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<![CDATA[M&HR - HR Blog]]>Fri, 27 Feb 2026 11:52:27 -0800Weebly<![CDATA["JOHN DOE" ORDERS FROM JUDICIARY]]>Mon, 10 Nov 2025 09:49:48 GMThttps://www.mhrspl.com/hr-blog/john-doe-orders-from-judiciary

K. Vittala Rao
Legal & Management Consultant, Bangalore

Intellectual property (IP), though intangible, is probably the most important form of property today. The definition of IP has widened with the growth of international trade and globalization of the economy, giving the whole business a new paradigm. IP, having developed into a powerful commercial asset with the ever-evolving digital technology, its theft has also become rampant. As we all know, there are two sides to a coin-development of technology, with its positives, has also facilitated IP infringement by unknown and unidentified entities, constituting a class of infringers

A Business, as we know, have their own Trademarks, Data Protection, Intellectual Property, patents, design, copyright, Layout Design of Integrated Circuits, intellectual property personal data protection, fully backed up by respective legislations.

Any infringements can be sued by the Company as petitioners against the violators before the appropriate courts. Here, one needs to identify the violator and file a case against such a person with appropriate evidence supported by documentary proof. To identify and locate the violator, many times, it is not always easy and difficult.

For more details

All Business Managers need to be aware of this principle, which has been adopted by several courts in India.

'John Doe' has its origin in the reign of England's King Edward III, when the orders were used to refer to an unidentifiable defendant. Oxford Dictionary defines John Doe as an "Anonymous Party".

This order is like a shield for creators' intellectual property rights, especially in cases where the infringers involved are unidentified. This order aims to address the issue of copyright infringement and give creators the power to defend their work.

Now in the current era of AI, any AI messages & voices are being created, creation of AI videos with defamatory and harassment on the company with a view to attack its competitiveness in the market, and highly circulated through various social media, like Facebook, WhatsApp, posters, handbills, without disclosing their identity. Naturally, these amounts are not only defamatory and hurt the business, but also may lead to loss of share in the market, incurring heavy financial losses. If the Business wants to file case against such defaulters, how will the company name such defendants will be a challenging one. Therefore, preventive actions like 'John Doe' orders have become significant in the global context, especially for production houses to prevent infringement of their intellectual property rights.

A John Doe order is an order passed by a Court against the world at large. A John Doe order is a type of legal order that allows a person or entity to take legal action against an unknown party or parties. This type of order is often used when the identity of the person or entity being sued is not known at the time when the legal action is being taken. John Doe orders are commonly used in cases involving anonymous internet users or when a company is seeking to identify individuals who have engaged in illegal activity using its services. This order will be a Temporary Injunction; the defendant will be called "John Doe", till the actual defendant is identified and submitted to the court. The "John Doe" will be replaced. "John Doe" has been prevalent universally.

In India, also known as John Doe/ Ashok Kumar/ or an Anton Pillar order
Applicable Legal Provisions
The Order is granted under Order 39 rule 1 and 2 of the Code of Civil Procedure, 1908 ("CPC"), which refers to the court's power to grant a Temporary Injunction read with Section 151 of CPC and Part III Chapter VII of the Specific Relief Act1963 pertaining to permanent injunction. It's a powerful tool empowering rights holders to take action against unknown infringers, allowing them to serve notices, search premises, and secure evidence.

What are the pre-conditions?
1. Frank and full disclosure: Plaintiff has an obligation to make full and frank disclosure to the Court, inter alia, of the existence of his right, instances of previous breach, and of an anticipated large-scale and sporadic infringement by known and unknown persons.

2. Prima facie case: Plaintiff is required to establish a prima facie case before any pre-emptive relief can be granted to the plaintiff. There must be clear evidence that the defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application can be made.

3. "Actual/ Potential Damage or Irreparable Losses: Plaintiff must establish that, in the absence of the requested John Doe order, defendant's actions will cause harm that will potentially or actually result in financial or irreparable losses. The damage, potential or actual, must be very serious for the applicant.

I have made some attempts to collect some important judicial pronouncements in this matter
Dabur India filed a trademark infringement suit before the Delhi High Court in 2024, CS (COMM) 629/2023, seeking similar orders with respect to infringement of its various IPs, including the trademark 'DABUR', copyright in the labels and packaging of its various products, passing off, and unfair competition. An ex parte permanent injunction was granted.

The case of ESPN Software v. Tudu Enterprises, Delhi High Court in 2011, CS/OS 384/2011], ESPN Software Pvt. Ltd. claimed exclusive rights as the sole distributor of three pay channels-ESPN, STAR Sports, and STAR Cricket-in India, securing these rights from ESPN STAR Sports to televise all ICC events until 2015. They alleged infringement upon their exclusive broadcasting rights for the 2011 Cricket World Cup by unauthorized cable operators. These operators were unlawfully capturing the plaintiff's sports-related channels and transmitting them despite lacking distribution rights or legal authority. The Court observed that the defendants' unauthorized transmission violated Section 37(3) of the Copyrights Act, 1957. Consequently, the Court issued an injunction against unnamed and undisclosed individuals who might have breached Plaintiff's rights by illegally tapping DTH connections and integrating them into distribution networks. The Court also emphasized the impermissibility of subscribing to channels without a proper license.

Expanding the Scope John Doe Order in the case of Amitabh Bachchan v. Rajat Nagi and Ors. [CS (COMM) 819/2022], the Delhi High Court issued a John Doe order to protect personality rights for the first time. This marked another significant advancement in the domain of personality rights within India. The court issued an ad interim in rem (i.e., against the world) injunction against the unauthorized use of his personality and personal attributes such as his voice, name, images, and likeness for commercial use. This was the first blanket John Doe order granted in India for the protection of personality rights.

In the case of Ardath Tobacco Company Ltd. vs. Mr. Munna Bhai and Others [2009(39) PTC 208 (Del). An order was issued against unidentified defendants, prohibiting them from producing, vending, storing, or engaging in the trade of cigarettes using packaging materials deceptively similar to those of Plaintiff's brand.

The issue was initially highlighted in the case of Industrial Finance Corporation of India, Delhi HC (CS(OS)2676/2011, which involved posting of derogatory remarks/write-ups on Google, Facebook and Twitter by using blogs/URL and emails. John Doe's order was passed directing the unidentified defendants from blocking the sites/blogs and ascertaining the actual users/persons creating URL/IP addresses.

The Delhi HC, in 2016, in the recent judgment of Super Cassettes Industries vs. Myspace [https//cis-india.org] held that social networking sites ("SNS") such as YouTube, Myspace etc. may be held liable for copyright infringement caused due to infringing material posted on such websites, provided it may be established that intermediaries had control over the material posted, had the opportunity to exercise due diligence in preventing infringement and derived profits out of such infringing activities in consonance with Section 79 of the Information Technology Act read with Information Technology (Intermediaries guidelines) Rules, 2011.

In the case of M/s Sandisk Corporation vs. John Doe, Delhi HC in 2017, CS(OS) 3205/2014, the Plaintiff had submitted that certain unknown persons were selling counterfeit products with an identical name and packaging, and logo, and it was impossible to identify the sellers. The Court issued an order "the unnamed and undisclosed persons arrayed as 'John Does' are restrained from manufacturing, selling, offering for sale, advertising, directly or indirectly, dealing in counterfeit products, which are identical to the products bearing the plaintiff's Trade mark SanDisk and logo marks and the 'Red Frame' logo, with identical product packaging, product getup color scheme, layout, overall look and feel as that being used by the plaintiff."

Conclusion
John Doe-Prevention is better than a cure. Creating widespread awareness about the positive effects of such orders is essential to maximize their usage and curtail the wrongful acts of the infringers. This has brought in awareness and protection to holders of IP rights, but the question remains how such orders will be implemented and enforced. Constant vigil, awareness amongst all Managers and periodic assessments, the skill of investigations is most essential.

References:
http://ssrn.com/abstract=2224153 'What's in a name'…John Doe arrives in India.
https://www.nitishdesai.com PayelChatterjee*
https://www.livelaw.in/law-firms/law-firm-articles-/john-doe-order-fifa-world-cup-quia-timet-civil-procedure-code-delhi-high-court-non-fungible-token-220689
https://www.btgadya.com: Ramesh Vaidyanathan & Nidhi Tandon
https://www.dalaw.in Dhwaj & Associates

Courtesy:
Business Manager
November 2025

"JOHN DOE" ORDERS FROM JUDICIARY
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]]><![CDATA[Gazette Notification on Apprenticeship (Amendment) Rules, 2025]]>Tue, 16 Sep 2025 07:36:24 GMThttps://www.mhrspl.com/hr-blog/the-apprenticeship-amendment

The Apprenticeship (Amendment)
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]]><![CDATA[Heartfelt Condolences from Nirathanka]]>Fri, 29 Aug 2025 06:29:35 GMThttps://www.mhrspl.com/hr-blog/heartfelt-condolences-from-nirathanka

Mr. Manjunath
Founder, Karan HR Academy

It is with deep sorrow that I share the heartbreaking news of the passing of Mr. Manjunath, the esteemed founder of Karan HR Academy, Basaveshwar Nagar, Bangalore, who tragically suffered a cardiac arrest last night. His loss marks a profound moment, not just for his family, but for the entire HR community across Karnataka.

Mr. Manjunath’s passion and dedication elevated countless lives through education and mentorship. His leadership and spirit will be deeply missed and fondly remembered by all who had the privilege of knowing him.

On behalf of Nirathanka, I extend my sincerest condolences to his family, friends, colleagues, and the entire Karan HR Academy family. May his legacy endure forever in the hearts and minds of those he inspired.

Regards,
Ramesha M.H
Nirathanka

]]><![CDATA[Upcoming Digital Personal Data Protection Act, 2023 & HR Challenges]]>Mon, 04 Aug 2025 12:21:25 GMThttps://www.mhrspl.com/hr-blog/upcoming-digital-personal-data-protection-act-2023-hr-challenges

While staff need to understand and implement good data protection practices, it is the responsibility of the Data Fiduciary to ensure that they do so and have the means, including, where appropriate, devices such as shredders, & deliver the required standard of protection.

"An Act to provide for the processing of digital personal data in a manner that recognizes both the right of individuals to protect their personal data and the need to process such personal data for lawful purposes and for matters connected therewith or incidental thereto"

Introduction:
The 'right to privacy' is a fundamental human right that is recognized in the Universal Declaration of Human Rights 1948 (UDHR), as well as in many other international and regional treaties.

The idea of privacy in itself may be seen from two different perspectives. The information or personal data & protection, and the extent to which it is shared with other parties.

Judicial activism of the Constitutional courts, which is interesting, played a decisive role in the inclusion of the right to privacy. The Supreme Court, MP Sharma v Satish Chandra, (1954) 1 SCR 1077, Kharak Singh v. State of U.P and others, 1964 SCR (1) 332 had pronounced that "Right To Privacy" is not included in the fundamental rights under the Constitution of India, hence not acceptable. In the case, Unique Identification Authority of India & Anr. v. Central Bureau of Investigation, Special Leave to Appeal (Crl) No(s).2524/2014. The Supreme Court held that the biometric data shall not be shared with any agency or third party without the consent of the individuals. Additionally, the honourable court also specified that individuals cannot be denied access to any services for not possessing an Aadhar number. In the case of K.S. Puttaswamy v. Union of India, ((2017) 10 SCC, in a landmark judgement, overturning the MP Sharma & Kharak Singh cases, held that the word "personal liberty," arrived at concluding that the right to privacy is inextricably linked to the right to life and personal liberty, which are both guaranteed by Article 21. Justice D.Y. Chandrachud, in his opinion, emphasized the necessity of creating a robust framework for personal data protection to safeguard the interests of both the State and its citizens. Hence this Act.

