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Religion, race and colonialism

The period between the 15th and 19th centuries has been credited with the birth of ‘modernity’ and several ‘modern’ concepts and ideas which not only Europe but the entire world, including postcolonial societies, take for granted today and proudly base their discourse on.

J. Sai Deepak

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I had ended the previous piece on the note that the relationship between the European colonizer’s religion and the evangelical nature of his colonization merited scrutiny. Fortunately, there is some scholarly literature on the subject. A reading of the literature on colonialism reveals that the story of European colonialism may be traced to what has been referred to as “the Age of Discovery” in the fifteenth century when Christopher Columbus set out in 1492 to “discover” the “New World”, namely the non-Christian world. There is consensus among scholars of coloniality/decoloniality that Columbus’s voyage marked the beginning of European colonization and heralded a new chapter in European history which led to emergence of new conceptions of time, space and subjectivity that had implications for that continent and most importantly, for “others”. Scholars agree that the Age of Discovery was the predecessor to and led to the Renaissance, the Reformation and the Age of Enlightenment/Reason, which included milestones such as the Treaty of Westphalia and the Industrial Revolution.

The use of “The” for each of these essentially European milestones by Europeans and the rest is significant for it demonstrates the universalization of this history as the history of humanity, in particular its “modern” history. The period between the fifteenth and nineteenth centuries has been credited with the birth of “modernity” and several “modern” concepts and ideas which, not only Europe, but the entire world, including postcolonial societies, take for granted today and proudly base their discourse on. Such modern ideas have significantly affected and altered conceptions of religion, language, political organization of societies, the nature of State, its relationship with religion and secularism, conceptions of law and human rights, humanism, treatment of genders, science, treatment of nature and notions of development and the like. The European position on each of these essential facets of life was introduced and universalized in all societies which formed part of the colonizing Empires, after replacing indigenous worldviews, which has engendered a debate around the interpretation of Columbus’s voyage.

The celebration of the Age of Discovery by proponents of Europe is understandable because the period was preceded by the Dark Ages for a millennium. However, since the rest of the world did not live in the Dark Ages prior to the fifteenth century, the celebration of the Discovery and the Enlightenment by several postcolonial societies is truly tragic and naïve since they haven’t even scratched the surface to understand the racial and religious supremacist character of the Age of Discovery and what followed it. Critically, several postcolonial societies are yet to fully understand the impact the Enlightenment has had on their ability to evaluate the history of their own cultures sans the judgement and sanctimony induced by the Enlightenment. It is for this reason that the study of the history of coloniality is imperative.

While one school of thought, the “modern” school, believes that his voyage was and must be seen as a “glorious and heroic achievement” which marked the beginning of the Christian West’s “destiny” to “liberate” non-Christian indigenous societies from their wretched existence; the other school, namely the decolonial one, believes that the voyage marked the beginning of one of the most repressive, bloody, racist and genocidal chapters ever witnessed in human history that led to the extinction of several cultures and, critically, wreaked havoc on nature on an unprecedented scale. The latter school asserts that the Age of Discovery and the period that followed thereafter were responsible for two developments which reshaped the world, namely the emergence of modern categories of religion and race and their intertwined relationship with coloniality, and therefore with the “cultural complex” of modernity/rationality.

In its early stages, the focus of pioneers of decoloniality scholarship such as Anibal Quijano was on the colonial character of power, the centrality of race to European coloniality, and its inextricable nexus with modernity/rationality. Quijano identified that the process of classification of the world on racial lines by the European colonizer, owing to the colonizer’s own racial awareness, led to sub-humanization and dehumanization of several communities depending on their perceived worth is the eyes of the colonizer. The ramifications of such classification included geographic identities acquiring racial connotations, specific skin complexions being imputed to the races of the colonizer and the colonized, and the creation of a new structure of division of labour, resources and the fruits of labour. Each of these strands ultimately contributed to creations of serfdoms and slavery, of notions of master/superior and slave/inferior races, of notions of the manifest destiny of some to rule over others and the fate of others to be perpetually ruled, the West and the East, the civilized and the primitive, scientific and magic/mythic-scientific, rational and irrational, modern and tradition, history and mythology, essentially Europe and not Europe. Even where the colonizer realized that there was culture and civilization outside of Europe, he resorted to stereotyping and exotification by calling it the Orient, the other of the Occident.

