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AN OVERVIEW OF W.B.S.E.T.C.

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The West Bengal State Electricity Transmission Corporation Limited (W.B.S.E.T.C.L) commenced from 1st April, 2007. The Certificate of Incorporation of the company was issued by the registrar of companies on 16th February, 2007 and the certificate of commencement of business was issued by the registrar of companies on 21st March, 2007. The company consisted of 7 Directors (3- Executive Directors, 4- non Executive Directors). FUNCTIONS State Transmission Utility (STU) for the state of West Bengal and responsible for efficient, co-ordinated and economic planning of state power system. Transmission licensee for design, construction, operation and maintenance of EHV transmission system. State Load Despatch Centre (SLDC) responsible for real time operation by optimum scheduling and despatch of electric power ensuring Grid security round the clock in the state of West Bengal. VISION The most reliable and economical power transmission system in the country with the highest system availability & quality and the least technical loses MISSION To exist to transmit power from generating stations to load centre through transmission corridors following grid code. At the present time, reliable, strong, and steady organization, rather slow but regimented and hard working. To be fast in decision making, goal oriented and shall be stable to meet challenges in challenging circumstances.

SERVICE TO STAKE- HOLDERS Customers Employees Recognised unions and associations Shareholders Financial institutions Economy Suppliers, service providers and contractors. Regulators Government and CEA Regional system operators and other transmission utilities Recognized media

INITIATIVES TAKEN UP BY THE COMPANY Realignment of corporate organisational structure. Creation of centralised procurement department. Consolidated projects department. Creation of dedicated engineering department, Dedicated safety cell Dedicated IT department

ACHEIVEMENTS BY THE COMPANY During last financial year the company touched the highest ever turnover of Rs.1026.34 cr. It registered a net profit of Rs.333.02 Cr as against Rs.171.65 Cr. Of the previous year. The company maintained availability of 99.94% and transmission losses were only around 3%, comparable with the best transmission utility in the country.

Internship at WBSETCL (6th- 20th November, 2013). Project Report.

ESTABLISHMENT OF W.B.S.E.T.C.L 400kv sub-stations -7nos. 220 kv sub-stations-19nos 132kv sub stations-77 nos 66kv sub-stations-8nos. Area offices-23 nos. Field zonal offices-7nos. Camp offices-12 nos.

Can WBSETCL called a STaTe


Article 12: Definition In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India Significance of Article 12 lies in the fact that it occurs in Part III of the constitution which deals with fundamental rights. The various articles in Part III of the Constitution have placed responsibilities and obligations on the State vis-a vis the individual to ensure constitutional protection of the individuals rights against the state, the right to enforce all or any of these fundamental rights against the State as defined in Article 12 Govt. Companies, as defined in section 617 of the Companies Act 1956 came to be included within the concept of State for the purpose of Article 12 of the Constitution. The Supreme Court in its Judgement given in R.D Shetty Vs International Airport Authority of India held that Corporations established by statute or incorporated under law are an instrumentality or agency of the Govt and it would be subject to same constitutional or public law limitations as the Govt. As a result whenever infringement of fundamental right occurs it may lead to issuance of Writs under Article 32 and 226 of the Constitution.

Internship at WBSETCL (6th- 20th November, 2013). Project Report.

Article 32 of the Indian Constitution Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution ARTICLE 226 OF THE INDIAN CONSTITUTION Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose Few important LEGAL TERMS: Vakalatnama: A Vakalatnama is a document in writing, appointing a lawyer or pleader to represent the clients matter in a court of law. - No pleader Shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

Internship at WBSETCL (6th- 20th November, 2013). Project Report.

What is done after the Vakalatnama is given? After the Vakalatnama is given, it is filed in court within the prescribed period. Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the court by a writing signed by the client or the pleader, Caveat: Caveat is a Latin expression which means "let him or her beware". CAVEAT is a plea made by the party to the dispute that the Authority(Court or a Public Officer) should not decide the matter without hearing them. To avoid Judgement on one side hearing this procedure is adopted. Writ Petition: A writ petition is a filing that a party makes with an appeals court in order to secure a speedy review of some issue. A writ petition is essentially a court petition for extraordinary review, asking a court to intervene in a lower courts decision. The most common writ petitions are writs of mandamus and writs of prohibition. Writs of mandamus ask an appellate court to issue a court order requiring that a lower court do something, while a writ of prohibition asks the court to prohibit a lower court from doing or enforcing something. A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person's imprisonment or detention is lawful A writ of certiorari is a writ sent to the highest appellate court, which in the United States is the Supreme Court. A writ of certiorari seeks Supreme Court review and decision in a case that has exhausted its appeals and is otherwise at the end of the line. Types of Courts/ Tribunals where our cases are instituted: The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court and guardian of the Constitution. Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. The Supreme Court is meant to be the last resort and highest appellate court which takes up appeals against judgments of the High Courts of the states and territories.

Internship at WBSETCL (6th- 20th November, 2013). Project Report.

The High Courts These courts have jurisdiction over a state, a union territory or a group of states and union territories. High courts are instituted as constitutional courts under Part VI, Chapter V, , Article 214 of the Indian Constitution. However, primarily the work of most High Courts consists of Appeals from lower courts and writ petitions in terms of Article 226 of the Constitution of India District Courts: The District Courts of India are established by the State governments in India for every district or for one or more districts together taking into account the number of cases, population distribution in the district. They administer justice in India at a district level. These courts are under administrative control of the High Court of the State to which the district concerned belongs. The decisions of District court are subject to the appellate jurisdiction of the concerned High court. The District Court is presided over by one District Judge appointed by the state Government. In addition to the district judge there may be number of Additional District Judges and Assistant District Judges depending on the workload. The district court has appellate jurisdiction over all subordinate courts situated in the district on both civil and criminal matters Tribunal: A tribunal is a court of justice but different from the usual courts. While the usual courts hear all kinds of cases, the tribunal is a court with the authority to deal with particular problems or disputes. An administrative tribunal is a special court with the authority to settle cases relating to the appointment and service conditions of government employees. Debt- Recovery Tribunal: The Debts Recovery Tribunal have been constituted under Section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The original aim of the Debts Recovery Tribunal was to receive claim applications from Banks and Financial Institutions against their defaulting borrowers. For this the Debts Recovery Tribunal (Procedure) Rules 1993 were also drafted. Under the provision of The Consumer Protection Act 1986, quasi-judicial

machinery, namely, Consumer Forums at the district level and Consumer Dispute Redressal Commissions at the State and National Level were setup with the objective to make the fruits of this benevolent Act reach its wide target audience. An Executive Finance Committee (EFC) was prepared to provide a turnkey solution at each of the
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district forum, state commission & national level, including linkages with respective state and central governments. The project aims at improving operational efficiency, co-ordination, accessibility, speed in judicial administration and to set Information Communication Technology (ICT) infrastructure at Consumer Redressal forums all over India. It aims at providing: E-Governance, Efficiency, Transparency, To achieve time bound delivery of justice to consumers efficiency Types of Litigations faced by the Company; a. Service Matter: This can be related with both internal stakeholders (employees of the Company) as well as the external stakeholders ( eg-who has applied for vacancies in the Company). Incumbents can move to the Courts being aggrieved by irregularities faced in terms of employment, non-employment or conditions of employment, for eg- matters may be related to retirement benefits, such as delay processing of gratuity etc. b. Contract Matter: Either party can seek redress from the Court of Law due to breach of terms and conditions of Contract. For eg-a contractor has been assigned to deliver tower equipments within a stipulated period-but he leaves after delivering only 30% of the materials and that too without proper notice. The Company may move to the Court seeking damages and may file a Money Suit. At times the bidder may also move to the Court due to infringement of his Right to Equality-if he is aggrieved by the fact that he is deprived of his right to get the Purchase Order during the tender process.

Internship at WBSETCL (6th- 20th November, 2013). Project Report.

c. Issues pertaining to electricity matters: i) Issues relating to service to the public/end-consumers: The end-consumers can prefer petition before the Honble Court if they are deprived of the service of the electricity. For eg- even after going through all the requisite processes they are unable to get electricity connection for a considerable period of time. ii) Appellate Matters: Section 126 and Section 127 of the Electricity Act 2003 deal with unauthorised use of electricity and Appeal to Appellate Authority respectively. Being aggrieved by order of the Appellate Authority or by the Assessment of unauthorised use of Electricity incumbents may move to the appropriate forum.

