In this article, Shretima Bagri discusses National Company Law Appellate Tribunal (NCLAT) taking over Competition Appellate Tribunal (COMPAT).

Introduction

As per a recent amendment, the Competition Appellate Tribunal (COMPAT) has ceased to w.e.f May 26, 2017. The appellate function under the Competition Act, 2002 (Competition Act) would now confer to the National Company Law Appellate Tribunal (NCLAT). These amendments were brought about under the provisions of Part XIV of Chapter VI of the Finance Act, 2017.

Accordingly, Sections 2(ba) and 53A of the Competition Act and Section 410 of the Companies Act, 2013 (CA 2013) have been appropriately amended and various other provisions of the Competition Act dealing with the COMPAT have been omitted. Further, Section 417A has been introduced in the CA 2013 and deals with the qualifications, terms and conditions of service of the Chairperson and Members of the NCLAT.

The government has moved amendments to the Finance Bill in order to facilitate the changes. Further, the Copyright Board would be dissolved, too, and its functions would be taken over by the Intellectual Property Appellate Board. The National Highways Tribunal would be replaced and its functions would be taken over by the Airport Appellate Tribunal.

In the case of Employees Provident Fund Appellate Tribunal, its function would be taken over by the Industrial Tribunal. There will be transitional provisions for the tribunals being replaced.

The chairpersons, vice-chairpersons, chairmen, or other members who are currently occupying posts with tribunals to be merged will be entitled to receive up to three months’ pay and allowances for premature termination of their office term. Officers and other authorities of tribunals that will cease to exist after the merger will stand reverted to their parent cadre, ministries or departments.

Amendments to the Finance Bill, 2017, propose that the central government may make rules to provide for the qualifications, appointments, term of office, salaries and allowances, resignation, removal, and other conditions of service for these members. These rules will be applicable to members, including the chairperson, vice-chairpersons and members, among others, of specified tribunals, appellate tribunals and other authorities.

The amendments state that the term of office for these persons will not exceed five years and that they will be eligible for reappointment. Further, the age of retirement for these persons has been specified, such as 70 years for chairpersons, chairmen or presidents, and 67 years for vice-chairpersons, vice-chairmen, vice-presidents, and presiding officers.

Some of the major objectives of The Finance Bill, 2017 are as follows:

• To minimise the number of tribunals, the Finance Bill, 2017 sought to merge eight tribunals with other tribunals and amended provisions relating to the structuring and re-organization of such tribunals.
• The above measures were sought to be taken through a money bill, which is only supposed to contain provisions for imposition of taxes and withdrawal of money from the State Treasury.

The Process

• The Finance Bill, 2017 received Presidential Assent on 31 March 2017 becoming the Finance Act, 2017. The Ministry of Finance notified that the relevant provisions regarding the merger of tribunals would come into force on 26 May 2017.
• Subsequently, in exercise of the rule-making power conferred by the Finance Act, 2017, the Ministry of Finance also notified the rules which would govern the appointments, tenure and other condtitions of service of chairpersons and members of the merged tribunals.
• As a result of the above exercise, the Competition Appellate Tribunal, which until recently was the primary appellate authority for decisions from the Competition Commission of India (CCI), was merged with the National Company Law Appellate Tribunal (NCLAT).
• Soon after the notification of the Finance Act, 2017, media reports suggested that it raised concerns about the separation of powers and the independence of the judiciary in certain areas. A judicial challenge seemed to be in the works.

Effects

• There will be a transition phase during which all pending matters before the COMPAT stand transferred to the NCLAT. During this period, all such matters will be heard afresh by the NCLAT.
• There is also a perceived lack of clarity regarding the manner and the timelines in which these transferred matters will be dealt with by the NCLAT, given that the NCLAT is already burdened with adjudication of appeals arising out of the NCLT as well as the IBBI. This brings to the fore concerns about whether the administrative machinery of the NCLAT is equipped to deal with the additional authority that has now been assigned to it.
• In order to deal with the additional responsibility of adjudicating appeals under the Competition Act, it may be helpful to now increase the number of members of the NCLAT.
• The NCLAT may also have multiple Benches, including a dedicated Bench for matters under the Competition Act. Amendments to the Rules, bringing them in tune with the Competition Act would go a long way in easing procedural formalities.

Writ Petition challenging the merger

The merger was challenged by a writ petition filed in the High Court of Madras by the Madras Bar Association, an association of lawyers which has considerable experience in advocating such causes. The Ministry of Finance and Ministry of Law have been impleaded as respondents.

The primary contentions laid down in the writ petition are as follows:

• Section 156 to 189 (the relevant provisions regarding the merger of tribunals) of the Finance Act, 2017 are ultra vires Article 14, Article 50 and Article 110 of the Constitution of India (Constitution).
• The Conditions of Service Rules are unconstitutional as they violate the principles of separation of powers and the independence of the judiciary, which form part of the basic structure of the Constitution.
  Significantly, the petitioners also submitted that the impugned provisions of the Finance Act, 2017 and the Conditions of Service Rules are contrary to certain directions issued by the Supreme Court in Union of India v. R Gandhi when hearing a similar challenge regarding the establishment of the National Company Law Tribunal and the NCLAT.
• Further, the petitioner contended that the passing of the impugned provisions in the Finance Act, 2017 as a money bill constitutes “colourable exercise of power”.

The matter reportedly came up for hearing at the High Court of Madras. A notice has been issued to the Central Government and next hearing is scheduled for 27 June 2017. No interim orders have been passed by the High Court of Madras, as yet.

As the institutions enforcing the Competition Act, 2002 face judicial challenges, it will be imperative for the Central Government to ensure that the above judicial challenges are met appropriately so as to further the cause of justice with minimal interference with the on-going functioning of the authorities.

In this article, Jagriti Bharti discusses the steps to sue an employer for unpaid wages.

Searching for work to earn living is a tough task and what makes it tougher is the unwillingness of the employer to pay their employees timely wages or salary^[1] for the work they have performed for him. Non-payment of the salary by the employer to the employee has become a common concern nowadays. Employers generally avoid paying salary to the employees either by firing them or pushing them to a limit so that they get forced to resign by themselves.

Employers are bound to pay their employees. It is their legal obligation towards their employees even if the employer is getting bankrupt. Many employers when on a verge of getting insolvent start delaying in paying their employees. Some of them even deduct salary of their employees as a matter of punishing them. Any unauthorised deduction from the salary of the employee by the employer amounts to non payment of the salary.

Following deductions from the salary of the employee can be termed as unlawful and will amount to non payment of salary:

• If the deduction is not mentioned in the contract of the employment.
• If the employee has not agreed for the following deductions.
• If the deductions are not as per the law.

Usually, employers think that denying and delaying payment, non-payment of salary, making unlawful deductions are in their own hand and employees don’t have any right to speak up against it. But this is not the case. Various labour laws has been made in favour of employees to deal with these kind of matters.

When an employment contract is signed between an employer and an employee with free consent^[2] it becomes binding on both the parties and neither of them can deny performing the contract, as after acceptance it becomes enforceable by law^[3].

According to section 3(2)(a) of  Minimum Wages Act, 1948, the appropriate government has authority to fix minimum wages of the employees for the time rate and as per Section 3(1) of Payment of Wages Act, 1936, every employer has a responsibility to provide wages or salary to the employee employed under him. So, when a contract has been been formed between an employer and an employee, employees are entitled to receive salary for their work and if it is not paid, they can sue employer for it.

Remedies available against non-payment of salary to the employees by the employer under different Acts are as follows

PAYMENT OF WAGES ACT, 1936

Under section 15 of Payment of Wages Act, 1936 procedure has been provided to entertain the claims arising out of unlawful deductions from wages and delay in payment of wages and penalty for malicious and vexatious claims. It provides that appropriate government may appoint following officers to whom complaints can be filed with regard to above matter by the employed person or his legal practitioner, inspector^[4] appointed under this Act or any trade union under his behalf within 12 months from the happening of the said event:

1. Commissioner for workmen’s compensation,
2. Regional Labour Commissioner or assistant labour commissioner having at least two years experience (to be appointed by central government),
3. Officer of state government not below the rank of regional labour commissioner having at least two years of experience,
4. Presiding officer of any labour court or Industrial labour tribunal,
5. Other officer with experience as a civil judge or judicial magistrate.

While entertaining the application filed, the authority will hear both the sides and may order for payment of salary which has been not paid by the employer alongwith the compensation which the authority may think fit. No direction for the payment of compensation can be made if the authority is satisfied that delay in payment was due to:

• Bonafide error or dispute regarding amount paid to employed person.
• Occurrence of emergency or exceptional circumstances because of which employer was unable to pay the wages.
• Failure of the employed person to accept the payment.