That this racial classification of entire humanity to subserve colonial interests forms the foundation of Eurocentric/Western-centric global capitalism has been incisively captured in Quijano’s work. He, in fact, highlighted the relationship between European colonialism, Eurocentric/Western-centric global capitalism and Western-centric globalization which resulted in the entirety of human experience revolving around European/Western hegemony, which critical included control over “all forms of subjectivity, culture and especially knowledge and the production of knowledge”. Quijano did not mince words in calling globalization the “culmination of a process that began with the constitution of America and colonial/modern Eurocentered capitalism as a new global power”. To him, notwithstanding globalization’s professed love for a “global village”, race and therefore coloniality remained as relevant as they were in the colonial era. Globalization, contrary to popular perception, is not a friend of diversity or a melting pot of cultures. On the contrary, it means eradication of heterogeneity, more particularly diversity of indigeneity, and is proof of existence of common denominator of culture and civilization for the entire world.

Apart from the centrality of race to European colonization, Quijano did touch upon the ways in which colonized societies were forced to learn and adopt the culture of the colonizer so as to aid the process of colonization, which included learning both the material and metaphysical, specifically Judeo-Christian religious traditions. That said, the Christian character of the origins of the Age of Discovery, namely Christopher Columbus’s expansionist voyage of “discovery”, was dealt with more explicitly by Jamaican writer and cultural theorist, Sylvia Wynter, and Nelson Maldonado-Torres, a Professor of Latino and Caribbean Studies, who have contributed to the understanding of the role of the Christian religion in European colonization and its effect on the racial consciousness of the European colonizer.

Sylvia Wynter drew attention to the “reconceptualization of geography and the very meaning of humanity” triggered by the Age of Discovery. Critically, Wynter argued that since the Age of Discovery altered conceptions of time, space and subjectivity, it altered notions of care for the self and care for others since humans use time, space and subjectivity to make sense of themselves and their surroundings. This meant that the Age of Discovery also led to new conceptions of life and death, and legal agency over them. In a nutshell, coloniality/modernity affected not just ontology, theology, epistemology and anthropology, it also birthed new notions of ethics (and therefore affected education), and defined both politics and legislation.

Wynter was also forthright in her view that the Age of Discovery, evangelization and colonization went hand in hand, and credited that period with “secularization of the key elements of the Christian episteme”, which meant that what was valid for and in the Christian worldview was deemed good for the entire world, and those that did not conform to the Christian worldview had to convert or perish. According to Wynter, the treatment of “pagan polytheistic peoples” as “idolators” by Columbus was traceable to the “(a) Judeo-Christian perception of the world’s population as being divided up into Christians (who had heard and accepted the new Word of the gospel), (b) infidels like the Muslims and Jews who, although they were monotheists, had refused the Word, and (c) those pagan polytheistic peoples who had either ignored or had not as yet been preached the Word”. She was of the view that the religious term “idolator” informed the meaning of the secular terms “Indios/Indians” which led to the religion-induced racial othering of non-Christian idol-worshipping communities encountered by Columbus. The encounter of the Christian European colonizer with non-Christian idol-worshipping societies, in turn, led to justifications of liberation and civilization being offered for the colonization of racially and religiously inferior people, ultimately paving the way for slavery.

Building on the works of Quijano and Wynter, Nelson Maldonado-Torres suggested that religion as an anthropological category and race as an organizing principle of human identification and social organization were the products of European colonialism which only expanded with the growth of Western modernity. According to him, both religion and race were constituted together and became two of the most central categories which altered global history at every level. Therefore, the critical theory of religion is high relevant to understand the critical theory of race, and both are relevant for ethics. Simply put, any understanding of coloniality/modernity is incomplete without applying the twin lenses of religion and race, and the only way to present an alternative foundation for ethics is adopt a decolonial approach given the near-complete hegemony of coloniality/modernity on contemporary ideas of ethics.