Internship at WBSETCL (6th- 20th November, 2013). Project Report.

elecTRIcITY acT 2003


PROVISIONS & PROCEDURE RELATING TO ASSESSMENT,APPEAL & COMPOUNDING

ASSESSMENT. SECTION 126 Sub-section (1) Conditions precedent to assessment If on an inspection of any place or premises or; After inspection of the equipments, gadgets, machines, devices found connected or used, or; After inspection of records maintained by any person, The assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

CASE LAW 1: S.126 Provisional assessment Charge of theft of electricity Prima facie case made out Disconnection immediately followed by provisional Assessment Opportunity of hearing at that stage not necessary. AIR 2010 (NOC) (Supp) 671 (Cal) (A). CASE LAW 2: Provisional assessment for unauthorized use of electricity Assessing Officer must be a member of the inspection team at the time of detecting the pilferage or unauthorized use of electricity so that he can pass order of assessment after visiting the site at the time of detecting of illegality. Under s.135 only the officer authorized by the State Govt. of the inspection team can lodge complaint under Cr PC. The Assessing Officer will pass final assessment order after hearing the consumer which is appealable before appellate forum.
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There will be no violation of the principle of natural justice because the Assessing Officer is also the complainant in the criminal case. The rule that nobody can judge of his own cause cannot be inflexible rule of natural justice, the same can be moulded in the interest of justice. Narayan Chandra Kundu Vs State of W.B. AIR 2007 (Cal) 298 (DB). CASE LAW 3: - S.126 - Provisional assessment Theft of electricity Despite provision for fastening criminal liability, authorities can invoke S.126 and determine electricity charges payable by person using electricity unauthorizedly. AIR 2010 Raj 86(B).

ASSESSMENT. SECTION 126.


Sub-section (2) - Order of assessment to whom to be served? The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

ASSESSMENT. SECTION 126


Sub-section (3) Final assessment The person, on whom a notice has been served shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, Who(assessing officer) may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person. CASE LAW 4: Provisional assessment for unauthorized use of electricity compliance of s.126(3) The object of opportunity of placing defense or hearing for provisional assessment and final assessment by consumer at two stages are distinct. In case of provisional assessment, it is the very issue whether he is guilty of unauthorized use of electricity or not and in the case of final assessment, if the quantum of amount which he is required to pay as
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compensation and a fiscal preventive measure for committing such irregularity. It is permissible to an assessing officer to cover both the aspects in the show cause notice under s. 126(3). The conclusion with respect to unauthorized use of electricity is a condition precedent for issuing provisional assessment notice and unless opportunity is given, the question of assessment would not arise and would be violation of principles of natural justice and arbitrary infringing Art. 14 of the Constitution. Ashok Kumar Vs State of U.P AIR 2009 NOC 161 (AII); 2008(3) ALJ 383 (DB). CASE LAW 5: S.126(6)(b) Charge of theft of electricity Assessment Order Challenge as to No documents or reports or evidence examined by assessing officer for arriving at conclusions of regular and successive interferences with meter resulting in pilferage of energy No proof to substantiate that accused resisted disconnection of service Writ rightly allowed due to violation of principles of natural justice. AIR 2010 (NOC) (Supp) 674 (Cal). CASE LAW 6: - S.126- Provisional assessment Order not disclosing as to how quantum of electricity used unauthorized had been arrived Consumers were also not apprised that they were entitled to file objection against provisional order In such case non-filing of no objections cannot be ground to treat provisional order as final order Provisional order liable to be quashed being violative of rules of natural justice. AIR 2010 Raj 86 (A).

ASSESSMENT. SECTION 126. Sub-section (4) - Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him: (Provided that in case the person deposits the assessed amount he shall not be subjected to any further liability or any action by any authority whatsoever.)* * Proviso to sub-section (4) of the original act has been deleted by Amendment Act 2007

Internship at WBSETCL (6th- 20th November, 2013). Project Report.

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ASSESSMENT. SECTION 126. Sub-Section (5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, The assessment shall be made for the entire period during which such unauthorized use of electricity has taken place And if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. Sub-Section (6) The assessment under this section shall be made at a rate equal to twice the tariff rates applicable for the relevant category of services specified in sub-section (5). Explanation.- For the purposes of this section, o Assessing officer means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government. For L&MV consumers- Station Managers. For Decentralized Bulk consumers- Divnl. Eng.(E)/ Supdt. Eng(E) attached to Circle offices. For Centralized Bulk Comsumers- Divnl. Eng.(E)/ Supdt. Eng(E) attached to Central Comml. Department. CASE LAW 7 S.126(6)(a) Final Assessment Pilferage of energy Jurisdiction of assessing authority Assessing Officer must be designated as assessing officer by Govt. and must be part of inspection team that determined unauthorized use of energy None of members of inspection team found to be designated officer Assessment made is bad Directed to make fresh assessment. AIR 2010 (NOC) (Supp) 671 (Cal) (B).
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COMPARATIVE CHART OF UNAUTHORIZED USE OF ELECTRICITY WITH THEFT

Internship at WBSETCL (6th- 20th November, 2013). Project Report.

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CASE LAW 8: - S.126,Expl.(b)(v) Unauthorized use of electricity What amounts to Consumer extending connection and using same for running its factories Electricity use for premises other than those for which supply of electricity was authorized It amounts to unauthorized use of electricity. AIR 2010 (NOC) 975 (Guj) (DB).

PROCEDURE
Notice of Inspection A written communication addressed to the concerned consumer explaining the purpose is necessary before entering the premises.(Reg. 8.3.3). Provisional Assessment The order of PA to be served within 48 hours of disconnection/inspection upon the person in occupation or possession or in charge of the place or premises by the assessing officer (Reg. 5.2) Objection A person not satisfied with the order of PA may file written objection with the AO within 15 days from the date of receipt (Reg. 5.3). Final Assessment Notice of hearing to reach atleast 72 hours before the schedule date and time of hearing. The person may appear in person or through a duly authorized representative. Order of FA to be passed within 30 days from the date of service of PA. Order of FA to be served within 4 working days from the date of order. However the order of FA may be passed ex-parte if the person does not attend the hearing (Reg. 5.4).

Internship at WBSETCL (6th- 20th November, 2013). Project Report.

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APPEAL TO APPELLATE AUTHORITY


SECTION 127 Sub-section (1): Any person aggrieved by a final order made under Section 126 may within 30 days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed. Any person aggrieved by the order can prefer appeal. Appeal should be made within 30 days of the FA in form 5 accompanied by fee @ 0.5 % of the FA. CASE LAW 9: Right of preferring appeal is not restricted to the recorded consumer but any person aggrieved by a final order made under section 126 including occupier enjoying electricity may approach the appellate authority. Asit Kumar Palit Vs WBSEDCL AIR 2009 Cal. CASE LAW 10: Exercise of power of Appellate Authority when biased. If a person making an order in exercise of power of original authority and also entertain an appeal against the said order and in the process affirms his own order then no person of ordinary prudence can expect an unbiased exercise of power of such appellate authority. The person exercising the power of appellate authority was actually biased. Propriety demands that such officer should recluse himself and refer the matter to competent authority for assigning the said appeal to any other appellate authority. Bharnobari Tea and Industries Ltd. Vs State of W.B. AIR 2006 Cal 173; Cal LT 2006(2) HC 119.

Internship at WBSETCL (6th- 20th November, 2013). Project Report.

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APPEAL TO APPELLATE AUTHORITY


SECTION 127 Sub-Section (2): No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to half of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal. Appeal will only be entertained if document of payment of 50% of FA is enclosed with the appeal.

Sub-Section 3: The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing of the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant. The appeal shall only be disposed by passing a reasoned order after hearing the parties. Copy of the order to be send to both assessing officer and the appellant.