The Information Technology Act 2000 provided legal recognition to e-commerce in India. The term Cybercrime is not defined under the legislation. However, the Act mentions few instances of cyber-related crimes. The privacy of digital data is not comprehensively dealt with under the Act. However, the Act assigns a duty on the body corporate to protect the data & penalties [Sec.43A & Sec.72] which includes firms that engage in commercial and professional services to protect sensitive personal data. However, the term sensitive personal data is not adequately defined, confusing as to what constitutes sensitive personal data.

The term "privacy" is derived from the Latin word "privates," which means "to be apart from the rest." It's described as a person's or a group's capacity to keep themselves or information about themselves hidden and then selectively reveal it. Contrary to popular belief, the phrases privacy and confidentiality are not interchangeable. The terms privacy, confidentiality, and information security are sometimes used interchangeably, yet each term has its particular meaning and use in the information security field. In its most basic definition, "confidentiality" refers to the exercise of judgment in the safeguarding of confidential information.

We need to appreciate "Right to Privacy" & "Protection" in the context of employment & workplace. Broad types of "Privacy" are:

Personal data like education, experience, technical skills, previous employers, certificates, and various testimonials, physical health, including disclosure of any physical/mental disabilities, assessments of EQ/attitude/managerial skills & abilities, family background.
Acquiring technical knowledge of the functional process, technical information relating to design, development, work process, innovations, rapid changes in the process, technical secrets and know-how, quality- related data, and cost of process.
Man-management skill ratings, ratings on enhancement of morale/productivity amongst the team, ratings on innovation/design/developments.
Adherence to terms of employment contract-non-disclosure, no-solicitation, confidentiality, trade secrets, etc.

Before we discuss the "Challenges of HR", let us see important features of the Act which everyone not only knows but also attains the "Competency".

The process of Personal Data Protection are:
a. Data Collection
b. Data Security
c. Data Process, and
d. Data Access

The DPDP Act applies to Indian residents and businesses collecting the data of Indian residents. Interestingly, it also applies to non-citizens living in India whose data processing "in connection with any activity related to offering of goods or services" happens outside India.

Some Important definitions:
DATA PROTECTION BOARD: Sec.2[c] The Board established by the Central Government, which is assigned duties/functions limited to hearing the complaints/grievances and levying penalties, in case of any breach.

DATA PRINCIPAL: Sec. 2[f]. An individual to whom the personal data relates, including any disabilities-mental/physical. Here, the employees provide all personal data as required in a digitalized/non-digitalized, by consent by him/her. Consent may be at different stages, like during recruitment, during employment, and after cessation of employment. Consent is very important, and it is the essence of "Privacy" & Protection.
DATA FIDUCIARY: Sec. 2[i]. Any person who alone or in conjunction with other persons determines the purpose and means of processing of personal data. HR may be the Data Fiduciary.

DATA PROTECTION OFFICER: Sec.2 [j]: An individual appointed by the Data Fiduciary. Maybe Head-HR, or even any officer who is assigned to protect the data.

CONSENT MANAGER: Sec. 2[g]: A person registered with the Board, who acts as a single point of contact to enable a Data Principal to give, manage, review, and withdraw the consent through an accessible, transparent method.

DATA: Sec. 2[h]: Representation of information, facts, concepts, opinions, or instructions in a manner suitable for communication, interpretation or processing by human beings or by automated means.

DATA PROCESSOR: Sec. 2[k]: Any person who processes personal data on behalf of a Data Fiduciary;

PROCESSING: Sec.2[x]: Relation to personal data, means a wholly or partly automated operation or set of operations performed on digital personal data, and includes operations such as collection, recording, organization, structuring, storage, adaptation, retrieval, use, alignment or combination, indexing, sharing, disclosure by transmission, dissemination or otherwise making available, restriction, erasure or destruction.

HR Challenges: Context of Employment or Engagement
The terms 'employee,' 'worker,' 'contractor,' 'consultant,' and 'partner' have been used interchangeably, taking into account the dynamics of the obligations. The traditional definitions of employer-employee relationship vis-a-vis protections guaranteed under various labour laws, must be kept in view.

Consultants/Freelancers/Subject Matter Experts: These workers are engaged on various terms relating to duration, deliverables and compensation. Interns, Apprentice, Volunteers, Assistants. These include personnel engaged for a specific period/project, who may be paid or unpaid, wherein they are expected to gain practical exposure during the term of their engagement with the organization. Next "Gig Workers as well."
With the increased adoption and integration of technology into the workplace, it becomes even more critical to delineate guidelines for processing of personal data in the context of employees.

For example, where a company is employing persons to work remotely, to track the activity of its employees, installed software on the laptops provided by the organization to track screens in real time, record the browsing history, chats, and documents worked upon as they are opened. An 'efficiency' report gets generated on a weekly basis that is reviewed by the managers, enabling them to keep a record of workers' productivity and sanction corresponding salaries. The software is equipped to flag 'suspicious behaviors,' in addition to high-definition cameras that tracked the entirety of daily activities, including breaks taken by the employee.

A garment manufacturing company hundreds of contractual workers to manufacture clothing in their factories at multiple locations. To maintain over- sight over the workers, factory managers maintain a centralized repository of worker profiles containing records on their family medical history, religious views, and health information. This information was collated by managers during informal chats regarding family issues or religious beliefs, which were then stored and used to evaluate work performance and make employment decisions.

Now here is the challenge for HR to collect data from "Data Principals", namely the workers. Before collecting the data, the workers must be educated/ must be made known, to the extent of meeting the requirements of "Data Fiduciary", may be HR.

Recruitment process:
After short listing the candidates for interview, "Data Fiduciary" must list down the data to be sought from the candidates, "Data Principals". Data to be sought must be precise, no ambiguity, no subjectivity and any other details as demanded for the position for engagement. The candidate must give the consent, in writing, to the response of the "data Fiduciary". This is mandated under the Act.

Next step, interview/interactive discussions. During the process of interview/ interactive discussions either in person, or online, video recorded or voice recorded as decided by the "Data Fiduciary" and the same shall be taken as "Consent" by the candidate, "Data Principal".

Two key considerations here are: (a) ensuring confidentiality of personal data in the case of a virtual/remote interview process, and (b) the feasibility of providing alternative modes of interview to the prospective candidate. The HR should, therefore, carefully evaluate the robustness of chosen platforms and their ability to respect and enable privacy considerations.

Additionally, during the interview, personal notes may be taken about the candidate by the panel and/or the digital meetings may be recorded. In either case, the candidate should be informed and advised about the rights that the candidate may exercise in this regard. On the other hand, during an in-person interview as well, personal data may be collected through various documentation processes, or recordings captured by the CCTVs installed at the premises of the hiring organization. At this stage, a clear notice should be provided to the candidates informing them of the personal data that is likely to be collected. Usually, all data forming a part of digital media may be required to be kept for certain purposes, including but not limited to audits, necessitating addressing the lifecycle management of such data through a clear policy.

The data principal in these situations should be able to exercise their rights over the personal data stored about them, and while the obligation of notification persists, the process by which they can exercise their rights must be delineated.

Sec.11 of the Act, the "Data Principal" is empowered to obtain from the Data Fiduciary to whom he/she has previously given consent, a summary of personal data which is being processed by such Data Fiduciary and the processing activities undertaken by that Data Fiduciary concerning such personal data; Section 12. (1) A Data Principal shall have the right to correction, completion, updating and erasure of her/his data for the processing of which he/she has previously given consent.

A Data Fiduciary shall, upon receiving a request for correction, completion, or updating from a Data Principal, (a) correct the inaccurate or misleading personal data; (b) complete the incomplete personal data; and (c) update the personal data.

(3) A Data Principal shall request in such manner as may be prescribed to the Data Fiduciary for erasure of her data, and upon receipt of such a request, the Data Fiduciary shall erase his/her personal data unless retention of the same is necessary for the specified purpose or compliance with any law for the time being in force.

Data Principal is empowered to raise any grievance/complaints, in case of any breach by Data Fiduciary, to the Board constituted by the Central Government. The Board shall hear such complaints and be empowered to levy penalties to the extent of Rs. Two hundred Crores on Data Fiduciary.

Next, employment contract, particularly the terms governing intellectual property, non-disclosure, non-solicitation, trade secrets, dual employment, etc, must be precisely incorporated. In order to strengthen the "Consent", additional consent incorporating the above is recommended.

The next important step is to obtain consent for "Background Verification".

EMPLOYMENT STAGE:
During the tenure of employment, HR must digitize various activities in systems, like discipline, productivity, demonstration of leadership qualities, managerial abilities, integrity, honesty, work culture & work ethics, sincerity, innovative, adherence to each term of the contract strictly, confidentiality, tracking Productivity/efficiency, etc. HR also must carry out an interactive audit of the above-mentioned items in the "Consent" and keep updated the Data Principal and digitalized. Actually, this is a vast area which is significant. Entire thing must be digitally processed and maintained.

Most essential to note: Outsourcing of maintaining personal data & monitoring:
Many organizations choose to out-source certain processing activities to third parties. When processing data on behalf of the organization, these are termed as 'Data Processors'. 'Processing on behalf of the data fiduciary' means that the data fiduciary continues to determine the means and purpose of processing and that the processor simply follows the instructions as provided by the data fiduciary. Section 8 of the Digital Personal Data Protection Act 2023 requires that the data fiduciary remain responsible for the acts of the data processor, irrespective of the arrangement, over and above a valid contract. Thorough due diligence must also be undertaken for the third party before the decision to outsource.

In case of cessation of employment, another most important aspect is to identify the data to be maintained and the data to be erased & removed. This is another challenge to HR, which must be diligently planned, processed, and maintained.

Conclusion:
"While staff needs to understand and implement good data protection practices, it is the responsibility of the Data Fiduciary to ensure that they do so and have the means - including, where appropriate, devices such as shredders, & deliver the required standard of protection."

Reading materials:
a. DSCI Privacy Leadership Forum. Privacy at Workplace.
b. PursuIT Data Protection and Data Privacy.
c. ICREP Journal of interdisciplinary Studies. Cochin University. Dr. Pradip Kumat Kashyap
d. International Journal of Creative Research thoughts. Christ University.
e. Indian Kanoon

About the Author
K. Vittala Rao is Legal & Management Consultant, Bangalore

Courtesy:
Business Manager
August 2025

Upcoming Digital Personal Data Protection Act, 2023 & HR Challenges
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]]><![CDATA[Preponderance of Probability]]>Fri, 13 Jun 2025 13:12:00 GMThttps://www.mhrspl.com/hr-blog/preponderance-of-probability

The preponderance of Probability is an interesting legal principle that all top management personnel and the legal and HR Fraternity must understand. Although, the principle is strongly applicable in civil and taxation cases. The author has focused on labour jurisprudence and its implications in Disciplinary Inquiry.

The Bharatiya Sakshya Adhiniyam, 2023 under Sec.2 (1) (h) (j) (j) "proved". – “A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”;

Cholan Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241, the Supreme Court held that “It is now a well-settled principle of law that the principles of the Evidence Act have no application in a domestic enquiry”.

In this judgment, it implies the principle of Equity. Although, in criminal cases, there is very strict adherence to the provisions of the Evidence Act, here where, the Courts shall not go into quantum of punishment whatever the personal circumstances. Theft means theft, whatever the value of the items.