According to Torres, the Age of Discovery necessitated the broadening of the understanding of European conceptions of religion when the Christian European colonizer came into contact with non-Christian indigenous societies in the “New World”. Citing the work of Guy Stroumsa, an Israeli scholar of religion, Torres took the view that Discovery prompted a new approach to religion in view of Christianity’s encounter with Amerindian religions, which is what makes the age of Discovery relevant for understanding the emergence of the modern categories of religion and race, which was a major “epistemic revolution” in its own right. Also, according to him, the nexus between race and religion was understood better taking into account Christianity’s theological conceptions of Judaism given its attempts to sever itself from its Jewish racial roots as well as its perceptions of Islam. For a more comprehensive understanding of race-religion interplay, he suggested inclusion of perceptions of blackness and indigeneity as well.

On the issue of broadening of conceptions of religion upon Christianity’s encounter with indigenous societies, Torres’s interpretation of Columbus’s encounter with the native peoples of Americas differs from Wynter’s. He was of the view that since Christianity recognized only the three categories of Christians, Infidels and Idolators, Columbus initially could not place the native peoples of Americas in any of three categories known to Christian theology and therefore, he assumed that the native peoples were not people from the wrong/false religion, but people without religion. And the absence of religion was perceived as absence of a soul, with soul being a condition precedent for a human to establish a connect with the divine. This soul and non-soul divide, according to Torres, led to the race consciousness in the European colonizer because he effectively saw the native peoples as non-souls who belonged to a differed race altogether. This converted religion into an anthropological category because it had become a marker of race.

That the European Christian colonizer was white and the native peoples were “black” was not lost on the former. Therefore, the White Christian was the one with soul and therefore fully human, and the black native was without soul and therefore not fully human or fully non-human. As a consequence, owing to this crucible of religion, race and colour, the soulless non-Christian black natives were subjected to religion-induced dehumanization, which justified and facilitated their treatment as slaves, or at the very least on whom the light of Christianity, Europeanness and civilization must be shone. Entire continents, societies and peoples were associated with soulnessness and either converted or enslaved, which means, according to the Christian colonizer, conversion infused soul into the dark soulless native. Simply put, in the view of the Christian European colonizer, he wasn’t merely saving the soul of a non-Christian Infidel or Idolator, but was breathing soul into a sub-human, almost an animal, through his civilizing Christianizing European touch. And if this healing touch was resisted, the sub-human had to be put down ruthlessly like a beast.

What is important to note is that whether approached from the perspective of Wynter that natives were seen as idolators by Columbus, or from the point of view of Torres that Columbus considered them soulless, both views emanating from Christian theology as its existed then, the endgame for non-Christian native communities was the same- convert or die.

In her paper on the impact of colonial contact on the cultural heritage of native American Indian people, Nassima Dalal, a scholar of religious studies, suggested that evangelical attempts to convert indigenous populations had more than one objective, the first was of course to spread the Word of the Gospel and the second was to acquire their land. Some would say, it was the other way around and that religion was used as a means to an end, the end being integration of native peoples into the European culture and complete elimination of the native culture. This was achieved through several ways and means, one of which was to massacre vast numbers of a community, and to ensure that the rest of the community fell in line they were forced into reservations with minimal resources.

In some cases, diseases such as smallpox and the plague were introduced with the knowledge that the indigenous community was not immune to them. There are recorded instances of “voluntary conversions” by indigenous peoples when the threat of confrontation with the colonizer loomed large. The hope was that such conversions to Christianity would prevent violence and start a dialogue between the communities. Clearly, such conversions were seen as the only alternative to annihilation. This largely explains the present Christian character of the Americas or Christianization of large parts of the Caribbean and Africa which should come as no surprise since it is the direct consequence of the centralization/universalisation of White Christian European culture in the colonized societies. This, the Christian European colonizer, passed off as his benevolence for he was saving the heathen native’s soul from the latter’s own ignorance, superstition and savagery.