Sub-Section 4: The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final. The Act does not postulate any forum of the authority before which further appeal can be preferred against the appellate order . The only remedy available is to file Writ Petition under Article 226 of the Indian Constitution before the Honble High Court Sub-Section 5: No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties. If FA is issued on consent of both the parties no appeal can be preferred against such FA. In such event minutes of the hearing should be got signed by both the parties.
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Sub-Section 6: When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of 30 days from the date of order of assessment, an amount of interest at the rate of 16% per annum compounded every 6 months

COMPOUNDING OF OFFENCES
SECTION 152 Sub-Section 1: Notwithstanding anything content in the Code of Criminal Procedure 1973 (2 of 1974), the Appropriate Govt. or any officer authorized by it in this behalf may accept from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence as specified in the Table below: Provided that the Appropriate Govt. may, by notification in the Official Gazette, amend rates specified in the Table above. In respect of M&LV consumers of WBSEDCL Zonal Manager is the Authorized Officer to compound any offence of theft of electricity vide Notification No. 64/Power/III/ dt. 12.03.2004 of the Special Secretary Power Dept. The order of compounding can be issued anytime before the judgment is pronounced. The State Govt. has not yet amended the rate specified in the table. Sub-Section 2: On payment of the sum of money in accordance with sub-section (1), any person in custody in connection with that offence shall be set at liberty and no proceedings shall be instituted against such consumer or person in any criminal court. Any person in custody shall be set at liberty. No proceedings shall be continued in any criminal court.

Sub-Section 3: The acceptance of the sum of money for compounding an offence in accordance with sub-section (1) by the Appropriate Govt. or an officer empowered in this
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behalf shall be deemed to amount to an acquittal within the meaning of section 300 of the Code of Criminal Procedure, 1973 (2 of 1974). Compounding will absolve a person of all criminal liability. Compounding depends upon the discretion of the authorized officer but while exercising such discretion there must be some reasoning rejecting the application for compounding. Sub-Section 4: The compounding of an offence under sub-section (1) shall be allowed only once for any person or consumer.

The opportunity of compounding is strictly for one time for this Act. However any offence was compounded under the repealed Act the same will not count for this purpose.

Internship at WBSETCL (6th- 20th November, 2013). Project Report.

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RIGHT OF WAY (ROW) AND WBSETCL


The facts of the matter have been drawn mainly from the order of a writ petition. The Dispute arose in connection with action of the licensee proposing erection of tower and drawal of overhead lines on and through the land of the private land owners. The issues involved in this dispute are commonly seen almost in all ROW related disputes being encountered by project management and thus judicial settlement will help understand the implications of legal provisions to guide the course of action. LEGAL PROVISIONS Under Repealed Acts Prior to enactment of Electricity Act, 2003 the Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948 were in force and there were various provisions governing erection of transmission lines or other connected work through, in or upon or under the private lands. As per Sec. 12 of the I. E. Act, 1910 the consent of the local authority or of the concerned owner is necessary to lay down or place any electric line. According to Sec. 51 of the Indian Electricity Act, 1910 the licensee if authorised by the appropriate Govt. can place electric supply lines, appliances & apparatus for transmission of energy notwithstanding the provisions contend under in Sec. 12 to 16 and Sec. 18 & 19 of the said Act. Sec. 28 of the Electricity (Sup.) Act, 1948 provided for preparation and sanction of scheme relating to laying of transmission line. According to Sec. 29 (2) of the Electricity (Sup.) Act, 1948 that every such scheme should be published in the official gazette and in local newspapers granting not less than 2 months time for making representation on such scheme. The proviso to Sec. 42 (1) of the Electricity (Sup.) Act, 1948 provided that where a sanctioned scheme does not make a provision for placing electric supply lines exempting application of Sec. 12 to 16, 18 & 19 of the I. E. Act, 1910 the provisions contained therein shall apply.

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SEC 67. Provision as to opening up & breaking EA2003 up tramways

of

streets,

railways

&

1. A licensee may, from time to time but subject always to the terms and conditions of his license, within his area of supply or transmission or when permitted by the terms of his license to lay down or place electric supply lines without the area of supply, without that area carry out works. 2. The appropriate Govt. may, by rules made by it in this behalf, specify (rules regarding the works of licensee) 3. A licensee shall, in exercise of any of the powers conferred by or under this section and the rules made thereunder, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or

inconvenience caused by him or by any one employed by him. 4. Where any difference or dispute including amount of compensation under sub-section (3) arises under this section, the matter shall be determined by the Appropriate Commission. 5. The Appropriate Commission, while determining any difference or dispute arising under this section in addition to any compensation under sub-section (3) may impose a penalty not exceeding the amount of compensation payable under that sub-section. SEC 164. Exercise of powers of Telegraph Authority in certain cases The Appropriate Govt. may by order in writing, for the placing of electric lines or electric plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper coordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Govt. may think fit to impose and to the provisions of the Indian Telegraph Act, 1885 (13 of 1885), any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained, by the Govt. or to be so established or maintained.

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RIGHT OF WAY vis-a-vis EASEMENT For electric transmission line right-of-way is a strip of land that we use to construct, operate, maintain and repair transmission line facilities. A transmission line usually is centered in the right-of-way. The width of a right-of-way depends on the voltage of the line and the height of the structures. The right-of-way generally must be clear of tall-growing trees and structures that could interfere with a power line. An easement is an interest in real property that gives the transmission licensee the legal right to use the property for the specific purpose of constructing, operating and maintaining a transmission line facility. When building or upgrading a transmission line, the licensee typically acquire access to and use of land by virtue of the Indian Telegraph Act (Sec. 10, 11 & 18), rather than purchasing the property outright. Landowners retain ownership of the real property, but its use is limited to activities that do not compromise the safety and reliability of the lines. CONTENTION OF THE AGGRIEVED PERSONS Originally the line was sought to be laid on and over the land belonging to others which was subsequently changed under influence and now intended to draw the lines through the lands of the persons raising dispute. The officials of the licensee entered into their lands without obtaining their consent and without following the process known to law. In spite of objection raised the licensee proceeded further in the said lands. The licensee were bound to initiate appropriate proceedings for acquisition of the lands or the consent of the owners ought to have been obtained by private negotiations before entering into the properties. No scheme was framed and published as required under the law before proceeding to lay electric lines.

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LICENSEES (WBSETCL) AVERMENTS The appropriate Government has authorized the licensee to place electricity lines in accordance with the Indian Telegraph Act, 1885. The scheme was drawn to improve and stabilize the voltage and power system network. A notification stood issued and published in the official gazette notifying the scheme. No objections were received pursuant to the gazette notification. Series of meeting were held in the office of the Sub-Collector and most of the persons on whose lands the lines were to be laid attended and gave consent. Even some of the land owners under present dispute also attended the meeting and agreed. Marking for construction of lines was started after service of notice to all concerned land owners by registered post followed by hanging a notice at Panchayat Office. ARGUMENTS OF THE PARTIES Licensee The licensee had not received any objection in response to the notification and therefore as per power conferred by the state Govt. it was entitled to exercise all the powers possessed by the telegraph authority under the Indian Telegraph Act, 1885 for the purpose of placing the transmission line by entering the lands of the landowners without acquiring the same. Land Owners The notification was not a sanctioned scheme as required u/s 42 of the Electricity (Supply) Act, 1948. The said notification was lacking material particulars relating to proposed route denying the aggrieved person to raise objection and thus not in compliance to sec. 29 (2) of the said Act.

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As there was no valid sanctioned scheme the licensee cannot proceed without obtaining the consent of the owners as required u/s 12 of the Indian Electricity Act, 1910. CASE LAWS RELIED UPON Bhaskara Housing (P) Ltd. Vs. APSEB, Hyderabad A cumulative reading of provisions of sub-section (1) of sec 42 of the Electricity (supply) Act, 1948 with that of proviso make it apparently clear that if the sanctioned scheme provides for any of the things contemplated under sections 12 to 16, 18 & 19 of the Indian Electricity Act, 1910 the officers of the Board can exercise similar powers conferred upon the authorities of the Telegraph Department under PartIII of the Indian Telegraph Act, 1885. In the instant case, since the sanctioned scheme provides for laying of lines and construction of towers, it should be held that the Board and its officers have the power to invoke the provisions of PartIII of the Indian Telegraph Act, 1885 and, therefore, prior consent is not necessary as required under sec 12 of the Indian Electricity Act, 1910. B. Krishna Mandadi Vs. Power Grid Corp. of India Ltd., Hyderabad A generating company engaged in generation, transmission and supply of electricity is empowered under the provisions of Electricity (Supply) Act, 1948 to lay electric poles, construct transmission towers on any private land without giving any notice and without causing damage to the property provided there is a scheme published as required under sec 10 of the Telegraph Act read with sec 42 (1) & (2) of the Electricity (Supply) Act, 1948. However, it has to pay compensation for the damage sustained by the owners of the land or owners of the crops. Bharat Plywood & Timber Products (P) Ltd. Vs. Kerala SEB, Trivandrum A full Bench of High Court of Kerala having interpreted the scope & object of Sections 12 & 51 of Indian Electricity Act, 1910 held that a licensee who has not been empowered by the State Government under Section 51 of the Indian Electricity Act, 1910 cannot place any electric supply lines in or over any property without the
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consent of the owner or occupier thereof. However, a person authorised under Section 51 can do so without consent of the owner or occupier.