In the case of Wheels India Ltd VS Ganesh Bajirao [2024 LLR 406], Bombay High Court has held “Hearsay evidence is permissible in domestic enquiry……….”

In the case of Hindustan Petroleum Corp VS Mavji Jethala [2024 LLR 641], Bombay high court has held “Charge is not required to be proved beyond doubt. Principles of Preponderance of Probability applies in domestic enquiry.”

In the case of Suresh Vasudeo VS Priyadarshini Indragandi Kreeda Sankul [2024 182 FLR 41], Bombay High Court has held “In domestic enquiry hearsay evidence can be considered”

In the case of Godson A Rodrigues VS SVC Co-operative Bank [2024 LLR WEB 135], Bombay High Court has held “In domestic enquiry hearsay evidence is admissible. Test of Proof of charge in domestic enquiry of probabilities”

As we have seen in various labour adjudications, the courts go beyond to ensure fairness and justice. Whether the punishment is disproportionate to the act of misconduct, liberal and broad interpretations of social welfare legislations like, the Maternity Benefit Act, Payment of Gratuity Act, Employee Compensation Act, Equal Remuneration Act, PoSH Act, etc are all based on the principle of equitable justice. Here, the courts closely balance the probability of facts of evidence provided the circumstantial or compelling circumstances.

But, at the same time, the domestic enquiry must strictly adhere to & follow the Principles of Natural Justice. We already know that all the labour legislation comes under COURTS OF EQUITY, where all other legislations fall under the jurisdiction of COURTS OF LAW.

Here where, our flexibility in adhering to fairness, justice, and transparency, plays a great role. As we know the inner meaning of EQUITY, calls for flexible interpretations, putting forth actual facts & circumstances by both the employer as well as the employees.

What is Preponderance of Probability?
About:

It is determining which fact or evidence is more likely to happen.
This concept does not involve the elimination of all doubts rather it weighs the two presented facts based on which has a greater likelihood.
It contrasts with the principle of proving beyond a reasonable doubt, which is mandated under Criminal Laws. In criminal courts there is strict adherence to “evidence” shall have to be established on the documents/oral evidence etc.
In civil/labour cases the party having the burden of proof has to show that their side of the story is more plausible than the other side.
This is the strong base of this principle.

Key Elements of Preponderance of Probability:

The fact of one side must be proved that it is more likely to occur than the other side.
The evidence having greater credibility or weight shall be determined by the court to conclude the case.
Such principle can be applicable in disputes related to contracts, and torts, where the burden of proof lies on the claimant.
The balance should be made by the court between the seriousness of the case to the evidence presented. The standard of evidence varies with the gravity of the issue.

What are the Challenges in Applying Preponderance of Probability?The nature of subjectivity is a very critical one, due to varying interpretations by courts, as judges are required to assess the credibility of witnesses, the reliability of evidence, and the likelihood of conflicting versions of events. In domestic inquiries, the challenging task of assessing the nature of proving/establishing is on the shoulders of “Enquiry Officers” & “Representatives of the Employer”.

1. Subjectivity in Weighing Evidence: The Enquiry Officer must evaluate the quality and quantity of evidence presented by both parties. The representatives of both parties. The representatives of both parties may contend strongly by quoting different judgments of various courts interpreting similar pieces of evidence differently.

2. Circumstantial Evidence: In many cases, direct evidence may not be available, and courts must rely on circumstantial evidence. While circumstantial evidence can be compelling, it requires careful analysis to avoid erroneous conclusions. This is extremely important evidence in matters of sexual harassment cases, misappropriation, fraud, theft, and most importantly cases related to performance evaluations etc. And more importantly in PoSH cases.

3. Bias in Decision-Making: Human biases can influence how Disciplinary Authorities finally perceive evidence and witnesses. While the legal system strives for impartiality, the subjective nature of the preponderance standard can sometimes lead to judgments influenced by personal or cultural biases.

The Allahabad High Court in the case of Rishi Kesh Singh v. State (1970) emphasised that “preponderance” literally means the “outweighing” of evidence, however slight the tilt of the balance. The court explained that even a slight probability in favour of one side, if more convincing than the other, would suffice.

Difference Between Principle of Preponderance of Probability & Proving Beyond Reasonable Doubt in strict adherence to “The Bharatiya Sakshya Adhiniyam, 2023”.

Conclusion
The preponderance of probability is a cornerstone of employment-related litigations, ensuring that cases are decided on the balance of evidence rather than absolute certainty. Its lower threshold compared to criminal cases allows courts to resolve disputes fairly and efficiently. However, the subjective nature of this standard also presents challenges, as Top Management must carefully weigh the evidence and avoid bias in decision-making.

Judicial precedents in both civil and many employment-related contexts emphasise the importance of evaluating the totality of circumstances and evidence presented by the parties. Top Management must remain vigilant in applying this principle consistently, ensuring that justice is served based on the most probable outcome. Despite the complexities and challenges, the preponderance of probability remains an essential tool for resolving employment-related disputes and balancing the scales of justice.

About the Author
K. Vittala Rao is Legal & Management Consultant, Bangalore

Courtesy:
Business Manager
June 2025

Preponderance of Probability
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]]><![CDATA[National Minimum Standards and Protocol for CRECHES (Operation and Management)]]>Mon, 07 Apr 2025 12:48:45 GMThttps://www.mhrspl.com/hr-blog/national-minimum-standards-and-protocol-for-creches-operation-and-management

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]]><![CDATA[Doctrine of Estoppel]]>Mon, 03 Mar 2025 06:03:32 GMThttps://www.mhrspl.com/hr-blog/doctrine-of-estoppel

Estoppel is a legal principle that prevents someone from arguing or asserting a right that contradicts what they previously agreed to or said. Put, estoppel prevents one person from contradicting an action or statement from the past. Estoppel ensures that a person stays true to their word and does not unfairly damage someone else so, if person A must adhere to their word if they make a promise to person B and later rescind it.

In various Corporates, we come across situations, may be Finance, Marketing, Supply-chain, and as well as in HR. Enforcement of contractual terms of an employee, litigations before labour adjudications, long-term wage agreements, and even in domestic enquiries. The intention behind this article is to enlighten all employees holding responsible positions in all disciplines in the Corporate, since, many times, it may go unnoticed.

It has already been noted that under the "The Bharatiya Sakshya Adhiniyam, 2023 [Evidence Act), hereinafter referred to as Act, there are certain facts which need not be proved and there are some facts which cannot be proved because the Act, would not allow evidence of such facts. An estoppel is a principle, whereby a party is precluded from denying the existence of some state of facts which has formerly admitted. The foundation of the doctrine is that a person cannot approbate and reprobate at the same time;

Under The Bharatiya Sakshya Adhiniyam, 2023, sections 121 to 123 based on the principle what is called "doctrine of estoppel".

Sec. 121. Estoppel.-
When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

Illustration
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.

The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.

Section 121 lays down that when one person has, either in word or by conduct, intentionally caused a person to believe to a thing to be true and to act upon such belief or to alter his position, neither he nor his representative in any suit or proceeding will be allowed to say that the representation was false. Estoppel is a principle of law by which a person is held bound by the representation, made by him or arising out of his conduct.

Another illustration;
Mr. X was selected based on his personal profile for the position of a GM in Y Company. Mr. X had declared that he possessed the experience and managerial skills having worked in three highly reputed organisations. Along with the profile he had enclosed service certificates as well accordingly, contract of service was executed between Mr. X & Y Company. Importantly, the terms like, if at any time, while the company reserves its right upon pre-employment verification, if indicates that Mr. X has produced false documents and withheld all information with an intention of personal gains, the contract will be terminated and Mr. X is required to pay penalty compensation equivalent to three months package to Y company. Pre employments showed complete negativity and were found to be false. Accordingly, upon the termination, he failed to pay penal damages as accepted by him. He expressed his innocence and to pardon him against the claim of damages. The Y company filed a civil suit against him for recovery of penal damages. Now, here, the doctrine of estoppel under the Evidence Act comes into picture. His defensive evidences are not admissible.

We come across similar situations, like, in the domestic enquiry, enforcement of contractual obligations, like, intellectual property, protection of trade secrets, innovations, non-disclosure, non-competence, long term wage agreements etc.

Hence this Doctrine which is a powerful tool in safe guarding the business interests of any company.
The main ingredients of estoppel as defined in section 121 i.e., estoppel bucket are:
(1) There must be some representation,
(2) The representation must be made with the intention to be acted upon,
(3) The representation must have been acted upon.

What are the essential conditions for the applicability of section 121 of the Evidence Act?
i) There must have been a representation by a person to another person, which may be in any form - a declaration or an act or an omission.
ii) Such representation must have been of the existence of a fact, and not of future promises or intention.
iii) The representation must have been meant to have been relied upon.
iv) There must have been belief on the part of the other party in its truth.
v) There must have been some action on the faith of that declaration, act or omission. In other words, such declaration, etc., must have actually caused the other person to act on the faith of it and to alter his position to his prejudice or detriment.
vi) The misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice.
vii) The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. There can be no estoppel if such a person was aware of the true state of affairs or if he had means of such knowledge.
viii) Only the person to whom the representation was made or for whom it was designed, can avail of the doctrine. The burden of proving estoppel lies on such person.

The above are the essential ingredients are as per the judicial pronouncement by Hon'ble Supreme Court, Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai : (1982) 1 SCC 223: AIR 1982 SC 121: 1982.

There are three types of "Estoppel”.
1. Promissory Estoppel
"Where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word."

2. Estoppel of tenant; and of licensee of person in possession.
No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property, and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.

"A tenant may not dispute the right of his landlord saying that he had nothing in the property”. The section provides that a person who comes into an immovable property taking possession from a person whom he accepts as the landlord, is not permitted to say as against his landlord that he had no title to the property at the commencement of the tenancy."

In Supreme Court verdict in Rita Lal v. Raj Kumar Singh, MANU/SC/0813/2002: AIR 2002 SC 3341: 2002 AIR SCW 3887

The rent note was proved to be signed by tenant. Tenant admitted the title of landlord in his disposition made on oath in earlier judicial proceeding of plea of tenant denying the title of landlord in the eviction suit raised for seeking leave to defend does not amount to raising tribal issue as he was estopped from raising the same. Tenant would not be entitled to permission to defend.

In the case of S.K. Sharma v Mahesh Kumar Verma AIR 2002 SC 3294, the respondent, a railway servant, was estopped from challenging the railway administration's title over the premises allocated to him as an official residence as long as he remained in possession, pursuant to Section 122 of the Evidence Act.

Sec 123. Estoppel of acceptor of bill of exchange, bailee or licensee.
No acceptor of a bill of exchange shall be permitted to deny that the drawer had the authority to draw such bill or to endorse it; nor shall any Bailee or licensee be permitted to deny that his bailer or licensor had, at the time when the bailment or license commenced, authority to make such bailment or grant such licence. Examples: Bank currency note, Bank draft, promissory note, note between the seller and a buyer etc.

Now let us examine the difference between "Estoppel & Res juidicata"

Here, we can also examine the difference between "Estoppel & Waiver."

