Ground Report on the Real Estate Mafia’s Reign of Terror in Noida: Bigul Mazdoor Dasta

This is a guest post by Bigul Mazdoor Dasta  Noida is one among those places which are highlighted as the hub of the ‘emerging’ and ‘shining’ India. The glittery shopping malls, world class expressway, flyovers, F1 International circuit, luxury apartments, villas etc. are cited as the symbols of India’s ‘growth story’ and Noida has all of these. For the last couple of decades, the mainstream corporate media has been busy selling this growth story to the emerging urban upper middle class; in the process making them a customer of artificially inflated dreams such as having one’s own luxurious house. But, curiously, the harrowing stories of those whose labour power is responsible for this so called development are conspicuous by their absence in the mainstream media’s narrative. The labourers come into the news only when some untoward incident happens and they are immediately held responsible for any such incidents without carrying out any investigation. One such horrendous incident took place on April, 28 at one of the hundreds of construction sites in Noida in which the security guards of the site opened fire on the labourers and in the process injuring some of them. On the morning of the April 28, the workers of the 3C Lotus Panache company’s constructions site at Noida’s Sector 110 witnessed the naked reign of terror by the company’s management. At the beginning of the morning shift at around 8 a.m., the workers had reached the construction site to join the construction work of the multi-story apartment complex, but they had to stand in a big queue because the security guards at the gate were taking a long time to intensively check each worker and make an entry. When some workers protested against this lax attitude of the guards, saying that they had to listen to the supervisor’s abuses if they were late even by one minute, a heated exchange took place between the security guards and workers and suddenly the guards started firing indiscriminately over the workers. As per the media reports, two workers were injured, but when a team of Bigul Mazdoor Dasta visited the workers settlement adjacent to the construction site, some workers said that the number of the injured workers could be four which includes a child as well and one of the workers is seriously injured and his life is in danger. As per the records of the district hospital in Noida, only one worker was admitted on April 28. Other workers were admitted to some private hospital.

The workers settlement adjacent to the construction site where the incident took place

On probing further, the workers revealed that the security guards and supervisors used to routinely interact with the workers in an abusive manner. Some workers said that the contractor did not give payment to the workers for last 3 months. The workers also revealed that the average daily wage of an unskilled construction worker was Rs. 140-150 whereas that of the skilled worker was around Rs 250. When the representatives of the Bigul Mazdoor Dasta told them that it was even below the minimum wages fixed by the government (which itself is ridiculously low), the workers said that whenever they demanded to increase the wages, the contractor had this to say that there are enough number of people ready to work on this wage and if they have to work on this wage then carry on or else they can leave.

A scene of the workers settlement showing the pathetic conditions in which the workers are condemned to live

The living conditions of the workers’ residence, a temporary settlement made of tin sheds, can be at best described as sub-human. Thousands of workers live in this settlement which can easily be called a construction labour camp. There is no drinking water facility. The workers have to buy the water. The electricity is temporary and quite infrequent. The toilet facilities are totally inadequate and hygiene conditions are pathetic. Due to the absence of a drainage system, water logging is a common problem faced by the workers in the rainy season. And to top it all, this entire settlement will be uprooted once the construction project is over and the workers will have to move to another equally bad or even worse settlement adjacent to a new construction site. These stories of naked exploitation do not appear in the mainstream corporate media. As it often happens, in this case as well, the reports by local and the national media disregarded the plight of the workers and focused mainly on the violent actions taken by the workers out of desperation as they were very angry with the non-responsive behaviour of the police. The workers said that despite being present in close vicinity, the police did not come when the guards were opening fire. After some time, a huge police force and PAC battalions reached the spot to “control the angry workers”, but in fact to protect the guards from the angered workers. The workers said that the police released the guards as some of them were seen roaming freely the next day morning. The workers’ colony was on the other hand was encircled by police from all sides. It is quite clear that the police machinery is hand in glove with the management of the construction company to hold the workers reponsible for this incident. Thus the real estate mafia’s reign of terror goes on under the protective cover of the police machinery and the workers continue to suffer.

SOURCE :  KAFILA

April 30, 2013

by Sunalini Kumar

The Scope of the Jurisdiction to Grant Relief against a Penalty Clause

In Andrews v Australia and New Zealand Banking Group, the High Court of Australia has considered an important question of contract law: is the jurisdiction to grant relief against a penalty clause confined to a sanction triggered by an event that can be characterised as a breach of contract, or does it extend to a sanction triggered by other events? The Supreme Court of India had occasion to consider exactly this question about two years in BSNL v Reliance, but unfortunately did not do so. We have commented on that decision here.

Simplifying the facts for the purposes of analysis, customers of the ANZ Banking Group [“ANZ”] challenged certain payments that they were required to make for banking services. This fell into, mainly, three classes: a late payment fee [“Late Payment Fee”], payable if a customer is late in making a scheduled payment; “honour” fees payable by a customer who overdraws his account and interest on these fees [“Honour Fee”]. At first instance, Gordon J. found that the Late Payment Fee was payable as a consequence of breach of contract by the customer (in not making the scheduled payment), but that the Honour Fee was not. The question was whether this meant that no relief could be granted against the payment of the Honour Fee. In English law, this was traditionally the position, established by the speeches delivered in the House of Lords in Export Credits Guarantee Department v Universal Oil Products [1983] 1 WLR 399. The result was that a sanction triggered by an event that was not a breach of contract did not attract the penalty rules.