Penalty not exceeding 375 rupees shall be ordered to be paid to the the employer if the claim is found to be malicious or vexatious. An application of appeal can be made by aggrieved party under section 17 against the order made under section 15 together with certificate by the authority to the effect that the appellant has deposited the amount to be payable under the direction appealed against within 30 days of the making of such order before court of small causes or before district court.

INDUSTRIAL DISPUTE ACT, 1947

Under Industrial Dispute Act, 1947 complain against employer^[5] can be filed with:

Conciliation officer

Complaint can be filed against employer by the employee regarding non payment of salary or any other dispute relating to employment to the conciliation officer appointed under section 4 of the Act who will work as a mediator between the parties and will promote settlement of the dispute.

If settlement of dispute has arrived while conciliation, the conciliation officer will send a report of the same to the appropriate government together with the memorandum of the settlement signed by the parties to the dispute.^[6]

If it is evident to the conciliation officer that settlement can’t be reached, he will make a report as to why the settlement is not possible between the parties and forward it to the appropriate government.^[7] After considering the report if the government thinks fit, it will forward the case to the labour court or labour tribunal.^[8] While mediating between the parties, the conciliation officer will have all the powers of a civil court provided under Code of Civil Procedure, 1908.

Labour Court and Labour Tribunal

Where no settlement has been approached by the parties to the dispute by the conciliation officer, the matter will be referred by the appropriate government to the labour court or labour tribunal within 30 days. Where an industrial dispute has been referred to a Labour Court, Tribunal or National Tribunal for adjudication, it shall hold its proceedings expeditiously and shall, [within the period specified in the order referring such industrial dispute or the further period extended under the second proviso to sub-section (2A) of section 10], submit its award to the appropriate Government.^[9] While deciding the case the court shall have all the powers of a civil court provided under Code of Civil Procedure, 1908.

The award made shall be binding to the parties to the agreement only when it gets published in a manner provided by appropriate government within 30 days of its receipt.

If the employee whose salary is not paid is of manager or executive category and is earning more than 18k per month, he can file his case through his lawyer directly to the civil court. But it is better to exhaust other available option first before approaching to the civil court.

COMPANIES ACT, 2013

If any employee has suffered personal loss due to fraud committed by the company then he can file a case against that company under section 447 of the Companies Act, 2013. Person found guilty of the fraud will be liable of imprisonment which shall not be less than six months and which may extend to ten years. He shall also be liable to fine which shall not be less than the amount involved in the fraud and can extend up to three times the amount involved in the fraud.

Approaching to court is always a tedious and delaying process. Going through the technicalities of the court procedure doesn’t always serves its best with every person. Hence, it is advisable to settle down the matter with conciliation and mediation unless it is inevitable to approach the court. Avoiding the court will save both money and time and also reduce the burden of the court.

References

^[1] Section 2(21) in The Payment of Bonus Act, 1965

^[2] Indian Contract Act, 1872: Sec.14.

^[3] Section 2(h) of Indian Contract Act, 1872

^[4] Section 14 in The Payment of Wages Act, 1936

^[5] Section 2(g) of the Industrial Dispute Act, 1947

^[6] Section 12(3) of the Industrial Dispute Act, 1947

^[7] Section 12(4) of the Industrial Dispute Act

^[8] Section 12(5) of the Industrial Dispute Act

^[9] Section 15 of the Industrial Dispute Act

In this article, Karan Singh of Jindal Global Law School discusses the regulations related to Dog Breeding In India.

“The greatness of a nation can be judged by the way its animals are treated” Mahatma Gandhi

Introduction

Dog breeding is the practice of mating dogs with each other with an intent to maintain or produce specific qualities and characteristics. The Ministry of Environment and Forest has published draft rules to regulate dog breeders across the country. The rules are to stop cruelty to animals. It seeks to prevent infliction cruelty on animals in this business. Dog breeding business is increasing day by day as everyone is interested in the new species of dogs. The government has also invited people for their suggestions on the Draft notification of Prevention of Cruelty to Animals (Dog Breeding And Marketing) Rules 2016.

For all the dog breeders it is mandatory to register themselves with the State Animal Welfare Board of the respective States under the new rules. In the Rules, the requirement for the breeders has been given such as related to health, housing facilities and conditions for sale.

Pedigree dogs

Imported dogs or high breed dogs are called pedigree dogs like Husky, German Shepherd, Rottweiler, Labrador, Doberman, and pug. In 2016, Director General of Foreign Trade (DGFT) bans pedigree dog import. Import of pedigree dogs will only be allowed for defense and police forces. Breeder in India can not import pedigree dogs now as per the ban. This ban is to prevent the suffering of thousands of dogs. As per People For Animal (PFA), this ban will stop the rise of the street dog population as many pedigree dogs end up on the roads. Breeders like Husky, St. Bernard can not survive in high temperature as these dogs are suitable for snow like temperature. This ban will also help to prevent the breeders to import the breeds which are not suitable for Indian climate.^[1]

The Ban on import of pedigree dogs was introduced because of a breeder who imported 2 Korean Mastiff puppies for 2 crore rupees. Korean Mastiff is a breed that ca only survive on mountains. But for money breeders are importing these puppies. To prevent this, the government came with this rule of imposing the ban on pedigree dogs.

Before the rule came in force, the breeders used cruel nature on dogs for breeding. They were sold as commodities, kept in unsuitable conditions. The female dogs were kept in short chain for all their lives and were treated in heinous behavior. The female dogs were actually raped to produce more and more puppies so that breeders can sell them and earn profit from it. Home delivery of the puppies was done by the breeders. The Dogs did not have suitable shelter and were kept in small cages. No food was given by breeders for days. This was a cruel behavior by the breeders on animals.

Regulations rated to dogs breeding in India

The following requirement shall be met by every breeder of dogs in India:

• The breeder should have knowledge about everything related to the breeding of dogs like reproduction, nutrition, wellness, and care.

 For Female Dogs

• Only normal healthy mature female dogs that have reached 18 months shall only be bred. They shall be certified as healthy by a licensed veterinary at least 10 days prior to breeding.
• No female dog shall be forced to produce puppies in 2 consecutive breeding seasons. Only once in a year.
• Female dogs should not be forced to produce more than 5 times during her lifetime.

For Male Dogs

• Male dogs should be healthy, mature and only after he has reached his 18th month.Must be certified by a licensed veterinary at least 10 days prior to breeding.

Common Breeding Techniques

• Breeders use four breeding techniques in which this rule only allows two out of four techniques:
• Out Breeding and Line Breeding are only allowed in India. Out breeding is the mating of dogs which are not at all related to each other. Line breeding is mating between dogs that are marginally related to each other. In this case, dogs are chosen for their special attributes to obtain certain types.
• Inbreeding and Incest Breeding are not allowed in India. In Breeding is mating between dogs that are related. Inbreeding is breeding between relatives of the 2nd to 4th grade in straight or sideline within the first four generations e.g. uncle to niece, nephew to an aunt, cousin to cousin, grandparents to grandchildren. Incest breeding is mating between parents and children or between brother and sister, i.e. 1st-grade relatives. This is strictly forbidden. Incest breeding, as well as continued inbreeding and line breeding, is risky since it increases the danger of hereditary diseases.
• Female dogs should not be mated after 8 years of age.
• All the breeders shall have a full record of the puppies that the male or female dog produces with their vaccination details.
• Tail docking, ear cropping or any mutation of the puppy is strictly banned and forbidden.

The Requirement for obtaining a license for dog breeders

• Breeder should be 18 years of age.
• License from local authority is the registration for commencing or continuing breeding activity at his premises.
• Inspection by the team including recognized veterinary before granting the license. Inspection is Mandatory.
• A report by the recognized Veterinary should be submitted to the local authorities. Local authorities will consider the report before determining whether or not to grant a license.
• The local authority will inform the Board to grant a license. A copy of the report will be submitted by a local authority to the board.
• The breeder must submit all the information requested on the application form, including a valid mailing address, and a valid address for the premises/establishment where animals, facilities, equipment, and records can be inspected for compliance. Locations of all premises/establishments, facilities or sites where the applicant operates from, has an interest in, or keeps animals, shall be provided on the application form or on a separate sheet attached to it.
• The license granted is only for 1 year issued by the local authority. renewal of the license is necessary after inspection.

The Condition for grant and renewal of license

• Procedure for registration with the Board must be followed
• The Record must be maintained.
• Identification of breeding animals y micro-chipping.
• Records of staff to be maintained
• Health of all the animals to be maintained

Operation without a license and without a registration certificate

• If a breeder is operating premises, or commercial kennel or pet shop without a valid license or valid registration certificate shall be a violation of the Rules. And this can start a court proceeding against that breeder.

