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The Bonus Act
  • By: Admin
  • Date: 23 Oct 2020
  • Labour Issues
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Bonus means a sum of money that is added to an individual's wages as a reward for good performance. The profit earned by an establishment is shared among the employees and staff members. Bonus is governed by the Payment of Bonus Act 1965, which is paid to an individual who is employed by companies and organizations. The bonus is paid based on the employees' profits and productivity. The Payment of Bonus Act 1965 applies to all the establishments who have employed 20 or more persons. The main aim of the Payment of Bonus Act 1965 is to impose legal responsibility on the employer of every establishment that is covered under this act to pay the bonus to his/her employees.

The Payment of Bonus Act 1965 does not apply to the non-profit making organizations, LIC, hospitals that are excluded under section 32, an agreement signed by the employees with the employer and those establishments that are exempted by the appropriate government. An employee can avail bonus in specific conditions that are as follows:

  • If the employee is receiving salary/wages upto Rs. 21,000 every month.
  • If the employee is engaged in any work that is either skilled, unskilled, managerial or supervisory, etc.
  • If the employee has not worked less than 30 working days in the same year.

Hence, if the following conditions are not satisfied, then he cannot avail bonus under the Payment of Bonus Act 1965.

Minimum & Maximum Bonus

The Payment of Bonus Act 1965 also states the provision relating to the minimum and maximum percentage of the bonus that the employer is liable to pay his employees. The employee is entitled to a minimum bonus of 8.33% of the salary during a year. In case if the employee is below the age of 15 years, then he is entitled to a minimum bonus of Rs. 60. In case if the employee is above the age of   15 years, then he is entitled to a minimum bonus of Rs. 100. The employee is entitled to the minimum bonus, whichever is higher from the above three conditions. The employee is entitled to a maximum bonus of 20% of the salary during a year.

Calculation of Bonus

According to the Bonus Act - Amendment of 2015, if the employees are earning below Rs.21,000 then he is entitled to receive the bonus. Following is the calculation of bonus:

If an employee is earning Basic Salary plus allowance below Rs. 7000 then the bonus will be calculated on the actual amount. For Instance - If an employee is working in an establishment, where his basic salary is Rs. 6,500 (below Rs. 7000) every month, then the formula for calculating minimum bonus is Basic Salary*8.33% (6,500*8.33% = 541.45 per month and 6497.4 per annum). In case if an employee is earning Basic salary plus Dearness Allowance above Rs. 7000, then the bonus will be calculated on Rs. 7000. For Instance - If an employee named Aditya is working in an establishment, where his basic salary is Rs. 7,000 every month, then the formula for calculating maximum bonus is Basic Salary*20% (7,000*20% = 1,400 per month). There is no bonus applicable to the employees who are earning a basic salary above Rs. 21,000 every month. The bonus must be paid within eight months from the period of closing the books of account.

Case Law

IDBI Bank Limited Vs. The Union Of India

Patna High Court - 22nd August 2017

Miscellaneous No. 51373/2013

Niranjan Kumar, the Labour Enforcement Officer, filed a complaint case against the IDBI Bank Limited and its Official Chairman cum Managing Director and branch head of Main Branch. IDBI Bank Limited was engaged in banking and had employed 40 employees. According to section 1 of the Payment of Bonus Act 1965 and Central Rules, the Act applies to the establishment of the IDBI Bank Limited. The Inspector had observed that the eligible employees were not paid Bonus and statutory time limit has also been expired. It was also observed that the IDBI Bank Limited had not maintained form C registers under the provision of the Payment of Bonus Act 1965. Even after giving the notice to remove the defects, the IDBI Bank Limited did not rectify those defects. IDBI Bank Limited committed a breach of the provisions that are mentioned under section 28(A) (penalty) and section 29 (Offences by Companies) to be read with section 30 (Cognizance of Offence) of the Payment of Bonus Act 1965.

On 15th April 2010, the Chief Judicial Magistrate of Patna took the cognizance for the offence under section 28(A) and section 29 to be read with section 30 of the Payment of Bonus Act 1965 against IDBI Bank Limited. IDBI Bank Limited had filed an application under section 482 (Inherent Powers of the High Court) of the Criminal Procedure Code. After going through the provision mentioned under section 32(ix)(f) of the Payment of Bonus Act 1965, it was found that the Payment of Bonus Act 1965 did not apply to the Industrial Development Bank (transfer of undertaking and Repeal) Act 2003. According to the above act, the exemption that was granted to the IDBI still continues to IDBI Limited. The High Court held that the order passed for taking cognizance for the offence under section 28(A) and section 29 to be read with section 30 of the Payment of Bonus Act 1965 against IDBI Bank Limited was illegal.

Conclusion

If any action is taken by an employer or the management against the employees in case of Dishonesty, Theft, Violent behaviour and Sabotage of any property of the establishment, while he was on his duty, then he shall be disqualified from availing the bonus under the Payment of Bonus Act 1965. If an employee is earning more than 21,000 of salary, then he is not entitled to receive a bonus under the Payment of Bonus Act 1965. If the employee is not eligible under the Payment of Bonus Act 1965, but still the employer wants to give the bonus to an employee, then it is considered as a moral obligation and not any legal requirement which is also known as ex-gratia. Hence, the bonus is a reward for his work dedication towards an establishment.

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Frivolous Complaints under the Sexual Harassment Act

By: Adv. Kishan Dutt Kalaskar Sexual Abuse 22 Oct 2020

Inappropriate behaviour at the workplace does not only make the workplace unreliable and threatening for women, but it also discourages their ability to convey themselves in the present contending world in accordance with the circumstances. The nature of social construct a male member has in the society continues to justify the violence that is happening against women.

“The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was India's first legislation that particularly raised the issue of sexual harassment at the workplace. In this year, 2013 there was also the promulgation of the criminal law amendment act (2013), which has criminalized offences such as sexual harassment stalking and voyeurism

Definition

In 1997, in the landmark verdict of Vishaka and others v. the State of Rajasthan, the Supreme Court of India defined sexual harassment at the workplace, well-defined anticipatory, prohibitory and redressal measures, and gave directions towards a legislative authorization to the guidelines proposed.

Sexual Harassment includes but is not limited to the following:

  1. Actual or attempt of rape or sexual assault.
  2. Unwanted intentional touching, leaning over, cornering or pinching.
  3. Unwanted sexual banter, jokes, remarks or questions.
  4. Whistling at someone.
  5. Kissing sounds, howling and smacking lips.
  6. Touching an employee’s clothing, hair or body.
  7. Touching or rubbing sexually against another person.

The scope of the present Act

The present Act prescribes the constitution of internal committees comprising of a female as the presiding officer and other members made up of one-half females.  There is also provision for another district level ‘local complaint committee’ for receiving complaints from workplaces with less than ten employees.  Internal Complaint Committee or Local Complaint Committee members will hold their position not exceeding three years from the date of their nomination or appointment.  But this Act falls short of Vishakha judgment on numerous critical fronts and due to these controversial clauses in the Act; the Government has come in for sharp criticism by the Justice Verma Committee Report. The Act prescribes that The Internal Committee, before initiating an investigation under Section 11 and at the request of the pained woman take steps to reconcile the matter between her and the respondent through conciliation.

However, taking into consideration the unequal position of women in society, this provision may be abused. This also violates the mandate that is prescribed by the Supreme Court in Vishakha, which was a guiding force to the State ‘to ensure a safe workplace/ educational institution for women’. Apart from it, according to this Act, it has also been clearly provided that information related to the enquiry cannot be provided under the Right to Information (RTI) and it is the third subject, after the National Nuclear Safety Regulatory Authority Bill and National Sports Development Bill- where restrictions have been imposed particularly on the RTI. Additionally, though it is made mandatory for the employers by this Act to constitute internal complaints committees for looking into all cases of sexual harassment in the workplace, the Act is faulty as it also envisions a situation in which the offender may be an employer, as in the Tehelka case thereby making in almost all cases the autonomous and unprejudiced functioning of the internal complaints committees impossible.

Frivolous Complaints

The Act also puts some emphasis on seeking to punish false and malicious complaints along with the new rule that has been framed under this clause stating that the committee that has been formed by an employer on finding the accusation of sexual harassment to be malevolent or based on forged papers can punish the women even with the cessation of their jobs.  Though it is clearly outlined in the Act that simple incapability to authenticate a claim would not be punishable, it has been found out that the existence of this clause along with the latest rule of punishing for false and malicious complaints will inexorably deter the women complainants from filing any complaints as it is sought by the executor to ascertain in almost every complaint that the complaint is bogus and woman may be hounded for her inability to prove their allegations.  Section 14 stipulates to penalise a woman for filing a bogus complaint. Such a stipulation is a completely insulting provision and is intended to nullify the purpose of the law.