SUMMARY From the ratio laid down in the above decisions, It is clear that prior to the enactment of Electricity Act, 2003, consent of the owner or occupier was necessary where there was no authorization under Sec. 51 of the Indian Electricity Act, 1910. Similarly, where a sanctioned scheme is published as required under Sec. 29 (2) read with Sec. 42 of the Electricity (Supply) Act, 1948, transmission towers or lines can be laid on any private land without giving any notice and without causing damage to the property. However, if any damage is caused, compensation shall be paid for the damage sustained as provided under Sec. 10 of the Indian Telegraph Act, 1885. Both the Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948 stood repealed under the Electricity Act, 2003 where there is no provision with regard to preparation and sanctioning of any scheme relating to laying of transmission lines as required under Sec. 28 of the repealed Electricity (Supply) Act, 1948, provisions similar to Sections 12 & 51 of the Indian Electricity Act, 1910 have been incorporated under Sec. 67 and Sec. 164 respectively. SEC 12. Provision as to opening up & breaking IEA1910 up of streets, railways & tramways 1. Any licensee may, from time to time but subject always to the terms and conditions of his license, within his area of supply, or, when permitted by the terms of his license to lay down or place electric supply-line without the area of supply, without that area a) open and break up the soil and pavement of any street, railway or tramway; b) open and break up any sewer, drain or tunnel in or under any street, railway or tramway; c) lay down and place electric supply-lines and other works;
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d) repair, alter or remove the same; and e) do all other acts necessary for the due supply of energy. 2. Nothing contained in sub-section (1) shall be deemed to authorize or empower a licensee, without the consent of the local authority or of the owner or occupier concerned, as the case may be, to lay down or place any electric supply-line, or other work in, through or against any building, or on, over or under any land not dedicated to public use whereon, wherever or whereunder any electric supply-line or work has not already been lawfully laid down or placed by such licensee:

Comparison of corresponding Sections of IE Act, 1910 & EA Act, 2003


As could be seen though sec 67 (1) of the Electricity Act, 2003 is identical to sec 12 (1) of the Indian Electricity Act, 1910, whereas sec 67 (2) of the EA, 2003 varies from sec 12 (2) of the repealed IE Act, 1910. Section 67 (2) does not say that the consent of the owner or lawful occupier is mandatory but the matters where the property of other persons are affected by the works of the licensee have been left to the appropriate Govt. by way of rules in exercise of its rule making power whereas u/s 12 (1) no work can be carried out without the consent of the owner / occupier.

Powers of the Telegraph Authority assigned to Licensee:


On an analysis of Section 67 & Section 164 of the Electricity Act, 2003, it is apparent that whenever an order is passed by the appropriate Government in exercise of the powers under Section 164 of the Electricity Act, 2003 for the placing of electric lines for the transmission of electricity, conferring upon any public officer, licensee or any other person engaged in the business of supplying electricity any of the powers which the telegraph authority possesses under the Indian Telegraph Act, 1885 such public officer, licensee or any other person engaged in the business of supplying electricity stands in the same position as regards the exercise of power as the telegraph authority under the Indian Telegraph act, 1885. However, in the absence of such an order under Section 164 of the Electricity Act, 2003, if a licensee i.e. a person who has been granted a licensee to transmit electricity
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or to distribute electricity under the Act, proposes to place electric lines, electric plant or other works necessary for transmission or supply of electricity, Section 67 of the Electricity Act, 2003 comes into operation and consequently it is mandatory to obtain the consent of the concerned owner or occupier in the same manner as was required under Section 12 (2) of the Indian Electricity Act, 1910.

POWER FOR TELEGRAPH AUTHORITY TO PLACE AND MAINTAIN TELEGRAPH LINES AND POSTS:
The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immoveable property (Sec 10) : Provided that a) the telegraph authority shall not exercise the powers conferred by this section except for the purpose of a telegraph established or maintained by the Central Government, or to be so established or maintained; b) The Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraphic authority places any telegraph line or post; and c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.

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DECISION
Sec. 164 of the Electricity Act, 2003 read with Sec. 10 of the Indian Telegraph Act, 1885 recognized the absolute power of the authorities to proceed with placing of electric supply lines or electric posts for the transmission of electricity on or over the private lands subject to the right of the owner / occupier to claim compensation if any damage is sustained by him. In other words, neither the acquisition of land is necessary nor there is any need for consent of the owner / occupier. Since, Sec. 28 or Sec. 42 of the Electricity (Supply) Act, 1948 are not saved under Sec. 185 of the Electricity Act, 2003, there is neither any need to publish a sanctioned scheme nor it is necessary to give any notice to each individual or by publication in any newspaper as required under Sec. 29 (2) of the Electricity (Supply) Act, 1948. Since the applicability of natural justice is excluded by implication there is no violation of the same. The licensee has absolute discretion as to from which land it would take the supply line as the writ petitioner cannot take the plea that the licensee be directed to supply line through the land of any other person and spare the land of the writ petitioners if the discretion is reasonable and not actuated by mala fide motive. (AIR 1997 Madras 64) (AIR 1980 Kerala 18). In above view the action of the licensee cannot be held to be arbitrary, illegal, or contrary to the provisions of the Electricity Act, 2003. G.V.S. Rama Krishna & 7 ors. Vs. A. P. Transco Case No.-2 The facts of the matter have been drawn from the order of a writ petition disposed by Honble High Court, Calcutta. The Dispute arose in connection with action of the licensee proposing erection of tower and drawal of overhead lines on and through the land of the private land owners.
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The Dispute involved the question whether proceedings by the District Magistrate is mandatory on the face of resistance in executing erection of tower & drawal of lines where opportunity of raising objection was initially given.

Case laws relied by the Petitioner


Bharat Plywood & Timber Products (P) Ltd. Vs. Kerala SEB, Trivandrum As matter stands, we have to come to the conclusion when a public officer, licensee or other person on whom the powers under the Telegraph Act have been conferred by the State Govt. acting under sec. 51 of the Electricity Act is resisted or obstructed, that authority has no alternative but to approach the District Magistrate under sec. 16 (1) of the Telegraph Act for an order enabling him to exercise those powers. T. Narayanan vs. The Power Grid Corporation Sec. 16 (1) of the Indian Telegraph Act clearly speaks of the permission of the District Magistrate when there is a resistance or obstruction to the exercise of power under sec. 10. The requirement of the permission from the District Magistrate is clearly stipulated under sec. 16 of the said Act.

Arguments of the Licensee


Prior to issuance of notification a petitioner became the owner of that particular plot over which lines are proposed to be drawn. Thus he had the opportunity to raise objection within the time frame. Since he has not availed the opportunity the writ petition is not maintainable. The licensee has complied with the direction of the appropriate Govt. imposed under se. 68 (3) of the EA, 2003 and once such conditions were fulfilled the licensee can proceed for execution of the work by exercising statutory power. If it is to be conceded that a property owner will have another opportunity to resist / obstruct once the work had started and the right of resistance obstruction is thus recognized a project can easily be frustrated by raising objection at regular intervals by the land owners at different earmarked plots.

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It is unbelievable that the petitioner was unaware of installation of proposed transmission line and therefore by not raising any objection at the proper time is guilty of acquiescence precluding him in law from contending that he has a right under sec. 16 (1) of the Telegraph Act, 1885.