Expiry Of License

All licenses will expire on the 31st of January every year, and will automatically terminate at midnight on that date unless an application for renewal, properly filled in and duly completed, along with the prescribed fee has been received by the Local Authority. 30 days prior to the expiry date of a license, the licensee must file an application for renewal with the local authority. If not done then you have to apply for new registration license.

Grounds on which license is likely to be rejected or refused

• Material and deliberate misstatement in the application for grant of the original license or for renewal of license.
• A Conviction for violation of any law on the treatment of animals.
• Failure by the breeder to fulfill all the requirement prescribed by the Local Authority.
• Refusal to allow any inspector to inspect the premises.
• Nonpayment of fees will result in denial of license.^[2]

What to do if you see a street dog/injured dog

Helping dog can change his life. If you see a dog that is injured or on a street then helps him by following the points:

• Give him some water and food to eat
• Then if it’s possible treat him with medication(If Possible)
• Search for nearby NGO that deals in dogs or a veterinary clinic. Some NGO is given below.
• Take him to the veterinary or call the NGO for help.
• Also, if you want to adopt the dog, adopt him instead.

NGOS in India for Injured dogs

1. Sanjay Gandhi Animal Care Centre, SGACC: 011 25448062, 25447751, Address: Raja Garden, Near Shivaji College, New Delhi 110027

Website: http://www.sanjaygandhianimalcarecentre.org/

2. PAWS- Save animals save the environment.

C-9/7, Masudpur Market, Vasant Kunj, New Delhi-70, Tel: +91 – 11 – 26895737

Website: http://www.pawsindia.org/

3. Friendicoes Seca No 271 & 273 | Defence Colony Flyover Market, Jangpura Side New Delhi, 110024 | India Tel: 011-24314787, 011-24320303, 011-24320707

Website: https://friendicoes.org/

Conclusion

To stop dog breeding, society has to change. Dog breeders are there to earn money. Stop buying dogs instead adopt them. People think that pedigree dogs are better than DESI dogs. But it’s actually opposite. DESI dogs are better than pedigree dogs. and instead of paying so much money for the pedigree dog, you should adopt a Desi dog. This will help the society as there will be fewer dogs on the street and a dog will get a good life. ADOPT DON’T SHOP.

References

^[1]http://timesofindia.indiatimes.com/india/Government-bans-dog-import-pedigrees-to-cost-more/articleshow/52018461.cms

^[2] http://awbi.org/awbi-pdf/draftdogbreedrules.pdf

In this article, Arijit Bhowmick discusses the relationship between Globalization and Corporate Governance.

Globalisation is a premier concept which has commence the main element in business life overall the last few years. This wonderment affects the economy, business, life, community and environment in diverse ways, and almost generally corporations have been contacted by these changes. We can visually perceive these transmutations mostly cognate with incrementing competition and the swift transmuting of technology and information conveyance. This express makes corporations more prosperity oriented than a long term and sustainable society. However, corporations are a noteworthy component of a community which needs to be organized properly. Therefore, we crave several social norms, regulations and rules in society and business life; this is the practice of governance.

This express makes corporations more prosperity oriented than a long term and sustainable society. However, corporations are a noteworthy component of a community which needs to be organized properly. Therefore, we crave several social norms, regulations and rules in society and business life; this is the practice of governance.

Globalisation

Globalisation can be marked as the impromptu movement of goods, services and capital. This commentary does not mask all the prospects of globalization or global changing. Globalization further should be a form which integrates world economies, culture, engineering science and government. This is because globalization further involves the relinquish of information, skilled member of the working class mobility, the altercation of technology, economic funds flow and geographic arbitrage between developed countries and developing countries.

Moreover, globalization has religious, environmental and communal dimensions. In parliamentary law to make this broad impact area globalization covers all dimensions of the world economy, environment and society. Moreover, it is apparent all over all the world and the continuation is changing dramatically. Every legislature has an undertaking to protect all of their savings and domestic market from this brisk changing.

The enquiry is how a society will conform to this changing. Root of all companies must know diverse effects of globalisation. Globalization has some opportunities and menaces. A company might have learned how to retrieve it from some negative effects and how to earn opportunities from this state of personal business.

Globalization affects the economy, business, life, society and the environment in different ways:

• Increasing competition,
• Technological development,
• Knowledge/Information transfer,
• Portfolio investment (fund transfer between developed countries and emerging markets),
• Regulation/deregulation, International standards,
• Market integration,
• Intellectual capital mobility,
• Financial crisis-contagion effect-global crisis.

Globalization advance increased competition and subsequently multiplied competition vent of globalization. This competition can be familiar with the product and service cost and value, target market, technological evolution, swift response and agile production by companies, in addition to such things as quality and client satisfaction. When a company brings forward by all of less cost and sells cheaper, it will be proficient to grow its market share.

Customers have further much choice in the grocery store and they prefer to materialize goods and services abruptly and in a more reasonable way. And besides, they are expecting valuable situation and a cheap value which they are contented to pay. All these expectations require a response from the fellowship, otherwise, the sales of the company will shrink and they will lose profit and market share. A company must be always quick for price competitions for product and service and for changes in client preferences because all of these are broad market needs.

One of the most commanding manifestations of globalisation is the regard of trendy technologies by entrepreneurial and internationally oriented firms to exploit incipient business opportunities. Internet and e-commerce procedures aid particular intensity for SMEs seeking to go around their participation in new international markets (Wright & Etemad, 2001). Engineering science is further one of the most prevalent tools of competition and for enhancing the quality of goods and service. On the other hand it necessitates fully a part of the cost for the company. The company has to handle the latest technology for increasing their gross receipts and merchandise quality. Globalisation has increased the age of technology grant and technical progress. Client expectations are directing markets. Most companies in capital intensive markets are at risk and that is why they need brisk adapting toward the customer and market expectations. These companies must have feasible technology administration and sensible R&D management.

The company has to handle the latest technology for increasing their gross receipts and merchandise quality. Globalisation has increased the age of technology grant and technical progress. Client expectations are directing markets. Most companies in capital intensive markets are at risk and that is why they need brisk adapting toward the customer and market expectations. These companies must have feasible technology administration and sensible R&D management.

Information is a most dear and valuable production component in the present-day environment. Information can be obviously transferred and exchanged from one country to another. If a company has a chance to consider knowledge and information formerly it means that it can habituate to this global changing. This effect is similar to the technology transfer issue in global marketplaces. The swiftly changing of the market requires also brisk transfer of knowledge and efficient using of that knowledge and information.

Globalization encourages increased international portfolio investment. Additionally, economic markets have become increasingly open to international capital flows. For this intent, portfolio investment is one of the major problems of developing economic systems. It is almost the deserted path to gain liquidity of the markets and economies of emerging countries through attracting foreign cash in hand. Significantly, this short term investment can dramatically impact on the financial markets. When the emerging economies have some problem in their country or investors reckon enough profit from their investment, then these investors might depart the market. This would exemplify that market liquidity diminished and financial market indicators descend immediately.

Globalisation calls for heavier regulation of the markets and the economic organization. There are multiple new and sophisticated economic instruments and methods in the mart and such instruments absolutely transfer and trade in distinctive countries because of the globalization issue. Every new system, instrument or tool requires classy rules and regulations to prove its strength area. These principles are further necessary to protect countries against sweeping risks and crises. When the dilemma comes erring of one nation, then it influences diverse countries with trade channels and blood transfers, which we call the contagion effect.

On the contrasting hand, during globalization the shares of notable companies are trading in international stock markets and these companies have stockholders and stakeholders in many divergent countries. International conventions and regulations offer precaution, particularly to small investors against the noteworthy scandals and other problems with companies, examples of which we have seen overall the late economic crisis.

International standards also regulate markets and economic systems by means of international regulations and conventions such as international accounting standards, international auditing standards. These tips to figure corporate reporting standardized and comparable. And then that is why the globalized world has greater rules and more regulations and international standards than earlier.

In fact, globalization has the conversion of many markets and savings into one market and economy. The readiness of international standards and principles is further to deregulate all these markets. The economy needs economic structures effective of handling the higher grade of risk in the new economic organisation. For these reason economic markets intend to be liberal, deep, and liquid and at present exclusively the U.S. money markets are lavish enough to allow this monetary structure in the world marketplace. Worldwide stock market projection and Pan-European stock market projection are precedent of this changing. Thither are many similar examples of the contemporary situation for market integration, which are as well demonstrated by increasing competition in the economic system. Integration examples are suitable in company mergers and acquisitions as well.

Another issue of globalization is human capital mobility through knowledge and information transfers. One of the causes is that international/multinational companies have subsidiaries, partners and agencies in diverse states. They prefer skilled and efficient international employees and rotation from country to country to provide effective international business practice. This changing further requires preferably skilled, well-trained and efficient employees who can adapt abruptly to different market conditions.