The High Court of Australia rejected that analysis in an instructive judgment, of which the following is a brief summary. The word “condition”, like “rescission”, has a variety of meanings in contract law. One meaning, of course, is an important or fundamental term of a contract the breach of which entitles the other party to withhold further performance and terminate the contract. Used in this sense, condition is contrasted with warranties and innominate terms. But the word “condition” is not used in this sense in the cases in which the penalty rules were established.  In those cases, there was typically a bond, which would be forfeited on the happening or non-happening of a certain event. That event was called a “condition”. It could be a promise by the other party (in which event the bond would be forfeited on breach) but it could also be an event that was not a promise by the other party. In Campbell v French, Lord Kenyon gave this example: a bond to be forfeited if the “Pope of Rome visits London tomorrow” is perfectly good, since the event is, although unlikely, not impossible. The example demonstrates that “condition”, in this sense, did not mean “promise” and that relief granted against forfeiture, naturally, could not have been confined to a breach of promise. As the High Court points out, equity granted relief provided the non-performance of the condition secured by the bond could be compensated by an award of money. If the bond secured a money condition, the court of equity intervened by ordering the defendant to pay the principal amount, interest and costs; if it secured a non-money condition, the court of equity would direct an issue of quantum damnificatus to assess the loss. In neither case was there any basis for the suggestion that equity would intervene if the bond secured a promise but would not intervene if it secured something else. The High Court points out that the emergence of assumpsit did not introduce the breach limitation, because the relief granted by the common law courts in this actionmirrored the relief granted by the courts of equity but did not substitute it. In other words, the equitable relief retained its identity; the common law courts simply gave relief too.

One question that arises from the judgment of the High Court of Australia is this: if the penalty rules are not limited to a breach of contract, when do they not apply? The High Court gives a tentative answer to this, by pointing out that it would be necessary to examine whether the Honour Fee was payable as a security for the performance of an obligation or as the price of “further accommodation” by the ANZ Group. Professor Peel points out in a case note in the Law Quarterly Review ((2013) 129 LQR 152) that this distinction “seems simply to move some of the problems associated with the breach limitation to a different place”.

The Indian law on this point remains unresolved. In BSNL v Reliance, Mr Gopal Subramanium argued that clause 6.4.6 was a payment triggered by an event other than breach and that the penalty rules did not, therefore, apply. As we have discussed in our post, the Supreme Court did not decide this point. Section 74 opens with the words “when a contract is broken”, suggesting that it does not apply to an event other than breach. However, as the authors of the 2^nd edition ofPollock and Mulla point out at page 328, section 74 does not exhaust the equitable jurisdiction of the court to relieve against penalty clauses. That jurisdiction was exercised with respect to some stipulations before section 74 was amended in 1899, and nothing in the amendment suggests that it was taken away. The question, therefore, remains open and one hopes the Supreme Court will answer it when the opportunity next arises.

 SOURCE : http://indiacorplaw.blogspot.in/

Posted by V. Niranjan at 1:04 PM 

Labels: Contract Law

One Person Company – a still-born, half-baked concept?

The Companies Bill 2012 proposes a new concept of One-person Company (OPC). The obvious objective is to overcome the hurdle of needing a second person to form a company, despite the saying that “two’s company”. This brief post is to highlight its nature, some issues and also questioning the real benefit of an OPC.

OPC, as the term implies, is a company with one and only one shareholder. The need to have two directors also is avoided and only one director is needed. However, unlike a shareholder, the number of directors can be more than one. And the single shareholder need not be the director or any of the directors. A succeeding shareholder will have to be named in case of death of the initial shareholder.

Thus, it is expected to help an individual incorporate himself/herself. The need to find a second shareholder/director for a proprietary business in corporate form is avoided.

Succession/transfer of a business in corporate form is clearly easier than if it owned in a sole proprietary form. And one can delink different businesses in separate OPCs since there is no limit on how many OPCs one single individual can form.

The OPC will have to add the tag One-person Company under its name.

Some other procedural concessions in terms of meetings, etc. are given for obvious reason that there cannot be a “meeting” of a single shareholder/director.

However, beyond a few procedural concessions, and avoidance of the need of second shareholder/director, it is not clear what substantial benefits are available. The relatively long/complicated procedure for formation, maintenance and dissolution of a Company remain without any major relief. The requirement of finding a second shareholder/director is generally not found cumbersome in India where a friend, relative or staff member can easily act as such.

Further, except a few minor procedural concessions, the provisions of accounts, audit, etc. would also apply to an OPC.

Certain businesses like that of finance may face problems if sought to be carried in a Company form. Thus, an individual engaged in business of lending or investments may need prior registration from the Reserve Bank of India, minimum net owned funds of Rs. 2 crores, etc.

Conversion of existing proprietary businesses can create complexities of tax. There is an existing provision in the Income-tax Act, 1961 (section 47(xiv)) which should help in availing relief from capital gains, even if originally it was not framed with an OPC in mind. However, other tax issues may remain. The concern of deemed dividends under Section 2(22)(e), the question of allowability of remuneration to proprietor, etc. are some other challenges an OPC may face. The other challenge will be of stamp duty on transfer of the business to the OPC.

Strangely, it is not clear how an OPC may go to the next logical step of becoming a non-OPC when it wants to introduce more shareholders. Ideally, a simple amendment of its memorandum and articles should have sufficed. However, there are no specific provisions enabling this. The question therefore is whether an OPC is doomed to remain a one shareholder company during its existence?

Conversion from a non-OPC to an OPC has also not been provided for. Thus, an existing private limited company may not be able to convert itself into an OPC.

OPCs should have been useful particularly in case of wholly owned subsidiaries of companies where the parent company would be the sole shareholder. However, there is a requirement that makes one wonder whether a company can be the sole shareholder. The definition of OPC does talk of a “person” being a shareholder. However, it is required that a succeeding shareholder be named in case of death of the initial shareholder. The concept of death is generally understood in sense of natural persons and not companies. Thus, unless one takes a view that this requirement is not a mandatory one or stretch it to include dissolution of a company, the concept of OPC may not be available for forming a WOS.

All in all, it seems that despite the initial enthusiasm that this concept received, it seems that in practice, this by itself is not likely to encourage sole proprietors to convert into a company in large numbers. 