In this regard, Quijano believed that Latin America was the most extreme case of cultural colonization by Europe in contrast to the high cultures of Asia and the Middle East which fared relatively better under the yoke of colonization, while some other societies like African societies suffered from extreme exotification. Nevertheless, Quijano was of the view that the cultures of Asia and the Middle East too were rendered subservient to the European Way thanks to coloniality. The survival of indigenous societies and cultures of Asia and the Middle East is not due to the European colonizer’s lack of trying but because they put up fierce resistance which the coloniser did not expect.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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Legally Speaking

Electricity connection cannot be denied only because dispute regarding ownership of land is pending: Gujarat High Court

The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.

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The Gujarat High Court in the case Yogesh Lakhmanbhai Chovatiya v/s PGVCL Through the Deputy Manager observed and has clarified that occupiers of a land cannot be denied electricity connection only because a dispute regarding ownership of the land is pending.

The bench comprising of Justice AS Supehia observed and referred to a division bench judgment stating that right and title and ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.

In the present case, the petitioner current occupiers of the land and submitted that they were denied an electricity connection only because the land that they were occupying was in the name of the Government. However, the proceedings were initiated by the Mamlatdar against them u/s 61 of the Gujarat Land Revenue Code for removal of encroachment. Further, to bolster their contention, it was relied by the petitioner on an order of the High Court and Sec 43 of the Electricity Act, 2003 which mandates the supply of electricity to any occupier or owner of premises.

The Petitioners could be said to be ‘occupier’ of the land in question and the connection could not be denied by the Respondent.

The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.

Further, the bench of Justice Supehia concluded while perusing Sec 43 that the provision stipulated that the licensee shall supply electricity to those premises where the application had been filed by the owner or the occupier. Consequently, a reference was made to the order of the Division Bench of the High Court in LPA No. 91/2010 wherein it was observed:

The Court stated that such power being not vested under the law with the company and as the company cannot decide the disputed question of right and title and this court is of the view that ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.

While keeping in view of the aforesaid provisions, it was directed by Justice Supehia that the Respondent-Company to supply electricity connection to the Petitioners in the premises of the property at the earliest in accordance with the list maintained by the name containing the names of the Petitioners in the list.

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ANALYSIANG SECTION 194R OF THE INCOME TAX ACT

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Recently, Section 194 R was inserted by the Finance Act 2022, which came into effect on July 1st, 2022. CBDT made certain recommendations via Circular 12 from the day of the addition of this section, it has become highly debatable. Before touching the issues of this section, we need to understand the legal provision of section 194 R.

In simple terms, the new section mandates a person who is responsible for providing any benefit or perquisite to a resident to deduct tax at source at 10% of the value or aggregate value of such benefit or perquisite before providing such benefit or perquisite. The benefit or perquisite may or may not be convertible into money, but it must result from such resident’s business or professional activities. As per this section, tax will be deducted by business or profession on any benefits or perquisites of a person who is residing in India. The benefit or perquisite can be in the form of cash or kind, or partially in cash and partially in kind. Tax deduction will be 10 percent if the aggregate value doesn’t exceed INR 20,000. In such a case, tax will not be deducted. Such conditions will not be applicable in If the turnover of business doesn’t exceed INR One Crore, If the turnover of the profession doesn’t exceed INR fifty lakhs, For instance, if a person is a sales agent and he exceeds the target allotted by the company and receives a new car worth INR 5, 00,000/-the value of INR 5,00,000 will be taxed under the head of Profit.

The intention of this section is to expand the scope of deducting tax on benefits or perquisites and to increase transparency in the reporting of benefits and perquisites received by an individual. Because this particular incentive is in kind rather than cash, recipients of such kinds of transactions do not include it in their income tax return. As a result, inaccurate income information is provided. Such an incentive or bonus in kind ought to ideally be reported as income under the 1961 Income-tax Act (ITA). Also, according to Section 28(iv) of the ITA, any benefit or perk received from a business or profession, whether convertible into money or not, must be reported as business income in the hands of the receiver. Now Section 194(R) gives the right to the payee to deduct the amount, whether in cash or kind, arising out of business promotion.