Financial crises are routinely determined through globalization and as a test of the globalization impact. In fact, this is fully a true account. The financial world has witnessed a number of crises in late years. Broadly speaking, financial crises arrive out from international funds/capital flows (portfolio investments), lack of significant rules and measures, complex financial instruments, quick development of fiscal markets, asymmetric reference and data transfers.

One country dilemma can cruise into a global deadlock with systemic risk issue. Systemic risk refers to a spreading financial crisis from one country to another nation. In various events, crises spread even mid countries which do not modernize to have any common economic fundamentals/problems. Previous global crises have further indicated that one of the causes for the deadlock is unregulated markets.

Concept of global organization

Whole arrangements of organisation are concerned mainly with managing the governing of companies and argue with political ascendancy, institutions, and, ultimately, control. Establishment in this particular sense denotes formal political institutions that propose to coordinate and control interdependent gregarious conditions and that possess the competency to implement decisions. More and more, all the same, in a globalized world, the concept of governance is being employed to describe the regulation of interdependent links in the absence of overarching political ascendancy, such as in the international organization.

This global organisation can be eventually as the office of global processes in the absence of whatever kind of global government. In that respect are several international bodies which remain to read these publications and prominent among these are the United Nations and the World Trade Organization. Each of these has seen with mixed growth in establishing some kind of governance in international relations nonetheless is part of the validation of the problem and an endeavour to address worldwide problems that go exclusive of the capability of individual countries to solve (Rosenau 1999).

To view the term global governance is undoubtedly not to mean that such a system substantially exists, let alone to approach the competence of its operations. It is merely to recognize that in this regular globalized world, there is craving for some construct of governance to deal with multinational and global issues. The term global governance subsequently is a descriptive term, recognizing the issue and regarding concrete cooperative problem-working systems.

These may be crisp, using up the prejudice of laws or formally constituted institutions to perform collective affairs by a change of players – including states, intergovernmental organisations, non-governmental organisations (NGOs), various civil society workers, private sector organisations, pressure groups and individuals. The organisation also includes of course informal (as in the plight of practices or guidelines) or temporary units (as in the situation of coalitions). This global organisation can be proposed to be the most perplexing of reserved and informal institutions, mechanisms, relationships, and processes between and among nations, markets, citizens and organizations, both inter- and non-governmental, in which collective interests on the global plane are given voice, rights and obligations are carved in, and differences are mediated.

Global governance isn’t on the path the same component as world government: indeed it may be argued that the sort of system could not honestly be essential if there was this kind of element as an international government. Currently but the diverse kingdom governments have a legitimate monopoly on the use of force – on the strength of enforcement. Global governance consequently refers back to the political interaction that is required to resolve problems that have an effect on a multiple nation or place whilst there is no strength of enforcing compliance. Improved worldwide hassle-fixing want no longer of course require the placing up of more powerful formal international institutions, nevertheless it might require the institution of a consensus on norms and practices to be stocked away. Steps are of route underway to put up those norms and one instance that are presently being instituted is the creation and improvement of world responsibility mechanisms.

In this respect, as an example, the United Nations Global Compact – described as the world’s largest voluntary company responsibility initiative – brings together organizations, countrywide and worldwide corporations, trade unions and different labour establishments and diverse organs of civil society a good way to guide accepted environmental protection, human rights and social concepts. Participation is completely voluntary, and there’s no enforcement of the ideas by way of an out of doors regulatory body. Societies adhere to those practices each due to the fact they make economic experience, and because their stakeholders, consisting of their shareholders (most individuals and institutional investors) are affected with these problems and this offers a mechanism wherein they can display the compliance of agencies effortlessly. Mechanisms such as the Global Compact can enhance the capacity of people and local groups to keep companies accountable.

How Globalization Affects Governance

The inquiry might be how globalization affects governance. But the response to this question is not only blood relation to the final quarter of the 20th century but additionally cognate to antecedent centuries. John Maynard Keynes calculated that the standard of living had incremented 100 percent over four thousand years. Adam Smith held a seminal conception about the wealth of communities and in 1776 he reported the conditions which would lead to incrementing income and prosperity. Likewise, in that respect is much evidence from economic history to show the benefit of moral comportment; for example, Robert Owen in Incipient Lanark, and Jedediah Strutt in Derbyshire – both in the UK – showed the economic benefits of caring for stakeholders. More recently, Friedman has fixated on the moral shock of the economic magnification and the evolution of company.
It is pellucid that there is nothing incipient about economic magnification, development and globalization. Economic magnification generally brings out some outcomes for the community. This is a world phenomenon in its true essence. Single of the most consequential reasons is that we are not bringing into account the moral, ethical and convivial aspects of this operation. Some theorists betokened the effect of this rapid transmuting more than a hundred years ago. Economic magnification and economic development might not be without convivial and moral consequences and implicative insinuations.

Another question is who’s answerable for this ongoing process and for ensuring the well-being of people and safeguarding their prosperity. Is this the responsibility of governments, the enterprise international, purchasers, shareholders, or of all people? Government is a part of the machine and the regulator of markets and lawmakers. Managers, businessmen and the business global take moves regarding the marketplace shape, patron behaviour or commercial sites. Moreover, they’re responsible to the shareholders for making more earnings to maintain their hobby long term inside the establishment. Therefore, they’re taking risks for his or her gain/earnings. This chance isn’t opposed to the social or moral/moral ideas which they ought to practice within the agency. There are many motives for ethical and socially responsible behaviour of the enterprise. However, there are numerous cases of misbehaviour and any illegal operations of a few organizations. Increasing opposition makes business harder than earlier than in the globalized world.

The proper news and expectancies are that the competition will not have to any extent further horrific influence on business enterprise behaviour. According to worldwide norms, (exercise) and expectancies, companies should bear in mind social, moral and environmental issues greater than over the past few decades. One of the reasons is greater competition and now not always more income; another motive is the consumer expectation isn’t simplest related to the price of products, but also associated with fine, proper production procedure and environmental sensitivity.

Moreover shareholders are more inquisitive about the long term benefit and take advantage of the corporation. The key phrase of this concept is lengthy termism which represents additionally a sustainable business enterprise. Stockholders need to bring long time gain with a sustainable system in preference to handiest short term gain. This is not best associated with the corporate income, but additionally related to the social and environmental overall performance of the authority. Therefore, managers should make strategic plans for the business enterprise regarding all stakeholder expectations which can be sustainable and provide a long term advantage for the offices with their investments. However, Sustainability can be visible as including the requirement that something justice is almost – honest distribution of goods, fair methods, appreciate for rights and social justice – and is capable of being confirmed into the lot indefinitely.

This sustainability requires that the values of justice are capable of being continued into the future: if current practices for example, were just from the present point of view, but would prevent the same patterns from happening in the future, that would be spurned from the point of view of sustainability (Dower, 2004). So investor or shareholder expectations and all other stakeholders’ approaches are fortifying a convivially responsible and ethical company more than other societies. Globalisation has caused a very sharp impression on company behaviour and yet we can catch many problems particularly in growing nations. This is a well-known of the realities of the globalisation process. Nonetheless, we are hoping to visit some different approaches and improvements to this procedure with some of them naturally related to some international principles, rules and norms. But most of them are connected to the conclusion of this flawed system and the problems of capitalist economy.

The challenge of governance in a globalizing world is to engross in a process of political deliberation which aims at laying out and resetting the standards of global business conduct. While stakeholder management deals with the idea of internalizing the demands, values and interests of those constituents that touch on or are regarded by corporate decision-making, we indicate that political CSR can be realized as a crusade of the corporation into environmental and social challenges such as human rights, global warming, or deforestation (Scherer & Palazzo, 2008).

Globalisation, Corporate Failures and Corporate Governance

Enron, WorldCom, Parmalat, and various different screw ups of global corporate deliver out some organization issues and have improved attention to the purpose of business ethics. Directors and CEOs of these corporations must be brought into consideration responsible for all of those failures and these are examples of “corporate irresponsibility”. Many masses hold the impression that if organizations had been to play responsibly, maximum likely company scandals would stop.

Corporate governance protects firms in opposition to some long term deprivation. When groups have social responsibilities, they calculate their risk and the price of failure. Firstly, a company has to have a duty to shareholders and additionally all stakeholders which means that it has an obligation to all society. Corporate bankruptcies have a critical impact on all society to boot. Unique, big scandals along with Enron have sharply affected the market and the financial system. Various stakeholders (e.g. Worker, purchaser, client, providers and so on.) In addition to shareholders and regulators of the firm have a duty to make sure proper performance? Thus, corporate governance isn’t always only related to companies, but also connected with all society. Hence the shifting view of company obligation shifts the focal point from the actual hassle that society likes to speak.

