VOLUNTARY ARBITRATION

 Voluntary arbitration is one of the effective modes of settlement of an industrial dispute; it supplements collective bargaining. When negotiation fails, arbitration may prove to be a satisfactory and most enlightened method or resolving an industrial dispute. It provides a new focus for set-up animosities. It has been found that in many arbitration cases, in which the parties start out by being angry at each other, they end up being less so.

The winning party is satisfied, and the losing party is likely to feel aggrieved, not at the other party, but at the arbitrator. Further, informal arbitration offers an opportunity to dissipate hard feelings which the industrial dispute may have aroused.

It is important because: -

1. It is expected to take into consideration the realities of the situation. 
2. It is expected to meet the aspiration of the parties.
3. Based on voluntarism 
4. It does not compromise the fundamental position of the parties and, 
5. expected to promote mutual trust.

However, it is unfortunate that despite government's stated policy to encourage collective bargaining and voluntary arbitration, India adopted only compulsory adjudication system ever since independence and did not give legal sanctity to voluntary arbitration till 1956. The severe criticism of conciliation and adjudication led to the introduction of Section 10 A relating to voluntary arbitration through the Industrial Dispute (Amendment) Act, 1956.

The 1956 Amendment to some extent has tried to give legal force to voluntary arbitration but still it stands on a lower footing than adjudication as it permits the parties to adopt recourse to arbitration prior to reference to adjudication. Further, 1956-Amendment also did not place an arbitrator on the same footing as that of adjudicators. The 1964 Amendment did try to bridge the gap but still the disparity lies in several respects. 

PROCESSES INVOLVED IN REFERENCE OF DISPUTE TO VOLUNTARY LABOUR ARBITRATOR

A.  Choice of Dispute Settlement 

Section 10A (1) of the Industrial Dispute Act, 1947 authorizes the parties to make reference to a voluntary arbitrator. But before the reference may be made to the arbitrator, four conditions must be satisfied:

• The Industrial dispute must exist or be apprehended.
• The agreement must be in writing.
• The reference must be made before a dispute has been referred under Section 10 to a Labour court, tribunal or national tribunal.
• The name of arbitrator / arbitrators must be specified.

B.  The Conditions Precedent

A perusal of the aforesaid provision may conveniently be delineated with reference to:

1. Parties to arbitration. Under the Industrial Dispute Act, 1947, a reference to the voluntary arbitrator under Section 10 A can only be made if a dispute arises between employees and employers, or between employers and workmen, or between workmen and workmen.
2. Subject-matter of reference. The Industrial Dispute Act, 1947 seeks to resolve the industrial disputes. The parties can only make a reference of an 'industrial dispute' to an arbitrator. If, for instance, parties refer a dispute, which is not an 'industrial dispute', the arbitrator will have no jurisdiction to make a valid award.
3. Time for making the agreement. Section 10A of the Industrial Disputes Act, inter alia, provides that the reference to the arbitrator should be made at any time before the dispute has been referred under Section 10to a labour court, tribunal or national tribunal.   

Salomon vs Salomon – Case Explained in Easy Words

                                                           Salomon vs Salomon & Co. Ltd

                                                      (1897) A.C. 22, [1896] UKHL 1

                                                                INTRODUCTION

Every company has its own identity — Artificial Legal Person (ALP), and this aspect of a company is a very important and fundamental element of company law. It is regarded as the most comprehensive and consistent law of corporate jurisprudence since it lays the groundwork for the creation and operation of a company.

On the other hand, the rule of “ALP” has traditionally been fraught with controversy and is one of the subjects of dispute both inside and across jurisdictions. The concept, established in the case of Salomon vs Salomon, is still widely used and is traditionally praised as the framework of both English company law and the entire system of international commercial law.