Relevant Legal Provisions The Electricity Act, 2003:


Sec. 68 Overhead lines 1. An overhead line shall, with prior approval of the Appropriate Govt., be installed or kept installed above ground in accordance with the provisions of sub-section (2). 2. The provisions contained in sub-section (1) shall not apply a) in relation to an electric line which has a nominal voltage not exceeding 11 kv. and is used or intended to be used for supplying to a single consumer; b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or c) In such other cases, as may be prescribed. 3. The Appropriate Govt. shall, while granting approval under sub-section (1), impose such conditions (including conditions as to the ownership and operation of the line) as appear to it be necessary. The Appropriate Govt. may vary or revoke the approval at any time after the end of such period as may be stipulated in the approval granted by it.

SEC 164. Exercise of powers of Telegraph Authority in certain cases


The Appropriate Govt. may by order in writing, for the placing of electric lines or electric plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper coordination of works, confer upon any public officer, licensee or any other person engaged in the business of
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supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Govt. may think fit to impose and to the provisions of the Indian Telegraph Act, 1885 (13 of 1885), any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained, by the Govt. or to be so established or maintained.

THE INDIAN TELEGRAPH ACT, 1885:


Sec. 10. - The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immoveable property: Provided that a) the telegraph authority shall not exercise the powers conferred by this section except for the purpose of a telegraph established or maintained by the Central Government, or to be so established or maintained; b) The Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraphic authority places any telegraph line or post; and c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. Relevant Legal Provisions 16. Exercise of powers conferred by Sec. 10, and disputes as to compensation, in case of property other than that of a local authority
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1) If the exercise of the powers mentioned in Sec. 10 i.r.o. property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them. 2) If, after the making of an order under sub-section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under Sec. 188 of the Indian Penal Code (45 of 1860). 17. Removal or alteration of telegraph line or post on property other than that of a local authority 1) When, under the foregoing provisions of this Act, a telegraph line or posts has been placed by the telegraph authority under, over, along, across, in or upon any property, not being property vested in or under the control of management of a local authority, and any person entitled to do so desires to deal with that property in such a manner as to render it necessary or convenient that the telegraph line or post should be removed to another part or thereof or to a higher or lower level or altered in from, he may require the telegraph authority to remove or alter the line or post accordingly: Provided that 2. If the telegraph authority omits to comply with the requisition, the person making it may apply to the District Magistrate within whose jurisdiction the property is situate to order the removal or alteration. ANALYSIS & DECISION In terms of Sec. 67 (2) of the E. A. 2003, consent in writing of the owner or occupier of the land shall be required for carrying out works. The State Govt. has framed the West Bengal Rules, 2006 in terms of power conferred by Sec. 67. Rule 3 (4) thereof clearly mentions that nothing contained therein shall affect the powers conferred upon any licensee u/s 164 of the Act. Hence the contention that the consent of the owner of the property ought to have obtained is unacceptable since the said rules would have no application i.r.o. laying of overhead of transmission lines for which the relevant provisions are Sec. 68 & 164 of the Act.
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Absolute authorization without any condition was conferred on the licensee here without restrictions / limitations envisaged in the other provisions contained under part-III of the Telegraph Act. Sec. 10 thereof grants legal sanction to commit trespass on private property subject only to the condition that while committing such trespass, the licensee shall cause as little damage as possible and shall pay full compensation to all persons interested for any damage. Sec. 16 (1) contemplates the obligation of the Telegraph Authority to seek the permission of the District Magistrate if it faces resistance / obstruction. However inhibition of suo-moto action by the District Magistrate in case of resistance / obstruction created by the property owner cannot be inferred. It does not speak of a power exercisable by the telegraph authority. The licensee has been conferred similar powers which the telegraph authority specially enjoys with regard to placing of transmission line which does not necessarily follow that all rights and liabilities of licensee are governed by the Telegraph Act, 1885 unless a clear stipulation is contained in the order of authorization. The said authorization cannot therefore be construed as one qualified by and / or subject to provisions contained either in sec. 16 & sec. 17 of the Telegraph Act. On the contrary while conferring on the licensee the said authorization says that it is subject to compliance by it of the requirement of the provisions of the Electricity Act and the Rules made thereunder. In such case it might so happen that availing of the first opportunity a property owner may succeed in having his request for relocation of a tower accepted and, thereafter, in purported exercise of right conferred by se. 16 (1) may offer or create resistance / obstruction when the process to erect the tower is undertaken. If the writ petitioners argument is to be accepted, he may even after erection of the tower, seek relocation thereof by taking recourse to se. 17 of the 1885 Act. That, in my view, would lead to manifest absurdity and defeat the purpose.

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The construction of a statute in a manner that offends the sense of justice must yield to a construction i.e. just reasonable and sensible. Statute has to be read reasonably and not in such a manner that results absurdity. In a clear case of

construction producing impracticable results it is open to the court to adopt that construction that serves the ends of reasonableness and fairness and promotes justice. Even when two constructions are equally open the statute are to be harmoniously construed to ensure that one provision does not come in conflict with the other and the courts would be loath to choose the construction which introduces absurdity, uncertainty, friction or confusion in working of the system and prefer to adopt that alternative construction which is consistent with smooth working of the system and produces the desirable result. Once opportunity to object is given prior to commencement of exercise of sec. 10 powers by the licensee it cannot validly be contended the property owner would have again the right to resist / obstruct after execution of the work is commenced by the licensee. If that right is to be recognized although no objection was raised in spite of opportunity duly given, that would clearly be contrary to the result desired to be achieved by conferment of such power. It is inconceivable that the statute recognizes the scope of raising objection at 3 (three) stages by the petitioner 1st at prior to commencement of execution, the 2nd at the time the power under sec. 10 is exercised and the 3rd after the execution is complete that would render the statutory provision nugatory. The right available to a property owner to resist / obstruct under 16 (1) of the Telegraph Act would be lost forever and thus not survive once he fails to avail the opportunity to object in response to the notification issued by the licensee. The court of writ ought not to prevent a licensee from performing an act recognized and permitted by the statutory provisions based on judicial interpretation of statutes in a manner that destroys the very essence of enacting laws honestly, fairly and equitably. I also find sufficient merit in the submission of the licensee that in the eventuality of any inconsistency between the Electricity Act and The Telegraph Act so far as grant of opportunity to a property owner to object is concerned the Electricity Act would prevail.For reasons above the writ petition fails.
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POWER FOR TELEGRAPH AUTHORITY TO PLACE AND MAINTAIN TELEGRAPH LINES AND POSTS:
The Indian Telegraph Act, 1885: The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immoveable property: Provided that a) the telegraph authority shall not exercise the powers conferred by this section except for the purpose of a telegraph established or maintained by the Central Government, or to be so established or maintained; b) The Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraphic authority places any telegraph line or post; and c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. Authorisation under Sec. 164 - The Govt. Of West Bengal vide Notification No. 285 Power/III/3R04/2005 published in the Kolkata Gazette on 16th August, 2005 authorised the erstwhile WBSEB to exercise all the powers vested in the Telegraph Authority under Part-III of the Indian Telegraph Act, 1885 in respect of the electrical lines and electrical plants established or maintain or to be so established or maintain for the transmission and / or supply of electricity or for the purpose of telephonic or telegraphic communication necessary for the proper co-ordination of the work within the licensed area of the WBSEB.

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PECEDENTS AND RULINGS ON ROW


Komath Kumba Amma And Ors. vs Kerala State Electricity Board - The question
raised in this Civil Revision Petition concerns the 'Just compensation' payable on the basis of annuity principle, when trees in private properties are cut down for the purpose of drawing power lines. About four decades back, this question had come up for consideration by a Bench of this Court in Kerala State Electricity Board v. Varghese Thomas. 1961 Ker LT 238 : (AIR 1961 Kerala 237). The Bench took the view that the method that can be adopted for computing the compensation is the one by which the present value of annuity which would yield a fair return on the amount for a specified period is ascertained. It was also held that the fair return could be fixed at 5% interest per annum. Two decades later, the question again came up for consideration before a Full Bench in K.S.E. Board v. Marthoma Rubber Co. Ltd., 1981 Ker L T 646 : (AIR 1981 Kerala 223). The principle adopted by the Bench in 1961 Ker L T 238 : (AIR 1961 Kerala 237) supra concerning the mode of determining compensation, was not under challenge before the Full Bench. But, it was contended that the rate of return at 5% need not be true for all times. Regarding the rate of return, the Full Bench took the view that it would be safe to adopt return on fixed deposit for the usual period of 63 months as reasonable anticipated return on a long term basis on a safe and prudent investment. It is this aspect of the judgment of the Full Bench, that is sought to be reconsidered by the petitioners. 2. According to the petitioners, the Full Bench has erred in equating the rate of fair return with the prevalent Bank interest instead of adopting the "real rate of interest". In support of the above contention, reliance was placed on a decision of the Andhra Pradesh High Court in Bhagwandasv. Mohd. Arif, AIR 1988 Andh. Pra. 99 where Jagannadha Rao, J. (as he then was) had considered the question elaborately. It has been held therein that the rate of interest to be adopted for determining the compensation is 'real rate of interest' and not the actual or current rate of interest offered by the Banks. The Civil Revision Petition was therefore referred by a learned Single Judge and ultimately, it came up for consideration before a Full Bench. On examining the decision in 1981 Ker LT 646 : (AIR 1981 Kerala 223) supra, Full Bench found that the question whether it is the rate of interest that should be adopted or the current rate of interest, in order to arrive at the Just compensation payable when trees In private properties are cut down for the purpose of drawing power lines was not as such discussed or considered in detail in that decision, Therefore, the Full Bench referred the matter for consideration of a Larger Bench.