Ace of the motifs for this close result is increasing competition among the agency and the mart. Managers tend to turn a lot more formidable than before in their behaviour and suffering in the globalized global. Therefore we ought to recognize on corporate and managerial behaviour. The query is a way to act as a socially responsible supervisor and a room to make up this crucial problem in enterprise life and in companionship. In the business international there are constantly some regulations, standards and norms in addition to policies and some felony requirements.

Nevertheless, to be socially accountable one should be greater than truly being a law abiding individual who has to be capable of coming out and being held answerable for decisions and natural processes. The problem is the implication for all of those instructions for business enterprise and managerial behaviour. Along the polar hand, one angle is that an employer is a “legal character” and has the rights and obligations that belong with that status—which include social duty. In the case of Enron, managers had been privy to all ordinances, yet though they have got regarded all irresponsible and unethical troubles in the employer control; they did now not change their method and conduct.

The conclusion is that it isn’t always usually viable to govern behaviour and company activity with regulations, principles and norms. And then another question arises in this case, that if the great unwashed do not see their responsibility and socially accountable activities and if they do now not behave socially responsibly then, who will control this problem in commercial enterprise lifestyles and within the marketplace. The theme is that the social responsibility implication of the business enterprise cannot be managed through criminal manner. This is the simplest social contract among managers and society and stakeholders of the authority and for responsible and accountable behaviour.

Firms will consciously need to cognizance on creating cost now not simplest in monetary phrases, but additionally in ecological and social terms. The task confronting the commercial enterprise area is the way to set about assembly those expectations. Firms will want to change now not simplest in them; yet, likewise within the manner they interact with their environment (Cramer, 2002).

Conclusion

Equally we can see, globalization has an enormous effect on society and business spirit which can be apparent in a numeral of different ways. So business life requires more regulation and proper and socially responsible behaviour than in front. In this chapter we have demonstrated the relationship between corporate governance and globalisation. We pointed out that the relationship between business failure and scandals, increased after globalization, and good governance is needed to come up to this problem.

References

• Cramer, J. (2002), “From Financial to Sustainable Profit”, Corporate Social Responsibility and Environmental Management, 9, pp. 99–106 Published online in Wiley.
• Dower N. (2004) “Global Economy, Justice and Sustainability” Ethical Theory and Moral Practice 7: pp. 399–415.
• Rosenau J (1999); Toward an Ontology for Global Governance; in M Hewson & T J Sinclair (Eds), Approaches to Global Governance Theory; Albany, NY; State University of New York Press.
• Scherer, A. G., G. Palazzo (2008), “Globalization and corporate social Responsibility” The Oxford Handbook of Corporate Social Responsibility Eds.: A. Crane, A. McWilliams, D. Martin, J. Moon, D. Siegel Oxford University Press.
• Wright, R. W, H. Etemad (2001), SMEs and the Global Economy, Journal of International Management, 7, pp 151–154

In this article, Pradipta Nath discusses the Labour Law Compliances Check List in West Bengal.

In this article, Pradipta Nath discusses the Labour laws related to Trainees in India.

The law related to trainees in India is one of the most complicated subjects has ever evolved. The reason is that they are trainee and employee at the same time. Organizations which engages the trainees should better know the following scenario before engaging any trainee in his organization.

The application of Apprentice Act is applicable to the companies who are registered under the Act. Private sector players do not come under the purview of this Act unless the trainee is engaged under the Apprentice Act.

ESIC for the Trainee

The trainees are generally not paid salary, in spite they are paid stipend. Whether the person is trainee but if the trainee is satisfying S. 2(9) of the ESIC Act, the person will naturally called as ‘Employee’ under the section. Though specifically S. 2(9) has exempted and ignored the apprentices engaged under the Apprentices Act, 1961, therefore from here the conclusion can be drawn is that ‘Trainee’ may be treated as ‘employee’ but apprentice engaged under the Apprentice Act will not be treated as ‘employee’ under the ESIC Act.

Wages under the ESIC is defined u/s 2(22) and includes all the remuneration paid or payable in cash to an employee.

In Andhra Prabha (P) Ltd. vs E.S.I. Corporation on 5 February 1996 Equivalent citations: 1996 (2) ALT 301, (1996) IILLJ 389 AP the principle was laid as under:-

• The Employees State Insurance Act is a beneficial piece of legislation to protect the interests of the workers.
• Therefore, the interpretation of the provisions of the Act has to be made keeping in view the objects of the Statute.
• The employer cannot be allowed to circumvent the provisions of the Act in the disguise of ambiguous designations. Though the designation ‘Apprentices’/Trainees gives an impression at the first blush that they are not regular employees, but if the veil is lifted and the real facts are ascertained, they are in fact found to be working as regular employees. Thus, the employer cannot be permitted to flout the Law.

Link: https://indiankanoon.org/doc/204620/

Hence, on the basis of above analysis from ESIC point of view, to state that ‘trainees’ are subjected to ESIC contribution, provided in consideration to the ceiling limit i.e Rs 21,000/- as of now.

EPF for Trainees

Unusual like ESIC, the trainee for EPF has been suitably answered by our Apex Court. In The Regional Provident Fund Commissioner, Mangalore Vs. M/S Central Aercanut & Coca Marketing and Processing Co-Op [2006] Insc 39 (30 January 2006), the Apex Court held that trainees are apprentices engaged under the Standing Order of an organisation or under the Apprentices Act and will not come within the ambit of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The Bench noted that Section 2 (f) of the EPF Act “defines an employee to include an apprentice, but, at the same time, makes an exclusion in the case of an apprentice engaged under the Apprentices Act or under the Standing Orders. Under the Model Standing Orders an apprentice is described as a learner who is paid allowance during the period of training.” Therefore, employers are not obliged to contribute to the PF for them.

The apex court further held that “in the case at hand, trainees were paid stipend during the period of training. They had no right to employment, nor any obligation to accept any employment, if offered by the employer. Therefore, the trainees were apprentices engaged under the “Standing Orders” of the establishment.

Link:http://www.advocatekhoj.com/library/judgments/index.php?go=2006/january/39.php

But again a ‘trainee not being a student’ who is engaged not under the Apprentice Act, will be covered under the Act and will be subjected to EPF deduction as well if attracts S. 2(b) and S. 2(e)of EPF.

In case the students often do internship as a part of their curriculum; in this case however the EPF authority has given clarification that ‘Students’ getting stipend need not to contribute for EPF. Hence it is the option for both employer as well as the employee whether to or not to contribute in EPF. (Ref. circular no. coord/40(5) 2015/Misc/clarification dated 12-10-2015)

Link: http://economictimes.indiatimes.com/wealth/invest/students-getting-stipend-need-not-contribute-for-epf/articleshow/49675195.cms

Further, it may be noted that trainees were recruited under a particular Training Scheme and there was no guarantee of employment after completion of the training period and that they were not entitled to other benefits, which were available to other permanent employees. These aspects have been decided in Sri Rama Vilas Service Ltd. V RPFC 2000 –I-LLJ-709(Mad) and Gandhi Vinita Ashram v PFC 1996 (1) CLR 1140 (P&H).

Link: https://indiankanoon.org/doc/1942367/

Bonus for Trainee

The trainee who is engaged under the Apprentice Act will not be entitled for the statutory bonus, as by virtue of S. 2(13) of the Payment of Bonus Act, 1965, an apprentice is not an employee, hence not eligible for bonus.

But where the trainee is engaged other than the Apprentice Act, the trainee if satisfies S. 8 of the Payment of Bonus Act regardless his designation.

Gratuity for Trainee

In Chairman-Cum-Managing Director, Orissa Mining Corpn. Ltd. V. Controlling Authority, Payment of Gratuity Act & Ors. 1995-(001)-LLJ -0381 –ORI it was held that the period of traineeship will not be excluded for counting the minimum 5 yrs of service for the purpose of payment of gratuity.

Link:https://www.citehr.com/101305-whether-gratuity-payable-trainee-confrimed-subsequently.html

Furthermost the trainee is eligible for gratuity subjected to S. 2(e) and S. 4 of the Payment of Gratuity Act, but in this case even the Apprentices engaged under the Apprentice Act are not eligible for Gratuity payment by virtue of S. 2(e).

Trainees under the purview of “The Sexual Harassment of Women At Workplace (Prevention, Prohibition and redressal) Act, 2013, regardless to whether it’s an Apprentice or a trainee.

Employees Compensation Act applicability for Trainees: A trainee, if engaged in the purview of Schedule II and occupation listed in Schedule III of the Act, will naturally can avail benefit under the Act. Whereas S. 61 of the ESIC Act puts limit to the employees on availing benefits under other Acts, even we can find the same provision while referring S. 51 of the Employees Compensation Act.

Though an Apprentice appointed under the Apprentice Act is not entitled for claim under the Employees Compensation Act.