                                                                 FACTS

For many years, Aron Salomon successfully ran a profitable leather business. He decided to change it into a limited company in 1892. At that point, Salomon & Co. Ltd. was established with Salomon as the managing director, along with his wife, daughter, four sons, and wife as members. For £39,000, the corporation bought Salomon’s business. A charge over all of the company’s assets totalling £10,000 in debentures, £20,000 in fully paid up £1 shares, and the remaining £20,000 in cash were used to pay the purchase price. Salomon possessed 20,001 out of the 20,007 shares issued, and a family member held each of the other six shares. The business had problems almost immediately, and a year later, the holder of the debentures (Salomon having sold his shares to another party) hired a receiver, and the business entered liquidation.

At the time of liquidation, the value of the assets was divided as follows: liabilities received £6,000 (six thousand pounds), debentures received £10,000, and unsecured obligations received £7,000. Nothing would be left over for the unsecured creditors once the debenture holders had been paid. As a result, the liquidator filed a lawsuit against Salomon, holding him responsible for covering the company’s trade debts.

                                                            QUESTIONS RAISED

• Whether Salomon & Co. Ltd. indeed existed as a company?
• Whether the company, an artificial invention of the law, had actually been properly constituted under any circumstances.
• Whether Salomon was accountable for the business’s debts?

                                                                  ARGUMENTS

Salomon & Co. Ltd. was formed under the Act, but according to the liquidator, the business never existed independently. Salomon became the undisputed king due to the large majority of shares. The firm was fake, and the business was run exclusively for and by him.

                                                                  JUDGEMENT

According to the House of Lords, in order to answer the question, it is required to examine the legislation itself without altering or adding to its provisions. The legislation itself must be the entire reference point. In this instance, the Act stated that any seven or more people who are connected for a legitimate purpose may create a company with or without limited liability by signing their names to a memorandum of association and otherwise complying with the Act’s registration requirements. Additionally, the Act stated that “no subscriber shall take less than one share.” There was no question that seven genuine living people owned the company’s shares. The court determined that the firm had been legitimately created and was an actual corporation (company) since it complied with the Act’s criteria. House of Lords held that the provisions of the Act did not require that the people subscribing shall not be related to each other or that owning a single share shall not afford a sufficient qualification for membership, rejecting the liquidator’s argument that Salomon and his family members purchased all the shares and that the company was nothing more than a one-man show.

A creditor of the firm is unconcerned whether the company’s capital is owned by seven people in equal shares, each of whom has the right to an equivalent portion of the earnings, or if it is nearly entirely owned by one person, who gets almost all of the profits. If one individual control most of the firm’s capital, the company does not lose its identity. The company in question and its subscribers are entirely different people. The House of Lords also claimed that nothing in the Act required the subscribers to be independent, have a say in a significant amount of the undertaking, or have their own free will.

                                                                 RESULT

After this incident, the idea of removing the corporate veil was developed so that no one could commit fraud and escape responsibility by hiding behind the company’s organisation.

There should be some possibilities for applying this idea of lifting the corporate veil. Since a charge secured Aron Salomon’s debt against the company’s assets, it was determined in this case that he had committed no fraudulent or unlawful acts and was the company’s legitimate creditor. As a result, he had a right to be paid at the company’s winding up before any unsecured creditors.

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DOCTOR - IF A WORKMAN

 Is a doctor who has been performing duties of technical nature a workman irrespective of the fact whether the hospital is charitable or not, under the Industrial Dispute Act? In Surendra Kumar v. Union of India, the practionner was employed as assistant medical officer Class 2 to treat patients who were employees of the railways and their families. He was also required to meet the administrative requirement where he was in charge of the hospital of a wealth unit. 

The staff was also under his administrative control. On these facts, the division bench of Allahabad High Court held that the duties of the doctor were technical and not supervisory. The Court accordingly held that the doctor was a 'workman' under Section 2(s) of the Industrial Dispute Act, 1947. However, the division bench of the Karela High Court in Mar Basellos Medical Mission Hospital v. Dr Joseph Babu held that a senior doctor engaged in diagnosis and treatment of patients was not a workman under the Industrial Dispute Act.

The court gave the following reasons.