However, implementing a restraint does not mean creating antagonistic surroundings which will make every employee anxious abo­ut filing a complaint. Employees must be confident to bring into picture everything, which is uncomfortable and disagreeable to them. The ambition is to avert the exploitation of the provisions designed to guard women at the workplace. This deterrence cannot be made by setting an illustration of someone who was punished for filing a malicious complaint as every employee who files a complaint under this Act is protected by the provision providing for secrecy.

First significant instrument here is that of awareness. The employer needs to generate alertness amongst its employees regarding the penalty of filing a malicious complaint. Employees need to be appropriately trained about the dissimilarity between complaints, which are not proven, and complaints which fall under the class of being malicious. Every instance a complaint is filed/ is about to be filed, the employee needs to be reminded of the cost of filing a malicious complaint. If guidance events (conferences, seminars, awareness programs etc) are held on the subject of Sexual Harassment, consequences of filing a malicious complaint under the Act also needs to be made clear.

Requisites after filing the complaint

Once a complaint has been filed, it is very significant to not assume maliciousness. If the administration has any intelligence or information that indicate a conspiracy or spiteful intent behind a grievance, it is practical that conciliation be encouraged and appropriately guided. Conciliation should not be suggested or imposed by the organization, but the person who brings the charges should know that she has a right to choose for conciliation.  Conciliation is an alternating means of dispute resolution where an effort is made to resolve the dispute without a face-off or further hardship. If the person who filed the complaint indicates a purpose to opt for conciliation, an impartial and experienced conciliator should meet the parties independently in an endeavour to resolve their differences. This procedure needs to be properly monitored in order to diminish the violence of the settlement procedure and extortionist claims. Focal point needs to be on condition that suitable apologies and arriving at an agreement; and not on monetary compensation – which is in any case barred by law. But if it doesn’t work out as intended, one needs to remain for the ICC to submit its Inquiry Report before taking any pace.

Due to the character of the work at hand, ICC needs to do its job very well. This is not very simple because it is hard to differentiate a complaint with no virtues with that of a complaint with malicious intent. Therefore, it is greatly suggested that the members of ICC are trained about how proof needs to be appreciated and what are the recommendations, which need to be prepared.

Evidence, which comprise accounts of behaviour, messages & e-mails, should not be taken out of their framework but considered contextually. The state of affairs that led to such proof needs to be appreciated and correlated appropriately to the matter at hand so that its context can be comprehended.

Court Precedents

Vishakha v. State of Rajasthan-In this case, the petitioner, was employed with an Indian government-owned development bank who had filed a complaint of sexual harassment against the General Manager of the Bank who was also her supervisor. However, there was no action on the part of the employer. Thus, to get justice, she took her case to the Trial Court where Court acquitted the accused for areas on stated as lack of the medical shred of evidence. By virtue of which so many women’s groups and organizations went for appeal against the judgments, and finally public interest litigation was filed in the Supreme Court of India against sexual harassment at the workplace. Therefore, the contentions put forward by the employee however challenged the validity of the Order before the Court under Article 226 of the Constitution of India and that a higher punishment should be imposed on the Supervisor as well. This landmark case raised so many issues in the state of affairs of sexual harassment which took place at a workplace, and the subject which was raised stated that whether the employer had any liability in the case of sexual harassment by its employee or to its employees at a workplace or not. Therefore, the Supreme Court held that occurrence sexual harassment of a woman at a workplace would be the violation of her fundamental rights of gender equality and right to life and liberty. The court concluded in its judgement that such an act would be considered as a violation of women’s human rights.

Usha C.S v. Madras Refineries- In this case, the Madras High Court witnessed a complaint of sexual harassment made by the employee of Madras Refineries Ltd, which was a public sector undertaking. The employee stated that she was denied her study leave with pay, salary and promotion since she refused the advances of the general manager of her department. Further, the complaint committee was established, but the employee continuously delayed the inquiry hence it was stated that her allegations of sexual harassment were purely a weapon used to negotiate for a promotion, study leave and pay which was opposed to company policy. After inspecting the facts, the court held that the employee’s allegations with regards to her promotion and study–leave was unjustified as both decisions arose in accordance with the company policy. The bench further urged the other courts to carry in mind the facts of each case individually without assuming that the woman is a victim and also stated that similar to Domestic Violence Cases and Dowry Harassment Laws there are a massive number of people who are jeopardized with false prosecution. It is equally difficult for a man who has been falsely implicated in proving his innocence in a similar way as a woman find it burdensome to accept and tell the people if she has been assaulted sexually

The Delhi High Court, in Anita Suresh v. Union of India & Ors, in recent times imposed a fine of INR 50,000 on a lady who had filed a grievance of workplace sexual harassment but was unable to establish any evidence or witnesses to authenticate her case. The petitioner was functioning as an Assistant Director with ESI Corporation. The petitioner filed a complaint to the Director-General of ESI Corporation claiming workplace sexual harassment by the accused. A second occurrence was mentioned stating that the accused told the petitioner to come unaccompanied in the male toilet to confirm the shortcomings in the presence of the employees and other members. An Internal Complaints Committee was constituted to scrutinize the grievance of the petitioner

The Committee scrutinized the petitioner, who could not remember the names of any of the persons present at the instance of the aforesaid incidents. The petitioner was shown the appropriate papers relating to the staff members present on that day but still, she could not remember the names.

Failing to prove anything that was even slightly associated with her case made the case look like a frivolous one. It became an effort to outline and contaminate the record of the accused. The employee record of the petitioner also was brought forward, which evidently pointed out that she was not a worker who regularly followed the rules of manner, and the complaint hence reeked of ‘ulterior motive’. The case was decided against the accused to prove him not guilty, as it was found that none of the witnesses corroborated with the petitioners’ testimony from the day when the alleged workplace sexual harassment had taken place. Hence, she was fined INR 50,000 for filing the frivolous complaint. 

Conclusion

Regardless of many years of consideration, lawful activity, and support, this examination of information, research, and experience demonstrate that inappropriate behaviour stays a genuine and inescapable issue crosswise overall industry areas and work environments. We found that no division stays immaculate by lewd behaviour, nor unaffected by its effects: Sexual badgering harms the lives, wellbeing, monetary freedom, and chances of innumerable exploited people, and costs organizations in lawful charges, however in lost efficiency, spirit, viability, and talent. By and by the time is over of talk to verify the working women against lewd behaviour; it's a high time to adhere to the laws to shield the working ladies which will, finally, offer a positive hint to set up a created and dynamic culture.

Even though it is beyond the realm of imagination to expect to prepare and change the demeanour of everybody, it is surely conceivable to prep and changes the frame of mind methodologies of some based. Further, women's associations should assume an urgent job to make lawful mindfulness among the majority. They ought to associate with neighbourhood individuals in spreading mindfulness about their genuine rights and responsibilities.

The POSH Act, 2013 was enacted with the reason of helping the sufferers of sexual harassment seek speedy justice. But, it is awful to see the unashamed misuse of the law in order to satisfy some individual vendetta and needs stringent measures, such as one imposed by the Honourable High Court in this case. Frivolous cases squander the time of the Court and augment the burden of pendency as well. Substantial fines and restrictions/prohibition need to be imposed for filing fake cases so that there is no loss of reputation of the individual being accused of such atrocious crime and no loss of court time as well

Due to these reasons, the question of enforcing this legislation in informal, unregulated workplaces would remain.

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Important Income Tax Return Forms and its Due Dates

By: Admin Income Tax return 21 Oct 2020

The Income Tax Return is the form which is filed by the taxpayers. The taxpayers file the information about his income that has been earned and the tax, which applies to the income tax department. Section 139 of the Income-tax Act 1961 states the provision relating to the filing of an Income tax return.  There are different types of Income Tax Return. They are ITR 1, ITR 2 ITR 3, ITR 4, ITR 5, ITR 6 and ITR 7. It is compulsory for every taxpayer to file his ITR on or before the prescribed due date. Following are the conditions where it is compulsory for the taxpayers to file the ITR:

  • If the gross annual income of an individual (who is below 60 years) is more than Rs. 2.5 lakh.
  • If the gross annual income of an individual (who is above 60 years but below 80 years) is more than Rs. 3 lakh.
  • If the gross annual income of an individual (who is above 80 years) is more than Rs. 5 lakh.
  • In case if an individual has more than one source of income.
  • In case if an individual wants to claim an income tax refund from the income tax department.
  • In case if an individual wants to apply for a visa or a loan.
  • In case if an individual has earned from any foreign assets or has invested in it during the particular financial year.
  • In case if the taxpayer is a company/firm.