SOURCE : http://indiacorplaw.blogspot.in/

BY : CA Jayant Thakur 

DATE : 29/04/2013

Call of Paper for Indian Journal of Arbitration Law

The Indian Journal of Arbitration Law is pleased to announce its upcoming issue (Volume 2: Issue 2), which is to be published in September this year.

The Board of Editors cordially invites original, unpublished submissions for publication in the following categories:

- Articles

- Notes

- Comments

- Book Reviews

Manuscripts may be submitted via email to editor.cartal@gmail.com latest by 31^st July 2013.

Editorial policy and submission guidelines are available here.

Disciplining at Tuljapur: A First-hand Experience : Sunandan K N

From the earlier article by Hartman De Souza and comments here on recent incidents at Tata Institute of Social Science campus at Guwahati, we had a glimpse into how a Deemed University heavily funded by the UGC and by both the Central and State governments could conduct its business in totally autocratic and authoritarian ways. Even with the risk of repetition I want to share my first-hand experience at another extension counter of TISS Mumbai which is TISS Tuljapur where exactly same events unraveled six months ago.

I was a faculty for short time at TISS Tuljapur campus and I was shocked to see how easily the administration could take totally unjustifiable and undemocratic decisions and get away with it.

The TISS Tuljapur is a residential campus and it is constructed like a jail (Oh that bald French philosopher) with full security surveillance.  All students stay in hostels.  Except a barber shop there are no shops or any other amenities inside the campus. The nearest market place is 6 km away and to get there you have to depend solely on the institution’s vehicle which run on fixed times.  Students have to sign on a register whenever they go out of campus and whenever they come in.  To go out or come in you have to pass through two security gates guarded by security men hired from a private security agency.  Within the campus students are not allowed to go certain places. The reason cited is that there are snakes in those areas; everybody knows the real reason, that those are the places where students engage in dangerous activities such as: a male student talking to a female student, a female student smoking a cigarette, a group of students singing and enjoying themselves and so on. The faculty are not under such restriction, maybe because administration already considers them dispensable. There are strict rules against drinking and smoking, though nobody was ever able to impose it completely.

Soon after joining, I met the present Dean on the campus who had come with an (evangelical) mission of cleaning the campus. He wanted not only to control drinking and smoking habits among students, but also to actively curb any sort of ‘disobedience’ among them students. A group of students who were vocal, active, and intelligent became the target of Operation Clean and the Dean experimented with all forms of disciplinary mechanisms on them. Whenever a student dared to ask question or complain, she/he was labeled ‘disobedient’, included in the above group, and threatened with disciplinary action.

Once this became rampant, some of us from the faculty tried in vain to question this obsession with moral policing.  We pointed out the fact that the Director, the Dean, and most of the faculty might also have violated the rule in Maharashtra regarding alcoholic consumption which says that every individual has to take a license even for private drinking.

The issue escalated when two students (a female and a male) went out and came back to the campus probably after having some drinks (which is completely legal). They were already on the top of the Dean’s watch-list, especially the female student who always asked difficult questions to the Dean and the faculty. Since they were a little late — past curfew time (9.30 PM) — the security guard at the first gate called the warden of the hostel and the warden permitted them to enter. One of the students decided to rest / have her own time alone and so the other student proceeded alone to the second gate. The security at the second gate was already notified from the first gate that two students are coming in. When they noticed that only one student is coming, they mentioned this to the Registrar who was taking an evening walk near the gate.  He immediately ordered a search for the female student. When five security men with high beam torches came near, the student was surprised and she asked what the problem was.  The security men told her that the Registrar wanted to see her.  They walked to the Registrar and questioned her in front of the five security men. She felt that she is being intimidated by six men and so she raised her voice. The next day, the administration, aided by some students, spread the rumor that the student was lying unconscious and was heavily drunk. But the security men then confirmed that when they found her she was not unconscious and had walked half a kilometer with them easily.  She filed a sexual harassment complaint against the Registrar for intimidating and spreading rumors against her. The next week these two students were served show-cause notices asking them to show reason why they should not be expelled.

By this time, the student community had become agitated not mainly just because of this issue, but rather out of accumulated anger and disappointment. Some of the faculty pointed out that there should be some procedure before serving such notices and faculty should be consulted before taking such drastic actions.  The Director then appointed a committee which included members who were already biased against these two students.  Some of us deposed before the committee and told the members that this issue was precipitated by the moral policing-obsession of the authorities on the campus. Before the committee took any decision, three faculty members (who supported the students) were dismissed without any reason being cited!  Two of them were temporary faculty and the other was a permanent UGC faculty under probation.  It is interesting to note that two of them were part of the sexual harassment committee which would have examined the student’s complaint!

Then a group of faculty members, including me, demanded an explanation from the Dean; he claimed to have nothing to do with this and that this was the sole decision of the Director.  When we contacted the Director, he lectured to us for half an hour over through phone.  He began with these words: “I am very angry with all of you (which means ‘don’t you know you have the responsibility of making me always happy?’).  What do you think of yourself (hum.. when did start thinking that you have rights and you can make complaints) …..  I will shut down the campus if anything further happens… (I am running the shop and I will shut down it whenever I want).”  He also mentioned that if these teachers want revolution why they don’t go to villages!!! (Until that point I did not know that the Director is a Mao-sympathizer!) He warned that if any existing faculty, temporary or permanent, try to support the dismissed faculty, they too will face similar disciplinary actions.

In this conversation the Director also mentioned about the sexual harassment complaint.  He said that it was fabricated and that he knew it to be the handwork of faculty. If he knews all about it, then surely the question is whether the sexual harassment committee at TISS Mumbai forwarded the complaint to the TISS Director! In that case, this would go against the norms prescribed by the Supreme Court in the Visakha judgment. No wonder the complaint of the student was dismissed by the committee!