1. A post-graduate doctor was engaged at a fairly high salary for treatment of patients as a senior doctor in the department of medicine.
2. His work is essentially to diagnose diseases of patients and treat the same.
3. A senior doctor is always assisted by a team of junior doctors, medical attendants, nurses, etc., and it is the duty of the senior doctor to ensure that the examination of the patient by way of x-ray, blood test, etc., and that the treatment suggested by him is carried out strictly in accordance with his instructions.
4. No one can doubt that any subordinate employee disobeying the doctor's instructions will do so expect at the risk of disciplinary action.

Thus, he was engaged in supervisory and technical work, even if a doctor's work is only technical in nature.

In MM Wadia Charitable Hospital v. (Dr) Umakant Ramchandra Warerkar, the Bombay High Court held that a doctor, though employed and rendering professional services will not be a 'workman' under the Act. The Supreme Court in Workmen of Dima Kuchi Tea Estate v. Dima Kuchi Tea Estate while construing Section 2(s) (as it existed prior to 1956 amendment) held that the duties performed by a medical practionner were of a technical in nature.

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IN THE CASE OF-NAZ FOUNDATION V. GOVERNMENT OF N.C.T. OF DELHI

 HELLO GUYS ! WELCOME BACK TO THE ANOTHER BLOG ,SO LETS GET STARTED WITH ANOTHER CASE LAW:-

The Delhi High court held section 377 of IPC unconstitutional in so far as it criminalises consensual sexual acts in private between adults who have attained 18 years of age being violative of Article 21,14, and 15 of the Constitution.  The provision or section 377 of IPC will continue to govern non-consensual penile ,non-vaginal sex and penial non-vaginal sex involving minors. This classification will hold good till the law is made by the Parliament to enforce the recommendation of 172nd report of the Law Commission. The Court made it clear that this Judgement would not result to Reopen the cases already decided and attaining finality. It also held to be a wrong notion that the same sex relation would erode the effect of Public Health services by spreading AIDS. The sphere of privacy allows persons to develop human relations without interferences from outside the community or the state. Section 377 denies a person's dignity and criminalises his or her core identity solely on account of his or her sexuality and is violative of Article 21. It denies a gay Person a right of full person. The Popular morality or public morality of certain acts is not a valid justification for restriction of fundamental rights under Article 21. 

Popular Morality is based on shifting and subjecting notions of right and wrong. If there is any type of morality that can pass the test of compelling state interest, it must be constitutional morality and not public morality.

To stigmise or to criminalize Homosexuals on account of their sexual orientation is against the Constitutional morality.

Article 15(2) incorporates the notions of horizontal application of rights which even prohibits discrimination of one citizen by another in the matter of access to public places. Discrimination on the ground of sexual orientation is impossible even on the Horizontal application of the right enshrined in Article 15.

If there is one constitutional tenet that can be said to be underlying theme of Indian Constitution, it is that of inclusiveness. The constitution reflects this value deeply ingrained in Indians society traditionally displayed. 

In every aspect of life, there is manifest in recognising a role for every one in the society. Those perceived as 'deviants' or 'different' by the majority are not on that score excluded or ostracized.  

Those who have any doubt , so they can refer this video. If you like this article then share this to all your circle and like it.

M.C. MEHTA V. UNION OF INDIA

 HELLO FRIENDS! WELCOME BACK AGAIN TO MY BLOG , TODAY I AM HERE TO DELIVER ONE MORE INTERESTING CASE WHICH IS MOST RENOWED CASE.SO LET US BEGIN WITH:

In M.C MEHTA V. UNION OF INDIA,  the Supreme Court has further widened the scope of Public interest litigation under Article 32 .Bhagwati, J, speaking for the majority laid down the following guidelines:

(1) The Court held that the poor in India can seek enforcement of their Fundamental rights from the Supreme Court by writing a letter to any judge. Also, such a letter does not have to be accompanied by an affidavit. His lordship expressly referred the apprehension expressed by Pathak, J., in BANDHUA MUKTI MORCHA  case that such letters should not be addressed to any individual judge but only to the court ,held that such an approach would deny easy access to the court to the poor and disadvantaged persons or by social action group who might not know the proper form of address to the court. They may know only the particular judge who comes from their state and they may therefore address the letter to him.