Income Tax Return Forms 

Following are the different types of Income Tax Return forms:

  • ITR 1 - It is for a resident individual whose total income for the assessment year includes income from salary/pension, income from one house property, income from other sources (it excludes winning from lottery and racehorse) and agricultural income upto Rs. 5000. This ITR form cannot be used in case if the total income exceeds the limit of Rs. 50 lakh. ITR 1 is also known as SAHAJ.
  • ITR 2 - It is for an individual or a Hindu Undivided Family whose total income for the assessment year includes income from salary/pension, income from house property and income from other sources (it includes winning from lottery and racehorse). This ITR form can be used in case if the total income exceeds the limit of Rs. 50 lakh.
  • ITR 3 - It is for an individual or a Hindu Undivided Family who has earned income from the proprietary business or are carrying on profession. It may include income from salary/pension, income from house property and income from other sources.
  • ITR 4 - It is for an individual, Hindu Undivided Family, Partnership firms (excluding limited liability partnership) which are residents and has earned income from the proprietary business or are carrying on profession. ITR form has to be filed if the turnover of the business exceeds the limit of Rs. 2 crores. ITR 4 is also known as Sugam.
  • ITR 5 - It is filed by the Partnership Firms, Limited Liability Partnership, Association of Persons, Body of Individuals, Artificial Juridical Person, Estate of Deceased, Estate of Insolvent, Business trust and investment fund.
  • ITR 6 - It is filed by the Companies electronically. However, it cannot be filed by the companies claiming exemption under section 11. Section 11 states the provision regarding the income from property that is held for charitable/religious purposes.
  • ITR 7 - It is for the persons including companies that are required to furnish return under section 139(4A) (ITR of Charitable and Religious Trusts), 139(4B) (ITR to be furnished by Political Party), 139(4C) and 139(4D) (ITR of the entities that are claiming exemption under section 10), 139(4E) (ITR to be filed by every business trust which is not required to furnish ITR or loss under any other provisions) or 139(4F) (ITR to be filed by any investment fund referred under section 115UB).

Due dates for ITR filing

The due date is the date by which the ITR can be filed without any late fee or penalty. The due date for filing an ITR for an Individual, Body of Individual, Hindu Undivided Family and Association of persons is 31st July 2020. The due date for filing an ITR for the business that requires Audit is 30th September. The due date for filing an ITR for the business that requires Transfer Pricing Report is 30th November. The due date for 1st Installment of Advance tax is 15th June. The due date for 2nd Installment of Advance tax is 15th September. The due date for 3rd Installment of Advance tax is 15th December. The due date for 4th Installment of Advance tax is 15th March.

Penal Provision

Section 234A of the Income-tax Act 1961 states the provision relating to the interest for defaults in furnishing the ITR. In case if the taxpayer has failed to file ITR then a penalty of 1% every month/part of the month on the amount of tax payable. Section 234F of the Income-tax Act 1961 states the provision relating to the payment of the penalty for defaults in furnishing the ITR. If the total income is upto Rs. 5 lakh and the return is filed after the due date, then the taxpayer shall be liable for Rs. 1,000 as a penalty. If the total income is above Rs. 5 lakh and the return is filed on or before 31st December of the Assessment year, but after the due date, then the taxpayer shall be liable for Rs. 5,000 as a penalty. If the total income is above Rs. 5 lakh and the return is filed after 31st December of the Assessment year, then the taxpayer shall be liable for Rs. 10,000 as a penalty

Conclusion

It is mandatory to every taxpayer that he must file the ITR on or before the due date as prescribed above. The taxpayer must always remember the due date of filing ITR. If the taxpayer has failed to file the ITR on or before the due date, then he is liable to pay interest as specified under section 234A and penalty as specified under section 234F.

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Garden Leave

By: Admin Employment 14 Oct 2020

Gardening leave refers to the period in which the employee is given a termination letter with the notice of termination. In this period, the person is not allowed to work at the workplace; neither the employee is allowed to work from home or from any other location. The salary will be awarded to the employee during the notice period, however restricting him/her to work for his current position in the company or for any other new position. During the period of garden leave, the organization makes sure that the communication between the employee and staff is minimized. Moreover, this period also overviews that customers and clients have no connection with the employee who is under the garden leave.

There are two types of Garden leave. They are:

  1. One which remains active, till the notice period of termination is served.
  2. The second type is the one in which the period of garden leave extends even after the termination period.

Duties and Rights under Garden Leave

  1. The employee henceforth has no rights over the company’s operations or interfering into the daily affairs of the company. He/she is not entitled to work from the workplace, home, or any other location or station.
  2. The person under the garden leave is restricted to have any contact with the clients, customers, retailers or suppliers of the company. The employee has no access to the company’s database as well.
  3. Even if the employee is asked not to work for the company, a situation may arise wherein the employee will be asked to be present in the company for some emergency.
  4. Benefits like salary and other monetary things will be given to the employee. However, he/she may be asked to return the company’s property like Smartphone, vehicle, laptops or any other product.

The need for Garden Leaves

Garden leave is beneficial in many ways. Some of them are:

  1. If an employee is allowed to work after the termination of the notice period, he/she will have the access of the company’s database which might be harmful to the company as the employee can misuse it.
  2. The environment of a workplace matters the most. A not working employee is far better than an unproductive and an uncooperative employee.
  3. For an employee, termination of his/her job is a big deal. Garden leave prevents the employee’s deleterious behaviour, such as influencing the attitude of other employees working in the company.
  4. There are times when the employee tries to persuade the clients or the customers towards his new job or new venture attracting loss for the company.

Therefore, it is always considered a better option that once the notice of termination is served to the employee, he/she is kept away from the working of the business.

Non-compete Agreements

Such agreements are favoured as they are used as a strategy by the organizations and the companies to prevent their employees from leaving their company. Such kind of agreement restricts an employee from joining a company which is directly in competition with his current company. For example, a person working as a delivery boy for “pizza hut” leaving his current job for working as a delivery boy with “dominos”. This kind of agreements makes sure that no crucial information is shared among the organizations. Furthermore, this type of agreements prevents the employee from sharing trade secrets and confidential information.

Article 19 of the Indian Constitution states such agreement as restrictions on the employee’s freedom of trade and business. Therefore, in India, garden leave and non-competent agreements are considered as restrictive covenants. Section 27 of the Indian Contract Act, any restriction put on the person for his/her involvement in his/her choice of business is void.

Case Law

Niranjan Shankar Golikari v. Century Spg & Mfg Co. Ltd.,

(1967) 2 SCR 378.)

Under this case, the apex court of India explained the difference between the Non-competent agreements and the garden leaves. The court emphasized that the employer of a company has the right to put restrictions on the employee during the contract term, but after the termination restrictions are put on the non-disclosure to another company. However, the employer cannot restrict the employee from joining any other company which is dealing in the same or similar trade.

Percept D’Mark (India) Pvt. Ltd. v. Zaheer Khan & Anr.

(AIR 2006 SC 3426.)

The court, in this case, came out with the verdict that non-competent agreements which are extending beyond the agreement are unenforceable.

Conclusion

Though garden leave clauses aim to protect the circulation of sensitive information of the employer, it should be made sure that they are in restraint of trade and in contravention of Section 27 of the Contract Act. The time period should be kept in mind while drafting a contract for any employee. Garden leave should only be permitted till the date of termination (i.e. during the reasonable notice period), as after that the contract is not enforceable. Therefore, while the employer may set out a garden leave clause in the employment contract, it should only be implemented during the notice period and not beyond that. Hence, it is advisable to hire a professional before such contracts are drafted to avoid any legal consequences in future.

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How can a Private Complaint be filed?

By: Adv. Kishan Dutt Kalaskar Criminal 12 Oct 2020

Whenever a person faces a misdeed or wrongdoing by someone else, the first resort that comes to mind is filing a complaint with the police. This initial complaint is known as the FIR; it is filed against the person who has done the wrong.

Introduction

The fundamental purpose behind documenting an FIR is to set criminal law into movement. A First Information Report is the first statement in a criminal case recorded by the police and contains the essential information including but not limited to the wrongdoing/crime, place of commission, time, who was the person in question. The definition for the First Information Report has been given in the Code of Criminal Procedure, 1973 by the prudence of Setion154, which sets down the first information report as: “Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf”.

In one of the cases related to First Information Report, the Honourable Supreme Court held that “After all registration of FIR involves only the process of entering the substance of the information relating to the Commission of a cognizable offence in a book kept by the officer in charge…as indicated in Sec. 154 of the Code”.

In the landmark judgement of T.T.Antony vs State of Kerala & Ors., the honourable Supreme Court of India, in relation to section 154 of Cr.PC laid down the following -  “Information given under sub-section (1) of Section 154 of Cr.P.C., is commonly known as the First Information Report (FIR), though this term is not used in the Code….And as it’s nick name suggests, it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station”.

Who can file an FIR?

FIRs can be filed by a victim, an observer or another person with information of the crime according to the laws set down under section 154 of the Cr.P.C., the complainant can provide data about the offence either in composed form or orally. Moreover, as to who can file an FIR, the Apex Court of India has observed that: “Section 154 does not require that the Report must be given by a person who has personal knowledge of the incident reported. The section speaks of information relating to the commission of a cognizable offence given to an officer in charge of a police station”.

