Mentoassociates.com – Legal Articles

The Karnataka Guarantee of Services Act, 2011 or SAKALA was introduced with the aim to guarantee the delivery of citizen services in a definite span of time. While obtaining services like acquiring certificates, land record extracts building plan approvals was highly time consuming, SAKALA aims to curb the same by giving a time frame within which services may be obtained and imposing a penalty for failure. SAKALA, today has over 150 civil services covered under its provisions. Currently applications under the Right to Information (RTI) is also slated to be included under the SAKALA. The BBMP, BWSSB, CMC, Town Planning Authority, Revenue Department etc are all under the SAKALA.

Under the Act, every citizen has a right to obtain the civil services mentioned in the Schedule of the Act within the specified time. The onus of ensuring the same is with Public Officer of the concerned department and his subordinates. The time period begins to run from the date of making a valid and complete application. Every applicant is provided with an application number and he may monitor the status of his application.

The officer in charge or his authorized subordinate shall provide the service or reject it for reasons that have to be recorded in writing. The applicant shall be informed of the rejection of the application, along with details of the Officer to whom he may prefer an appeal against a rejection. Under the Act, the concerned officer is liable to pay compensatory cost for failure to provide the service within the time frame. An aggrieved citizen whose application is rejected or who has not been provided the service within the stipulated tune may appeal to the competent authority within a period of 30 days from rejection or delay. The appellate authority may pass appropriate orders and my also award compensatory costs. A second appeal lies from such order within 60 days. A time frame is also prescribed for disposing off appeals.

For example- under the schedule to the Act, the time frame for obtaining a Khata Extract where all documents are available in electronic form in 3 days and the Designate Officer is the Assistant Revenue Officer. In case of a delay or a rejection, the competent authority to approach is the Assistant or Joint Commissioner for that zone, who shall pass an order within 15 days. If an applicant is still aggrieved he shall appeal to the Commissioner who has to pass an order within 30 days.

The Act does not intend to punish delays and defaults as misconduct by the concerned officer, but is with the intention to create and imbibe a culture of commitment towards duty and responsibility.

Authored by: Naqsha Biliangady, Advocate Mento Associates.

IMPORTANT JUDGMENTS OF THE SUPREME COURT AND KARNATAKA HIGH COURT ON CHILD CUSTODY MATTERS

Following are certain leading judgments of the Supreme Court of India and The High Court of Karnataka on matters relating to custody of a child.

1. Rosy Jacob v/s Jacob A Chakaramakkal (1973) 1 SCC 840

The Honourable Supreme Court of India held that children are neither mere chattels nor play things in the hands of the parents. In the modern changed social conditions, absolute right of parents over the destinies and lives of their children has yielded to the consideration of their welfare as human beings, so that they may grow up in a balanced manner to be useful members of society.

In matters of custody of children, factor that the father loves his children and is not otherwise undesirable cannot alone give him an edge over the mother who is equally affectionate towards her children. Courts have to distinguish between right of guardianship and right of custody.

2. Mausami Moitra Ganguly v/s Jayant Ganguly AIR 2001 SC 2179

The Honourable Supreme Court of India held that better financial resources of one parent, his or her love for the child may be one of the relevant considerations, but cannot be the sole determining factor for custody.

The Court further stated that stability and consistency in the affairs and routine of the children is also an important consideration.

In this case, custody was granted to the husband.

3. Nil Ratan Kundu and Anr v/s Abhijit Kundu 2008 AIR SCW 5769=(2008)9 SCC 413

The Supreme Court laid down that while dealing with custody, Courts are neither bound by statutes nor by strict rules of evidence and procedure nor by precedent. Paramount considerations are welfare and well being of the child. Strict parameters governing an interim injunction do not have full play in matters of custody.

4. Gaurav Nagpal v/s Sumetha Nagpal (2009) I SCC 42

In deciding matters of custody, the Supreme Court held that, Courts need to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings. Over and above physical comforts the moral and ethical values also have to be noted. The welfare and interest of the child is paramount in matters of custody. The principles of law in this regard are well settled. The welfare of the child is superior to the rights of the parent under a statute.

The Court has not only to look into the issue on legalistic basis, in such matters human angles are relevant for deciding the issues.

Though provisions of special statutes which favour the rights of parents/guardians maybe taken into consideration, Court has to exercise its ‘parens patriae’ jurisdiction.

The Supreme Court further recognised that principles of custody under Section 26 of the Hindu Marriage Act are not different to the principles of custody under the Guardians and Wards Act.

5. Athar Hussain v/s Syed Siraj Ahmed and Ors AIR 2010 SC 1417 (from Karnataka)

In matters of custody, welfare of the children is the sole and single yardstick, by which court shall assess the comparative merits of the parties contesting the custody.

The Court held that question of guardianship can be independent of and distinct from that of custody, in facts and circumstances of each case.

Second marriage of husband, is a factor to be taken into consideration while considering custody of child.