The terms “benefits and perquisites” are not defined under the IT act. If they receive any such perquisites or incentives, whether in cash or in kind, they must deduct TDS. In cases where the benefit is wholly in kind, the person providing such a benefit or perquisite is required to pay TDS on the value of such benefit or perquisite out of his own pocket. In this case, benefits and perquisites are determined as per the value of the purchased price and manufactured price. However, no taxes to be deducted u/s 194R on sales discount, cash discount, or rebate are allowed to customers.

In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment. The main goal of these conferences and seminars is to keep doctors up to date on the most recent advancements in medicine, which is advantageous for both the pharmaceutical industry and the doctors treating patients. Free medication samples provided to doctors by pharmaceutical corporations cannot be considered freebies in light of the aforementioned value.

Hence, under such circumstances, for such a sales effort, the pharmaceutical company may deduct its expenses. The promotion would, however, be taxable income in the hands of the receiver, and the pharmaceutical company would need to deduct TDS on it.

Another question that pops up is that in the case of gifts and perks received on special occasions like birthdays, marriages, and festivals, under such circumstances, Section 194R will only be applied if they arise out of business or profession.

As we know, we are heading towards digitalisation. There are many social media influencers who are playing a crucial role in marketing strategy. Income received by an influencer is calculated by deducting expenditure incurred on their business. Filming costs, such as cameras, microphones, and other equipment; subscription and software licencing fees; internet and communication costs; home office costs, such as rent and utilities; office supplies; business costs, such as travel or transportation costs; and others are examples of what can be written off as a social media influencer. To illustrate how Section 194 R will be applicable in such a situation, let’s consider Nandini is a social media influencer. She received an offer from a company for product promotion in another city. She charged her fee of Rs 88,000 and the travel expense incurred by her was Rs 25,000. Here, the company will reimburse her travel expenses. So, the travel expenditure incurred by the company is covered under the benefits and perquisites provided to Nandini. Hence, TDS is to be deducted under section 194R at the rate of 10%, i.e., Rs 2500 is deductible from the fees payable to Nandini.

There is no further requirement to check whether the amount is taxable in the hands of the recipient or under which section it is taxable. The Supreme Court took the same view in the case of PILCOM vs. CIT in reference to the deduction of tax under Section 194E. It was held by the Hon’ble Supreme Court that tax is to be deducted under section 194E at a specific rate indicated therein, and there is no need to see the taxability under DTAA or the rate of taxability in the hands of the non-resident.

In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment.

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GUJARAT HIGH COURT: WRIT PETITION FILED AGAINST PRIVATE UNIVERSITY NOT MAINTAINABLE, REMEDY FOR ALLEGED ARBITRARY TERMINATION LIES UNDER CIVIL LAW.

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The Gujarat High Court in the case Shambhavi Kumari v/s Sabarmati University & 3 other(s) observed and has declined to intervene in a writ petition seeking reinstatement with full back wages and benefits filed by an Assistant Professor against a private university, Sabarmati University.

The bench comprising of Justice Bhargav Karia observed and has clarified that the dispute regarding termination was ‘in the realm of a private contract’ and therefore, held that if on the part of the respondent, there is an alleged arbitrary action, the same would give cause to the petitioner to initiate civil action before the Civil Court but in the facts of the present case, the writ petition would not be maintainable against the private educational institution governed by the Gujarat Private Universities Act, 2009.

In the present case, the petitioner was given a three months’ notice starting August 2013, allegedly without any reason. Consequently. Earlier, an application was filled by the petitioner before the Gujarat Affiliated Colleges Service Tribunal and thereafter, withdrew the application to file the writ before the High Court.

It was contested by the respondents that the petition was not maintainable on the ground that the University was a private University and did not fall within the term ‘State’ under Article 12 of the Constitution of India. Therefore, the employment conditions of the Petitioner would not bring her services within the realm of ‘duty or public function.’

