Synopsis and List of Dates - Private citizens cannot be drafter for Census Duty

8/9/2019 Synopsis and List of Dates - Private citizens cannot be drafter for Census Duty

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

ORIGINAL JURISDICTION

WRIT PETITION NO.17983 to 17987 and 17989 to 17993 /2010

(EDN. RES)

BetweenKarnataka Unaided Schools

Managements Association And Ors

Petitioners

VERSUS

Union of India And Others. Respondents

SYNPOSIS AND LIST OF DATES

03-Sep-1948 This petition is concerned with the extent of

powers conferred by the Census Act, 1948 upon

the Central and State Governments, in the matter

of entrusting persons with 'census taking duty'.

The instant case raises a basic question of law:

Does the Census Act, 1948 authorise the

Government to randomly pick a citizen of India

and assign 'Government work' to such a private

citizen and to punish such citizen for a failure to

perform such, forced 'Governmental' work?

The Census Act, 1948 has been passed for the

purpose of governing the taking of Census in India

or any part thereof. The Preamble to the said

statute says:

WHEREAS it is expedient to provide for the taking

of census in India or any part thereof whenever

necessary or desirable and to provide for certain

matters in connection with the taking of such

census.


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Petitioner No.1, the Karnataka Unaided Schools

Managements Association (KUSMA for short) is

organized as a Society whose members are

comprised only of educational institutions in the

State of Karnataka. This Society is registered

under the State Law in force for the Registration of

Societies and has been continually registered at

all relevant times.

Petitioner No.2, G.V.K. Education Society is

registered under the State law in force for the

registration of societies and has been so registered

at all relevant times. The said G.V.K.Education

Society is a member of KUSMA. The said private

educational institution is registered as 'Evershine

Primary School' in terms of Section 33 of the

Karnataka Education Act, 1983.

Petitioners No.3 to 10 are residents of Bangalore

and have secured the requisite academic

qualification to merit employment as 'teachers' at

educational institutions for Standards I to VII in the

State of Karnataka. Petitioners No. 3 to 10 are

currently employed as 'teachers' for various

standards at the said 'Evershine Primary School'

established and administered by Petitioner 2

society.

02-Dec-2009 Pursuant to requests from the 'Director of Census

operations for the State of Karnataka' (Respondent

4), the Government of Karnataka has, by a

Notification No.RD 20 ETC 2009, dated 02-

Dec-2009, appointed the Commissioner,

Bangalore Bruhat Mahanagara Palike (Respondent

5), as the Principal Census Officer.


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04-Jan-2010 Thereafter, the Commissioner, BBMP, has, by

Notification No.B12 (1) PR/159/2009-10

dated 04-Jan-2010, deemed it fit to further

appoint as 'census officers', employees of the

BBMP.

15-Feb-2010 Again, pursuant to the above Notification, the

Government of Karnataka has deemed it fit to

delegate even further - It has issued another

Notification No.RD 102 ETC 2009 dated 15-

Feb-2010 whereby, 'census officers' already

appointed under previous Notification are given

the further power to again appoint 'census

officers'.

26-Mar-2010 The Health Officer in the Medical Officer of Health

(MOH) in Basavanagudi Zone (Respondent 6), hasthereafter, illegally proceeded to issue Notices to

petitioners 3 to 10 seeking to appoint these

private citizens as 'census officers'. On 26-Mar-

2010, the Respondent 6 has addressed Notices to

Petitioners 3 to 10 who are teachers at 'Evershine

English School', a private unaided educational

institution established and administered by

Petitioner 2 Society. The legality of such Notices is

the subject of this Writ petition.

The Petitioners state, with humility, that teachers

are pained to think of themselves as multi-

purpose labourersor bonded labourersin view of

the manner their services are sought in relation to

activities other than teaching. They are of theapprehension that they are unable to do justice to

their core function to teach.

The Petitioners submit that the taking of Census

work is clearly laudable and the instant petition


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may not be read as an effort to undermine the

importance of Census work. Nevertheless, special

obligations cast upon teachers of private unaided

educational institutions render it undesirable and

improper for them to participate in Census taking.

The Petitioners submit that Section 4 of the

Census Act, 1948 does not authorize the State

Government to issue any Notification to designate

any class of private citizens as Census Officers; all

that the said provision authorizes is to facilitate a

State Government to appoint individuals,

employees or officers under the State Government

to act as Census Officers.

The use of the words 'shall be bound to serve

accordingly' in Section 4(2) of the Census Act,

1948 has to be read in a manner as will compel

'Government employees only' to perform 'census

duty' notwithstanding the actual employment

contract in relation to such 'Government

employees'. The interpretation of Section 4(2) of

the Census Act, 1948 in such a manner wherein aGovernment employee could be compelled to

perform services added to his original employment

contract by virtue of special statute or legislation

is fully consistent with the decision of the

Constitution Bench of our Honble Supreme Court

in Roshan Lal Tandon v. Union of India.

Therefore, the use of the word 'shall in section 4

(2) is primarily meant to override any employment

contract that does not specify census work as an

incident of employment contract. Because, a

Government employee whether contracting for a


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short term or for a longer term is a contracting

party and could, upon ordinary principles of law

governing contracts, object to the rendering of a

service not specified in his individual employment

contract, the Parliament has deemed it proper to

phrase the language in section 4 (2) in such a

manner so as to ensure that employment

contracts that are contrary are overridden and

employment contracts that make no provision for

such service are thereby supplemented.