6. S. Anand v/s Smt. Lakshmi ILR 2012 Kar.2334

The Honourable High Court of Karnataka upheld the view of The Supreme Court that that the welfare interest of the child is paramount in matters of custody. The principles of law in this regard are well settled. The welfare of the child is superior to the rights of the parent under a statute.

The Court further held that the question of welfare needs to be considered in the background of relevant facts and circumstances. Each case has to be decided on its own facts. Better financial resources of one parent, his or her love for the child may be one of the relevant considerations, but cannot be the sole determining factor for custody.

Following the ruling of the Supreme Court, the High Court said that Courts need to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings. Over and above physical comforts the moral and ethical values also have to be noted.

In the given case, there was an allegation of immoral life by wife against the husband. The custody was granted to the wife.

Author: Naqsha Biliangady,Advocate, Mento Associates.

Copyrights of works of the countries mentioned in the International Copyright Order are protected in India, as if such works are Indian works. Copyright of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are protected in India through the International Copyright Order. Copyright as provided by the Indian Copyright Act is valid only within the borders of the country. To secure protection to Indian works in foreign countries, India has become a member of the several international conventions on copyright and related rights.

The central government has the power to extent copy right to foreign works which includes:-
a. Works first published outside India.
b. Unpublished works of authors who are citizen of foreign countries.

The terms (time period) of copy right for various classes are as follows:-
a. For published literary, dramatic, musical and artistic work- until 60 years after the death of the author.
b. For anonymous and pseudonymous works- 60 years from the date of publication.
c. Photographs – 60 years from the date of Photograph.
d. Cinematograph films- 60 years from the date of publishing of film.
e. Sound recording – 60 years from the date of publishing.

The owners of the copy right may grant any interest in the right by licence in writing signed by him to any other person.
If any work in which there is a copy right, is unreasonably withheld by the owner from the Public, the copy right board has the power to give license to a person even against objection from the owner.

In the case of an unpublished Indian work and if the author or the owner of the copy right is dead or unknown, the copy right board can grant licence to an applicant to publish such work.

License for translation: The person may apply to the copy right board for licence to produce and publish a translation of the literary or dramatic work in any language after the period of 7 yrs from the first publication of the work.

Normally the author of the work shall be first owner of the copy right therein.
Author means-
(i) in relation to a literary or dramatic work, the author of the work;
(ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the artist;
(iv) in relation to a photograph, the person taking the photograph;
(v) in relation to a cinematograph or sound recording the producer; and
(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.

Rights in a musical sound recording: There are many right holders in a musical sound recording- the lyricist who wrote the lyrics, the composer who set the music, the singer who sang the song, the musician who performed the background music and the person or company who produced the sound recording. A sound recording generally comprises various rights. It is necessary to obtain the licences from each and every right owner in the sound recording.

Works by journalists, apprentices etc during the course of their employment:
In the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work.

In the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

Assignment: The owner of the copyright may either wholly or partially assign the rights to any person. The assignment of the copy right shall be valid only if it is in writing and signed by the assignor. Disputes with respect to assignment of copy right are settled by the copy right board. Where the assignee does not exercise the rights assigned to him within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period. If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment. If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within the whole of India.

Relinquishment of copy work: The author of a work has the right to relinquish the copy right in a work by giving notice to the registrar of copy rights. The notice shall be in Form I.

Broadcaster’s Rights:
As per the act “broadcast” means communication to the public-
(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or
(ii) by wire, and includes a re-broadcast;
Every Broadcasting organisation has a special right for its broadcast which is known as broadcast reproduction right. The broadcast reproduction right is valid for 25 years.

Performer’s Rights:
As per the Copyright Act, “performer’ includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance and “performance”, in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers;

A performer who appears or engages in any performance shall have a special right known as performer’s right which is valid for a period of 50 yrs. The use of reproduction right or performer’s right for the private use of a person or for research or for reporting of current event, is not an infringement of Broadcasting Reproduction right or performer’s right.

The scope of the term copy right and the rights associated with it will differ with different classes.

(a) Scope of copy right in the case of a literary, dramatic or musical work, not being a computer programme:
(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);

(b) In the case of a computer programme:
(i) to do any of the acts specified in the case of a literary, dramatic or musical work
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme:
Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.

(c) In the case of an artistic work:
(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);

(d) In the case of cinematograph film:
(i) to make a copy of the film, including a photograph of any image forming part thereof;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the film to the public;

(e) In the case of sound recording:
(i) to make any other sound recording embodying it;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the sound recording to the public.

Meaning of right of adaptation:
Adaptation means,-
(i) in relation to a dramatic work, the conversion of the work into a non-dramatic work;
(ii) in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise;
(iii) in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;
(iv) in relation to a musical work, any arrangement or transcription of the work; and
(v) in relation to any work, any use of such work involving its re-arrangement or alteration;

Meaning of right of communication to the public:
It means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.