It was observed that the petitioner, per contra, insisted that the University was established under the Gujarat Private Universities Act, 2009. However, Universities were established to provide quality and industry relevant higher education and for related matters and hence, it could not be said that the Universities were not performing public duty. It was directed by the State Government and pervasive control over the functioning of it as was mentioned in Sec 31-35 of Chapter VI of the Act. Reliance was placed on Janet Jeyapaul vs. SRM University and ors. where the Top Court had held that the writ petition was maintainable against the deemed university and whose functions were governed by the UGC Act, 1956.

The bench of Justice Karia, while taking stock of the contentions referred to Mukesh Bhavarlal Bhandari and ors vs. Dr. Nagesh Bhandari and ors where the Coordinate Bench of the High Court in similar circumstances had reiterated that merely because the activity of the said research institute ensures to the benefit of the Indian public, it cannot be a guiding factor to determine the character of the Institute and bring the same within the sweep of ‘public duty or public function.

It was observed that the High Court also rejected the reference to Janet Jeyapaul since in the instant case and held that in the realm of a private contract, the Petitioner termination was to be decided.

Further, it was observed that it is not necessary to go into the merits of the case with regard to the issue of show-cause notice for providing an opportunity of hearing resulting into breach of principle of natural justice and weather the action of the respondent University is unfair or not because all such disputes essentially are in the realm of private contract.

Accordingly, the bench dismissed the petition.

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Gujarat HC Quashes Reinstatement Order: Industrial Dispute Act| Person Working In The Capacity Of ‘Consultant’ Cannot Be Deemed ‘Workman’

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The Gujarat High Court In the case Santram Spinners Limited v/s Babubhai Magandas Patel observed and has struck down the order of the Labour Court which had held that the Respondent-workman was entitled to reinstatement along with 20% back wages in the Petitioner-institute. Thus, the High Court, after perusing, Form No. 16A which pertains to Tax Deducted at Source, concluded that the Respondent was being paid consultant fees and not a salary and the same had been ignored by the Labour Court.

The bench comprising of Justice Sandeep Bhatt noted that the Respondent had raised an industrial dispute, inter alia, claiming that he was working in the company of the Petitioner as a Technical Maintenance In-Charge while the respondent earning a salary of INR 9,000 per month. Thereafter, it was alleged by him that he was terminated orally in 1997. Consequently, the Labour Court ruled in his favour and ordered reinstatement and back wages.

It was submitted by the petitioner that the Respondent did not fall within the definition of the term ‘workman’ in Sec 2(s) since he was employed as a Maintenance Consultant, receiving consultant fees and not a salary and the respondent had failed to produce any documentary evidence such as TDS statement, appointment letter, bills to bolster his contention.

Further, it was also averred by the petitioner that the relevant documentary evidence was absent. It was stated that Form 16A was produced to show that if the Respondent was a consultant, then there was no need to deduct TDS. It was observed that the Form No. 26K was disagreed by the Labour Court, which was produced by the Company to show that the tax was deducted from fees for technical or professional services.

The bench comprising of Justice Bhatt firstly observed that the Respondent had admitted that he had no evidence with him to prove that he was working as a ‘workman’ in the Company of the Petitioner that his salary was fixed at INR 9,000 per month. It was stated by the Manager of the Company that the Respondent was rendering services as a consultant raising his Vouchers/bills regularly and being paid through cheque. As per the Bench, there was ‘ample evidence’ to prove that that the Respondent was employed as a technical consultant.

Justice Bhatt stated that it is pertinent to note that the learned Labour Court has committed gross error in holding that those documents are complicated and thus, the learned Labour Court has also erred in giving findings that since TDS is deducted by the petitioner company and therefore, the respondent is workman, who is serving in the petitioner institute and in my opinion, this finding of the learned Labour Court is against the settled proposition of law and is highly erroneous.

Therefore, the High Court affirmed that there was no evidence that the Respondent had been working for more than 240 days during the year preceding termination.

Accordingly, the High Court struck down the award of the Labour Court.

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GUJARAT HIGH COURT QUASHES REINSTATEMENT ORDER: PERSON WORKING IN SUPERVISORY CAPACITY CANNOT RISE “INDUSTRAIL DISPUTE”

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The Gujarat High Court in the case Gujarat Insecticides Ltd. & 1 other(s) v/s Presiding Officer & 2 others observed and has reiterated that a person working in “supervisory” capacity cannot raise an industrial dispute under the Industrial Disputes Act, 1947.