When the students started an online campaign for re-instating the teachers the Director sent threatening emails to them individually and informed the parents about their children’s ‘revolutionary’ activities.   At this point reputed scholars like Dr. Gopal Guru intervened and the three teachers were re-instated not at Tuljapur campus but at Mumbai campus. The two students were rusticated from the campus and were not allowed to attend the classes, but were allowed to write the examinations  Eighteen other students who were in the above mentioned group was compelled to write apology letters.
The moral of the story:

1.    The TISS director can unilaterally suspend, transfer or dismiss any employee or student at any time without showing any reason.

2.     The faculty of TISS are not able to or not bold enough to organize or protest in any manner. I have to say that most of the senior faculty at TISS who claims they are Marxist, feminist or champions of democracy and social justice did not utter a single word when all these were happening at Tuljapur.

3.    At present the Director of TISS may be an exception (or may not be) but from what we see in Delhi University and Jamia Milia it is evident that democracy, transparency or justice is not anymore the concerns of the university administration.

Source : KAfila.org

MAY 1, 2013

by jdevika

This is a guest post by SUNANDAN K N on Kafila

Competition Law Risks: Non-Compete Clauses in M&A Transactions – Part 1

[The following post is contributed by Soumya Hariharan, who is a Foreign Lawyer in Rodyk & Davidson LLP’s Corporate and Competition Law Practice in Singapore. Soumya obtained her BSL.LL.B degree from ILS Law College and has an LL.M degree (Corporate & Financial Services Law) from the National University of Singapore.

These views are personal.

In this first part, Soumya provides a broad overview of competition law risks arising from non-compete clauses and how they have been dealt with by the European Commission]

Competition law regulators have been actively investigating non-compete clauses in Merger and Acquisition (“M&A”) transactions.[1] Most jurisdictions recognize that certain contractual restrictions in the form of non-compete clauses may be directly related and necessary for the successful implementation of a merger. However there are times when non-compete clauses incorporated in M&A transactions and joint ventures carry the risk of infringing competition law.

Non-compete clauses that carry competition law risks can delay deal timelines and affect the transaction from obtaining a favorable clearance from the competition law regulator. Companies stand a risk of investigation by the competition law regulators and financial penalties can be imposed for illegal non-compete clauses.

This series of posts aims to give a broad overview on how non-compete clauses in M&A transactions carry certain competition law risks, in light of recent decisions rendered by the European Commission (“EC”) and the Competition Commission of India (“CCI”). The article also highlights the importance of drafting non-compete clauses in compliance with competition law.

Ancillary Restraints and Non-Compete Clauses

Non-compete clauses are usually negotiated in most M&A transactions and it is fairly common for the Acquirer to require non-compete obligations from the Vendor. To effect a successful transaction, certain restrictions on competition between the Parties are required to the extent that they are directly related and necessary for the implementation of the merger.

Such restrictions, negotiated by the Parties are referred to as “ancillary restraints” in competition law parlance. The most common examples of ancillary restraints include non-compete clauses, license agreements, purchase and supply agreements.

Usually it is standard business practice to incorporate non-compete obligations for the effective implementation of the proposed merger that allows the Acquirer to obtain full value from the acquired assets including tangible and intangible assets such as know-how and goodwill.  In Europe, the 2005Notice on restrictions directly related and necessary to concentrations (the “Ancillary Restraints Notice”) provides clarity and guidance on the treatment of non-compete clauses.  

The EC has been scrutinizing non-compete clauses that may result in a breach of competition law, i.e. cases where the non-compete clause is not directly related and necessary for the implementation of the merger.

Two recent decisions of the EC provide further clarity as to how it interprets non-compete clauses.  One of the cases deals with an illegal non-compete entered into by two telecom operators, where the non-compete clause operated as a market sharing agreement. The second case deals with a non-compete clause that was operative post the termination of the joint venture which was considered excessive in scope and duration by the EC. The following cases serve as effective guidance to those companies that plan to incorporate non-compete clauses in their M&A transactions.

Telefónica and Portugal Telecom[2]

In 2011, the EC investigated two large telecom players Telefónica and Portugal Telecom in relation to a non-compete clause in the context of Telefónica’s acquisition of sole control of the Brazilian mobile operator Vivo. They were fined EUR 79 million for a breach of Article 101 of the Treaty on the Functioning of the European Union (TFEU) which prohibits anti competitive agreements.[3]

Article 101 prohibits all agreements, decisions and practices between undertakings and concerted practices which may affect trade within EU member states and which have as their object or effect the prevention, restriction or distortion of competition within the EU market.  

In 2010, Telefónica acquired sole control of Vivo which was until then jointly owned by both Telefónica and Portugal Telecom. The parties entered into a non-compete clause in their purchase agreement as a part of the acquisition which required Telefónica and Portugal Telecom not to compete with each other in Spain and Portugal from the end of September 2010.

The EC held that by implementing the non-compete clause, Telefónica and Portugal Telecom deliberately agreed to stay out of each other’s home markets rather than competing with each other.  The parties terminated the non-compete agreement in early February 2011 nearly four months into operation by offering commitments to the EC.  It is useful to note that in this case, the EC commenced investigations on its own initiative and fined Telefónica and Portugal Telecom notwithstanding the short duration of the infringement.

Siemens and Areva[4]

In 2001 Areva and Siemens established a joint venture Areva NP, which combined their activities in nuclear technology and nuclear power plants. The Shareholders Agreement for the joint venture included a non-compete clause for a period of 11 years from the termination of the joint venture. The non-compete clause covered the core nuclear services of the joint venture as well as non-core products and services in relation to which the joint venture was not active. In 2009, Siemens withdrew from the joint venture and Areva acquired sole control over the joint venture.

In 2010 the EC opened an investigation over the competition concerns relating to the non-compete clause. The EC adopted a preliminary decision in 2011 that Siemens and Areva had infringed Article 101 due to the non-compete obligation being excessive in scope and duration. According to the EC the scope of the non-compete clause was excessive because it prevented Siemens from competing in markets where Areva NP was only a re-seller of Siemens products.