Courtesy:
Manupatra
Business Manager
March 2025

Doctrine of Estoppel
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]]><![CDATA[FIXED TERM EMPLOYMENT – LIMITATIONS]]>Tue, 15 Oct 2024 11:44:30 GMThttps://www.mhrspl.com/hr-blog/fixed-term-employment-limitations

S N MURTHY
SENIOR ADVOCATE

The Indian laws with regard to flexibility of employment is very harsh on the employers. In its anxiety to protect the security of employment in private sector, the Industrial Disputes Act, 1947 was amended during the year 1976 with introduction of Chapter V-B. We may not find a provision similar to the one in Chapter V-B anywhere in the world. This provision, in short requires every employer employing one hundred or more workmen to obtain prior permission of the Government to lay-off, retrench or close down the establishment. This made it very difficult for employers to employ workmen for short duration, say a year or two or three. To add to the woes of employers, Justice Krishna Iyer in Sundarmoney Vs. State Bank of India laid down a stringent law through interpretation of the word `retrenchment’ by stating that an employee who works for 240 days cannot be retrenched without complying with the provisions of Section 25-F of the Industrial Disputes Act.

The Supreme Court has, time and again reiterated that termination of services of a workman for any reason whatsoever constitutes retrenchment. Under the definition of retrenchment prior to insertion of clause (bb) in Section 2(oo), all termination except termination for misconduct, retirement on reaching the age of superannuation and continued ill-health constituted `retrenchment' and consequently, termination from service. Sections 25 F and 25 N of the Industrial Disputes Act, 1947 deals with retrenchment. Section 25-F deals with retrenchment in establishments employing less than 100 workmen on an average during the period 12 months preceding the date of reckoning and Section 25-N deals with establishments employing 100 or more workmen in the preceding 12 months. Where a workman works for a continuous period of one year in an establishment employing less than 100 workmen, it is mandatory for you to give him one month prior notice of retrenchment or one month notice pay in lieu thereof, and 15 days wages for every completed year of service for retrenching him. In the case of establishments employing 100 or more workmen, there can be no retrenchment without government permission. It is relevant to state that `industrial establishment', in the latter case means, a `factory'. These restrictions caused a lot of hardship and difficulties in certain cases where the nature of work for which a workman is employed is itself temporary but which may take more than 240 days working. To overcome this difficulty, the Parliament introduced clause (bb) and inserted it in Section 2(oo) of the I.D. Act, 1947 which defines `retrenchment'. Through this provision, termination of the services of a workman consequent upon non-renewal of the contract of employment between the employer and the workman concerned, on its expiry or of such contract being terminated under a stipulation in that behalf contained therein was brought out of the purview of the definition of retrenchment. This provision was introduced mainly to ensure that workman employed on a work of a limited nature or for a work of a limited period do not claim the benefit of retrenchment compensation on the expiry of the period for which they are employed. Not only this, through introduction of clause (bb), the parliament wanted to give the industry a little more freedom in the employment of personnel on work of temporary nature or on work of specialized nature of temporary duration. Basically, this provision is an exception to the definition of retrenchment and needs to be construed very narrowly and in favour of the workmen. There are a large number of cases wherein the courts have consistently held that this provision should not be allowed to be used as a tool for exploitation by the employer.

A Division Bench of the Punjab and Haryana High Court, in a judgement reported in 1996 (3) LLJ (Supplementary) page 1126 has elaborately dealt with the scope of clause (bb) under section 2(oo) of the I.D. Act, 1947. In this judgement, the learned judges have referred to large number of cases on the very point and extracted relevant passages from various judgments. Referring to a judgement of the Kerala High Court, the following passage from the said judgement is reproduced:

"if contractual employment is resorted to as a mechanism to frustrate the claim of the workman to become regular or permanent against a job which continues or nature of the duties is such that the colour of the contractual employment is given to take it out from section 2(oo), then such agreement cannot be regarded as fair or bonafide and section 2(oo) (bb) cannot be extended to such cases where the job continues and the workman's work is also satisfactory but periodical renewals are made to avoid regular status to the workman. Section 2(oo) (bb) has to be strictly interpreted and it is necessary to find out whether the letter of appointment is camouflage to circumvent the provisions of the I.D. Act, which confer permanency to a workman who has continuously worked for 240 days.

The Court extracted the following passage from the judgement of the Punjab and Haryana High Court in an earlier matter.

"The contractual clause enshrined in clause (bb) cannot be resorted to frustrate the claim of the workman against uncalled for retrenchment, or for denying the other benefits. It cannot be so interpreted as to enable an employer to resort to the policy of `hire and fire' and give unguided power to the employer to renew or not to renew the contract irrespective of the circumstances in which it was entered into or the nature and extent of work for which he was employed."

Proceeding further, the court observed that clause (bb) has to be so interpreted as to limit it to cases where the work itself has been accomplished and the agreement of hiring for a specific period was genuine. If the work continues, the non-renewal of the contract has to be dubbed as malafide.

The sum and substance of the judgements is, that clause (bb) can be resorted to only where the work itself is of temporary period. However, if the work is of permanent nature, and workmen are appointed for a stipulated period, the benefit of clause (bb) cannot be claimed by the employer. As such, merely entering into contract for a period of six months, nine months or even one year will not help you to get rid of the workman on expiry of contract period, unless you do not need workmen to carry out the work which was being carried out by the workman whose period of contract got terminated by efflux of time. Any other interpretation of clause (bb) would render the entire industrial law of the land insofar as the security of employment redundant.

The period for which you enter into contract of service with a workman is not relevant for the purposes of clause (bb). What is important is, whether the work which is given under the said contract comes to a close and need not be carried out by you any longer. If the work is of temporary nature, even a contract of two years can be brought under clause (bb). On the other hand, even a contract for three months will not give you the benefit of clause (bb), if after expiry of three months, and after termination of the services of the workman employed for three months, you still need to carry out the said work, but with some other workmen. Such contract will be prima-facie illegal and not acceptable in law.

The period of 240 days working is not relevant when looked at from the point of re-employment of retrenched workman. The Supreme Court has clearly laid down, that even where a workman works for less than 240 days and is terminated, it would be `retrenchment'. When you need to employ workmen again to carry out the job which the workman who was retrenched even before expiry of 240 days was carrying out, you are required to give first preference to the very said workman who was retrenched. In other words, a workman who works for even fifteen days, when retrenched on the ground that work is not available, should be placed in a seniority list of the retrenched workmen, and when you need workmen again in that category, you will have to give first right of employment to the said workman. This is the law laid down by the Hon'ble Supreme Court of India, in Central Bank of India vs. S. Sathyam.

Incase you appoint workmen for a fixed period of one year, and extend the same year after year, the workmen would get permanency in employment. Thereafter, in case you decide to terminate the contract, you will have to retrench the workmen by complying with provisions of Section 25-F or Section 25-N as the case may be. If you are required to retrench under any of these provisions, you are bound to pay retrenchment compensation in accordance with law, in addition to issuing notice of termination stipulated therein. If you are employing one hundred or more workmen, you are required to take prior permission of the government to retrench workmen. (This applies to factories only.)

[S.N.MURTHY], Sr. Advocate.
Email: snmsenioradvocate@gmail.com, snmurthyassociates@hotmail.com.
Mobile: 9342823628
Landline: 080-41312130

ABOUT THE AUTHOR

Mr. S.N.Murthy, designated Senior Advocate, is a post graduate in Industrial law and Administrative laws with over 50 years of practice at the bar. Mr.Murthy has been advising on corporate labour-management policies and is also engaged in drafting service contracts, confidentiality agreements, compensation packages to various cadres of employees. In addition Mr.Murthy represents corporates before the Supreme Court, High Court, tribunals, labour courts, etc.

Bengaluru
Date: 14.10.2024

FIXED TERM EMPLOYMENT – LIMITATIONS
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]]><![CDATA[I was Born with Silver Spoon - B.C. prabhakar]]>Mon, 23 Sep 2024 07:18:43 GMThttps://www.mhrspl.com/hr-blog/i-was-born-with-silver-spoon-bc-prabhakar

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]]><![CDATA[Acknowledging the Role of Discomfort in Our Lives]]>Mon, 23 Sep 2024 06:16:57 GMThttps://www.mhrspl.com/hr-blog/acknowledging-the-role-of-discomfort-in-our-lives

Feeling uncomfortable often makes us want to retreat or avoid certain situations. But for those on a journey of spiritual growth or self-awareness, discomfort should not be ignored. Negative emotions like sadness, anger, or fear that arise from discomfort often point to areas where we resist personal growth. These feelings act as clear indicators of where we are stuck. So, rather than avoiding these feelings, we should learn to acknowledge and understand them. This can be done best through meditation.

Meditation teaches us to observe our thoughts and emotions without being overwhelmed by them. It enables us to recognize that, even if we retreat from a challenge, we are doing so with awareness. We become conscious of our tendency to avoid difficult situations and understand the consequences of this avoidance. This level of awareness is the key first step in breaking down the ignorance that blocks our growth.

Expressing Opinions Non-AggresivelyWhen you share or defend your opinions, do you find yourself being aggressive, or do you tend to take a more passive approach?
Being aggressive, even if you feel your cause is just, usually just adds to the conflict rather than resolving it. A non-aggressive approach, on the other hand, fosters peace and understanding. Meditation can be a great tool for learning this approach.

Courtesy : Mentorist...........................................................

The beautiful practicality of her teaching has made Pema Chödrön one of the most beloved of contemporary American spiritual authors among Buddhists and non-Buddhists alike. A collection of talks she gave between 1987 and 1994, the book is a treasury of wisdom for going on living when we are overcome by pain and difficulties. Chödrön discusses:

• Using painful emotions to cultivate wisdom, compassion, and courage
• Communicating so as to encourage others to open up rather than shut down
• Practices for reversing habitual patterns
• Methods for working with chaotic situations
• Ways for creating effective social action

Reference : Good Read .......................

]]><![CDATA[The Art of Happiness: A Handbook for Living" by Dalai Lama]]>Wed, 04 Sep 2024 13:29:56 GMThttps://www.mhrspl.com/hr-blog/the-art-of-happiness-a-handbook-for-living-by-dalai-lama"The tendency to closely bond with others, acting for the welfare of others as well as oneself, may be deeply rooted in human nature, forged in the remote past as those who bonded together and became part of a group had an increased chance of survival. This need to form close social ties persists up to the present day. In studies, such as one conducted by Dr. Larry Scherwitz, examining the risk factors for coronary heart disease, it has been found that the people who were most self-focused (those who referred to themselves using the pronouns ‘I,’ ‘me,’ and ‘my,’ most often in an interview) were more likely to develop coronary heart disease, even when other health-threatening behaviors were controlled. Scientists are discovering that those who lack close social ties seem to suffer from poor health, higher levels of unhappiness, and a greater vulnerability to stress." (from "The Art of Happiness: A Handbook for Living" by Dalai Lama)]]><![CDATA[Karnataka Compulsory Gratuity Insurance Rules, 2024]]>Wed, 28 Aug 2024 12:52:21 GMThttps://www.mhrspl.com/hr-blog/karnataka-compulsory-gratuity-insurance-rules-2024

Karnataka Compulsory Gratuity Insurance Rules, 2024
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]]><![CDATA[Prosecution under Section 29 of the Industrial Disputes Act, 1947 for breach of Settlement/Award – Order under Section 29 Of the Industrial Disputes Act, 1947 cannot be passed lightly:]]>Sat, 16 Mar 2024 06:19:46 GMThttps://www.mhrspl.com/hr-blog/prosecution-under-section-29-of-the-industrial-disputes-act-1947-for-breach-of-settlementaward-order-under-section-29-of-the-industrial-disputes-act-1947-cannot-be-passed-lightlyProsecution under Section 29 of the Industrial Disputes Act, 1947 for breach of Settlement/Award – Order under Section 29 Of the Industrial Disputes Act, 1947 cannot be passed lightly:

1. Unless specific breach or continuing breach is recorded, Authority would not get jurisdiction to grant permission.
2. The Authority which grants permission has greater responsibility
3. The Authority which grants permission shall apply its mind and record its finding with regard to breach or continuing breach, acknowledging the consequences that may result from such permission.