Therefore, the language contained in section 4 (2)

of the Census Act, 1948 is wholly confined to

employees under the services of the state

Government. Because the Petitioners are neither

employees of the State nor of the CentralGovernment, Section 4 (2) of the Census Act, 1948

is clearly inapplicable to the petitioners. As such

the giving of impugned notices by the

Respondents is wholly misconceived and

misplaced. A Writ of Prohibition will therefore lie to

restrain the Respondents from proceeding any

further.

Further, Section 7 merely creates a duty in

persons whose assistance is necessary for the

taking of census to act in such manner as will

facilitate the taking of census. In doing so, the

scope of Section 7 is greatly curtailed by the

statute. The assistance required of a person is

always in relation to persons confined to such

land, factory, firm or establishment. An employee

of a private organization may be directed to assist

in the taking of census of other co-employees only.

To illustrate, an employee of Factory A, a private


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firm, may be directed to assist in the taking of

census of other employees of Factory A only. No

part of Section 7 authorizes a District Magistrate to

direct employees of Factory A to assist in the

taking of census of employees of Factory B. The

emphasis in Section 7 leads to no other conclusion.

Section 11 of the Census Act, 1948 invites

prosecution and punishment of a 'census officer'who refuses to perform the duty assigned to him.

Because the above provision when read with

Section 4(2) and Section 7 imposes a penal

consequence upon any person who is appointed as

a census officer in terms of Section 4(2) of the

Act, the canons of interpretation call for a strict

interpretation and the impugned notices do not

survive a strict interpretation of these two

provisions.

The petitioners would be subject to unreasonable,

unintended and illegal consequences should this

Court not adhere to the rule of strict interpretation

of a penal statute.

If there is any ambiguity in the words which set

out the elements of an act or omission declared to

be an offence, so that it is doubtful whether the

act or omission in question in the case falls within

the statutory words, the ambiguity will be resolved

in favour of the person charged. This is, in

practice, by far the most important instance of thestrict construction of penal statutes.

A teacher in a private unaided educational

institution is primarily a private employee and the

terms and conditions that govern the relationship


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between a teacher and her employer institution is

not formulated by the Government. That is, the

terms and conditions that define an employment

contract between a private unaided educational

institution and its employees is neither formulated

nor approved by the Government, As such the

employment contract that governs the services of

the teaching faculty in a private educational

institution does not and need not incorporate any

condition that binds a teacher to render any

service for the benefit of any person other than the

contracting educational institution. Accordingly,

the teaching faculty in a private unaided

educational institution is not obligated to render

any service beyond that stipulated in the relevant

employment contract.

Further, private unaided educational institutions

that are members of KUSMA do not formulate

contracts that bind their employees to render

services not covered by such employment

contracts. Therefore, in the absence of a Statute

either by Legislature of a State or by the

Parliament, the Executive Government of a State

or of the Center is not authorized to override and

modify employment contracts that are entered

into between purely private parties. Any such

interference is opposed to the modern notion of

individual liberty or would plainly be arbitrary - in

either case, wholly opposed to the principles

enshrined in the Constitution of India.

The essential work of a teacher has no rational

relation whatsoever to the task of an enumerator.

A teacher in a private unaided educational


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institution is not more readily suited than say, an

advocate in practice in a Court of law or any other

graduate or professional, to perform the task of an

enumerator.

02-Jun-2010 Hence this Writ Petition - with prayer for Interim

Relief.

While it is true that census taking is a critical part

of Government work, any intention to draft private

individuals must be clearly expressed in certain

terms by the Parliament of India and the fact that

the Parliament has made no such mention in the

Census Act 1948, is clearly evident upon an

ordinary reading of the Census Act 1948. Further

the Rules known as Census Rules 1990, issued by

the Central Government in terms of sub-section (1)

of Section 18 of the Census Act 1948 do not

express any intention to draft private citizens for

the purpose of census taking because the

Parliament has made no provision howsoever to

facilitate drafting of private persons for census

work. The action of the respondents in issuing the

impugned notices for the purpose of drafting theservices of private citizens is tantamount to

usurpation by a public body of a power not

authorized to it. Accordingly a Writ of Prohibition

shall issue by this Honble Court for the purpose of

restraining a public body from assuming a power

not vested in it.

The Petitioners are fully deprived of the protection

accorded to them under Article 21 of the

Constitution of India. Article 21 of the Constitution

forbids the Legislature from issuing any law for the

purpose of inhibiting the liberty of an individual


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unless the language employed therein is definite

and certain. The language employed in the Census

Act, 1948 offers no authority whatsoever to the

Respondents to recruit private citizens for the

purpose of census duty. Accordingly, this Hon'ble

Court is vested with a duty, in terms of Article 226,

to intervene for the purpose of protecting the

Petitioners' constitutional right enshrined in Article

21 of the Constitution.

K.V.DHANANJAY.

Bangalore Roll No.KAR/659/2002

Date: 08-Jun-2010 ADVOCATE FOR PETITIONERS

Address for Service of Notice:

K.V.DHANANJAY.

No.296

Kamakshipalya

Magadi Main Road

Bangalore 560 079

email: [email protected]

Phone: +91 9902909390

Synopsis and List of Dates - Private citizens cannot be drafter for Census Duty

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