(2) The Court also held that under Article 32 it has power to grant remedial relief which includes the power to grant compensation in appropriate cases where the Fundamental rights of the poor and disadvantaged person are violated. However, Article 32 cannot be used as a substitute for claiming compensation for the infringement of Fundamental rights through the ordinary process of a Civil Court. It can only be done where the violation of Fundamental rights of poor is "gross and patent" and "affects persons on a large scale" or where it appears to be "unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantage position to seek remedy in civil court. This is the principle on which court awarded compensation to RUDUL SHAH and BHIM SINGH whose fundamental rights to personal liberty were grossly violated by the State. In such cases it would be gravely unjust to ask him to go to the civil court for claiming compensation.

(3) The Court held that the Court can appoint socio legal commissions or devise any procedure and forge any tools it deems appropriate for the enforcement of Fundamental rights of the poor.

The Court endorsed the statement of law laid down by Bhagwati, J., in  Bandhua Mukti Morcha case :

"Article 32 does not merely confer power on the court to issue a direction, order or writ for the enforcement of the fundamental rights but it also lays a constitutional obligation on this court to protect the fundamental rights of the people and for that purpose this court has all incidental and ancillary powers including to forge new remedies and fashion new strategies designed to enforce fundamental rights. It is in realisation of this constitution obligation that this court has innovated new methods and strategies particularly for enforcing the Fundamental Rights of the poor and disadvantage who are denied their human rights and to whom freedom and liberty have no meaning".

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THE BASIC STRUCTURE OF CONSTITUTION UNDER ARTICLE 368

 

Hello guys welcome back to my blog, hope you are all good. Today  i like to discuss on most controversial topic ,but before we starts first answer my such question given below:

Q. Is parliament amend the constitution?

Q. What is the limit of  Parliament's power?

To answer such questions ,let us quickly go through the solution provided bellow:

Constitution of India itself says, "with the changing of time ,whenever there will be need to add new feature so parliament amend the constitution".

Let us see the further Articles(13,368) provided in the Indian constitution.

ARTICLE 13:-

Says Parliament cannot amend the constitution which are inconsistent to the fundamental rights or violative to Fundamental Rights.

ARTICLE 368:-

Says parliament has power to alter any part of the constitution or change the constitution.

So through 1st constitutional amendment act there are major changes done by parliament , first is Article 31A and 31B also second is Article 19(1)(g)

So after this Act passed ,then it had been challenged in this case known as:

1. SHANKARI PRASAD V. UNION OF INDIA

In this case Supreme court case ,that first constitutional amendment is valid and Parliament can amend the Fundamental rights. Further Supreme court says that Article 13 will be applicable on ordinary laws and not on Article 368

So Parliament can amend fundamental Rights also.

    

2.SAJJAN SINGH V. STATE OF RAJASTHAN

In this case also same judgment has passed as was in shankari prasad's case. "Parliament can amend the fundamental rights.

Bench of Supreme Court:-

C.J. Gajendra gadkar was satisfied with this judgment, but J.Hidayatulla and J.Madholkar has not satisfied with the judgment and they refer the case to 11 judges bench.

3.GOLAKNATH V. STATE OF PUNJAB

The main crux of this case ,and few important points of the judgment are

1.  Parliament cannot abridges fundamental rights.
2. Subject to limitation and judicial review is must.
3. Article 13 will apply on Article 368 

it says just reverse in Golaknath Case. And this judgement helps in increasing the power of Supreme Court also this is like a Punch given by a hero and established itself as a real hero, ended up a tussle going between Parliament and Supreme Court.

4. 24 CONSTITUTIONAL AMENDMENT ACT 

Now this time Parliament came up with full energy again after being defeated in Golaknath case   . This time parliament has amended the Article 13 which is root cause of this case. It has added the clause 4 in Article 13 and clause 3 in Article 368 .Article 13(4) says, Nothing in this Article shall apply to any amendment of this Constitution made under Article 368.