The bench comprising of Justice AY Kogje observed and further made it clear that while deciding whether such person is a workman or not, the Labour Court ought to carefully consider the evidence placed on record and there is no exhaustive list of work to differentiate between the management employee and the Workman.

In the present case, the Petitioner Company averred that the Respondent was working in the non-workman category and engaged in the ‘supervisory category’ and was drawing salary of more than INR 1600. Therefore, the dispute was not an industrial dispute within Section 2(s) of the Act, 1947.

It was insisted by the Respondent that he had worked with the company as a Maintenance Engineer and the duties assigned to him were of the nature of a workman’s duties as per the ID Act. The respondent was wrongly terminated by way of termination and without any procedure established by law and as such, was entitled back wages.

It was observed that the high court took into consideration the Respondent’s appointment letter and witness depositions regarding the nature of work performed by him to conclude that the Respondent in Grade-9 was indeed discharging duty of Maintenance Engineer. It was also specified by the depositions that the hierarchical grading in the petitioner-company as per which, the employees above Grade-7 were of the Management Cadre.

The High Court observed that the Labour Court has completely disregarded this evidence, which according to this Court is most relevant for the purpose of deciding the status of workman and the Labour Court has proceeded that the petitioner-company ought to have produced evidence in the nature of whether the respondent-workman has sanctioned any leave, sanctioned any overtime or prepared any gate passes for employees to go home or has made any ordered or Appointment dismissal. Thus, when the Labour Court, instead of referring to this evidence already on record to establish the nature of work of the respondent and has decided to chase the evidence which is not on record and then on the basis that such evidence not being on record, it was concluded that in the definition of workman, the workman will be covered, this is where, in the opinion of the Court, perversity has crept in.

Accordingly, the bench quashed the impugned order. Therefore, seeing the passage of time, it was held by the High Court that the allowances paid u/s 17B of the Act should not be recovered by the Petitioner company.

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COURT CALLS FOR SENSITIZATION OF POLICE: DELHI RIOTS SITE PLANS PREPARED CASUALLY, S.65B CERTIFICATE NOT FILLED FOR DIGITALLY SOURCED EVIDENCE

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The Court while dealing with a case related to 2020 Delhi riots, a city Court has called for sensitisation of investigating officers (IOs) on making the photos obtained from digital sources as admissible in evidence by filing a certificate under section 65B of Indian Evidence Act, 1872.

The bench comprising of Additional Sessions Judge Pulastya Pramachala observed and thus ordered that whenever, photographs are filed from digital sources it is needless to say that a certificate under Section 65-B of I.E. Act, is must to make those photographs admissible for the purpose of evidence. However, all the IOs are required to be sensitized this respect as well and it is high time to control the casual and callous approach of any IO.

It was also observed that court expressed displeasure over “casually prepared site plans” by stating that preparation of the same were not even expected in cases triable by the Metropolitan Magistrates.

Adding to it, the Judge stated that unfortunately this kind of site plan has been filed in such a serious case involving session triable case. Moreover, from the documents filed on the record, the court find that certain photographs have been placed, but without any certificate under Section 65-B of Indian Evidence Act.

In the present case, the court was dealing with an FIR registered on the complaint of one Salim Khan wherein it was stated by him that his spare parts and barber shop shop was looted and was put on fire during riots.

It was admitted by one of the accused Dharmender that his involvement in the matter and he, with other co-accused was seen carrying the carton of Rooh Afzah from the warehouse of a complainant in another FIR.

The Court stated that a serious re-look over the quality of evidence/documents place on the record in the case, is required by senior officer with all serious attention.

Further, the court added that in this case the ld. DCP (North East) is requested to go through the records and to submit his report, if the prosecution is to be carried on, on the basis of other materials and same site plan as placed on the record.

As in future, the Special Public Prosecutor undertook to be much careful.

Accordingly, the Court listed the matter for further hearing on August 17.

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