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]]><![CDATA[INDIAN EVIDENCE ACT 1872 & THE BHARATIYA SAKSHYA ACT, 2023 Effective from 1st July, 2024]]>Mon, 11 Mar 2024 04:32:00 GMThttps://www.mhrspl.com/hr-blog/indian-evidence-act-1872-the-bharatiya-sakshya-act-2023-effective-from-1st-july-2024

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Prepared & compiled by:
K.Vittala Rao
Legal & Management Consultant, Bangalore.

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]]><![CDATA[Karnataka societies registration Act not applicable for apartment association ಅಪಾರ್ಟ್‍ಮೆಂಟ್ ನಿರ್ವಹಣೆ ಸಂಘ ‘ಸೊಸೈಟಿ ಕಾಯ್ದೆಯ]]>Fri, 08 Mar 2024 04:42:06 GMThttps://www.mhrspl.com/hr-blog/4830310Karnataka societies registration Act not applicable for apartment association

According to the data provided, the Karnataka Societies Registration Act, 1960 does not apply to apartment associations. A society registered under this act is not considered a "Public Authority" and therefore, the provisions of the Right to Information Act, 2005 are not applicable [S. S. Angadi VS The State Chief Information Commissioner, Karnataka Information Commission]. The Karnataka Societies Registration Act, 1960 is applicable to all societies in Karnataka that are under the control of the government and its purpose is to regulate the activities of these societies and prevent misuse of funds [S. S. Angadi VS The State Chief Information Commissioner, Karnataka Information Commission].

In the case of an apartment association known as 'Comfort Towers', it was registered under the Karnataka Societies Registration Act, 1960 for the purpose of maintenance of the buildings [COMFORTS TOWER CONDOMINIUM COMFORTS TOWER VS DISTRICT REGISTRAR]. However, it is important to note that the Karnataka Apartment Ownership Act, 1972 also governs the ownership and management of apartments [COMFORTS TOWER CONDOMINIUM COMFORTS TOWER VS DISTRICT REGISTRAR].

It is mentioned that under the Karnataka Societies Registration Act, 1960, registration is permitted for associations whose objects are not limited to the promotion of culture, sports, or education, but also include their own trade or professional interests [SUGAR-CANE GROWERS ASSOCN. VS STATE]. This indicates that the Act allows for the registration of various types of associations, not solely limited to specific purposes.

Furthermore, it is stated that the Karnataka Societies Registration Act, 1960 provides for the amendment of the name and rules of a society [KARNATAKA STATE CRICKET ASSOCIATION VS DISTRICT REGISTRAR OF SOCIETIES BANGALORE URBAN DISTRICT]. In this case, the petitioner association sought to amend its rules and regulations and filed the amendment with the Registrar. However, the registration of the amendment was rejected due to a delay in filing, which was later challenged in court [KARNATAKA STATE CRICKET ASSOCIATION VS DISTRICT REGISTRAR OF SOCIETIES BANGALORE URBAN DISTRICT].

Based on the available data, it can be concluded that the Karnataka Societies Registration Act, 1960 is applicable to societies in Karnataka and provides a framework for their registration, maintenance of accounts, and elections. However, it does not apply to apartment associations, which are governed by the Karnataka Apartment Ownership Act, 1972. The Act allows for the registration of various types of associations, and its provisions can be subject to interpretation and legal challenges in specific cases.

It is important to note that the provided data is limited and additional research and analysis may be required to fully understand the intricacies of the Karnataka Societies Registration Act, 1960 and its application in different scenarios.

https://supremetoday.ai/issue/Karnataka-societies-registration-Act-not-applicable-for-apartment-association

ಬೆಂಗಳೂರು: ‘ವಸತಿ ಫ್ಲಾಟ್ ಗಳನ್ನು ಹೊಂದಿದ ಅಪಾರ್ಟ್‍ಮೆಂಟ್ ಸಂಕೀರ್ಣದ ನಿರ್ವಹಣೆಗಾಗಿ ಅವುಗಳ ಮಾಲೀಕರು ಕರ್ನಾಟಕ ಅಪಾರ್ಟ್‍ಮೆಂಟ್ ಮಾಲೀಕತ್ವ (ನಿರ್ಮಾಣ ಉತ್ತೇಜನ, ಮಾರಾಟ, ನಿರ್ವಹಣೆ ಮತ್ತು ವರ್ಗಾವಣೆ ನಿಯಂತ್ರಣ) ಕಾಯ್ದೆ-1972ರ ಅಡಿಯಲ್ಲಿ ಮಾತ್ರವೇ ತಮ್ಮ ಸಂಘವನ್ನು ನೋಂದಣಿ ಮಾಡಿಕೊಳ್ಳಬೇಕು’ ಎಂದು ಹೈಕೋರ್ಟ್ ಆದೇಶಿಸಿದೆ.

ಈ ಕುರಿತಂತೆ ಕೆಂಗೇರಿಯ ಕೊಮ್ಮಘಟ್ಟ ಮುಖ್ಯರಸ್ತೆಯಲ್ಲಿರುವ ಎಸ್ ಎಂ ವಿ ಲೇಔಟ್‍ ನಲ್ಲಿರುವ, ‘ಡಿ.ಎಸ್-ಮ್ಯಾಕ್ಸ್ ಸ್ಟಾರ್‍ನೆಸ್ಟ್‍ ಅಪಾರ್ಟ್‍ಮೆಂಟ್‍’ನ ಆರ್. ಅರುಣ್‍ಕುಮಾರ್ ಸೇರಿದಂತೆ ಒಟ್ಟು 13 ಮಾಲೀಕರು ಸಲ್ಲಿಸಿದ್ದ ರಿಟ್ ಅರ್ಜಿ ವಿಚಾರಣೆ ನಡೆಸಿದ ನ್ಯಾಯಮೂರ್ತಿ ಅನಂತ ರಾಮನಾಥ ಹೆಗಡೆ ಅವರಿದ್ದ ಏಕಸದಸ್ಯ ನ್ಯಾಯಪೀಠ, ‘ಕರ್ನಾಟಕ ಸಹಕಾರ ಸಂಘಗಳ ಕಾಯ್ದೆ-1959 ರಡಿ ನೋಂದಣಿ ಮಾಡಿಸುವುದು ಅನುಮತಿ ಯೋಗ್ಯವಲ್ಲ’ ಎಂದು ಸ್ಪಷ್ಟಪಡಿಸಿದೆ.

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‘ಅರ್ಜಿದಾರರು ಸಂಘವನ್ನು ನೋಂದಣಿ ಮಾಡಿಕೊಳ್ಳಲು ಬಿಲ್ಡರ್ ಮತ್ತು ಪ್ರಕರಣದ ಪ್ರತಿವಾದಿಗಳು ಸಹಕಾರ ನೀಡಬೇಕು’ ಎಂದು ನಿರ್ದೇಶಿಸಿರುವ ನ್ಯಾಯಪೀಠ, ಸೊಸೈಟಿ ಕಾಯ್ದೆಯಡಿ ಸಂಘದ ನೋಂದಣಿಗೆ ಸಹಕಾರ ಸಂಘಗಳ ರಿಜಿಸ್ಟ್ರಾರ್ ನೀಡಿದ್ದ ಅನುಮತಿಯನ್ನು ರದ್ದುಗೊಳಿಸಿದೆ.

‘ಅರ್ಜಿದಾರರದು ವಸತಿ ಸಂಕೀರ್ಣದ ಯೋಜನೆ, ಇವರ ಜಾಗದಲ್ಲಿ ಯಾವುದೇ ವಾಣಿಜ್ಯ ಚಟುವಟಿಕೆಯ ಉದ್ದೇಶವಿಲ್ಲ. ಫ್ಲಾಟ್‍ಗಳನ್ನು ಖರೀದಿಸಿದವರಿಗೆ ನೀಡಲಾಗಿರುವ ಕ್ರಯಪತ್ರಗಳಲ್ಲೂ, ಅವುಗಳನ್ನು ಕರ್ನಾಟಕ ಅಪಾರ್ಟ್‍ಮೆಂಟ್ ಮಾಲೀಕತ್ವ ಕಾಯ್ದೆ-1972ರ ಅಡಿಯಲ್ಲೇ (ಕೆಎಒ) ನೋಂದಣಿ ಮಾಡಿಕೊಡಲಾಗಿದೆ. ಹಾಗಾಗಿ, ಫ್ಲಾಟ್‍ಗಳ ನಿರ್ವಹಣೆಯನ್ನು ಕೈಗೊಳ್ಳಲು ಅರ್ಜಿದಾರರು ಹಾಗೂ ಉದ್ದೇಶಿತ ಸಂಘದ ಸದಸ್ಯರು ತಮ್ಮ ಅಸೋಸಿಯೇಷನ್ (ಸಂಘ) ಅನ್ನು 1972ರ ಕೆಎಒ ಕಾಯ್ದೆ ಅನ್ವಯವೇ ನೋಂದಣಿ ಮಾಡಿಸಬೇಕಾಗುತ್ತದೆ’ ಎಂದು ನ್ಯಾಯಪೀಠ ತಿಳಿಸಿದೆ.

ಕೃಪೆ:
ಪ್ರಜಾವಾಣಿ
ಶುಕ್ರವಾರ, ಮಾರ್ಚ್ 8, 2024

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]]><![CDATA[How far are "Employment Contracts" Enforceable Before Courts?]]>Tue, 05 Mar 2024 11:56:18 GMThttps://www.mhrspl.com/hr-blog/how-far-are-employment-contracts-enforceable-before-courtsWe do engage people suitable to any position based on technical skills with expertise in the respective area. The engagement is based on an "Employment Contract" normally captioned as Letter of Appointment. The Employment Contracts may be normal ones and may incorporate certain conditions like non-compete, non-solicitation, non-disclosures of technical knowhow, serving the company for a stipulated number of years, if not, to claim un-liquidated or liquidated damages in case of any breach by either party, to safeguard Intellectual Property, etc. Any Employment Contract must stand the test of Law at any time, otherwise, it is a futile one. Hence, it is essential that while drafting an Employment Contract one must keep in mind its enforceability before a Court of Law. Hence, an attempt is being made in this direction to enlighten the professionals in this article.

The Employment Contracts stipulate various terms and conditions as mutually discussed and accepted by the Management and the Employee. Such contracts are "Contracts" as defined under the Indian Contract Act, 1872. According to sec.2(h), a contract is defined as an agreement enforceable before the law.
CONTRACT = AGREEMENT + ENFORCEABILITY BEFORE LAW.
AGREEMENT = OFFER + ACCEPTANCE WITH FREE CONSENT.
The cardinal principle in the light of the Act, is that the offer and acceptance of an offer must be absolute without giving any room for doubt. The "acceptance" must be devoid of any undue influence, emotional pressures, coercion, etc.

An "Agreement" is one in which the offer is accepted. Both Parties are deemed to have fully understood the offer and accepted with free consent.

If any one of the three components is lacking, either in the offer or in the acceptance, there cannot be a valid contract.

All agreements are not contracts, but all contracts are agreements.

Sec.23 stipulates that the "consideration or the object of the Agreement is forbidden by law or Is of such a nature that, if permitted, would defeat the provisions of any law or is fraudulent or Involves or implies, injury to the person or property of another or the court regards it as immoral, or opposed to public policy".

Another most important segment in Sec. 23, namely, is "opposed to public policy".