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3. At the outset, we may observe that no dispute is raised before us by both sides regarding the method to be adopted for arriving at the just compensation payable, namely, the method of determining the present value of an annuity which would yield a fair return for a specific period. The limited area of dispute is regarding the rate of return. The learned counsel for the petitioner contended that the rate of return that should be adopted is the one that can be obtained in a stable economy and not the interest offered by the Bank from time to time, which would vary due to serval reasons Including the effect of inflation. According to the petitioner, 5% return adopted by 1961 Ker LT 238 : (AIR 1961 Kerala 237) is the real rate of interest which could be obtained in a stable economy. After the judgment of the Full Bench in 1981 Ker L T 646 : (AIR 1981 Kerala 223), the Electricity Board had been uniformly adopting 10% as the rate of return, which according to the petitioners, resulted in substantial reduction in the quantum of compensation in respect of cutting of fruit bearing trees. In the present case, dispute that remains for consideration is one relating to compensation for cutting down palms. 3A. In order to substantiate his contention, learned counsel made available a statement working out the amount of compensation payable by applying interest at the rate of 10% and 5%, The gross and net yield of coconuts and its price adopted in the statement are not in dispute. Coconut prices as given in pages 266 and 267 in the "Coconut Statistics" published by the Coconut Development Board (Ministry of Agriculture, Govt. of India, "Kerala Bhavan", Cochin-11. 4. The above would show that if 20 years purchase price is taken at 5% return per annum and by applying the multiplier 12.46 as per Parks table, the entire amount of compensation will be depleted by the 12th year. But, if 10% return per annum is taken and if multiplier of 8.51 as per Parks table is applied, by the 8th year, the entire amount will be depleted. In the case of fruit bearing trees like coconut and arecanut which have got a life span of more than 70 years, if the entire amount of compensation is to be depleted by the 8th year, the owner of the tree will suffer great prejudice. The higher the percentage of return per annum, lesser will be the present value of the annuity. It is contended by the learned counsel for the revision petitioner that this aspect has not been taken Into consideration at all, by the Full Bench in 1981 Ker L T 646 : (AIR 1981 Kerala 223). Therefore, according to the petitioner, the Full Bench decision requires reconsideration. 5. The bone of contention between the parties is whether inflation is an element to be taken into consideration while computing the present purchase value of future annuity. According to the petitioner, if inflation is not taken into consideration, the lumpsum paid will not represent an amount as nearly as possible full compensation for the injury which the claimant
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has suffered. Adopting of real rate of interest or Interest obtainable in a stable economy will take care of the effect of inflation. On the other hand, the respondent-Board would contend that the rate of interest that has to be taken into consideration is the one offered by the Banks at the relevant period. If a lesser rate of interest is taken into consideration, the claimant will be over-compensated. According to the respondent, inflation is not a component to be taken into consideration while com-puting the compensation. 6. Before we embark on a discussion on the various decisions relied on by both sides, we may point out that both sides have no case that a different annuity method than that is applied to cases where compensation is granted for death or personal injury, should be applied in cases where compensation for cutting of fruit bearing trees is to be paid. As a matter of fact, most of the cases relied on by both sides relate to fixing of compensation for death or personal injury. 7. What is meant by annuity method, has been explained by Lord Lloyd of Berwick in Wells v. Wells, (1999) 1 A. C. 345 in the following manner: "But to simplify the illustration one can take an average annual cost of care of 10.000/- on a life expectancy of 20 years. If one assumes a constant value for money, then if the Court were to award 20 times 10.000/- it Is obvious that the plaintiff would be over-compensated. For the 10,000/- needed to purchase care in the twentieth year should have been earning interest for 19 years. The purpose of the discount is to eliminate this element of over-compensation. The objective is to arrive at a lump sum which by drawing down both, interest and capital will provide exactly 10,000/- a year for 20 years, and no more. This is known as the annuity approach. It is a simple enough matter to find the answer by reference to standard tables. The higher the assumed return on capital, net of tax, the lower the lump sum. If one assumes a net return of 5 percent, the discounted fig- ure would be 124,600/- instead of 200,000. If one assumes a net return of 3 per cent, the figure would be 148.800/-." 8. In Kerala State Electricity Board v. Varghese Thomas, 1961 Ker L T 238 :(AIR 1961 Kerala 237), Division Bench considered different methods for assessing the compensation for destroying fruit bearing standing trees while drawing the electric line. The Bench took the view that the rule of capitalisation prevalent in Travancore area In early times at 8 and 1/3 years' purchase, based as it is on 12% interest, cannot be followed at this distance of time. It was then observed that "having regard to the condition of the money market and the value of the security afforded by investment on land, which, as is generally held, is inferior to what are called gilt-edged securities, we venture to think that a rate of interest at 5% p.a. may be considered to be reasonable and fair from all points of view". Then, the Court proceeded to consider the rule of capitalisation adopting the number of years the tree was expected to bear
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fruits as the multiplier. It was then observed that the choice of multiplier in the above manner is not valid, for, it gives the owner of the tree immediately and in a lump, without any deduction, what represents the usufruct for entire period during which the trees would have borne fruit, which he cannot justly claim. Then the Bench proceeded to find that the only principle that can be accepted is to ascertain the value of annuity which represents a fair return on the amount at 5% p.a. While adopting 5% return, the Court made reference to the rate of interest sanctioned by the provisions of Kerala Agricultural Debt Relief Act, 1958, ( Act 31 of 1958) as 5%. It was then noted that this idea had been recognised in a very early enactment, Malabar Compensation for Tenants' Improvements Act, 1899 (Madras Act 1 of 1900). 9. In order, to find out the multiplier, it was held that Parks table would be helpful. It was then observed that the productive life of various categories of fruit bearing trees, as a matter of common knowledge and experience, though subject to variations depending on local conditions, can be estimated, as also the age of a particular tree at the time of its destruction. The concept of 'real interest rate is not seen discussed in the above judgment, even though the principle is applied. It is observed by Lord Diplock in Cookson v. Knowles, (1979) A. C. 556, "in times of stable currency, the multipliers that were used by judges ..... were appropriate to interest rates of 4 per cent to 5 per cent whether the judges using them were conscious of this or not." 10. Now, we will consider what is meant by 'real rate of interest' and its relevance in computation of compensation. Prof. Paul A. Samuelson defines 'real interest rate' as the "money interest rate" minus "the percentage price rise". Thus, if the money rate is 9 per cent and the annual price rise is 7 per cent, then the true real rate of interest is 9 - 7 = 2 per cent. (See Economics, by Paul A. Samuelson, 11 th Edition (International Student Edition) page 566.) 11. Before we go to 1981 Ker. LT 646 :(A1R 1981 Kerala 223) (FB) supra, we may refer to another decision of Subramonian Potti, J. (as he then was) rendered earlier to the Full Bench decision. In Kerala State Electricity Board v. Williams. 1981 Ker L T 95, the learned Judge considered the question of computation of compensation for fruit bearing trees which are felled for the purpose of drawing electric line. It was observed that the principle to be followed is not one of capitalisation, for allowance would have to be made for accelerated payment. According to learned Judge, compensation payable ought not to be the capitalised value, but only the present value of annuity at fair current rate of interest which represents the annual net yield. It is to be noted that reference was not to 'fair rate of interest' but to 'fair