The police are obliged to read the FIR back to the complainant on the off chance that it is speaking to them orally to forestall the chance of any distinctions in the oral and the written versions. Further, it is the obligation of the complainant to answer to the police face to face in the event that he had given the information on a telephone. In the matter of Tohal Singh versus Territory of Rajasthan, the High Court of Rajasthan had observed that: “if the telephonic message has been given to the officer in charge of a police station, the person giving the message is an ascertained one or is capable of being ascertained the information has been reduced to writing as required under S.154 of Cr.PC and it is a faithful record of such information and the information discloses commission of a cognizable offence and is not cryptic one or incomplete in essential details, and it would constitute FIR”.

In a situation wherein the police went to the crime scene hearing rumours and recorded a statement at the police station, it was held that in conditions of the case that announcement could be acknowledged as FIR. The police are needed to give a duplicate of the FIR to the complainant for free of charge.

What are cognizable and non-cognizable offences?

Cognizable offences: Offences that are characterized in subsection (c) of area (2) of Civil Procedure Code 1908, in these offences, the police can capture an individual without a warrant, according to the primary schedule of the Criminal Procedure Code, 1973 and after arrest accused will be produced before the magistrate, and he will analyze the issue, and he may require the police to examine the issue. Cognizable offences are both bailable and non-bailable. These offences are serious in nature for instance murder, assault, dowry death, abducting, robbery, criminal breach of trust, unnatural offences, revolting outfitted with the destructive weapon, taking up arms against the government of India.

Non-cognizable offences: The category of offences as per Cr. PC in which Police can neither register the FIR nor can investigate or effect arrest without the express permission or directions from the court), it will be held lawful.

Can the police refuse to file an FIR?

In certain cases, the police may decline to lodge a first information report (FIR). It can be legal as well as illegal depending on a case to case basis. In situations where they don't have jurisdiction or isn't in their lawful ability to take insight or the offence is of non-cognizable.

In any other case, where the police do not record the complaint for no reasonable and lawful ground, it is in opposition to the law. At the point when the police refuse to register the FIR on the ground that it purports to be a non-cognizable offence, they should inform the informant and direct him to file a grievance to the magistrate. In the circumstances, where the offence submitted is past the regional ward of a police headquarters, data ought to be recorded and sent to the proper police headquarters having purview, in any case declining to record on this ground will add up to forsakenness of obligation.

The necessity of enlisting any data is additionally founded on the understanding that the FIR is certainly not a meaningful bit of proof and must be utilized to repudiate or substantiate the contents according to Sec. 155(1) of the Cr.PC.

If the police get information about the commission of a non-cognizable offence submitted in the ward of the police headquarters, they ought to enter the substance of the case in the station journal and allude the witness to move toward the concerned Magistrate.

Code of Criminal Procedure code, 1973

Section154. states that​ ‘Any​ individual wronged by a refusal with respect to an official in charge of a  police station to record the data in context to subsection (1) may send the substance of such data, recorded as a hard copy and by post, to the Superintendent of Police concerned who, whenever fulfilled that such data unveils the commission of a cognizable offence, will either research the case himself or direct an examination to be made by any police subordinate to him, in the way gave by this Code, and such official will have all the powers of an official in charge of the police station in relation to that offence.’

Sub-section(1) of section 156 is the power of Police to investigate a cognizable case. Any official responsible for a police station may, without the direction of a Magistrate, examine any cognizable case which a Court having jurisdiction over the local area the restrictions of such station would have the ability to ask into or attempt under the arrangements of Chapter XIII.

Sub-section (c) of Section166(A): Whoever, being a public​ worker neglects to record any information given to him under sub-section(1) of section 154 of the Code of Criminal Procedure, 1973, according to cognizable offence culpable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509, will be punished with thorough detainment for a term which will not be under a half year however which may extend out to two years, and will likewise be subject to fine.

Remedies available

In the event that the concerned official in control does not register a first information report about the commission of a cognizable offence inside his regional locale under Section 154(3), the source can move toward the Superintendent of Police or the Commissioner of the police with a written complaint. In the event, when a complaint is filed, the SP of the Commissioner is satisfied that the complaint unveils a cognizable offence, he may either research the case himself or direct his subordinate to enlist the FIR and start the examination pertaining the issue.

In the event that the above-mentioned remedies go in vain, the complainant is legitimately qualified to file a complaint to the Judicial Magistrate/Metropolitan Magistrate under section 156(3) read with Section 190 of the criminal method, in this way asking FIR to be registered by the police and starting the examination concerning the issue. A Writ Petition in the separate High Court might be petitioned for the issuance of Writ of Mandamus against the defaulting Police officials, inter alia, to Register the FIR and to guide him to show cause:

(a) Why he has not registered the FIR;

(b) Why disciplinary procedures for "Unfortunate behaviour" ought not to be started against him for dereliction of obligation;

(c) Why he ought not to be suspended from Police administration for shielding an accused person. In a civil issue, a contempt petition can be documented under the watchful eye of the High Court against the official who would not hold up an FIR.

The honourable Supreme Court, lately, in a matter of Lalita Kumari case, has held that the Police must register FIR where the complaint discloses a cognizable offence. Declining to register an FIR on the jurisdictional ground could now cost a police officer a year in jail. A petition might be logged and submitted to the Chief Justice of the concerned High Court/Chief Justice of India, Supreme Court, asking them to take Suo Moto Cognizance of the supposed contempt of the Court. Further, a copy of the said petition letter might be sent to the concerned Police Officer. The status of the petition can be requested through an application under the Right to Information (RTI).

A Writ Petition might be recorded in a particular High Court for demanding appropriate compensation, damages, or some other monetary value if the inaction of the Police on the grievance/non-registration of FIR, has brought about dissatisfaction or frustration of life and liberty of any individual, as per the rights ensured under Article 21 of Constitution of India.

Likewise, under section 166A(c), if the Public worker concerned neglects to record any information given to him under sub section (1) of section 154 of the Code of Criminal Procedure, 1973, corresponding to cognizable offence culpable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code, he is punishable with thorough detainment for a term which not less than six months which may be extended up to two years, a fine, or both.

The Apex Court of India has held that validity, unwavering quality and believability of the information is no ground to decline the registration of the FIR. For another situation, it was held that refusal to record information is the presentation of obligation by a public officer. However, to prevent abuse and misuse of the remedies given to refusal to lodge a complaint, the court has decided that:

“A vague, indefinite or unauthorised piece of information cannot be regarded as first information merely because it was received first in point of time. Likewise, an unclear message over the phone simply stating that a person is lying dead on the road does not amount First information report”.

The word 'information' has been utilized cautiously by the council under section 154(1) of the Cr.PC “wherein the expressions, “reasonable complaint” and “credible information” are utilized. Clearly, the non-capability of "information" in section 154(1) not at all like in Section 41(1)(a) and (g) of the Code might be for the explanation that the police ought not to decline to record a data identifying with the commission of a cognizable offence and to register a case subsequently on the ground that he isn't happy with the sensibility or validity of the information".

In the case, Kathiravan vs State, the court held that: “It is quite obvious that the officer-in-charge of the police station, on receipt of a complaint (information) disclosing commission of a cognizable offence, is duty-bound to register a case and such officer cannot probe into the allegations to find out whether they are true or not before registering a case. However, it does not mean that in no case the officer-in-charge of the police station can conduct a preliminary enquiry to make a decision as to whether a case can be registered for being investigated upon in accordance with the provisions of Cr.P.C. But such cases are only exceptions to the general rule. Such exception should not be generalised by the police to say that the police do have discretion either to register the case or to conduct a preliminary enquiry to make a decision whether to register a case or not”.

Difference between an FIR and a Police Complaint

The central matter of distinction between an FIR and a police complaint is that an FIR relates to a cognizable offence, though a police complaint can be petitioned for both non-cognizable and cognizable class of offences. Even though the fundamental significance of both is merely a complaint, however, they are distinctive in the manner the offences are handled, punishments rewarded, the occurrence of legal consequences, evidentiary value, and so on and further. A complaint is to be taken to a magistrate either by the method of verbally expressed words or recorded as a hard copy, though the FIR is held up at the police station close by the place commission of the crime.

As indicated by section 2(d) Cr.PC, a complaint is the charge of reality which comprise a grievance. Further, a complainant and a first witness need not be the same person. Indian criminal laws don't give any severe structure to a complaint, and hence a petition or an affidavit may likewise add up to a complaint in the court of law. The overall principle is that any individual knowing about the commission of an offence can record a grievance, despite the fact that the concerned individual isn't actually affected or personally interested in the offence, except in cases of offences relating to marriage, defamation and offences mentioned in sections 195 to 197 of Cr.PC When a witness moves toward the police authorities relating the information about the commission of a cognizable offence, it is called the recording of a complaint. This 'first data' as a complaint when enlisted as prayed for by the witness u/s. 154 Cr.PC, it establishes 'FIR' which ought to apparently and in the light of ensuing occasions unveil the data inside the importance of this section.