U.P. State Electricity Board vs Shri Shiv Mohan Singh And Anr on 1 October, 2004

Link: https://indiankanoon.org/doc/1198044/

Maternity Benefit Act for Trainees

A woman trainee can too avail the benefit under the Maternity Benefit Act. The benefit can be availed if S. 3(o) and S. 5(2) regardless the designation of the trainee or Apprentice.

Minimum wages Act for Trainees

The Ministry of Labour and Employment, through its Notification G.S.R. 680(E) dated September 22, 2014 prescribed the minimum rate of stipend per month payable to trade apprentices.

The minimum rate of stipend per month shall be calculated at a percentage of the minimum wage of semi-skilled workers of the respective state or union territory which will be, namely

• Seventy percent during the first year of training,
• Eighty percent during the second year, and
• Ninety per percent in the third and the fourth year.

Further, in the event the minimum rate of wage for a trade is not notified by any state or union territory, then, the maximum of minimum wages of the scheduled employment for semi-skilled workers shall be considered for paying the stipend.

Whereas in case of Trainees in Pvt. Sector the employer cannot deprive the trainees from the payment of notified minimum wages even. As the Minimum Wages Act contains a list, which in the legal terminology is called as ‘Schedule’. This list states “scheduled employments”. This act applies to these scheduled employments. All workers regardless temporary and/or permanent and/or regardless to the status (trainee or probationary) under a scheduled employment must receive at least the statutory rate.

In a remarkable judgment given by the Apex Court in Yash Pal & Ors Vs. Union of India & Ors. took the reference of State of Punjab v. Jagjit Singh in where the following principles were laid down:-

• An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state.
• that the principle of equal pay for equal work would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged government employees, holding the same post

Link: http://www.advocatekhoj.com/library/judgments/announcement.php?WID=8337

In reference to the above supra, the trainee will even be taken under the purview of ‘Equal Remuneration Act’ where the basis of the Act is “Equal Pay for Equal Work regardless of gender”.

At last, but not the least if the above stated are taken into consideration then the State specific LWF contribution will so far has to be taken into consideration if the definition of ‘employees’ is substantiated under the Act.

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In this article, Pradipta Nath discusses Frequently raised queries on The Minimum Wages Act.

In this article, I would like the state the primary query which we may face or had already faced while dealing with the Minimum Wages.

Let this be settled through the stated below:-

Definition of Minimum Wage

The Minimum Wages Act did not specify actually the definition of minimum wages. Whereas as per the Fair Wages Committee, minimum wage must provide for a bare livelihood. In addition, it must also allow the preservation of efficiency of the worker. Statutorily the minimum wage is the wage rate that the law prescribes and/or notify from time to time.

Apart the Minimum Wages Act, neither there mentioned the term DA. Though the same got its significance in the term ‘Cost of living allowance’.

In the gist, the understanding may be substantiated that Minimum Wages Act includes the basic, special allowance and the cost of living or better termed in the HR and economy terminology as Dearness Allowance.

Whereas, it is expedient to mention that Govt. notifies the increased rate of only Basic or DA and at some instance both the Basic as well the DA.

In this context specified above, the relevant sections of the Minimum Wages Act are quoted below,

Section 2(h) of the Minimum Wages Act

“Wages” means all remuneration capable of being expressed in terms of money which would if the terms of the contract of employment express or implied were fulfilled be payable to a person employed in respect of his employment or of work done in such employment and includes house rent allowance but does not include –

(i) the value of –

(a) any house accommodation supply of light water medical attendance or

(b) any other amenity or any service excluded by general or special order of the appropriate government;

(ii) any contribution paid by the employer to any person fund or provident fund or under any scheme of social insurance;

(iii) any travelling allowance or the value of any travelling concession;

(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(v) any gratuity payable on discharge;

Section 4 of Minimum Wages Act – Minimum rate of wages

(1) Any minimum rate of wages fixed or revised by the appropriate government in respect of scheduled employments under section 3 may consist of –

(i) a basic rate of wages and a special allowance at a rate to be adjusted at such intervals and in such manner as the appropriate government may direct to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the “cost of living allowance”); or

(ii) a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of suppliers of essential commodities at concession rates where so authorized; or

(iii) an all-inclusive rate allowing for the basic rate the cost of living allowance and the cash value of the concessions if any.

(2) The cost of living allowance and the cash value of the concessions in respect of supplied of essential commodities at concession rate shall be computed by the competent authority at such intervals and in accordance with such directions as may be specified or given by the appropriate government.

Queries related to its application

Now coming to the most complicated one, i.e. related to its application. Here please be noted that the Minimum Wages Act is only attracted to the list of employments as appended at last of the Act. The lists of employments are often known as per the Act u/s 2(g) as the Schedule employment’. This means an employment specified in the Schedule or any process or branch of work forming part of such employment.

However what the designation varies whether its ‘Manager’ or ‘Senior Executive’ or ‘Trainee’, if the same hits the schedule, will naturally come under the purview of the Minimum Wages Act and the Company is ought to provide the minimum wage.

Again, as the Act is silent on the terms ‘skilled’, ‘unskilled’ and so on, the definition varies from state to state. As implementing the provisions of the Act is the administrative authority of the ‘Appropriate Government’.

In this context specified above, the relevant sections of the Minimum Wages Act are quoted below,

Section 2(i) of the Minimum Wages Act

“Employee” means any person who is employed for hire or reward to do any work skilled or unskilled manual or clerical in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up cleaned washed altered ornamented finished repaired adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of that other person; and also includes an employee declared to be an employee by the appropriate government; but does not include any member of the Armed Forces of the Union.

Section 2(g) of the Minimum Wages Act

“Schedule employment” means an employment specified in the Schedule or any process or branch of work forming part of such employment;

But in the normal course, the HR decided the skill category, and whereas the Govt. may also serve the definition through the notification whereby it will provide mandate. Like say what happened in the Delhi few months back, where the highly skilled means the graduates and above as so on.

Every Employer may not be tried for the offences under the Minimum Wages Act. But practically it is not at all possible to prove his innocence in front of the Minimum Wages Act inspector. Once the employer denies the levels of charges and opts for an appeal through the Judiciary, the employer has to chance to plead innocence U/s 23.

Section 23 of the Minimum Wages Act

Exemption of employer from liability in certain cases

Where an employer is charged with an offence against this Act he shall be entitled upon complaint duly made by him to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge; and if after the commission of the offence has been proved the employer proves to the satisfaction of the court-

(a) that he has used due diligence to enforce the execution of this Act and

(b) that the said other person committed the offence in question without his knowledge consent or connivance.

that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be discharged :

Provided that in seeking to prove as aforesaid the employer may be examined on oath and the evidence of the employer or his witness if any shall be subject to cross-examination by or on behalf of the person whom the employer charges as the actual offender and by the prosecution.

In this article, Alric Tirkey discusses the procedure to bring liquor legally from Goa to Mumbai.

Introduction

For decades Goa is a destination that signifies exotic holidays, spiritual awakening and freedom of travel but one of the main reason people visit Goa is that the price of liquor in Goa is much cheaper than other states especially Maharashtra.

What is liquor

Section 2(L) of the Goa Excise Duty Act and Rules, 1964, defines liquor as the following.

• Liquor include Beer, Feny, Spirit of Wine, methylated or denatured spirit, spirit, wine, toddy and include all liquid consisting of or containing alcohol, wash other medicinal preparation.
• Any intoxicated substance which is declared liquor by the way of notification.
• The legal age for alcohol consumption in Goa is 25.

Transport of liquor for personal consumption.

Carry two bottles for personal consumption (Rule 19B)

Rule 19B of the Goa Excise Duty and Rules,1964. According to the act any person who is going out of Goa carrying liquor, first, he/she should have to obtain a liquor permit granted by the Excise Commissioner from any licensed liquor premises for the retail sale of liquors in sealed bottles on payment of Rs 10/- per permit. The permit shall be issued in the prescribed form authorizing the person to carry the liquor with him duty paid I.M.F. Liquor or Imported foreign liquor in such quantities as is specified in the State or Union Territory where the import of such liquor is permitted, subject to such conditions as the Commissioner may impose.

Rule 88B of the Goa Excise Duty and Rules,1964. Transport of country liquor for personal consumption.

“Transport of country liquor for personal consumption The provisions of Rule 19B shall mutatis mutandis apply to permits issued for taking country liquor for personal consumption outside Goa.”^[1]

According to the local excise department, Goa received about million tourists per year. About five per cent purchase liquor permits and the state thus earns about Rs 2 million by way of excise duty on permits.

Document needed

A list which displays the kind of information which is required to complete the procedure.
e.g.
1. Date of Birth.
2. City or County of Birth.

Procedure

1. Fill up and submit the application addressed to the Excise Officer of Goa.
2. Also, submit along with the application form proof of age and residence.
3. Pay necessary fees.