For the purposes of this clause, communication through satellite or cable or any other
means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. The term copy right means the exclusive rights to reproduce the work, to issue the copies of the work to public, to perform the work in public, to do a cinematograph film or sound recording in respect of the film etc.

Indian Copy Right Act 1957 and Copy right rules 1958, consolidates the law of copy right in India. There is an office established for the purpose of the copy right, called the Copy Right Office. The same is under the control of Registrar of Copy rights.

There is a board called Copy Right Board of which the secretary shall be the Registrar of Copy right. The copy right board has several benches.

As per the Indian Copy Right Act 1957, the following classes of works can have copy right:
a) Original literary, dramatic, musical and artistic work.
b) Cinematograph films.
c) Sound recordings

There shall be no copy right for a design which is registered under Design Act 1911. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea.

Artistic work means-
(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
(ii) Work of architecture; and (iii) any other work of artistic craftsmanship;

Cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films.

Computer programme means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.

Dramatic work includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film.

Literary work includes computer programmes, tables and compilations including computer literary data bases.

Musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music.

Sound recording means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.

Copy Right Societies:
The Act also provides for registration of copy right societies for the purpose of carrying on the business of issuing or granting license in respect of any work in which copy right subsist. The powers of copy right societies may include:-
a. To accept from an owner of copy right authorisation to administer any right in any work by issue of licence or collection of licence fees.
b. The copy right society may issue licences in respect of any rights under the Act.
Every copy right society shall be subject to the collective control of the owners of rights under the Act.

The labour law, at present in India, is not highly favouring employees drawing handsome salary, working in IT and other related fields. The applicable labour laws do not assure the job security of skilled employees, particularly who work mainly in managerial, administrational and supervisory roles. In the absence of specific contracts which protect the interest of employees, employers continue to adopt a hire and fire policy. The present discussion includes within its ambit IT Sector and other higher level employment.

In Karnataka almost all IT and other major companies come under the definition of ‘commercial establishment’ and hence The Karnataka Shops and Commercial Establishment Act, 1961 is applicable to the employees working in them.

As per sec-39 of the said Act, an employer can remove or dismiss an employee who has put in at least 6 months of continuous service only for a reasonable cause and after issuing one month notice or giving him salary instead. This means that if an employee has put in less than 6 months of service an employer can terminate him at his will.

If, after an enquiry, it had come to the notice of employer that there is some misconduct on the part of the employee, then the employee is not entitled for notice or salary in lieu of notice.

An employee who is removed or dismissed from his service shall have the right of appeal before the Assistant Commissioner of Labour within 30 days from the date on which the order of removal or dismissal was communicated to him.

If the appellate authority finds that the employee has been removed or dismissed without reasonable cause or without proof of misconduct and if the employer does not agree to reinstate him, employee shall be entitled to compensation calculated at the rate of one month pay for every year of service. If the employee or the employer is not satisfied with the order of appellate authority they can apply for a revision of the said order by the district judge.

Other states have passed similar acts for Shops and Commercial Establishments.

The Industrial Dispute Act 1947 also deals with the termination of employees. However this Act is not applicable in the case of the following employees:
a. Employees who are employed in managerial or administrative capacity
b. Employees who are employed in a supervisory capacity and whose monthly income exceeds Rs. 10,000/- per month.

As per this Act, if an eligible employee, who had been in continuous service for not less than 1 year, then the employer can terminate him only by following the below mentioned procedure:
a. The workman to be given 1 month notice in writing indicating the reasons for retrenchment/termination or one month salary instead of notice.
b. The workman has been paid at the time of retrenchment compensation equivalent to 15 days average pay for every completed year of service.
c. Notice in the prescribed manner is served on the appropriate government authority.

In spite of what is discussed above, if there is any employment contract between the employer and employee, which provides better conditions in favour of the employee, then the same will have applicability over and above the statutory provisions mentioned before.

Section 25 of the Companies Act, 1956, provides for formation of companies for the purpose of promoting Commerce, Art, Religion, Science, Charity and other useful objects. Many people form charitable organisations in the form of companies also. In the case of companies, the statutory compliance is much more than compared to trust or a society. Hence the chances of mismanagement are less. Normally chambers of commerce and trade bodies are registered under this section. This is not a very popular form of charitable organization for common people.

Section 25 company is more stable than a society but less rigid than a trust Amendments to the objects can be made by invoking the provisions of the Companies Act, 1956.

People form a society when the members are more and the control and management is broader based. Here it is comparatively easy to change the powers and objects of the society. The managing committee is normally elected and hence a society is more democratic in its form and spirit.

The main disadvantage of the society is that it is more decentralised and more likely to have lack of stability. There is likelihood that the management may fall into the hands of undesirable persons. However the Registrars under the societies Act have sufficient powers to effectively control the society. The statutory compliances and governmental interference is more compared to a trust and less compared to a society.