To address the concerns of the EC both Siemens and Areva offered commitments, to limit the scope of the non-compete clause to Areva NP’s core products and services for a period of three years after Siemens exit from the joint venture. Under the commitments the non-compete obligations would only apply to certain core products and services offered by the joint venture company solely controlled by Areva.

- Soumya Hariharan

---

[1] The European Commission investigated Telefónica and Portugal Telecom in 2011 and investigated Areva and Siemens in 2010.

[2] See Press Release dated 23/01/2013 http://europa.eu/rapid/press-release_IP-13-39_en.htm

[3] The European Commission fined Telefonica and Portugal Telecom EUR 66894000 and EUR 12290000 respectively for agreeing not to compete with each other.

[4] Case COMP/39736 dated 18/06/2012

SOURCE : http://indiacorplaw.blogspot.in/

Posted by Umakanth Varottil at 12:59 PM 

Horn Tata Not OK! — Hartman de Souza

Horn Tata Not OK! — Hartman de Souza

If you were to say that the right we give to those younger, to be contrary and different to those older, is not just their right after they turn eighteen, but that it is our need to let them speak so that learning continues, you would probably get a bigwig from the Tata’s sensing the USP of that and  using it in his next PPP to jack himself up the ladder.

So it’s a little puzzling that the Tata Institute of Social Sciences (TISS), Mumbai, a major beneficiary of the munificence of the Tata’s would not only fail to see the veracity of that statement, but appear to actively work against it.

Let me give you the background and context to that connection, and indeed to this post:

Some 10 days or so back, in the middle of pressing work, I get an email from an old friend, Vidyadhar Gadgil. Vidya’s the kind of friend I like to have; in his forties; well read, salt and pepper in his hair, scraggly beard, nice grin, heart left of centre, and with a laugh that goes from tenor to baritone depending on how funny he finds something.

A respected assistant editor with the Herald, Goa, he later moved to Himal magazine in Kathmandu, where he was as well regarded for his professional and meticulous ways. He’s commissioned and edited articles of mine at both publications, so I know what I am talking about.

I lost touch with him for a year and some, though I heard he had joined the Tata Institute of Social Sciences, Guwahati as an Associate Prof. Our relationship is such, that when I saw his mail in my inbox, I clicked on it, saying one quick reply to catch up again, then back to my work.

There was also a file attached to Vidya’s troubled but measured mail that hinted that his services were terminated somewhat unfairly. The attachment kept promising much but was even more tempered, as if narrated by a somewhat detached barrister. It was exasperating to say the least. While on the one hand, one sensed a current of skulduggery as sharp as piranha under the water, everything was so damn veiled it revealed nothing. I said this much to Vidya, and got back to my work.

His next mail had another attachment, this one consisting of a wikileaks quantum of emails that went between four main protagonists from April 4 to April 11 or so and a few others this side and that side of the spectrum.

On the one side, Vidya, his teacher colleague, Uma Maheshwari, and later, by implication, Vidyadhar’s spouse, Mariette Correa – like Vidyadhar, fairly distinguished alumnus of TISS Mumbai and also independently appointed faculty at TISS, Guwahati.
Ranged against them was Dr. Virginius Xaxa, the deputy director of TISS, Guwahati, which, one can now see, was something like an extension counter of TISS, Mumbai, and actually administered by its Director, Dr. S. Parasuraman, the fourth and indeed major player who remote controlled matters from Mumbai.

Two hours later, three cups of tea and one cigarette too many, I was to mail Vidyadhar a terse: “Thanks for screwing my morning!!!!”

In fact Vidya did more than screw my morning: he ruined my entire day, and an undue part of the later evening better spent in mellower fashion at the local village bar. Maybe it makes more sense if I tell you I’ve been down this road that Vidya’s on and maybe much more unfairly.

How many people you know have the distinction of being sacked from an international school in Bangalore after getting them the best results ever in India for students doing the IGCSE exams for theatre? And that too, over the telephone by the Proprietor and Chairman…

You have to give me reasons for sacking me, I tell this shit…

Reasons, he shouts in his shrill, squeaky voice? You want reasons? I’ll give you reasons! You are making some of my students rebellious, you are making some of my teachers rebellious, and I don’t like all these plays you are doing with my students talking about caste and racism and all these social issues…I want happy plays…

You want to give me that in writing?

You want it in writing? You want to take me to court? You know what I can do to you?

He sounds positively apoplectic, so even as I’m wishing he drops dead from a seizure and chokes on his slimy tongue, I calmly say, no you stupid bastard, that’s exactly what good teachers ought to be doing…I want to frame your letter and hang it on my living room wall…

Yeah, I know, pity Kafila wasn’t around those days.

That night though, I mailed Vidya. Edit the emails, I told him, keep them in the same sequence, and post them on Kafila. They are self evident enough to work at many levels. A manual for instance, on how an institution can, without a by your leave, put a cloak over things. There one day, not there, the next.

Or maybe Vidya’s colleague, Uma Maheswari’s longer emails to the director and the rest. Her correspondence would be a beacon for younger teachers, showing on one hand, her fierce commitment to teaching at TISS, Guwahati, and on the other hand, her articulate, impassioned defence of the right to dissent, the urgency to embrace critique rather than shy away from it.

Would you not be left with a bitter taste in your mouth, if you knew that sick of the way she was being hounded, Uma, in sheer disgust, put in her papers? So what are we doing here then by letting her go, exulting in mediocrity?

I still don’t know how the brain sometimes associates something like this chain of mails, with visuals that form a parallel to the narrative.