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current rate'. After referring to different rates of interest offered by Nationalised Banks, debentures. Unit Trust etc., learned Judge proceeded to observe as follows : "I am mentioning these facts here to show that what was stated by a Division Bench of this Court in 1961 is not to be taken as law for all time. That was said by this Court in the context of the then situation in the money market and the concept of reasonable return to an investor. Twenty years is a long period. The last ten years, particularly, have been years which saw unprecedented inflation. In the earlier decision, this Court did not purport to lay down any rule of rate of return for all time nor could it do so. The mistake committed by the Court below was in assuming that it did." Thereafter, the learned Judge quoted the following passage from 1973 Ker LT 573 :( AIR 1973 Kerala 254) (FB) (Rarukutty v. Special Tahsildar and Land Acquisition Officer, Kozhikode) : "All told it will be unreasonable to except a prudent investor to sink his money in purchase of properties with buildings unless he is assured of an appreciable increase in the income return, from what he could safely obtain by depositing his money with a Nationalised Bank and earn, say 7% as yearly interest. I am only indicating that ancient concept of return on gilt-edged securities as the basis for capitalisation may no longer be appropriate." It was then observed that the reference to 7% was made because, at thai time, interest return on a fixed deposit for 5 years was around 7% which has later undergone a further enhancement to 10%. Thereafter, learned Judge entered the following finding "In short, for the purpose of capitalisation or for the purpose of determining the return on an annuity the rate to be determined depends upon the current rate of return on a safe and sound investment. Such current, rate is certainly not 5%, it is much more. The Electricity Board has adopted 10% by way of such return, but the Court below chose to fix it at 5% applying the decision in Kerala State Electricity Board v. Varghese Thomas, 1961 Ker L T 238 :( AIR 1961 Kerala 237). That is evidently wrong. " The above would make it clear that the learned Judge did not refer to or apply real interest rate in order to ascertain the quantum of compensation. This was the same principle that was followed in 1981 Ker LT 646 :( AIR 1981 Kerala 223) also. 12. In paragraph 6 of the above judgment, the Bench has considered the principle to be enunciated for computing the compensation. The non-acceptability of capitalisation method and the fairness of the annuity method had been explained as follows :
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"If we capitalise the income for the number of years during which the tree is expected to yield in future at the prevalent rate of interest the capitalised value will represent not only the return for these years, but in addition the capital that would remain intact at the end of the period. To, put the same idea in a different way, it would represent such recurring return for all time and not for the limited period during which alone the tree would have continued to yield income. Therefore, that would not be just equivalent of the compensation. If 5% return would be a reasonable return and the trees would normally be executed to yield, say for 25 years more what is paid as compensation must yield the annual return at 5% which would be equivalent of what the owner of the trees would have obtained had these trees continued to stand in the property for 25 years but since the trees would cease to yield income at the end of 25 years the amount paid as compensation must exhaust itself by the end of that period. In other words, it will be as if the amount of income is received only for a period of 25 years. In that event, the determination should be as if an annuity for 25 years is provided for. What amount invested today will yield annuity for a specified period will have to be computed. The present value of recurring payments for a specified number of years will have to be worked out. It will be easy to work it out on the basis of the valuation tables provided in the Appendix in "parks on Valuations Land and Houses." The present value of Re. 1 per annum at specified rates of interest return for a specified number of years could be easily found from the table. That would serve as the basis for determining what such value will be applying the multiplier representing the specified number of years." The above would clearly show that the view taken by the Bench on the method of computing compensation is in consonance with the view taken in, 1961 Ker LT 238 : (AIR 1961 Kerala 237) supra. Reference was made by the Bench to the observation in, 1961 Ker LT 238: (AIR 1961 Kerala 237) that a rate of interest at 5% per annum may be considered to be reasonable and fair, from all points of view. Then the Bench proceeded to observe: That the reasonable interest rate does not continue to be 5% cannot be a matter on which there is scope for controversy. ..... . . The last decade saw unprecedented inflation in this country. The interest rates on loans advanced by Banks have been steadily on the increase. The interesl rates on fixed deposits have also been steadily increasing over the last 10 years. While the Full Bench of this Court noticed 7% as the ruling rate on Fixed Deposits in 1973 it has risen upto 10% today and it is apparently receiving further attention. Any prudent man expects to receive a return not less than what he would receive on a deposit for a term of 5 years or so in a Nationalised Bank."

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Thereafter, reference was made to the rate of interest on term deposit for a term above 5 years which was 10% from 22-7-1974, 9% from 1-8-1978 and 10% from 13-9-1979. Finally, the Bench observed that it will be safe to adopt the return on a fixed deposit for usual period of 63 months as reasonable anticipated return on a long term basis on a safe and prudent investment. The Bench adopted the rates shown in the table referred above as interest rates for the respective years as reasonable rates. According to the learned Judges, it is neither 5% as contended by the claimants nor 10% in all cases as contended by the Board. The rate of interest on term deposit for a period of 63 months prevalent on the date when compensation becomes due will be the relevant date, 13. The above would clearly show that the Bench had totally ignored the effect of Inflation and proceeded to accept the Bank interest rate as the fair return. The question whether the effect of inflation has to be taken into consideration while quantifying the damages for death and personal Injury had been a mooted issue for a long time In the English Courts. There was difference of opinion between the Judges on this issue. But, even in those cases where the view taken was that the effect of future inflation cannot be taken into consideration, it has been observed that a lower rate of interest obtainable in a steady economy should be adopted and if it is so done, the effect of inflation will be automatically taken care of.

RECENT DEVELOPMENTS
Recently a case precedent of the Honourable Patna High Court has surfaced in the field of academic interest. In Ram Naresh Singh vs. PGCIL, the Ld counsel on behalf of the petitioner has argued that the massiveness and extent of foundation in case of a telegraph line and that of an electricity transmission line cannot be equated under the same roof. In case of telegraph posts, single monopole posts are required to be erected whereas in electricity transmission the post required for overhead lines are much massive with a minimum of four base-stands. The Ld bench being satisfied on this arguments, gave decision on favour of the petitioner and PGCIL lost the same case. Moreover in 2013 on the successful completion of 150 years of the Indian Post , the validity of the Telegraph Act, 1885 is also becoming questionable. In any situation whatsoever the present case is pending as an appeal before the honourable apex court in India. The precedent that is yet to release from the pending decision of this case is long awaited and may become a milestone in the fate of WBSETCL.
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LABOUR LEGISLATIONS AND WBSETCL


The WBSETCL being a juristic person and a law-abiding institution secures to all its employees social security and welfare. For this reason it has to adhere to certain centrallabour legislations to regulate the total mass of human resource and man-power, generated and engaged in the company. Some of the main central legislations required in the daily business of this institution are-

EMPLOYEES PROVIDENT FUND ACT


As per Preamble to the Act, the EPF Act is enacted to provide for the institution of provident funds, pension fund and deposit lined insurance fund for employees in factories and other establishments. The Employees Provident Funds & Miscellaneous Provisions Act is a social security legislation to provide for provident fund, family pension and insurance to employees. Employee has to pay contribution towards the fund. Employer also pays equal contribution. The employee gets a lump sum amount when he retires, which will be useful to him after retirement. The Act covers three schemes i.e. PF (Provident Fund Scheme) FPF (Family Pension Fund Scheme) EDLI (Employees Deposit Linked Insurance Scheme)

The EPF Act contains basic provisions in respect of applicability, eligibility, damages, appeals, recovery etc. The three schemes formed by Central Government under the Act make provisions in respect of those schemes. Applicability Of The Act:The Act applies to Every establishment which is a factory engaged in industry specified in Schedule I to the Act and in which 20 or more persons are employed.