Authority to approach

1. Office of the Commissioner of Excise.
2. Excise Inspector of Taluka.
3. Office in charge of Excise check posts.
4. Any retail Vendor in packed bottles.^[2]

Condition prescribed in the e-7 form

The transport of liquor is subject to the conditions cited below:-

1. According to the condition mention under the E-7 form of the Goa Excise Duty Act and Rules, 1964, the liquor shall not be consumed or in any manner used or allowed to be consumed or used during their transport through the State/Union Territory other than that of destination.
2. The seal on any container, receptacle or package containing the liquor shall not be broken and shall be kept intact during the transport.

Punishment for the breach of any condition prescribed in the permit

Section 31(b) Goa Excise Duty Act and Rules, 1964 which says that any person wilfully does or omit to do anything in breach of the any condition shall on conviction before a Magistrate, be punished for offence with fine which may extend to “ten thousand rupees” or with imprisonment which may extend to six month or with both.

Amount of alcohol you can carry out of Goa

What  action can be taken when the excise permit is not honoured by the other state officials

When the state excise is not honoured by the other state officials, a person can file a postal complaint in state excise and customs department.

The names of officers of the Directorate General of Vigilance along with their designations to whom such postal complaint are given below.  Sending the complaints to the concerned jurisdictional office would expedite the action.

^[1] http://www.cbec.gov.in/htdocs-cbec/grievance

Penalty for carrying liquor in amount more than the legal limit

Section 31(b)^[1] Goa Excise Duty Act and Rules, 1964 which says that any person wilfully does or omit to do anything in breach of the any condition shall on conviction before a Magistrate, be punished for offence with fine which may extend to “ten thousand rupees” or with imprisonment which may extend to six month or with both.

^[1] Goa Excise Duty Act and Rules, 1964

Form

                                           Department of Excise

                                                   FORM E-7

                                         (See Rules 19, 35, 39)

Permit for transport of duty paid Indian made foreign liquor/denatured spirit/rectified spirit/country liquor No. …

Shri/Sarvashri … is/are permitted to transport from … the undermentioned liquors to … by Road/Rail/Water. Name of the liquor No. of cases Bulk litres Proof litres This permit will be valid for … days from the date of issue and should always be carried alongwith the consignment.

Place ………………..

Date …………………                                                                                      Licensing Authority

Copy to:-

Excise Check-Post at …….

Excise Inspector at ………

^[1] file:///C:/Users/Hi/Downloads/Excise-Duty-Act-and-Rules%20(2).pdf

^[2] http://www.goastateexcise.goa.gov.in/citizencharter.php

^[3] http://goaliquorbazaar.com/index.php?route=information/information&information_id=7

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In this article, Mansi Baithija of UPES Dehradun discusses what does it mean if my case is referred to Lok Adalat.

The goal of ADR is to check litigation explosion, make the equity framework more affordable and effortlessly available to the uneducated and financially unstable people.

The concentration is to maintain a strategic distance from fights and build up a congruous connection between the debating parties by settling the dispute through a procedure of arbitration, mediation, negotiation and the preferences.

The ADR framework can never be an entire alternative to the ordinary arrangement of dispute determination. For instance, settling of criminal disputes is not be possible through the ADR instrument. There is not a viable replacement for Court choices in criminal law. Additionally, it is vital for both the parties to be really keen on settling the dispute calmly.

The Courts of law are gone up against with four principle issues which are as per the following

1. The quantity of Courts and judges in all evaluations is extremely low.
2. The increase in the quantity of cases attributable to the different State and Central Acts.
3. The costs required in indicting or defending a case. The Court expense, the lawyer’s charge, and the additional charges add up to a significant substantial entirety.
4. The process is extremely awkward and tedious owing to the gigantic number of already pending cases.

There are certain methods of ADR in India

•    Tribunals
•    Lok Adalats
•    Arbitration
•    Conciliation
•    Fast track courts

Lok Adalat

Lok Adalat (individuals’ courts) settles the dispute through assuagement and compromise. Lok Adalat acknowledges the cases pending in the general courts inside their purview which could be settled by conciliation. Lok Adalat is an exceptional sort of individuals’ court in which disputes understood by coordinate talks between the parties.

The individuals from the legal profession, college students, social associations, beneficent and charitable establishments and other comparable associations might be related with Lok Adalat.

Striking components of this dispute resolution are interest, settlement, reasonableness, desires, willfulness, neighbourliness, straightforwardness and absence of antipathy. After they look into the case, Lok Adalats, attempt to fathom the basic contrasts which generally are probably going to leave for achieving outcomes through common comprehension and trade off.

Lok Adalats must consist of minimum two middlemen. One of them must be a lawyer or an expert in that particular area and another one must be a sitting or retired judge.

Vital legislations

• Article 39-A – right to free and speedy trial.
• Legal Services Authorities Act.
• Section 96(1) of the Code of Civil Procedure.

Types of Lok Adalat

Continuous Lok Adalat

This type of Lok Adalat is organized for a number of days continuously.

Daily Lok Adalat

As the name suggests, these are held every day.

Mobile Lok Adalat

These are the utility vans which are set up in different areas to resolve petty issues.

Mega Lok Adalat

This is held on a single day on the state level, in all the courts of the state.

National level Lok Adalats

These are held at regular intervals throughout the country. The pending cases are disposed of in huge numbers.  

Permanent Lok Adalats

The other type of Lok Adalat is the Permanent Lok Adalat, organized under Section 22-B of The Legal Services Authorities Act, 1987. Permanent Lok Adalats have been set up as permanent bodies with a Chairman and two members for providing the compulsory pre-litigation mechanism for conciliation and settlement of cases relating to Public Utility Services like transport, postal, telegraph etc.

When can a case be referred to Lok Adalat?

If any of the party involved in a dispute, prior to approaching the court, files a grievance to the legal service authority of the state, the case is taken by the Lok Adalats. This is the pre-litigation stage.

Approaching the Lok Adalat mechanism is a simple procedure and it is cost free too.  Cases already pending before any court can also be referred to the Lok Adalats if both the parties consent to it. ( section 20 of the legal service authority act).

One can file a grievance on the website of national legal services authority. If the court before which a case is pending, finds the case suitable for it, it can be referred to the Lok Adalat by the bench.

What should you expect if your case is referred to a Lok Adalat

• After referring the case, the Lok Adalat tries to communicate with the parties. They might invite you to for a meeting or communicate with you in writing or orally. In this stage, the factual information is discussed and if any one party desires to keep the information confidential from another party, it can be done.
• Suggestions are invited from both the parties to settle the case.
• When the Lok Adalat believes that there are elements of settlement of the dispute and that the terms might be acceptable by the parties, it is informed to the parties for observation and modifications and accordingly, the dispute is resolved.
• As per the supreme court of India, in the case of  PT Thomas v Thomas job, the award declared by a Lok Adalat is final and binding. Therefore no appeal lies in the cases resolved by the Lok Adalats.

“In our opinion, the award of the Lok Adalat is fictionally deemed to be decrees of Court and therefore the courts have all the powers in relation thereto as it has in relation to a decree passed by itself. This, in our opinion, includes the powers to extend the time in appropriate cases. In our opinion, the award passed by the Lok Adalat is the decision of the court itself though arrived at by the simpler method of conciliation instead of the process of arguments in court. The effect is the same. In this connection, the High Court has failed to note that by the award what is put an end to is the appeal in the District Court and thereby the litigations between brothers forever. The view was taken by the High Court, in our view, will totally defeat the object and purposes of the Legal Services Authorities Act and render the decision of the Lok Adalat meaningless.”

In this connection, the High Court has failed to note that by the award what is put an end to is the appeal in the District Court and thereby the litigations between brothers forever. The view was taken by the High Court, in our view, will totally defeat the object and purposes of the Legal Services Authorities Act and render the decision of the Lok Adalat meaningless.”

• If the case is referred via a court then the award granted by Lok Adalat mentions a clause regarding refund of court fee to the parties.
• The members of Lok Adalat ensure that the issue is settled by mutual consent and that there is no element of coercion or force.
• It is the duty of the members of the Lok Adalat to ensure that the parties affix their signatures only if they fully understand and agree to the terms of settlement.
• All the information regarding the case and proceedings are kept confidential.if any member of the Lok Adalat is found guilty of breaching the confidentiality clause, he shall be removed from the panel of members of the Lok Adalat.
• Your lawyer can appear before the Lok Adalat on your behalf but an effort must be made to present yourself.

Article 39A of our Constitution explicitly supports the statement “justice delayed is justice denied”. It is true that the backlog of cases in Indian cases has reached a point where it might take more than 300 years to clear them off. This is the major reason what makes our judicial system so slow and hard to manage and in turn, a lot of people lose faith in the legal system.

Only the wealthy class of the society is able to reach out to effective justice while the poor can’t afford to hire an established attorney, they are not able to solve their grievances.