A Magistrate can take comprehension of an objection under section 190 of the Code of Criminal Procedure, 1973. At the point when a Magistrate takes the comprehension of a complaint, he analyzes the complaint as per Section 200 by looking at the realities and the observers. On the off chance that he finds that the grievance is with merits, the case is committed for trial and the magistrate issues the process under Section 204. On the off chance that the offence is solely offence by Court of Session, the Magistrate submits the case to Court of Session under Section 209.

On account of a first information report, the offence included is of cognizable nature, and subsequently, the police have the power to start the examination in the said case without earlier consent from the Magistrate and afterwards document a charge sheet. Then again, when a Magistrate takes cognizance of an offence based on a complaint, he arranges an examination in the issue and can likewise guide the police to hold up an FIR on the off chance that he feels that the offence is of a serious nature. He can follow up on the complaint if it reveals a prima facie commission of an offence.

In the matter of P. Kunhumuhammed vs Territory of Kerala, the court held that: “The report of a police officer following an investigation contrary to Section   155(2)[3] could be treated as a complaint under Section 2(d) and Section 190(1)(a) if at the commencement of the investigation the police officer is led to believe that the case involved the commission of a cognizable offence or if there is a doubt about it and investigation establishes an only commission of a non- cognizable offence”.

In this way, if at the underlying phases of examination, it is discovered that the offence submitted is non-cognizable, at that point the report submitted after examination can't be treated as an 'objection' inside the extent of Sec. 2(d) or Sec. 190(1)(a) of the Cr. PC.

On account of the first information report, the police are approved to examine the issue and afterwards search and seize the proof they find. The police at that point continue to document a charge sheet against the accuse in the Court under section 173 of the Code of Criminal Procedure, 1973 toward the finish of examination. Further, the court at that point settles on the charges.

Conclusion

When police refuse to file an FIR without any judicial or lawful ground, it is considered as a crime. Therefore, it is necessary to know the consequences and remedies of not filing an FIR, so that no FIR goes unregistered. The law recognizes such remedies and gives everyone an equal opportunity to file a complaint.

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Key changes to Indian Tax Regulations

By: Admin Finance 05 Oct 2020

Just in the midst of this global pandemic, before adjourning the Indian parliament, they passed a Bill and the finance act 2020 and received its assent on March 27, 2020. The statute contains the number of provisions and changes relating to tax structure and which may also affect the business of the firm for the current year. The provisions of this act will be incorporated in the Income-tax Act, and this act shall come into force on April 1, 2020. Hundreds of amendments have been made either by way of changing the provision or repealing it and even adding new ones.

Changes in Tax System

Some of the important changes that are included under the new tax regulations are as follows

Introduction of New Tax Slabs:

As it was announced in the budget 2020 new tax slabs have been introduced in this near year, the old tax slab will remain but, it’s up to the individual to choose one out of the two. Under this new tax slab which was earlier announced in the budget are as follows: No tax has to be paid for income that is up to RS. 2.5 lakhs, 5% of the income has to be paid as tax for income between RS.2.5 lakhs to 5 lakhs, 10 %,15%, 25%, 30% of the income must be paid as income tax respectively. The new tax slabs will be helpful for the young taxpayers and as well as for the senior citizens. It will also increase the flow of cash in various sectors.

Rules for the Nonresident Indians:

Earlier the rule was such that the persons of Indian origin who stay outside and if they complete 182 days of stay or more in India then they would be qualified to pay the tax in that year. However, these rules were abused and misused by the non-resident Indians and therefore, the changes were made, and the days were reduced to 120, and the minimum income was changed to Rs. 1.5 million per year.

Indian Citizens are not Taxable under the Jurisdiction of other Countries:

Recently, it is always noticed that individual try to amend or place their economic activities in order so that they are not liable to pay any tax in any other country during that particular year. Therefore, certain provisions have been amended so that the citizens of India will be liable to pay tax only in this country mainly due to the domicile, place of residency or any other category or reason. Thus, the new rule shall only apply if the income is more than 1.5 million Rupees with regards to the Indian citizens. (NRI’s).

Relief in Tax for the Startups:

The new startups in India have been enjoying full tax wavier on the profits which are earned by them for almost seven years. The new provisions in the tax law have increased the income bracket, and also tax waiver incases the profit exceeds. For the employees in the startups, the government has given some relief with respect to tax that has to be paid when an employee purchase shares.

Tax reliefs with respect to Mutual Funds:

The tax amount will have to be paid at the receivers’ end in the case of mutual funds, and it will be charged according to the amount received and the also with respect to the tax slab.

Completely abolishing the dividend distribution Tax:

Earlier the companies had to pay a 15% tax on the dividend while distributing it to the shareholders of the company. Thus, tax payment that was present earlier has been removed and has been laid at 10 %.

Amendment made in the section with respect to the deduction for Inter-corporate Dividend’s:

A new section has been added in the provisions a reduction in the dividend is seen that is it provides the companies with a deduction who receive the dividends from another company itself. A deduction is made equal to the amount of income that is received by other domestic companies. Therefore, this rate has been reduced under the current changes that have been made in the tax regulation.

Concession in tax bracket for individual or a Hindu Undivided Family:

The individuals now have an option to choose the current tax rates or the new one. Therefore, the tax concessions are optional, and the person may avail those only if they fulfil the conditions and upon the satisfaction of the same. Once the new tax payment option is taken into consideration fully, the person cannot return to the old tax structure for paying the requisite.

Levying Equalization:

It is mainly that type of tax that is charged for the services provided in the digital sector. This kind of tax is now charged for the services which are available under the e-commerce sector and online sale of goods. The taxes shall be charged at the rate of 2 % who operates such online services.

Corporate Tax for certain Domestic Companies:

Under the new scheme, taxes have been reduced for certain domestic companies, for example, plant, machinery, tea, coffee, rubber etc. New tax rates have to be exercised on them.

Additional benefits for the Retired Individuals:

The employers contributing to the retirement, will not be taxable from now on, it will be treated as a prerequisite.

Corporate taxes for New Manufacturing Companies:

The new domestic manufacturing companies can pay low taxes if the conditions laid down by the government is fulfilled. The total income of the company will be calculated without counting the tax exemption that is granted under the new tax regulations.

Conclusion

Therefore, from the above provisions, it is seen that a number of tax reforms have been made by the government for reviving and improving the business in the country while providing them with benefits. Thus, it will be seen now that India will be enjoying a good venture in various sectors post-pandemic and therefore the government has also given certain relief in tax payment which was not there in the earlier structure.

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Employees Provident Fund

By: Admin Employment 02 Oct 2020

Employees Provident Fund is considered as one of the primary schemes under the Employees’ Provident Fund and Miscellaneous Provisions Act 1952. This scheme is managed under the supervision of the Employees’ Provident Fund Organization. An employee has to pay a certain amount as a contribution to this scheme. The employer also makes an equal contribution to the Employees Provident Fund. On retirement, the employee gets a lump sum amount, including both (his and employer’s) the contribution with interest.

Employees Provident Fund

An employee whose pay is more than Rs. 15,000 per month at the time of joining is not eligible under the Employees Provident Fund scheme whereas an employee whose pay is less than Rs. 15,000 per month is eligible under the Employees Provident Fund scheme. It is mandatory to become the members of the Employees Provident Fund, in case if any employee is earning less than Rs. 15,000 per month. An employee drawing more than Rs. 15,000 can become a member with the permission of Assistant Provident Fund Commissioner proviso if he and his employer agree. The employee can also pay higher contribution above 12% of his salary towards the Voluntary Provident Fund. There is no need for an employer to match the same contribution as of the employee under the Voluntary Provident Fund. Both Mandatory and Voluntary Provident Fund earns tax-free interest. The Employees Provident Fund interest rate for the year 2019-2020 is 8.65%.

Contribution under Employees Provident Fund

The employer deducts 12% of the employee’s salary every month in order to contribute towards the Employees Provident Fund. The entire contribution of an employee goes in the Employees Provident Fund account. The employer also contributes 12% of the employee’s salary every month towards the Employees Provident Fund. The employer’s contribution is divided into the Employees Provident Fund, Employees’ Pension Scheme, Employees Provident Fund Admin Charges, Employee’s Deposit Link Insurance Schemes and Employee’s Deposit Link Insurance Schemes Admin Charges.

Types of Employees Provident Fund Forms

Following are the types of the Employees Provident Fund Forms:

  • Form 10C is used by an employee to claim benefits under the Employees Provident Fund scheme. It is used to withdraw the funds that the employer contributes towards the Employees’ Pension Scheme.
  • Form 10D is used by an employee for availing a monthly pension.
  • Form 13 is used by an employee to transfer the Provident Fund amount from the previous job of the employee to the current job. It helps the employee to keep all the Provident Fund money under one account.
  • Form 19 is used by an employee to claim the final settlement of the Employees Provident Fund amount.
  • Form 20 is used by the family members of an employee to withdraw the Provident Fund amount in the case where the account holder (employee) had died.
  • Form 31 is used by an employee for obtaining withdrawals, loans, and advances from the Employees Provident Fund account.
  • Form 51F is used by the nominee to claim the benefits of the Employee’s Deposit Link Insurance.