Vidya saw William Blake in water colours, Behemoth and Leviathan, a visual of which he duly attached together with the mails. At the village bar that night, overlooking a sky with the embers of a sunset still visible, I thought of Zoltan Fabri’s The Ant’s Nest, a film set in a convent; the mother superior’s body lying in chapel and a camera catching brush strokes of pew, detail of statue, kneeling nuns praying with bowed head, and the sparse interiors of rooms. You see a commune, even as a battle for her successor rages between nuns who want change, and those who want things to be as they are.

I will still strongly argue that Vidyadhar and Uma make this correspondence public, if only to send clear signals to those who administer our institutes of higher learning that they cannot trample on the rights of either student or teacher or, for that matter, non-teaching worker.

You can wish as I do that some Owners of an International School-Factory will drop dead like gassed mosquitoes. It is possible to throw stones on some school administrators and frighten them into the hills. But try as you might, you cannot deny the primacy of the Kiswahili proverb from Tanzania that simply says “Without a student you cannot have a teacher; and without a teacher, you cannot have a student”.

This symbiotic relationship, whether parent, teacher or student, one does not mess with.

Like too many of those in their forties today, intent on avoiding confrontation even at the level of ideas and still looking if not hoping and praying for negotiation and due process to bear fruit, because it is, after all, negotiation and due process and we must give it a fair chance, Vidya lost the moment.

Maybe too many have forgotten the 60s demolition of value neutrality in the social sciences. We need to realize again that the other side, whether in pro-industry government or pro-industry education, is never value neutral; that they can’t be when the primary issues revolve around ownership and often wealth, the misuse of power and more effective control if not repression.

The net result therefore, even as this is being written, is that TISS Mumbai’s director has sent to Guwahati an enquiry panel set up by him to investigate matters pertaining to people who were supposedly to be investigated after they have first been silenced, and if that was not bad enough, then terminated from service.

Is it as simple as that?

Actually it’s even worse…

It all began simply enough: students at the campus, with good reason, complaining that standards of teaching were being compromised at TISS, Guwahati. This was raised by Vidyadhar at staff meetings and indeed brought it to the attention of the deputy director, Dr. Virginius Xaxa several times. This was apart from the students themselves complaining to the deputy director.

When the complaints from the students persisted, Vidyadhar emailed the director, TISS, Mumbai, Dr S Parasuraman on April 4, 2013, requesting him to conduct, at the earliest, an independent review of the academic programme as well as the functioning of TISS Guwahati.

Typically Vidyadhar, he mentioned he was making this request after following due process with the appropriate authority

.
He listed the following reasons for seeking the review:

That the interests of the students were being severely compromised, and there existed a feeling of being short-changed by an institution of repute. Substantial parts of some courses for instance, and almost entire courses had not been taught to the students, and no adequate action had been taken to either complete the teaching hours or to take the necessary action against defaulting faculty.  In fact, Vidyadhar noted, whatever action had been taken compromised the integrity of the academic programme of the institute.
He mentioned the unethical practices in the classroom, of taking attendance and telling students to go and study on their own, using the register then to prove lectures were actually taken. Vidyadhar told Dr. Parasuraman in his measured tone that there was a complete lack of transparency in communication, decision-making processes, formation of committees, and other administrative matters; and that decisions on important academic matters were communicated to most faculty post-facto, if at all.

In what can only be termed a rigorously honest debriefing to one’s superior, Vidyadhar duly communicated the perceptions of both students and faculty that deputy director, Virginius Xaxa was partial towards certain faculty members; that there was a crisis of leadership in running the academic programme on sound lines, and in setting up transparent and fair systems and processes in the Guwahati campus.

He also sounded the warning notes that such a review be conducted ensuring absolute confidentiality to the students as well as faculty, since there was a genuine and strong fear that complaints against specific faculty were not entertained, and that the students or faculty who raised their voices on these issues were either belittled or victimised.

His concluding paragraph ought to have convinced Dr. Parasuraman that Vidyadhar had no personal axes to grind.

“Given that the academic programme at TISS Guwahati is in its first year,” Vidyadhar told Dr. Parasuraman, “and that decisions taken at this stage will have a bearing on the future course of the new campus, sorting out the above issues expeditiously is essential for the healthy growth of the institution”.

Dr. Parasuraman as he did later with great alacrity, sometimes even within the hour when he was issuing instructions to his IT managers to block Vidyadhar and a few others from using the intranet facilities for instance, did not respond.

Matters on campus however continued to fester with students on the Guwahati campus stonewalled by the deputy director in Guwahati, silence from Mumbai, and students complaining, as is their right, to faculty whom they respected.

Should we write to the director too, they asked. Faculty told them it was their right to do so, but refused to conceive, draft, edit or even read such a complaint before it went out. When this student’s letter did go out though, the what-you-may-call-it hit the fan.

More pertinently, germane in fact to what happened, is for us to consider and put on the backburner for now, the fact that we may just not be equipped to take criticism from students or those younger, and maybe that’s our real flaw – that we don’t even think twice of evaluating, assessing, grading and damning students every bloody day if we could but baulk at the thought of them doing the same thing to us…

It is tragic, as we shall see, that this poor kid who had the guts to put his neck on the line, who was doing his master’s in ecology, environment and sustainable development, has also had his spirit destroyed by something as simple as a lack of due process, and a total breach of confidentiality. His letter in fact must be seen in its entirety because its sincerity is palpable. It also provides empirical evidence to what Vidyadhar had already communicated in more general terms.

Even though a kangaroo enquiry is now in progress, names of both student and faculty have been deleted and his letter appears as it went out, warts and typos and all:

 He titled his subject line: Attn Prof. Parsuraman: Student grievances for your kind consideration (TISS – Guwahati), and went on to write:

“Dear Prof. S. Parsuraman,

“Greetings Sir! Please allow me to introduce myself. My name is ******* and I am a student of MA in at the TISS – Guwahati campus.

“Sir, I am writing this letter to you to express before you my grievances (which are also generally felt by other students) regarding the conduct of the course as well as the overall academic atmosphere at TISS Guwahati Campus. I write to you as a student in distress as well as; as a well-wisher of the institute seeking for your kind intervention and help.