Article 368(3) says, Nothing in  Article 13 shall Apply to any amendment made under this Article.

So with this Parliament has power to amend any part of Constitution including Fundamental Rights

later on-

25th Constitutional Amendment-Property rights becomes mere a legal rights.

26th Constitutional Amendment-Privy purse has completely reduced.

29th Constitutional Amendment-Changes made in Land Reforms.

5. KESHVANANDA BHARTI V. STATE OF KERELA 

24th CAA,25th CAA, 26th CAA ,29th CAA also Golaknath case has been challenged in Keshvananda Bharti case.

How far Parliament Amend the Constitution?

 So for this case Supreme Court constituted 13 judge bench , and they all concluded that Parliament can Amend the Constitution . So with this they all have evolved one Doctrine which is "DOCTRINE OF BASIC STRUCTURE"  .In this Doctrine they have clearly quoted that Parliament did not Amend Basic features of Constitution .Basic features really means about Preamble ,Basic Fundamental Rights and many more. Keshvananda Bharti's judgement has been passed on 24 April 1973  and this judgement is not Retrospective in nature , it is Prospective in nature.

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HINDU SUCCESSION ACT ,1956

 Hey everyone to all of you and welcome to LEGAL GYAAN BLOG .Today i want to share the one of the recent judgement  of supreme court 2020 and i will try my best to explain you in a very easy manner which you will understand better. So lets begins

DAUGHTER'S RIGHTS TO PROPERTY:-

According to the Hindu succession act 1956,there are two types of property acquired by an individual are as follows:-

1.ANCESTRAL PROPERTY

2.SELF ACQUIRED PROPERTY

The main problem of Ancestral property is that is partial to daughters .why i am saying partial because before Hindu succession Act 1956 the right to property was fully enjoyed by son and not daughters as a class 1 heirs.

Hindu succession Act 1956 major problem in Ancestral property is that ,son, grandson, great grand son  are considered as  copasner rights on property and not wife or daughter

Let us understand the survivor rule:-

1.One males are copasner as per section-6 of Hindu succession Act 1956.

Understanding the crux of 2005 amendment:-

TESTAMENTARY RIGHTS:-

Will can only be made in beneficiary to Son, then comes daughter, and then anyone can be benefited

INTERSTATE RIGHTS:-

Problems comes when person died without will.

so that time will can be automatically transfer to certain class from 1 to 4

1.widow 

2.son

3.daughter

 But in 2005 amendment says:-

1.Daughters are co-pasner in property rights since birth.

2.Daughter will have equal liability.

ENFORCEMENT DATE OF HINDU SUCCESSION ACT 2005 IS 9 SEPTEMBER 2005.

Problem arises was that, from this enforce date  father should be alive is necessary or not?

let us understand with the help of case laws:-

1.Case :-PRAKASH V.PHOOLWATI (2016)

BENCH-JUSTICE ANIL DAWE AND A.K. GOYAL

In this case S.C. says that father should be alive from this enforced date to implement on it.Father should alive is necessary.

2.Case :-Dannama v. Amar

BENCH:-JUSTICE A.K SIKRI AND ASHOK BHUSHAN 

In this case S.C. says that father alive is not necessary, if he died before 2005 so even daughter is also copasner in property rights to inherit.

So after this 1st and 2nd case are conflicting to each other and start confusion that what should follow .So to resolve such problems there is an another case is follow:-

3.Case:-Vineeta Sharma v. Rakesh Sharma (2020)

BENCH:-JUSTICE  Arun Mishra,  ABDUL NAZIR AND MR.SHAH

Here Supreme Court says , that women has a right on Ancestral Property is by birth .No matter that father is alive or not.

AND THAT IS CALLED A LANDMARK JUDGEMENT !

HOPE YOU REALLY LIKED MY NOTES AND MY EXPLANATION IN SHORT WAY .

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