What is "public Policy"? In short, it means anything that is against the fundamental rights of either of the parties and/or against any provisions of any Law in force.

According to me, most of the litigations before the Courts are mainly centered around "public policy".

The enforceability of these types of contracts has been a challenge for the last many decades, with varied judicial pronouncements by various High Courts and Supreme Court.

In this Article on this subject, an attempt is made to highlight the complexities and to provide suitable remedial suggestions to overcome such complexities.

As we traverse, further, we will discuss this in detail for full understanding.

Sec. 27 stipulates that "Every Agreement by which anyone is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void".

One needs to read both Sections together to arrive at a broad understanding of "Opposed to Public Policy". In fact, there is no definition of "Pubic Policy" in the Act. Whereas, deep interpretations of the elements in Sec.23 & Sec.27 by the Judiciary provide everyone to understand what is Public Policy and how to ensure the Contract is valid in line with the Act.

In simple it can be defined as an agreement that is injurious to the public or is against the interest of the society.

An object of an agreement is prohibited under any law like committing crimes; immoral activities etc are all opposed to public policy.

Few examples:
The intent or the object is held "opposed to public policy".
1. An agreement restraining personal liberty. The relevance may be to guarantee to serve the Employer for a specified number of years and not to take up any employment with other Employers. OR prohibiting taking up any business OR entrepreneurship etc while in employment or after quitting the job. It is a restraint on the personal liberty of a person.

2. An agreement fixing a lower the remuneration just because person is badly in need of employment and hence prepared to agree to any remuneration. Here, the Employer takes advantage of his economic duress which also infers coercion and undue influence. In the case of Cinema Worker's Union Vs Secretary, Karnataka High Court ruled that depriving of minimum wages is unconstitutional. Similarly, in the case of Ranbaxy Lab Vs State of West Bengal, Calcutta High Court held that unreasonable clauses will violate the Constitution. In Deena vs. Union of India, the Supreme Court held that labour taken from prisoners without paying proper remuneration was "forced labour" and violates Art. 23 of the Constitution. The prisoners are entitled to payment of reasonable wages for the work taken from them and the Court is under duty to enforce their claim.

3. An agreement restraining the marriage with an employee in the same organisation. There are instances where if an employee marries another working in the same organisation, one of them shall quit the organisation. The reason behind is "Conflict of interest" but "opposed to public policy".

4. An agreement to deposit all original credentials including passports with the employer till the employee completes a stipulated period of years. Again, this is opposed to public policy.

5. An agreement stipulating that upon discharge or termination as per the terms of agreement not to file any suit or case challenging the termination or discharge.

6. A mutual agreement between two employers prohibiting each other - not to employ the employees from each other.

7. In the case of Bull Vs Pitney Bowes Ltd, in 1966 held that the "Condition which was imposed between the employer & employee, if the employee takes employment with a competitor, his pension benefits would be forfeited" the agreement is void being restraint of trade.

The above are some illustrative examples that narrate what is "Public Policy". With the above understanding, let us proceed toward understanding the enforceability of Employment Contracts which are complex in nature.

What are the types of Employment Contracts?

Non-compete Agreements.
Restrain from taking up assignments/jobs with Competitors for a stipulated period.
Non-Disclosure Agreements.
Non-solicitation Agreements.
Agreement for Deputation for Training & serve for a stipulated period and in case of breach pay penalty un-liquidated / liquidated damages.

Now, let us focus on the enforcement of employment contracts in a Court of Law for any breach of the contract.
1. Contract to serve the Company for a specified number of years for having deputed for special training etc, otherwise the Company shall claim liquidated damages.

2. Contract to serve the Company for a specified number of years and also not to take up any job in any company that is engaged in a similar type of business, otherwise, the Company shall claim liquidated damages or seek any legal remedy.

3. Not to disclose confidential, trade secrets, customer intelligence, costing of a product, etc. to any outsider while in the service and even after leaving the Company, and also to not to join or render services to any other employer who is similar business for a specified period, otherwise, appropriate damages shall be claimed and also resort to any other remedy.

4. Theft or misuse of intellectual property of the Company, resorting to legal options including claiming damages.

Enforceability arises from two contingencies.
1. While in the employment of Company.
2. While outside the employment of a Company.

Enforceability while in the employment of a Company, all the Courts have held that the Employer is eligible and entitled to appropriate actions/reliefs/damages, etc against the employee for any breach, since the employee is bound by the regulations & service rules of the Company and as such, he is prone to all actions. The actions may be departmental, criminal, or civil in terms of injunctions, claim financial damages, etc.

How far the Employer is entitled to enforce against an Employee - while outside the employment of a Company has always been a challenging one.

Non-Compete Agreements:
Normally, the clauses will be:
1. To serve the Company for a specified number of years for having deputed for special training etc., otherwise for any breach, the Company shall claim liquidated/un-liquidated damages.

2. To serve the Company for a specified number of years and also not to take up any job in any company which is engaged in similar type of business, otherwise for any breach, the Company shall claim liquidated damages/un-liquidated damages/penalty or any legal remedy like injunctions.

On close examination of these two clauses, one Can see the following actions to be initiated.
a. Claim liquidated/un-liquidated damages/penalty- terrorem.

b. Seeking any legal remedy like an injunction against the taking up employment, will be a futile exercise.

It is very important to note that clause 1, above, (a), Claim liquidated / un- liquidated damages/penalty- terrorem is not opposed to "Public Policy" since it is not against any personal liberty of a person. Hence, this clause is enforceable in Law, although the employee is outside the employment.

Sec.73 of the Act empowers the Party affected by the breach to claim such amount specified in the contract and the Courts, shall, grant a reasonable amount, depending on the facts of the case but not exceeding the amount so specified.

Before we proceed, let us understand - Liquidated damages, un-liquidated damages/penalty-terrorem.

The courts shall decide the quantum of damages depending on the facts, circumstances, evidences and more so what the Court considers as reasonable.

In the case of Madhup Chunder v. Rajcoomar Doss (1874) 14 Beng. L.R. 76, in the judgment of Sir Richard Couch, C.J. while interpreting Sec.27 of the Act, namely, and restraint on Trade post-contractual period held that such restraints are against the personal liberty and thus opposed to public policy. This judgment was delivered about 145 years back and till date it remains undisturbed.
In the case of Superintendence Co. of India Vs Krishnan-1981 (2) SCC 246, the Supreme Court held that post-service restrictive covenant in restraint of trade as contained in Clause (10) of the service agreement between the parties is void Under Section 27 of the Indian Contract Act.

His services were terminated on December 27, 1978 thereafter, he started his firm in the same business as the Company. The Company sought an injunction against Krishnan from carrying on the same business.

"Every member of the community is entitled to carry on any trade or business he chooses and, in such manner, as it thinks most desirable in his own interest, so long as he does nothing unlawful." The injunction was not granted.

In the case of Ambiance India P. Ltd. v. Naveen Jain Delhi High Court in 2005, held: "An agreement between the parties prohibiting an employee for two years from taking employment with any present or past with a prospective customer of plaintiff was held to be void.

In the leading case of Pepsi Food Put Ltd., Vs Bharat Coco Cola Ltd., Delhi High Court held that “………………negative covenant in contract restraining employee from engaging or undertaking employment for twelve months after leaving the services of plaintiff was held to be contrary and in violation of Section 27 of the Indian Contract Act, 1872."

In another leading case of American Express Bank Ltd. v. Ms. Priya Malik, (2006) IILLJ 540 DEL, Delhi High Court declined to grant an injunction against Priya Malik from taking up employment with a competitor bank. She was a Branch Manager at American Express Bank. She was assigned very high responsibilities like marketing, customer service, developing market research, etc. She was terminated from services on 10.10.2005 for some reason.

In an interesting case before Delhi High Court in the case of Wipro Ltd. v. Beckman Coulter International S.A 2006 (3) ARBLR 118 (Delhi), Wipro sought for a permanent injunction against Beckman Coulter restraining them from employing their employees. In this case, both Parties had entered into an agreement on "Non-Solicitation of Employees". The Court held that the Contract is void.

What are the recourses available for an Employer under these circumstances?
1. Since obtaining injunctions is not possible, the actual expenses incurred by the Employer while deputed for training, etc. can be recovered by filing a civil suit before a Civil Court for breach of contract.

2. In addition, against any lump sum amount mentioned in the contract, recovery proceedings may be initiated before a Civil Court in proportion to the balance unserved period. For instance, if it is stipulated in the contract that the employee shall serve for a period of two years, and in case, the employee relinquishes the job in between, the employee undertakes to pay amount of Rs. 2 Lakhs. The employee, after serving, 12 months, leaves the job. Since the employee has served for half of the agreed period, the employer can claim in proportion. In other words, the Employer can claim Rs. One lakh which was held as reasonable. This view has been taken in several cases by various Courts.

3. Further, the Employer can also claim un-liquidated damages; if it is established that arising out of the transmission of technical know-how being passed on to the competitor by the Employee and further that it has resulted in a downward trend in the business leading to damages or losses. Of course, this needs proper assessment and quantification depending on the facts and circumstances.

Solicitation may be in terms of inducing an employee to take up assignments with a competitor or to start a parallel business as an entrepreneur and may be engaging in canvassing in the market against the product or services of the company or even canvass for the product of the competitor in the market. In case, an employee indulges in these activities it is dishonesty, cheating, and fraud against the Company.

Similarly, the confidentiality, non-disclosure of any data, secrets, technical know-how, market intelligence, disclosure, or wilful negligence in data preservation of the Company including the personal data of employees is all acts of dishonesty, cheating, and fraud against the Company which may lead to heavy business damages.

The above indulgences while in employment being more serious, the Law recognises such breaches as injurious and such contracts restraining such activities as valid. In cases of breach, the Employers can seek injunctions from Courts, resort to filing criminal as well as civil suits for prosecutions & and claim damages in case the business is hurt. Hence, such clauses restraining while in employment are enforceable in Law.

Now, the question arises in case of such or similar breaches while not in employment wherein similar restrictive clauses in the contract extend to outside the employment also.

In the case of American Express Bank Ltd. v. Ms. Priya Malik, (2006) IIILLJ 540 Delhi HC held"........Rights of an employee to seek and search for better employment are not to be curbed by an injunction ………….. Freedom of changing employment for improving service conditions is a vital right of an employee which cannot be restricted or curtailed on the ground that the employee has employer's data and confidential information of customers..........”

In the case of Polaris Software Lab. Limited vs. Suren Khiwadkar, (2003) 3 MLJ 557. Madras High Court held “....Mere apprehension of interference with legal right does not entitle the applicant/plaintiff to an injunction."

In the case of V.V. Sivaram and others v. FOSECO India Limited, an employee was restrained from using secrets and confidential information, that he gained during his job, even after moving out of the job. Here, the product manufactured was exactly similar and identifiable with the product manufactured by the Respondent. Hence, the court granted an injunction against the petitioner. It is a rare case.

In the case of FINANCIAL SOFTWARE AND SYSTEMS Vs MUDASSIR NAIK, 2012, Madras HC while refusing to grant an injunction against poaching the employees to join mPhasis after taking up employment and inducing the team members to join him at mPhasis, held “............No injunction can be granted against an employee after the termination of his employment, restraining him from carrying on a competitive trade. But, however, the case for claiming damages can be pursued........."

