or
 Who being a released convict, commits any breach of any rule, relating to notification of
residence or change of or absence from residence; or

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 For whose arrest any requisition, whether written or oral, has been received from another
Police officer, provided that the requisition specifies the person to be arrested and the
offence or other causes for which the arrest is to be made it appears there from that the
person might lawfully be arrested without a warrant by the officer who issues the
requisition.

Arrest on Refusal to Give Name and Residence [Section 42]

If any person who is accused of committing a non-cognizable offence doesn’t give his name,
residence or gives a name and residence which the police officer feels to be false, he may be
taken into custody. However, such person can’t be detained beyond 24 hours if his true name and
address cannot be ascertained or fails to execute a bond or furnish sufficient sureties. In that
event he shall be forwarded to the nearest Magistrate having Jurisdiction.

Arrest by a Private Person [Section 43]

A private person may arrest or cause to be arrested any person who is his presence commits a
non-bailable or cognizable offence or who is a proclaimed offender.
Miscellaneous Provisions

Sentence of Imprisonment in Default of Fine [Section 330]

Where a fine has been imposed on an accused but the same has not been paid, them he can be
imprisoned in lieu of fine. However, this imprisonment shall not exceed 1/4th of the period of
imprisonment, which the Magistrate cab award as maximum imprisonment.
Limitation Period [Section 470]
In calculating the limitation period, the following period shall be excluded:
 The period during which the offender has been absent from India.
 The period during which the offender has avoided arrest by absconding.

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