“Sir, please find below some of the important issues concerning the students regarding the manner in which some of the courses have been conducted and also regarding the overall atmosphere at the institute. The main issues revolve around how the courses have been conducted by Prof. ************* and Prof. ********** and also aspects considering conflict resolution by the deputy director – Prof. Virginius Xaxa

“The first and foremost thing that I would like to bring to your notice is the sheer lethargy with which the course on Common Property Resources and Ethno ecology has been conducted. This course is shared by ******, *****  and ***** Out of the allotted 30 hours of mandatory teaching hours, Prof. ***** conducted only 12 hours of teaching during the second semester. Prof. ****and Prof. **** did complete their 30 hours and 8 hours of teaching hours. But here I would like to bring to your notice that Prof. ***** has regularly been late at reaching to the class and classes which are supposed to begin by 9.30 am usually start by 9.45 or as late as 10 am and the classes are always interrupted with his cell phone ringing invariably. Here I would like to mention that the students are very happy with the way Prof. ***** has conducted her classes and we have no complaints regarding her teaching.

“Though Prof. ***** did conduct his 30 hours of teaching in the semester there have been serious problems with his teaching methodologies. The entire topic of biodiversity was taught using a single chapter from a single textbook called ‘Ecology and Environment’ by P.D Sharma. Apart from this particular chapter in biodiversity from the book mentioned; Prof **** distributed 4 other papers on some aspects of biodiversity; but vital topics like measurement of biodiversity, topics on scientific measures of conservation have not been taught. I find myself inadequately equipped on this topic and I fear this would eventually affect my future research pursuits and employability on the whole.

“Also there have been serious flaws on the front of field works. During the second semester we just had one field work to a place called Chandubi apparently to understand issues of ecotourism and man-elephant concept. The very unplanned and mismanaged nature of the field trip eventually brought it down to being a mere ‘picnic’. Along with the disastrous field work where the students learn ‘nothing’ (which also  meant monetary loss for the students as well as the institute) there were a range of other interpersonal issues (some leading to gender issues) among students were fuelled as well as mishandled by Prof. ***** post-field trip.

“Sir, the above mentioned points which I am raising here; I have personally talked about each of these to Prof Xaxa. Also Prof Xaxa had talked to the entire batch (all 20 students of EESD) about these issues and had promised us ‘confidentiality’ as well as ‘action’ of these issues. Raising of these issues before him led to a series of faculty meetings at the institute which gave us hope that something positive would come out of this. But on Monday April 1, there was a sudden turn of events that left us students shocked and we felt betrayed. Prof. Xaxa conducted a meeting of the students with the entire faculty bringing up the issues in an open forum. The students (who were hand-picked by Prof Xaxa) were asked (almost forced) to talk in front of all the professors the issues concerning us and thus murdering the very idea of ‘confidentiality’ and betraying our trust in him.
“The nature of the conduct of the meeting between the students and the staff exposed a series of biases that are taking roots in the institute.

“First Prof. Xaxa through his very mild (in)action seems to be shielding Prof ****** on his lethargy who is conspicuously known as his ‘son’ at the institute.

“Also the closeness and consequent shielding was very evident among the Assamese professors – i.e. between Prof. *****, Prof. **** and Prof. **** and this is an evidence of the bias that these professors have against the so called mainland students which has been seen at various occasions.

“It was also a surprise to hear Prof Xaxa defending Prof. **** not taking classes as his mistake to apply the pedagogy used for M.Phil or PhD students at the MA level!
“The entire method conflict resolution adopted by Prof Xaxa and his intent to maintain ‘transparency’ and ‘fairness’ are seriously doubtful as this is embedded in a certain politics of regionalism and favouritism.

“Things have not much changed after all these processes and representations made by the students. Prof. ***** eventually conducted 4 hours of classroom teaching to cover the issues of CPR where still many issues remain uncovered. In fact I wonder if there is any particular syllabus that he is following as he keeps asking students what topics we want to be covered instead of him following a structured syllabus and topics!

“Prof. ***** still does not seem to indicate his intentions to cover any of the vital issues on the subject of biodiversity as he still asks students to make presentations on national parks in India!!!

“Dear Sir, I would be very grateful to you if you could please look into these issues as they have been suffocating us a lot for the past few days and I seek for your kind intervention and help. I also would be very grateful to you if you please keep my communication with you on this matter confidential as I fear vindictive behaviour from the concerned staff at the institute here.”
(Letter ends)

When you read that letter, you ought to ask yourself why matters couldn’t have ended right there and then, with the student’s letter the palimpsest over which you make sense of Vidyadhar’s earlier letter. Yet, within two hours of mailing out his letter, after expressly requesting strict confidentiality, Dr. S. Parasuraman, director, TISS, Mumbai, forwarded the student’s complaint to Dr. Virginius Xaxa, deputy director, TISS, Guwahati.

The student, terrified, mentioned this to at least three faculty members. He had reason to be scared. The next working day, April 8, Virginius Xaxa had a private discussion with the student who wrote the letter, then spoke to the class for three hours. Supposedly with the permission of the student who wrote it, he read the letter aloud. The students were then made to offer apologies to faculty mentioned in the student’s complaint letter.

This is when things get different from being sacked over the telephone by the Proprietor of an International School in Bangalore.

Vidyadhar followed due process again. He sent a mail that night to the larger TISS community with reference to the abuse of power shown and indeed, the totally unethical breach of student confidentiality.

These are the mails that then make up the heart of the correspondence that I have argued be made public. From here on, matters slide quite rapidly…
Vidyadhar and now, his spouse, Mariette Correa both had their email IDs on the TISS server blocked from the afternoon of April 9, 2013.
That night too, the student was made to write a brief letter to the director and deputy director apologizing, whereupon the director, TISS, Mumbai, magnanimously pardoned him, copying the email to Vidyadhar and Mariette.