In the case of Independent News Service Pvt. ... vs Mr. Anuraag Muskaan, Delhi HC allowed a restrictive injunction against the respondent only for a period of two years from 31.12.2005 his date of leaving Independent News Service not to engage insolicitation of employees but refused to grant any injunction against him from joining any competitor. As regards the solicitation already made by the respondent in the advertisement, the petitioner, if it is able to substantiate this in the arbitration proceedings, would be entitled to be compensated by the grant of damages.

In the case of Desiccant Rotors International... vs Bappaditya Sarkar & Anron 14 July, 2009, Delhi High Court held"……...The injunction only restrains Defendant No. 1 from approaching the plaintiff's suppliers and customers for soliciting business which is in direct competition with the business of the plaintiff......" but did not grant any injunction against joining the competitor.

What are the precautions to be taken while executing any Employment Contracts?

For enforceability, ensure the assignment is highly technical, very vital for the Business, and no other competitors have such or similar technology, etc. In case of a breach, whether the damages or loss can be assessed?
In case, anyone is to be deputed for such project or assignment, it is preferable to execute an additional agreement exclusively.
In the body of such agreements, mention very clearly that the terms of this agreement have been elaborately explained on 2/3 occasions and the employee has understood very clearly and has accepted the terms and conditions. Also, mention the dates of such meetings. Prepare a Pre-estimated expenditure to be incurred either for deputation to Special Training or to work on special projects.
The estimate may consist of travel, board and lodge expenses, travel expenses, and cost of training, if any. The total pre-estimate amount to be the incorporated in agreement, mentioning the technical importance of such training.
Apart from this, mention in the agreement that in case of breach, he shall be liable to pay compensation towards damages or loss incurred by the Company.
Terms and conditions of this Agreement are to be explained to him on 2/3 occasions, mention the dates of those meetings held, and incorporate into the agreement.
Also, mention that the terms and conditions have been understood by the employee, and has agreed to the same.

Penalty in case he breaches the term of serving the Company for a specified number of years.

Specify the amount of penalty in the Agreement. The amount must not be unreasonable, excessive, etc.
Specify, in case, he quits before the completion of binding years, he shall be liable to pay, in proportion to the un-served period.
This model holds good even for Omni-bus Agreements.

By:
K. Vittala Rao
Legal & Management Consultant and
Author of Labour Law Books

Courtesy:
Business Manager
1st March 2024

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]]><![CDATA[Karnataka High Court Judgement on Protected Workmen]]>Thu, 15 Feb 2024 04:23:37 GMThttps://www.mhrspl.com/hr-blog/karnataka-high-court-judgement-on-protected-workmen

As envisaged in Section 6 of the Trade Unions Act, the names of only those office bearers can be communicated who have been appointed/elected as per the Trade Unions Act.
If the employer has a doubt that the office bearers have not been appointed as per the rules, he has every right to ask the trade union to provide the details of appointment of the office bearers and the manner in which they have been selected/elected.
The union when seeking the special status of ‘protected workmen’ of its office bearers, is duty bound to furnish the details sought by the employer and it cannot refuse to give those particulars.
Employer has every right to ensure that the status of ‘protected workmen’ sought for by the union is of genuine persons and the shield of ‘protected workmen’ sought is not to be misused.

KARNATAKA HIGH COURT JUDGEMENT ON PROTECTED WORKMEN
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]]><![CDATA[Presentation on Beyond Emotional Intelligence, Spiritual Intelligence & Enhancement of Professional Competencies]]>Fri, 09 Feb 2024 06:28:04 GMThttps://www.mhrspl.com/hr-blog/presentation-on-beyond-emotional-intelligence-spiritual-intelligence-enhancement-of-professional-competencies

By:
K. Vittala Rao
Legal & Management Consultant and
Author of Labour Law Books

PRESENTATION ON BEYOND EMOTIONAL INTELLIGENCE, SPIRITUAL INTELLIGENCE & ENHANCEMENT OF PROFESSIONAL COMPETENCIES
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]]><![CDATA[Evidence based HR : The Bridge between People & Delivering Business Strategy]]>Wed, 07 Feb 2024 06:10:34 GMThttps://www.mhrspl.com/hr-blog/evidence-based-hr-the-bridge-between-people-delivering-business-strategy

By:
K. Vittala Rao
Legal & Management Consultant and
Author of Labour Law Books

Now, high time, HR, being a partner in business, to assertively exhibit its competencies in moving towards business goals. It is a project by itself to be owned by HR, and although challenging, is an essential & inevitable one.

Introduction
As we know, the HR Function was considered as an administrative assignment, but now, there has been a radical change and move towards alignment with Business Targets and supports all the functionaries of a Corporate thus eliminating any obstacles or indulging in addressing all related actions, like, talent acquisition, retention, man-management, developing healthy relations amongst all employees etc. The results achieved or accomplished are not in terms of objective quantification, but subjectivity. For instance, Finance, Production, Market expansion, Cost and profitability etc, in respective KRAs specifically fix objective targets. At any time of the year, one can debate easily, the movement towards the KRA. But, this is not so in HR-no objective KRA, no objective quantification, but highly subjective. No assertiveness exhibited anywhere even though there are several accomplishments. Here where, the development of an "Evidence Based HR" comes into picture. Here, the assessment of HR shall be very objective with quantification and even subject to HR Audit as well. Now, high time, HR, being a partner in business, to assertively exhibit its competencies in moving towards business goals. It is a project by itself to be owned by HR, and although challenging, is an essential & inevitable one.

It is interesting to note that KPMG conducted a global survey in 2014, by interviewing several top HR as well as Heads of reputed Corporates on this topic, like Coco Cola Enterprises, US, JetBlue Airways, IBM, UCLA, AstraZeneca, Royal Dutch Shell, Unilever, McGraw Hill Financial etc.

Academics from University of Southern California, University of Bath, University of Lancaster, Stanford University, & Lancaster University UK and their participation and results were fantastic. There has been a better time, now, to be involved in delivering People - Business joint ventures.

CEOs globally grappling with issues like regulations, customer delight, talents and the demands of the workforce.

Now HR has massive opportunities to demonstrate its value added delivery of the Business objectives.

"For the first time ever you can draw a line of sight in between the HR activities and Business insights…….and been doing so" says Marks Spears, Partner, Global Head and Global Lead for HR Excellence, KPMG, UK.

"The whole point of Evidence Based HR is to drive greater value through the better use of the most important asset of an Organisation has: its people. This shift is so powerful. If you ignore it, you are losing opportunities to drive greater customer satisfaction, to drive revenue, to drive higher employee engagement and commitment" according to Robert Bolton, EMA Head of Global HR, KPMG, UK.

"Simply put, Evidence Based HR brings together data that can be analysed as a potential solution to business problems" says Lain McKendrik of AstraZeneca
[Courtesy quotes from KPMG Report, 2014]

What is evidence-based HR?
Evidence-based HR is the practice of making decisions supported by evidence from the following sources to help ensure the desired business outcomes are reached:

Available internal data.
Developing system approach towards building evidences and findings and empirical studies.
Justified and valued judgment and real/practical experience.
Values and concerns.

This method shifts away from basing HR management on trends, biases, quick fixes, or word-of-mouth success stories. Instead, it progresses toward critical thinking about what works and doesn't work for tactical decision-making.

What are the Benefits of evidence-based HR?
Today's fast-paced, highly competitive business world requires sound decision- making for organisations to stay competitive. When HR adopts an evidence-based mind-set, it can better support company goals. The many benefits of this include :

1. Aligning HR practices with strategic organisational goals - An organisation's most important asset is its workforce, which can have a direct impact on the organisation's business performance and bottom line. Using an evidence-based approach, HR will be able to, for example, balance the amount of compensation offered with the existing resources of the organisation, or decide on the number of new talents they need to hire to help the organisation further expand.

2. Systematic and consistent decision-making that generates effective interventions - Think of recruitment, for example. By utilizing hiring data, HR professionals can help their organisations increase recruiting efficiency by 80% and move towards low attrition rates.

3. Reducing speculation, uncertainty, and errors in judgment - Every professional, no matter how senior or experienced they are, will always have their own biases. The presence of data and evidence in people management and HR decision-making will help reduce those biases and allow the team to make judgments based on a shared objective reality instead of just gut instinct.

4. Improve credibility and stature of the HR profession - Gone are the days when HR is seen as merely an administrative team with no real strategic value. By utilizing a data-driven approach to an organisation's people issues and applying HR best practices, HR can directly contribute to increasing the business' bottom line and realizing business goals.

5. Ensuring solid risk management - With data, HR people can not only understand what has gone wrong in the past, but also have an insight into what might happen in the future. This means that HR can make decisions and plan accordingly in order to effectively minimize the possibility of failure when implementing their future initiatives.

Next, how do we start the project?
a. Since this is an elaborate execution process, HR Head & the Team will have to, start with complete understanding & appreciation, must create a proper mind-set amongst all Heads of other Functionaries, and then jointly work with mutual cooperation & efforts.

b. To start with, HR Team must convince the Top Management and their support & blessings are very much essential.

c. How do we create data based approach in order to achieve quantitative objective indicators?

Let us start with an illustrations
1. The attrition rate in the Company, let us say, it is 30 % and concerted view of all functionaries including Top Management, throws a challenge to HR to bring it down to the lowest level possible, since, the business being hurt very badly.

Only one illustration is taken; Any HR/People Management issues should be taken.

There are four steps to start with
Step 1: Illustration 1
a. Identify the problem, have a brain storming sessions with the Team and debate the possible questions that may come up, take out previous data, if any.

b. Pose answerable questions.

c. What is really going on? Spending time asking yourself what is at the heart of the issue will pinpoint exactly what you need to solve.

d. List out the reasons for attrition, previous data, any attempts made earlier to reduce the attrition and collect all data.

e. Reasons for attrition are, recruitments may be improper and unmatchable, interviews be routine and casual, improper placements after selection, induction as a formality etc. Other important reasons are "no proper retention strategies", not much focussed on PMS, awards & rewards, cultural un-adjustments, conflict resolutions, lack of human relations etc. List is not exhaustive.

f. List down the initiatives taken earlier and how far has it been positive or negative with all the information and data, if any.

g. The Team must list down these reasons and collect information/data etc.

h. Talent Acquisition includes retention as well. Recruiting a person-Right person to the Right Job, as well as retention, both are important and essential.

Step 2: Develop a hypothesis
a. Let us implement and practice "Competency Based Recruitment". In this model, detailed attributes like, technical expertise, flexibility & adoptability, risk taking abilities, problem solving, capability in conflict resolutions, Emotional Intelligence, initiative & drive, people handling or dealing, teamwork, level of confidence, communication skills, personal ethics, work culture & work ethics etc.,

b. List down all these parameters and formulate for ratings, like 1 to 10. HR must involve in the entire process to guide & monitor the other interviewers. Of course, these parameters may be different for different levels and even Industry.

c. The Team must develop this hypothesis that in case the "Acquisition is based on Competencies", this would address one of the causes for retention.

d. Next, the Team must deliberate on "Retention" plans & techniques.

e. This is very elaborate and Team has to deliberate at length, since, each & every step must be "Competency Based". Each step has "Competent" criteria required and essential for the job-position. Hence, the task is how far the person has such "Competency" to match. PMS, Rewards/awards, succession plans, Training & Development, up gradations, skill up-gradations. Ownership of the tasks & responsibilities are must be "COMPETENCY BASED". This covers entire segments of HR.

f. In case, these techniques are adopted, how far can it help in reducing the attrition? On this basis develop a hypothesis.

g. Here again documentation of rating, namely, 1 to 10 must be prepared for adaptation.

Step 3. Gather data
a. Now, the Team has prepared elaborate list purely based on "Competency Management of HR".

b. If any previous data is available, please enter the data and have a look at the level of each element and the Team can see the "gaps".