Case Law

Uma Baksi Vs Union of India and Others.

Calcutta High Court (Appellate Side) - 22nd August 2019

Writ Petition No. 13606 (W) of 2019

Uma Baksi is the 2nd wife of an employee who was serving in the Eastern Coalfields Limited. On 3rd June 2009, the employee retired after attaining the age of superannuation. On 16th August 2011, the employee died. After the death of an employee, Uma Baksi, and the deceased employee’s daughters put forward their claim in order to obtain the death benefits of the deceased employee. The deceased employee had incorporated the name of the Uma Baksi as the nominee in the nomination form for the disbursement of the provident fund and gratuity. As per the nomination which was exercised by the deceased employee, the amount of provident fund and the gratuity was disbursed in favour of the Uma Baksi. After the death of the employee, the Uma Baksi is also receiving the family pension.

Uma Baksi has raised a claim on the money that has been accumulated on account of the performance-related pay of the employee. According to Uma Baksi, the performance-related money must be disbursed in her favour as the deceased employee had incorporated her name as the nominee in the nomination form for the disbursement of the provident fund and gratuity. On 17th January 2019, the Court directed the General Manager of the Eastern Coalfields Limited to decide according to the applicable rules, regulations, circulars and notifications within a prescribed period of time. The General Manager of the Eastern Coalfields Limited stated that there was no set rules and regulations related to the disbursement of the performance-related amount in case of the death of a retired executive. The claimants were directed to settle their dispute before the Court. He also stated that he is not competent authority also he has no jurisdiction either to accept or deny the claims which are raised by the heirs of the deceased employee.

The Court held that the employee had not nominated Uma Baksi as a nominee to receive the amount of performance-related pay. Hence, she cannot claim the entire amount of performance-related pay. On 22nd August 2019, the Court directed the General Manager to disburse the amount of performance-related pay in favour of Uma Baksi and the daughters from the first marriage of the employee equally.

Conclusion

Employees Provident Fund is a retirement benefit plan. Once an employee stop working, he cannot contribute to the Employees Provident Fund. The interest earned on the Employees Provident Fund is exempted from tax. According to the Employees’ Provident Fund and Miscellaneous Provisions Act 1952, the employee that has retired from his service after attaining the age of 55 years has a right to claim final Provident Fund settlement. However, the employee can withdraw the full amount of Provident Fund, in case if he quits his job or is out of employment for a period of 60 days or more. The employee can also transfer the amount of Provident Fund to the new employer. The employee can withdraw 90% of the accumulated Provident Fund with interest if he is above 54 years of age and is near the retirement period.

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Status of Triple Talaq

By: Admin Divorce 30 Sep 2020

Talaq is an Islamic word which denotes divorce or dissolution of marriage. Under Islamic law, there are three types of Divorce. The first type of divorce is known as Talaq (which is at the instance of husband). The second type of divorce is known as Khula (which is at the instance of wife). The third type of divorce is known as Mubaraat (divorce by mutual consent). Talaq means liberty from the relationship of marriage immediately. Triple talaq is governed by the Muslim Personal Law (Shariat) Application Act 1937. Triple talaq takes place when the husband utters the word ‘talaq’ three times repeatedly in a row to his wife in order to end the relationship of marriage immediately. Triple talaq is also known as talaq-e-biddat. A triple talaq is a form of instant divorce.

Triple talaq is a customary practice which is prevalent among Muslims. Triple talaq is criticized for being unilateral and biased against Muslim women. Triple talaq is banned in 22 countries in the world, and it has also been challenged before the Supreme Court in many cases in India. The Muslim Personal Law gives the special privileges of triple talaq to the Muslim husband over their wife. On 30th July 2019, the Indian Parliament had passed a law known as Muslim Women (Protection of Rights on Marriage) Bill 2019 to make instant triple talaq a criminal offence in India.

Case Law

Shayara Bano Vs Union of India and Others.

Supreme Court - on 22nd August 2017

Writ Petition Civil No. 118/2016

On 10th October 2015, Rizwan Ahmad pronounced triple talaq to his wife, Shayara Bano. Shayara Bano approached the Court to declare the triple talaq as void ab initio. In the petition, it was submitted that the practice of talaq-e-biddat is violative of the fundamental right guaranteed to the citizens of India under Articles 14, 15 and 21 of the Constitution of India. Rizwan Ahmad stated that he had made many attempts to bring Shayara Bano back, but she refused to accompany him. Rizwan Ahmad had also approached the Family Court for restitution of conjugal rights. As Shayara Bano was not ready for reconciliation, he withdrew the suit for the restitution of conjugal rights. Rizwan Ahmad divorced Shayara Bano by serving talaq-nama dated 10th October 2015. Rizwan Ahmad also stated that the pronouncement of triple talaq (divorce) fulfils all the requirements of valid divorce under the Muslim Personal Law (Shariat) Application Act 1937. The main issue that arose from the petition was related to triple talaq.

On 22nd August 2017, the Supreme Court held that the triple talaq is manifestly arbitrary in the sense that the marital relationship can be broken capriciously and whimsically by a Muslim husband without making any attempts to reconciliation. Triple talaq is held to be violative of the fundamental rights mentioned under Article 14 of the Constitution of India. Section 2 of the Muslim Personal Law (Shariat) Application Act 1937 was declared void to the extent of the provision that is regarding the triple talaq. By a majority of 3:2, the practice of triple talaq was set aside. Hence, the Supreme Court held that the practice of triple talaq is unconstitutional, arbitrary and cannot be practised in future.

Muslim Women (Protection of Rights on Marriage) Bill 2019

The Muslim Women (Protection of Rights on Marriage) Bill was introduced and passed in the Lok Sabha in the month of December 2017 but was not passed in the Rajya Sabha. As the Muslim Women (Protection of Rights on Marriage) Bill was pending before the Rajya Sabha, the Muslim Women (Protection of Rights on Marriage) Ordinance was promulgated in September 2018. After the Muslim Women (Protection of Rights on Marriage) Ordinance lapsed, the Modi government re-promulgated the Muslim Women (Protection of Rights on Marriage) Ordinance in February 2019. On 30th July 2019, the Indian Parliament had passed a law known as Muslim Women (Protection of Rights on Marriage) Bill 2019. The Muslim Women (Protection of Rights on Marriage) Bill 2019 was passed by the Rajya Sabha with 99 votes in favour of the bill and 84 votes were against the bill.

The Muslim Women (Protection of Rights on Marriage) Bill 2019 is the outcome of a high-profile case named Shayara Bano Vs Union of India and Others. In this case, Shayara Bano was the victim of the triple talaq. In the Supreme Court’s landmark judgement on 22nd August 2017, it was held that the practice of triple talaq is unconstitutional, arbitrary and cannot be practised further. The Muslim Women (Protection of Rights on Marriage) Bill 2019 does not only make the triple talaq invalid, but also it criminalizes the practice of triple talaq. The Muslim Women (Protection of Rights on Marriage) Bill 2019 states that the triple talaq in any form- spoken, in writing or by electronic means (for instance email, SMS or WhatsApp) shall be void and illegal. It also states that the victim can seek the custody of a minor child in the cases of triple talaq. She can also seek for the maintenance from her husband.

A religious organization of Sunni Muslim scholars and clerics in Kerala named ‘Samastha Kerala Jamiathul Ulema’ moved to the Supreme Court seeking to declare the Muslim Women (Protection of Rights on Marriage) Bill 2019 as unconstitutional. The religious organization claimed that the Muslim Women (Protection of Rights on Marriage) Bill 2019 is violative of Articles 14, 15 and 21 of the Constitution of India and hence, it is liable to strike down. There has been no verdict on this matter yet.

Conclusion

After the bill has become an act, the triple talaq is considered as a criminal offence as per the Muslim Women (Protection of Rights on Marriage) Bill 2019. In case if any Muslim man (husband) commits the crime of triple talaq, then he can be punished with imprisonment for a period of 3 years and with a fine. Under the new law, the triple talaq is considered as a cognizable (a police officer has the power to arrest without a warrant and can also start an investigation with or without the permission of the Court) and non-bailable offence. Hence, the status of triple talaq as of today is void and illegal.

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Contract Farming & the new ordinances that affect the Farmers

By: Adv. Kishan Dutt Kalaskar Civil 26 Sep 2020

Contract farming is a procedure where agricultural production is being carried out based on the agreement between the buyer and the farm producers.

The scenario in India

The concept of contract farming is not new to India. Under the model APMC act, 2003 contract farming was legalized and the Agricultural Produce Marketing Committee (APMC) with given the responsibility to record the contracts.  Presently, contract farming requires registration with APMC in few states. This means that the contractual agreements are recorded with the APMCs, which can also help in resolving the disputes arising out of these contracts.