The next day the student was tutored to write another letter stating he had been misguided and misled by Prof. Gadgil to whom he had shown the draft of his letter.  Dr. S. Parasuraman promptly gave instructions to send this across to TISS faculty listed on the server.

Sitting in Mumbai, not having visited the Guwahati campus since July 2012 when the academic programme began, Dr. Parasuraman was not to know that the student was forced into hiding for some days, wanted by those who complained in the first place and were now in trouble, and others, because he had falsely implicated Vidyadhar. When he did come back, he was always accompanied by a faculty member. Will this be a blight he now carries for the rest of his life?

There are several words that come to mind if one wishes the synonyms for this attitude displayed by the director of TISS, Mumbai, Dr. S. Parasuraman, and his deputy in Guwahati, Dr. Virginius Xaxa. ‘Autocratic’, ‘dictatorial’, ‘authoritarian’, ‘domineering’ and ‘arrogant’ all come readily to mind.

The word ‘farcical’ however, springs when you think of the panel intended to investigate matters on campus between April 25 and today, April 27, 2013, opaquely set up by the director TISS, Mumbai whose own role in this episode must be put first under scrutiny.

Students on the Guwahati campus got to hear about his panel on their notice board; informed that a team of senior faculty from TISS, Mumbai were visiting and would like to meet them. Did Dr. S. Parasuraman, and his deputy director and the panel not know that examinations at Guwahati would get over on April 26, and most students leave that very evening itself?

Faculty in TISS Guwahati received a mail from the deputy director’s research assistant saying very much the same thing and to keep themselves available for a meeting. No mention of a review, no mention of any terms of reference.

Interesting too, that the so-called review is being conducted after all dissenting voices have been silenced.  From the time he sent his first mail out protesting Dr, S, Parasuraman’s breach of the student’s confidentiality, Vidyadhar’s right to reply within TISS were denied to him. Given the age we live in, that information, thankfully, did go out.

Now matters become so pitiable, it could be any one of our governments at state or centre covering up one of the many scams. By the evening of April 11, both Vidyadhar and Mariette received letters terminating their appointment with immediate effect, with no explanation given, and instead some vague references made to an earlier letter of April 9 terminating their services – which they only got several days later after specifically asking to see it.

Not only was the project they administered closed, citing some bureaucratic nicety, the appointments of the rest of the project staff , one project officer and three administrative staff were also terminated on April 9 without even the one-month notice period as per their contract.

The closure of the project is the main reason cited for getting rid of two or three unnecessarily troublesome faculty who were there in the best traditions of TISS Mumbai. Had the project come to its natural and full closure, Vidyadhar and Mariette would have wound things up by the end of May, and both ready to move to Hyderabad, closer to where their children go to school, primed perhaps for a new adventure.

I ask Mariette in one of my mails to give me the names of TISS alumni that graduated with her and Vidya and she gives me a random list of six or seven, and why don’t I find it surprising that two of them are really well known to me – and this is without knowing that they also know Mariette and Vidya.
If you knew TISS from the late 70s because of people you knew who went there, or other people who knew them and knew you and told you about them, and if you sat down and seriously searched for your memories, say in a village bar, you would be surprised just how much is thrown up.

You would get Medha Patkar from the NBA and Brian Lobo and Pradeeep Prabhu of the Kashtakari Sanghatana, whom you would have met and are, in any case, better known. By the time you have finished your second and ready to head home though, even later, climbing the hill back, you end up with close to fifty people you know who are TISS alumni. They’re the kind of people whose names I see in my inbox I am going to click on them. I’d do this because I know they are people, even in the thick of the shit happening around us, who still walk the talk.

Maybe somebody should tell Drs. Parasuraman and Xaxa that TISS is a ‘brand’. You don’t even have to write ‘Tata Institute of Social Sciences’ and then put TISS in parenthesis. You just write TISS. Everyone knows what that is.

That, when you cut through the faff, is what ‘brand’ means, a quality or even edge for which a business house, say the Tata’s would pay serious money to build. Unlike the imperatives that dog business however, TISS as a brand was created by concerned faculty, students and alumni, and that you cannot buy.
Dr. Parasuraman, unfortunately, as too many ageing administrators, perhaps even many heads of government departments, appears to want, above all, to keep matters on an even keel and ensure that the boat is not rocked. What happens after he retires is the other guy’s problem. He’ll take his benefits, his perks, and his whatever, and go for evening walks with his dog.

He prattled at some length about “disturbing the academic environment” in one of his mails.
Vidya’s colleague Uma, in one of her responses asked him what this really meant. Would protest on the streets tomorrow against state oppression also come under disturbing the academic environment? She also asked him whether it was a teacher’s duty to support students who came to them with their problems, of whatever nature? Or were they to just turn a blind eye?

Most pertinent though are her remarks that take us back to the opening paragraph of this posting, namely, the right of the young to speak because it is our need to hear them.
Is suggesting a standard procedure to be followed, she asked Dr. S. Parasuraman, as indeed seen in both Vidyadhar’s and the student’s first letters in early April, a “disturbance to the academic environment” as he referred to it or, on the contrary, the only means to protect this? It is quite likely that Dr. S. Parasuraman, as many other teachers in our schools and colleges too, have not realized that dissent too, is something students need to be tutored in. Or maybe they know that too well…
By the time you read this, Dr. S. Parasuraman’s panel will have met; rubber stamped some papers, and fully exonerated him and his deputy director of all blame, wrongdoing, and whatever, when any tin-pot marketing executive in Tata’s would tell him this is a sure-fire way of severely diminishing a ‘brand’ .

From the Village of Moira, Goa, April 27, 2013.

FOR KAFILA

Horn Tata Not OK! — Hartman de Souza

April 29, 2013

by jdevika

This is a guest post by HARTMAN DE SOUZA ON KAFILA.ORG