Step 4. Implementation and periodic review
a. Monitor very closely, how far all the proposals are followed while implementing.

b. Now, the Team has successfully brought out "Evidence Based".

c. For each & every dos & don'ts, there are "Evidences".

d. Apply the evidence. Now it's time to analyse what evidence is implying about your hypothesis and turn it into action. What is it telling you to do, and how will you execute the solution? If there are risks involved in the final decision, decide whether they are worth the potential gains.

e. Assess the outcome. The final phase of evidence-based decision-making is evaluating its outcome against your expectations. What has your decision resulted in? Gather feedback to see how it has performed and how different stakeholders have received it. Furthermore, understanding whether the action planned out the way the evidence indicated can help shape the future business strategy.

How far HR must be equipped to take the guidance, references, knowledge etc to undertake this Project?
a. Evidence-based practice is about making decisions through the conscientious, explicit and judicious use of the best available evidence from multiple sources… to increase the likelihood of a favourable outcome."

b. Scientific research/literature and empirical studies.

c. HR should critically evaluate the best published scientific research because it's objective, dependable, and provides a general idea of the current studies in a specific area.

d. Scientific research results can support HR decisions with all kinds of data, such as:

e. Common factors that cause employees to leave.

f. Recruitment methods that successfully predict strong performance.

g. Average absence rates in other similar jobs/industries.

h. You should choose only sources that offer validated research from credible experts, but don't default to just one or two. In fact, comparing insights from multiple sources gives you a better assessment.

i. Academic journals and publications.

j. Professional advisory networks (e.g., Deloitte or Gartner).

k. Human Resources research and development groups (e.g., SHRM).

l. Internal company data. You can look through the numbers, such as productivity, retention, and turnover rates. Carefully reviewing current and past employee satisfaction surveys can help you understand how the work environment, company culture, and leadership are perceived. You can also review internal precedents and start asking questions. What approaches or initiatives have worked in the past? And, on the contrary, which ones failed?

m. Training sessions on "Competency Based HR" so that HR Team gets fully equipped in Competency Models, Mapping and Competency Assessment. And, if required an expert consultant in the area may be hired.

Courtesy: KPMG Report; AIHR Notes
Business Manager
February 2024

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K. Vittala Rao (Business Manager, February 2024)
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]]><![CDATA[The "Think Win-Win" paradigm is a powerful approach that emphasizes collaborative problem-solving and mutual benefit.]]>Tue, 19 Dec 2023 13:02:05 GMThttps://www.mhrspl.com/hr-blog/the-think-win-win-paradigm-is-a-powerful-approach-that-emphasizes-collaborative-problem-solving-and-mutual-benefit

The 7 Habits of Highly Effective People: Powerful Lessons in Personal Change
by Stephen R. Covey

Summary Notes From

In collaborative environments where individuals depend on each other, adopting a Win-Win mindset becomes crucial. This approach prioritizes cooperation over competition and emphasizes the creation of synergistic outcomes. By embracing this perspective, we acknowledge that the most favorable results emerge when shared objectives are met and everyone involved benefits mutually.
To embody and manifest the Win-Win mindset, it's imperative to nurture three fundamental character traits:

Integrity: Upholding personal values and commitments forms the cornerstone of this trait. It involves authenticity, honoring promises, and standing by decisions. Integrity aligns with being true to oneself and others.
Maturity: This trait involves the ability to articulate thoughts and emotions clearly and confidently while also considering and respecting others' viewpoints. Achieving a balance between advocating for one's needs and empathetically acknowledging others' concerns characterizes maturity.
Abundance Mentality: Embracing the belief in boundless opportunities and resources is at the core of this mindset. It negates a scarcity-driven or competitive outlook and encourages genuine happiness for others' achievements, fostering a spirit of collaboration.

By weaving these traits into our interactions consistently, we foster a Win-Win mindset, creating environments where collaborative problem-solving thrives, relationships flourish, and collective successes are acknowledged and celebrated.

]]><![CDATA[Master-Servant Relationship Continues During Suspension Period, Workman To Follow All Rules Governing Post : Supreme Court of India]]>Mon, 18 Dec 2023 03:37:15 GMThttps://www.mhrspl.com/hr-blog/master-servant-relationship-continues-during-suspension-period-workman-to-follow-all-rules-governing-post-supreme-court-of-india

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]]><![CDATA[Not Providing Alternative Light Work To Employee Who Is Unable To Perform Heavy Work Due To Occupational Disability Is Unfair Legal Practice: Bombay High Court]]>Wed, 13 Dec 2023 05:44:52 GMThttps://www.mhrspl.com/hr-blog/not-providing-alternative-light-work-to-employee-who-is-unable-to-perform-heavy-work-due-to-occupational-disability-is-unfair-legal-practice-bombay-high-court

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]]><![CDATA[Move Towards Developing Coaching Culture]]>Mon, 11 Dec 2023 09:52:11 GMThttps://www.mhrspl.com/hr-blog/move-towards-developing-coaching-culture“Training & Development” has been one of the segments of HR policy in most of the Corporates. Training Need analysis is normally drawn up depending on the business development, automatons, process change, skill development, rationalisations, productivity enhancements, quality & cost of product related, and most importantly soft skill inadequacies as assessed by the Management etc. HR, be on its own initiative drives or based on the annual program as required by the top Management carries out the programme.

Globalisation led the business to be competitive in acquiring market shares in foreign countries and necessary to import technology, liberal exports & imports, process and method changes including addressing cost of products which required automation and enhanced productivity with international quality standards. To accomplish these targets, cooperation, understanding to change, the role of employees was inevitable.

For More details kindly click the below link:
https://www.businessmanager.in/move-towards-developing-coaching-culture/

By:
K. Vittala Rao
Legal & Management Consultant and
Author of Labour Law Books

Courtesy:
Business Manager
1st October 2023

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]]><![CDATA[Note on Supreme Court Judgment on the issue of retrospective effect of Payment of Bonus Act Amendment in 2015 –Linking Minimum Wages and fixation at Rs.7000 with retrospective effect, from 2014-2015]]>Fri, 08 Dec 2023 04:44:15 GMThttps://www.mhrspl.com/hr-blog/note-on-supreme-court-judgment-on-the-issue-of-retrospective-effect-of-payment-of-bonus-act-amendment-in-2015-linking-minimum-wages-and-fixation-at-rs7000-with-retrospective-effect-from-2014-2015As we are aware, by the said Amendment Act of 2015, two major changes were introduced to the Payment of Bonus Act, 19652 : one being the amendment of clause (13) of Section 2, raising the salary limit from Rs. 10,000/- to Rs. 21,000/- per month for the purpose of coverage under the Act; and the other being raising the wage ceiling for calculating the bonus under Section 12 from Rs. 3,500/- to Rs. 7,000/- per month or the minimum wages for the scheduled employment as fixed by the appropriate Government, whichever be the higher. Further, by way of Explanation to Section 12, it was clarified that the expression “scheduled employment” shall have the same meaning as assigned to it in clause (g) of Section 2 of the Minimum Wages Act, 1948. These amendments were given retrospective effect in Section 1 of the Amendment Act of 2015 by providing that it shall be deemed to have come into force on 01.04.2014.

The said amendments have been challenged in various writ petitions pending before different High Courts mainly on two counts: first, against the requirement of payment of bonus as per the amended provisions with retrospective effect from the year 2014-15; and secondly, against the validity of linkage to the minimum wages in regard to the calculation of bonus.

As we are aware, almost all the respective High Courts, granted stay as far as retrospective applicability, and transfer the matter to the Supreme Court for its final verdict, in the years 2016 to 2018. Karnataka High Court also filed its transfer application.

Relating to the retrospective operation of the amended provisions and linkage of calculation of bonus with minimum wages for the scheduled employment, are forming the subject-matter of more than 140 writ petitions filed across the country in as many as 18 High Courts.

As noticed, in the wake of challenge to the Amendment Act of 2015 in different High Courts; and the respective High Courts having passed different interim orders, the petitioners led by the Union of India seek transfer of all the pending writ petitions to this Court. Some of the respondents in these petitions have filed their reply, either opposing or supporting these petitions, as per their respective stands.

After detailed deliberations before the Hon’ble Supreme Court, finally have passed the judgment. JULY 11, 2022.

Relevant paragraph of the judgment:
“We need not multiply the reference to various other orders passed by this Court relating to the prayer for transfer because, ultimately, the decision to transfer or not, to this Court or to one High Court, has been taken by this Court in exercise of its jurisdiction under Article 139A of the Constitution of India with reference to the given set of facts and circumstances. No hard and fast rule or any structured formula is provided nor appears desirable; a comprehensive view of all the facts and relevant surrounding factors is the best guiding light for exercise of this jurisdiction under Article 139A of the Constitution of India.

In the present set of facts and circumstances, for what has been noticed and discussed hereinabove, we are clearly of the view that transfer of the pending writ petitions from the respective High Courts is not called for. The likelihood of divergence of views, looking to the framework of the statute itself, cannot be a ground for transfer. Equally, there appears no reason to transfer the matters to any one High Court; rather it appears just and proper that the petitions in the jurisdictional High Courts are decided with reference to their own factual background and the law applicable.

Accordingly, the prayer for transfer of the subject petitions is declined and all the interim stay orders are vacated while providing that it shall be permissible for the parties to request the respective High Courts for expeditious hearing and disposal of the pending writ petitions. For that matter, we would also request the respective High Courts to proceed with the matters expeditiously, while assigning them reasonable priority”

Arising out of this judgment, stay for applicability for the year 2014-2015, payment of bonus on revised formula, since vacated, it implies automatic applicability.

Arising out of this, the Patna High Court, held
“Payment of Bonus [Amendment], Act.2015 is constitutionally valid. Enhancement of eligibility of bonus to Rs.21, 000 per month is retrospective.

Magadh Sugar & Company Ltd Vs Union of India & others 2023 LLR 1202 [Patna HC].

Hence, it is better all the employers and HR fraternity be aware of this latest legal position.

K.Vittala Rao
Management Consultant, Bangalore

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]]><![CDATA[Impediments in Changes in Service Conditions: A Blessing in Disguise?]]>Sat, 02 Dec 2023 06:21:17 GMThttps://www.mhrspl.com/hr-blog/impediments-in-changes-in-service-conditions-a-blessing-in-disguiseHurdles of Sec. 9-A and Chapter V-B of I.D. Act and facing challenges in business due to open global market conditions and finding no support from Govt. in making suitable changes in Industrial Disputes Act, lead the Employers to accelerate the move towards “Collaborative Culture” and in fact, the Indian Industry has been witnessing, employee – employer relations going strong day by day.

We are very familiar and with adequate legal knowledge of the restrictive provisions under the Industrial Disputes Act, 1948, Dec. 9 A and Chapter VB.

Ever since the adaptation of the Industrial Disputes Act in 1948 and even till date, these restrictive provisions still remain unamended in spite of several pleadings and representations to the Central Government every year.

It may not be out of place to mention “Contract” as defined under the Indian Contract Act, 1872. The “Service conditions” as stipulated in the letter of appointments/Service Rules/Standing Orders are deemed to be Terms of Contract under the Indian Contract Act 1872. Any change/alterations in the terms of contract must be mutually agreed & accepted for enforcement. Otherwise, the Contract will be Void.

For More details kindly click the below link:
https://www.businessmanager.in/impediments-in-changes-in-service-conditions-a-blessing-in-disguise/

Courtesy:
Business Manager
1st December 2023

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]]>

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