The centre's new ordinance, i.e. "The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance" is an endeavour to provide a national framework for contract farming by bringing uniformity in the provisions of contract farming under the various state regulations enacted under APMC acts. It provides for a three-level dispute settlement mechanism: The Conciliation Board, Sub-divisional magistrate and Appellate Authority

The ordinance has three significant features:

  1. Farmers may get into a written agreement, which may specify the terms and conditions of the quality, grade, and time of supply price and extension of services.
  2. The agreement can be from a period ranging from 1 to 5 years.
  3. If there is any price variation that takes place, it has to be a part of the agreement. If there is any additional amount over the agreed price, the prevailing price in the APMC portal will be the benchmark.

Advantages of Contract Farming  

To the Farmers

  • It helps in skilling of farmers as they learn to use a spread of resources efficiently like fertilizer, pesticides and find involved with new technology in some cases.
  • Farmers get the chance for diversification of crops.
  • Price risk is considerably reduced as many contracts specify prices ahead.
  • Contract farming can open up new markets, which might otherwise are out of stock to small farmers. The farmers may also get easy credit from the Bank under contractual agreements.
  • In the case of agri-processing level, it ensures a regular supply of agricultural produce with quality, at the proper time and lesser cost.

To the Client

  • They get uninterrupted & regular flow of stuff of top quality, which helps, in protection from fluctuation in market pricing.
  • Long term planning of business is feasible, as they need an infatuated supplier base of stuff.
  • Concept of contract farming will be extended to other crops also, which helps to get goodwill for the organization.

Limitations

  • Contract farming actions are often criticized for being biased in favour of firms or large farmers while exploiting the low bargaining power of small farmers.
  • Problems faced by growers like an unwarranted quality cut on produce by firms delayed deliveries at the factory, postponed payments, low price and pest attack on the contract crop, which raised the value of production.
  • Contracting agreements are often unwritten or informal in nature, and even written contracts often do not provide legal protection in India that will be observed in other countries. Lack of enforceability of contractual provisions may end up in a very breach of contracts by either party.
    -  Single Buyer – Multiple Sellers
    -  Adverse gender effects: Women have less access to contract farming than men do.

The new ordinance of June 2020 makes a good move in that course by stating the intention to promote contract farming.

Understanding The New Reforms For Farmers

Around three months ago, the Government of India had issued three ordinances, all these three ordinances are in relation to agriculture, farming, and it has the spirit of reforms to create ease for the farmers.

Usually, ordinances are issued only as emergency laws and later on, they have to be converted into proper legislation. Recently the Lok Sabha has passed one such ordinance, and the other two is in the pipeline.

This has led to protest by farmers in states like Punjab and Haryana, and the agitation might soon spread to Rajasthan, Madhya Pradesh and Uttar Pradesh too. Withstanding the pushback PM Modi has created that the farmers will eventually benefit from these ordinances.

Understanding the Ordinance

The first ordinance is the "Farmers Produce trade and commerce ordinance". This ordinance attempts that the farmers are able to sell their produce at other places except the APMC (Agricultural Produce Market Committee) regulated Mandis. The whole idea behind this is to expand the choice given to farmers, and if a farmer gets a better deal somewhere with a private buyer, he can opt-out from the APMC Mandi and sell it there.

The other two bills have not yet been passed, but this article will throw some light on it.

The second bill, i.e. "The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance".  provides a regulated framework so that farmers could enter into contract farming.

The third bill, i.e. "The Essential Commodities (Amendment) Ordinance" allows the economic agents to get the food article stocked freely without the fear of being prosecuted for hoarding.

Therefore, what we observe is the idea of all these three bills was mainly to liberalize the market for farmers and to make the whole system more efficient for or better price realizations for all the concerned people, especially the farmers.

Why are the Farmers agitated?

The first ordinance in effect is the existing Mandi that is established under APMC have been excluded from the definition of trade area under the new legislation. Government has the defence that the creation of an additional trade area outside the Mandi will provide farmers with the freedom of choice to conduct trade in their produce.

The protesters say that this legislation will confine APMC Mandi to the physical boundaries and give a free hand to big corporate buyers.

The farmers are mainly concerned about the future of the minimum support price (MSP).

Every year the government gets into a huge procurement program to buy massive quantities of wheat and rice at MSP, cause of which the farmers got an assured price per quintal, which was good income. The Mandi and APMC system is diluted or dismantled, and then there is no guarantee that the farmer will get the assured minimum price. Therefore, the government procurement system acts as a safety question and asked to the bargaining power of the farmers. The second point is that the new legislation has broadened the definition of traders; it defines traders as 'any person with a pan card can buy from the farmers who have to produce in the trade area.'

Secondly, in the present Mandi system, arhatiyas(commission agents) have to get a licence to trade in Mandi, protestors say that are arhatiyas half credibility as a financial status is verified using the licence approval process, but in the present law there is no press verification process as such for the farmer to trust the trader.

Interpreting the impacts of the legislation

We can look at the changes through two diametrically opposite ways.

  1. It was believed that the plan on paper would come into existence perfectly in real life, which would mean that the farmers will be able to get out of the clutches of the monopoly of APMC Mandi. A farmer will be able to choose and pick whom he wants to sell his product and at what price, after making an informed and well-researched decision. The farmers will not only make more money, but they will also be able to escape the exploitation by Arhatiyas and APMC Mandis.
  2. The second scenario that is possible is that the protesting farmers see this legislation as a law by the government to get away from its traditional role of being the guarantor of minimum support price (MSP). This is because minimum support price functions only in the APMC Mondays and not in private deals with other traders.

On the other hand, one can understand that why the farmers are so sceptical about these markets, a good example of this is a ban on onion exports; the government prioritized the interest of the consumers over the interest of the farmers. This has not happened for the first time; there are many incidents wherein the decision of the government to protect the consumer from high prices has resulted in farmers being robbed. It can be argued that MSP is the embodiment of this distrust.

Government's Defence

Government has assured and said that these provisions would be beneficial for everyone, be it, farmers, consumers or traders as almost all the agricultural experts were struggling for these reforms in the agricultural sector for a long time. It will lead the farmers to realize a better price as this is forward-looking legislation, and it is a win-win situation for everyone.

Conclusion

As we are unable to get a clear picture of what impact this legislation will have on the farmers, traders and consumers, the only thing we can do is to wait and watch the implementation of these legislations. At present, the government shall try to devise a mechanism to convince the farmers that this legislation eventually will benefit them, and sort out the distress over the minimum support price, which the farmers possess, as it gave them a fixed income.

Update on the Bills

The three bills which passed by the Parliament - Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020, the Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020 and the Essential Commodities (Amendment) Bill, 2020, were awaiting presidential assent amid massive uproar from opposition parties and President Ram Nath Kovind on Sunday, 27th September 2020, gave his approval to these farm bills that have led to nationwide protests by farmers and opposition. The President’s assent came days after opposition parties met him and requested him to withhold his approval to the Centre's contentious farm bill. After which, the opposition criticized the government and called it a ‘murder of democracy’ both for the manner in which the legislation was passed by the parliament and also for failing to protect farmer’s interests. They also referred the legislation as both ‘anti-farmer’ and ‘unconstitutional. Soon after the President's assent to the bills, the Maharashtra government announced that it would not implement the ‘anti-farmers' law in the state.

NDA’s oldest ally, Shiromani Akali Dal has exited the NDA government over the contentious farm legislations and contended that he has sided with the opposition on the ground that the legislation would hurt farmers interests and called it a ‘dark day’ when the President gave his assent to the bill since there were hopes that President will act as nation’s conscience and return Bills to Parliament.

Farmers also expressed agitation that the Centre's farm reforms would surface the way for knocking down of the minimum support price system and they would be at the ‘mercy’ of big corporates while the Union Minister Ravi Shankar Prasad assured them that they will not have to sell their produce at less than MSP.

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Documents required for filing a Divorce

By: Admin Divorce 26 Sep 2020

In India, Marriage is considered to be an important institution. It is a societal affair which is essential for the future of a family. When a marriage takes place, the probability of divorce arises. Therefore, it is essential to understand the ways by which a couple can file for a divorce.

Divorce means the termination of a matrimonial union and dissolving the bonds of marriage between married spouses under the rule of law. It refers to reorganizing and cancelling of the legal duties and responsibilities that vest in a marriage. Divorce laws differ greatly around the world, and it requires the sanction of a court or other legal procedure. Other legal procedures circumventing divorce, include matters of alimony (spousal support), child visitation/ access, child custody, child support, parenting time and separation of debt.

Mutual Consent Divorce

In a Mutual consent divorce, both the parties mutually decide to take divorce and dissolve their marriage. A contested divorce is a formal way of seeking a divorce from the spouse. In a Mutual consent divorce, both the parties mutually decide to take divorce and dissolve their marriage.