It is also true that the legal system is facing litigation explosion but that doesn’t serve as an excuse to deny justice to any person. The establishment of Lok Adalats in India has helped to make the situation better. The first Lok Adalat was organized in 1982 in Junagarh, Maharashtra. The National Lok Adalat held on 08.04.2017 was able to dispose of 9,45,530 cases across the country.

References

2005 (3) RCR (Civil) 621.

In this article, Arvind Singh discusses the provision of Capital Punishment with reference to Indian Legal System.

Capital Punishment, the word ‘capital’ comes from a Latin term ‘capitalis’ means ‘of the head’. The crimes or offences with results in capital punishment are called as the ‘capital offences’ or ‘capital crimes’.

Capital Punishment is also known as the Death Penalty. There are many countries which has abolished the practice of capital punishment. India, is one of those countries which are in favour of giving capital punishment in certain cases. In present scenerio, when we talk about Human Rights the concept of Capital Punishment seems very contradictary. Different countries have adopted different ways of execution of capital punishment.

In India, the mode of execution is by ‘Hanging by neck till death’. But in the cases of The Army Act, The Navy Act and The Air Force Act Death by shooting is also an option. Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death sentence for the offences mentioned in section 34(a) to (o) of The Air Force Act, 1950. Section 163 of the Act provides for the form of the sentence of death as:-

“In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death.”

It Depends on the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death. The Army Act, 1950, and The Navy Act, 1957 also provide for the similar provisions as in The Air Force Act, 1950. Even Lawyers in India and whole legal fraternity is divided when it comes to the Capital Punishment.

Capital Punishment is considered as a tool of deterrence which is used to create fear in the mind of the general public so that nobody dares to commit the crime again.

Indian law supports Capital Punishment but it is restricted only to certain crimes:

• 120B of IPC Being a party to a criminal conspiracy to commit a capital offence
• 121 of IPC Waging, or attempting to wage war, or abetting waging of war, against the Government of India
• 132 of IPC Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny
• 194 of IPC Giving or fabricating false evidence with intent to procure a conviction of a capital offence
• 302, 303 of IPC Murder
• 305 of IPC Abetting the suicide of a minor,
• Part II Section 4 of Prevention of Sati Act Aiding or abetting an act of Sati
• 364A of IPC Kidnapping, in the course of which the victim was held for ransom or other coercive purposes.
• 31A of the Narcotic Drugs and Psychotropic Substances Act Drug trafficking in cases of repeat offences
• 396 of IPC Banditry with murder – in cases where a group of five or more individuals commit banditry and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty.
• 376A of IPC and Criminal Law (Amendment) Act, 2013 Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender.

Deterrence Theory of Punishment

The basic Idea of Capital Punishment is based on the Theory of deterrence. The object of this theory is to deter i.e. to create a sense of immense fear in the mind of people that they shall not commit same crime. It does not allow any criminal to be dealt with lineancy. In Todays world there is a lot of criticism of Deterrence Theory as it usually related to inhuman and barbaric punishment. At present times when we talk about Human Rights the concept of death penalty seems a bit contradictary.

Constitutional validity of Capital Punishment

The validity was first challenged in the case of Jagmohan Singh v. State of U.P where the SC rejected the argument that the death penalty is the violation of the “right to life” which is guaranteed under Article 21 of the Indian constitution.

Rajendra Prasad v. State of UP, Justice Krishna Iyer has empathetically stressed that death penalty is violative of Articles 14, 19 and 21.

The  landmark  case  of  Bachan Singh  v. State of  Punjab,  by  a  majority  of  4  to 1  (Bhagwati J.dissenting) the Supreme  Court overruled  its  earlier  decision  in  Rajendra  Prasad. The Supreme Court upheld that Provisions related to capital punishment are not violative of Art. 14 (Right to equality), Art. 19 (Freedon of speech and expression) and Art 21 (Right to Life and liberty) of the Constitution. It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable, also  enunciated  the  principle  of  awarding  death penalty only in the ‘rarest of rare cases’.

The Supreme Court in Machhi Singh v State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed.

Concept of Rarest of Rare under Sec. 302 IPC

The theory was propounded by the S.C in the case of Bachchan Singh vs. State of Punjab. Earlier, there was only one punishment when an offence under sec. 302 was committed i.e Death penalty. It was a controversial form of punishment  because there was no criteria on basis of which capital punishment could be awarded.

A person who committed murder by direct attack was given same punishment as that of a person who has committed murder in a barbaric or heinious way. The Supreme Court settled this dispute in the case of Bachchan singh’s Case. The Apex Court gave the Theory of Rarest of the Rare cases. After these guidlines it was settled that Capital Punishment in Murder  cases will be given only when the case will fall under the theory of Rarest of the rare cases.

According to this theory Rarest of Rare case will be the one in which the crime has to be committed in the most heinous way or in extraordinary Circumstances which is beyond the imagination of general public. This has to be decided by the court on the basis of facts and circumstances of the case.

Now, The General Punishment for Murder is Life Imprisonment and for exceptional cases which are covered under rarest of rare than Death Penalty can be awarded.

Pardoning Power of President Under Art. 72 of the Constitution

The President under Art. 72 has following Powers regarding Capital Punishment awarded by The Supreme Court.

1. Pardon, Can give Complete Pardon to the accused of the Charges.
2. Reprieve, Temporarily suspend the sentence.
3. Respite, Awarding less sentence than the original sentence
4. Remission, Reducing the amount of original sentence.
5. Commutation, Changing one punishment to another.

Capital Punishment Executions in last 15 years

Out of Almost 1400 Death Sentence Awards, only 4 executions were seen in the Last 15 years.

1. Dhananjoy Chatterjee (14th Aug. 2004): was executed at Alipore Central Jail, Kolkata. He was charged for Murder and Rape of a 14-year-old girl named Hetal Parekh.
2. Mohammad Ajmal Amir Kasab (21st Nov. 2012): was executed at Yerwada Jail, Pune. He was charged for the infamous 26/11 Mumbai Attacks.
3. Afzal Guru (9th Feb. 2013): was executed at Tihar Jail, Delhi. He was held to be the Mastermind of the Attack on Parliament on 13 Dec. 2001.
4. Yakub Memon (30th July 2015): was executed at Central Jail, Nagpur. Held for sponsoring 13 serial blasts in Mumbai in 1993.

Capital Punishment For Rape under Sec. 376A by Criminal Law (Amendement) Act 2013

The demand for Capital Punishment in the cases of Rape was called for after the infamous Delhi gang Rape case in 2012 i.e Mukesh and others vs. State of NCT of Delhi. After which The Criminal Law (Amendment) Act 2013 was introduced and various sections were added and changes were made. These Changes include addition of Sec. 376A Punishment for causing death or resulting in persistent vegetative state of victim.

“Whoever, commits an offence punishable under sub-section (l) or sub¬section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.”

Capital Punishment and Human Rights

Negative View

” As long as you have Capital Punishment there is no gurantee that innocent people wont be put to death” – Paul Simon

Does Capital Punishment means that a person who commits a capital offence has lost his right to live or that his fundamental right under Art. 21 of our constitution has lost its validity. The Crime rate in India have not decreased despite favouring capital punishment as tool for deterrence. Ninety-five countries of the world have abolished the practice of Capital Punishment and Fifty-eight (including India) countries are those which are still practicing it. The extraordinary offences like muder and rape are usually committed by a person in spur of a moment, anger or anxiety.

‘Legal Murder’, Term used for capital punishment by the Human Rights Activists. To them it is the worst form of punishment in a civilized society. Capital Punishment means that the system has failed to overcome the hurdles through civilized manner. What will this be called, failure of the System as System failed at every single level to restrict commission of crime or Again Failure of System To be unable to control the criminal activities.

Positive View

But, the counter question still remains the same that what is the probablity that if capital punishment is suspended or struck down, the crime rate will fall. Because at present there is at least a fear of death in the minds of persons committing offences. This is one of the biggest tool for those judicial stystems which follow the principle of Deterrence theory of punishment. Every convict knows what he has done and what are its consequences. Every person knows that if he commits murder he may be put to death but if he still commits it whose fault this is.

Capital punishment may seem barbaric, inhuman or montrous but in reality it is the only and last weapon in the hands of Judiciary to curb down criminal activities. As the system in India is so corrupt that a criminal mind behind bars can run his business from jail cannot be stopped from committing a crime again. If there is any extraordinary crime committed , and there is no altenate punishment left, it is better to capitalise the convict that to make the society suffer in the name of Human Rights.

As Bill Mayer said, ” Capital Punishment Works great, every killer you kill never kills again”.

But Power to give Capital Punishment must be used with great care and caution by the Judiciary keeping in mind the basic principles of the criminal law as no innocent shall be punished for the crime which he has not committed.