Documents required for a Mutual Consent Divorce

  1. Address proof of both husband and the wife
  2. Marriage certificate of the couple
  3. Income tax statements for the last 2-3 years
  4. All the information related to the family background of both the spouses
  5. Details of properties and all the other assets owned by the petitioner
  6. Evidence proving spouses are not staying together more than a year
  7. Evidence proving to the failed attempts of reconciliation
  8. Details of present income and profession will also be required
  9. Four passport size photographs of the marriage of both the husband and wife

Once the divorce petition is filed in the relevant court, photocopies of the above-mentioned documents can be submitted, and the original ones are required to be kept secure for future reference.

Contested Divorce

It is a formal way of seeking a divorce from the spouse. In a contested divorce, there is an underlying dispute in the marriage. When both the parties do not come together to settle on the same issue unanimously, then it is known as a contested divorce. Generally, in this form of divorce, the parties do not agree on the divorce-related issues. The proceedings of a contested divorce are very lengthy. In a contested divorce, one of the parties wants to break the marriage whereas other party does not agree with the same. In such circumstances, the Court decides whether there are any chances of reconciliation or not. If there are no chances of reconciliation, then the Court grants a divorce.

There are various grounds on which a contested divorce can be applied by either of the party. Documents like address proof of both the parties, marriage certificate, passport size photos, details regarding present profession remains a necessary requirement under any ground. However, there are certain additional documents which may be requested by the concerned court to grant a divorce.

Documents required under the ground of “CRUELTY.”

  1. Evidence that shows the cruel behaviour of the respondent
  2. Medical reports to state any physical abuse
  3. Testimony of the person who witnessed the cruel act
  4. Submitting copies of outrageous acts like putting up advertisements, if any.

Documents required under the ground of “Adultery.”

  1. A proof will be required to show the single act of adultery
  2. Evidence relating to long term adulterous relationship with someone other than the spouse or cohabitation, if any.
  3. Statement of the person who witnessed the adultery act
  4. Photographs of the act between both the parties involved in adultery
  5. A piece of evidence can also work if it shows post-marriage sexual intercourse with someone other than the spouse
  6. If the spouse has DNA evidence, relating to the adulterous act of his/her partner, then they will need a person who tests DNA. A sample will be provided to testify in court about his/her findings.

Documents required under the ground of “Unsoundness of Mind.”

  1. Proofs will be required to show that two years have been passed since the marriage
  2. A document will be necessary which shows that the petitioner was unaware of the mental disorder at the time of marriage
  3. Medical certificate of the respondent to show the mental disorder
  4. Evidence which states that the mental disorder is continuous or an intermittent mental disorder
  5. Moreover, a piece of evidence will be required to show that it has become impossible for the petitioner to stay with the respondent.

Documents required under the ground of “Desertion.”

  1. Separation of factum deserendi. (Deserdendi means the intention of abandonment of the partner).
  2. Evidence that proof that desertion did not consent
  3. The purpose of deserting the spouse
  4. Documents that proof either the constructive or actual desertion, as the case maybe
  5. Proofs that show desertion by the spouse was without any reasonable cause
  6. Documents relating to a period of two years in which there is complete withdrawal by one spouse from carrying out his or her marital obligations.

Documents required under the ground of “Venereal Disease.”

  1. Evidence that shows even after three years of marriage, the disease hasn’t been cured
  2. Medical report of the respondent that shows, he/she has been going through a disease which can be communicated to the spouse or the child
  3. Medical certificate of the petitioner will also be required, which proofs that he/she didn’t have the disease at the time of marriage. Moreover, this will also prove that the petitioner is innocent and is not trying to conceal any facts.

Documents required under the ground of “Conversion.”

  1. Evidence proving that there has been formal ceremonial conversion to some other religion
  2. A conversion certificate of the petitioner is a must.
  3. Documents regarding that the respondent was under no undue influence to get converted into another religion. That means the conversion should be a “willful conversion”.
  4. Evidence showing that it has not been done to marry some other person and the person is believed to have complete faith in the religion he/she has converted himself.

Conclusion

When a divorce is taking place, it becomes essential for both the parties involved to get a fair trial. The whole procedure of divorce can run smoothly, it both the parties come together to agree on certain terms and conditions. The documents mentioned above should be available with the petitioner to make sure that there are no hurdles to file for a divorce. However, to minimize the chances of errors, it is advisable to hire someone professional who can help the petitioner so that no legal consequences arise in the future.

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Section 138, 141 and 142 of the Negotiable Instrument Act 1881

By: Admin Dishonour of Cheques 24 Sep 2020

A cheque is a bill of exchange which is payable on demand. There are two parties in a transaction: The person who issues the cheque is known as the drawer, whereas the person under whose favour the cheque is issued is known as the drawee. According to section 13 of the Negotiable Instruments Act 1881, a negotiable instrument means a promissory note, bill of exchange or cheque. The cheques are governed under the Negotiable Instruments Act 1881. A cheque bounce is termed as the cheque that cannot be processed because of the insufficient funds that are available in an individual’s bank account. The drawee issues a cheque bounce notice/demand notice to the drawer. The Cheque bounce notice states that if the amount due is not paid within the prescribed time, then the drawee will initiate the legal proceedings under section 138 of the Negotiable Instruments Act 1881 against the drawer.

Following are the provisions that are mentioned under Section 138, 141 and 142 of the Negotiable Instrument Act 1881.

Section 138 of the Negotiable Instrument Act 1881

Section 138 of the Negotiable Instrument Act 1881 states the provision relating to the dishonour of cheque for insufficiency of funds in the bank account. If there is any cheque issued by the drawer to the drawee to pay any amount and the cheque is returned/dishonoured by the bank because of the insufficient amount in the bank account to honour the cheque. The cheque is also dishonoured if it exceeds the amount that has been arranged to be paid from that bank account (by an agreement made with the bank).

Section 138 of the Negotiable Instrument Act 1881 shall not be applicable if the cheque has been presented to the bank after the period of its validity (after a period of 3 months). Section 138 of the Negotiable Instrument Act 1881 shall be applicable if the payee makes a demand for the payment of the money by giving a cheque bounce notice to the drawer within a period of 30 days from the receipt of the information from the bank regarding dishonour of cheque. This section shall also apply if the drawer fails to make a payment within 15 days from the receipt of cheque bounce notice.

Section 141 of the Negotiable Instrument Act 1881

Section 141 of the Negotiable Instrument Act 1881 states the provision relating to the offences that are committed by the company under section 138. In case if the offence is committed by any person who was in charge of the company and was responsible for the conduct of the business, then the person and also the company would be deemed guilty of the offence. However, if he proves that he had exercised due diligence in order to prevent such offence or if the offence was committed without his knowledge, then he would not be deemed guilty of an offence under section 138. In case if the offence is committed by a director/manager/secretary/officer of the company (with the consent or connivance or due to neglect), then they will be prosecuted and punished. Hence, there is a vicarious liability of the officers of the company. A person who is nominated as a director of the company is holding any office or employment in the Central Government or State Government, or a financial corporation owned by the Central or State Government shall not be liable for the prosecution under this chapter.

Section 142 of the Negotiable Instrument Act 1881

Section 142 of the Negotiable Instrument Act 1881 states the provision relating to the Cognizance of offences. Following are the provisions mentioned under this section:

  • The Court shall take cognizance of the offence punishable under section 138 only when the drawee makes a complaint in writing.
  • The complaint must be made within a period of 30 days from the expiry of the cheque bounce notice period (15 days).
  • The offences punishable under section 138 shall be tried by the Metropolitan Magistrate or a Judicial Magistrate of the First Class and not by any other inferior court.
  • A complaint can be filed by a manager or any other person who is authorised by the company. Also, they can represent the company during the course of legal proceedings before the Court.
  • The Magistrate must look whether the ingredients of offence is fulfilled or not, before taking cognizance of the offence.
  • The cause of action for filing a complaint under section 138 would arise after the expiry of 15 days from the cheque bounce notice and if the drawer fails to pay the amount within such period.
  • The drawee cannot make a complaint after the period of 30 days from the expiry of the cheque bounce notice period (15 days) as it is time-barred.
  • The drawee must allege that the cheque was dishonoured due to the insufficient fund in the bank account, even if the payment was stopped by the bank.
  • The limitation period will begin to run once the cause of action has arisen. The limitation period could not be stopped by presenting new cheque so as to have the fresh cause of action and fresh limitation period.
  • When the cheque is issued in favour of the company, a complaint under section 138 can be filed by the manager or any other officer who is authorized by the company.
  • Section 142 of the Negotiable Instrument Act 1881 does not prohibit or excludes the complaints that are being made by the Power of Attorney or Agents of the drawee.

Conclusion

In India, the Cheque bounce is considered to be one of the serious offences. It is also punishable with imprisonment or a fine mentioned under section 138 of the Negotiable Instruments Act 1881. The term of imprisonment may extend upto two years, and the fine may extend to twice the amount of the cheque drawn. There can also be a case where both imprisonment and fine will be given as a punishment for cheque bouncing. Hence, an individual can file a criminal case under section 138 of the Negotiable Instrument Act 1881, and it can also file a Summary suit under Order 37 of the Criminal Procedure Code 1908.

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