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Any other establishment or class of establishment employing 20 or more persons which may be specified by Central Government by notification in official gazette.Central Government can also apply provisions of the Act to any establishment employs less then 20 persons [Section 1(3)]. Even if the provisions of PF Act are not applicable in a particular establishment, if employer and majority of employees agree, the Central Provident Fund Commissioner can apply the provisions to that establishment by issuing a notification in official Gazette [Section 1(4)]. The main provisions of the Act are:The Act aims to provide for institution of provident funds, family pension funds and deposit linked insurance funds for the employees in the factories and other establishments. Accordingly, three schemes are in operation under the Act. These schemes taken together provide to the employees an old age and survivorship benefits, a long term protection and security to the employee and after his death to his family members, and timely advances including advances during sickness and for the purchase/ construction of a dwelling house during the period of membership. These three schemes are as follows:1. 2. 3. Employees' Provident Fund Scheme, 1952 Employees' Deposit Linked Insurance Scheme, 1976 Employees' Pension Scheme, 1995 (replacing the Employees' Family Pension

Scheme, 1971) The Central Government may by notification in the Official Gazette constitute a Central Board of Trustees for the territories to which this Act extends. Also, the Government may constitute an Executive Committee to assist the Board in the performance of its functions. The contribution which shall be paid by the employer to the fund shall be eight and one-third per cent of the basic wages, dearness allowances and retaining allowance (if any) for the time being payable to each of the employees. While, the employees' contribution shall be equal to the contribution payable by the employer in respect of him and may if any employee so desires and if the Scheme makes provision therefore be an amount not exceeding eight and one-third per cent of his basic wages, dearness allowances and retaining

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allowance (if any), subject to the condition that the employer shall not be under an obligation to pay any contribution over and above his contribution payable under the Act. The Central Government may by notification in the Official Gazette constitute one or more Employees' Provident Funds Appellate Tribunal to exercise the powers and discharge the functions conferred on such Tribunal by this Act and every such Tribunal shall have jurisdiction in respect of establishments situated in such area as may be specified in the notification constituting the Tribunal. No employer in relation to an establishment to which any scheme applies, shall by reason only of his liability for the payment of any contribution to the fund, or any charges under this Act or the scheme, reduce whether directly or indirectly, the wages of any employee to whom the scheme applies or the total quantum of benefits in the nature of old age pension gratuity provident fund or life insurance to which the employee is entitled. Whoever for the purpose of avoiding any payment to be made by himself under this Act or of enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation, shall be punishable with imprisonment or with fine or with both.

THE EQUAL REMUNERATION ACT


It is enacted to give effect to the provision of Article 39 of the Constitution of India which contains a directive principle of equal pay for equal work for both men an women. The Act provides for the payment of equal remuneration to men and women workers for the same work or work of a similar nature and for the prevention of discrimination on the ground of sex against women in the matter of employment. The Equal Remuneration Act, 1976 aims to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the ground of sex, against women in the matter of employment and for matters connected therewith or incidental thereto. According to the Act, the term 'remuneration' means "the basic wage or salary and any additional emoluments whatsoever payable, either in cash or in kind, to a person employed in respect of employment or work done in such employment, if the terms of the contract of employment, express or implied, were fulfilled".
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The main provisions of the Act are:1. No employer shall pay to any worker, employed by him/ her in an establishment, a

remuneration (whether payable in cash or in kind) at rates less favourable than those at which remuneration is paid by him/ her to the workers of the opposite sex in such establishment for performing the same work or work of a similar nature. Also, no employer shall, for the purpose of complying with the provisions of this Act, reduce the rate of remuneration of any worker. 2. No employer shall, while making recruitment for the same work or work of a similar

nature, or in any condition of service subsequent to recruitment such as promotions, training or transfer, make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force. 3. Every employer shall maintain such registers and other documents in relation to the

workers employed by him/ her in the prescribed manner. 4. If any employer:- (i) makes any recruitment in contravention of the provisions of this

Act; or (ii) makes any payment of remuneration at unequal rates to men and women workers for the same work or work of a similar nature; or (iii) makes any discrimination between men and women workers in contravention of the provisions of this Act; or (iv) omits or fails to carry out any direction made by the appropriate Government, then he/ she shall be punishable with fine or with imprisonment or with both. 5. Where an offence under this Act has been committed by a company, every person

who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed, to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

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APPLICATION OF THE MINIMUM WAGES ACT, 1948 IN W.B.S.E.T.C.L


The main object of the act is to secure the welfare of the workers in a competitive market by providing for a minimum limit of wages in certain employments. The act contemplates that minimum wages rates must ensure not only the mere physical need of the worker which would keep him just above starvation but must ensure for him not only his subsistence and that of his family but also preserve his efficiency as a workman. Fixation Or Revision Of Minimum Rates Of Wages: Minimum rate of the wages fixed or revised consists of the following: (i) A basic rate of wages and a special allowance viz. cost of living allowance; (ii) A basic rate of wages with or without cost of living allowance and cash value of concession for supplies of essential commodities; (iii) An all-inclusive rate, i.e., basic rate, cost of living allowance and cash value of concessions. Wages Must Be Paid In Cash Or Kind: Wages shall be paid in cash, however, if there is a custom to pay a part or the whole of wages in kind, the Government may authorise payment either wholly or partly in kind on being satisfied that the supply of essential commodities is being done to the worker as per the real object of the Act. Manner And Procedure Of Fixing And Revising Minimum Rates Of Wages: For the fixation of minimum wages, the employment must have been in schedule originally 01 added to the schedule by a notification under Section 27 of the Act. The Govt. may fix or revise the minimum wages either by committee procedure or by notification procedure. Fixing Hours of Work Sec. 13 The no. of hours which shall constitute to normal working day in case of an adult, nine hours including lunch break of one hour and 48 hours in a week. The employer shall allow a day of rest after six days of work with wages to the employees every week. If the employer extract
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work for more than four hours and less than eight hours the employer has to pay full day wages. Overtime wages Sec. 14 Any employee on any day having worked excess of no. of hours prescribed (i.e. 9 hours in a day or 48 hours in a week), is entitled to over time at double the wage except in agriculture wherein it is 1 times of the wage. If any employer a. pays to any employee less than the minimum rates of wages fixed for that employees' class of work; or b. contravenes any rule or order made by the appropriate Government under Section 13 regarding hours of work; He would be punished with imprisonment up to five years or with fine up to Rs.10000.00 or with both. The offences under Section 22 of this Act shall be cognizable and non-bailable.

APPLICATION OF THE PAYMENT OF WAGES ACT, 1936 IN W.B.S.E.T.C.L


It applies in the first instance to the payment of wages to persons employed in any factory, to persons employed (otherwise than in a factory) upon any railway by a railway administration or, either directly or through a subcontractor, by a person fulfilling a contract with a railway administration, and to persons employed in an industrial or other establishment specified. Responsibility For Payment Of Wages Every employer shall be responsible for the payment to persons employed by him of all wages required to be paid under this Act: Provided that, in the case of persons employed (otherwise than by a contractor)- (d) in factories, if a person has been named as the manager of the factory (b) in industrial or other establishments, if there is a person responsible to the employer for the supervision and control of the industrial or other establishments (c) upon railways (otherwise than in factories), if the employer is the railway administration and the railway administration has nominated a person in this behalf for the local area concerned. The

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person so named, the person. so, responsible to the employer, or the person so nominated, as the case may be; [shall also be responsible] for such payment. Fixation Of Wage-Periods. (1) Every person responsible for the payment of wages under section 3 shall fix periods in respect of which such wages shall be payable. (2) No wage period shall exceed one month. Time Of Payment Of Wages (1) The wages of every person employed upon or in- (a) any railway, factory or industrial or other establishment] upon or in which less than one thousand persons are employed, shall be paid before the expiry of the seventh day, (b) any other railway, factory or industrial or other establishment, shall be paid before the expiry of the tenth day, after the last day of the wage period in respect of which the wages are payable: (c) in the case of persons employed on a dock, wharf or jetty or in a mine, the balance of wages found due on completion of the final tonnage account of the ship or wagons loaded or unloaded, as the case may be, shall be paid before the expiry of the seventh day from the day of such completion. Where the employment of any person is terminated by or on behalf of the employer, the wages earned by him shall be paid before the expiry of the second working day from the day on which his employment is terminated (3) Where the employment of any person in an establishment is terminated due to the closure of the establishment for any reason other than a weekly or other recognized holiday, the wages earned by him shall be paid before the expiry of the second day from the day on which his employment is so terminated. (4) All payments of wages shall be made on a working day. All wages shall be paid in current coin or currency notes or in both: Provided that the employer may, after obtaining the written authorization of the employed person, pay him the wages either by cheque or by crediting the wages in his bank account. Maintenance of Registers And Records. (1) Every employer shall maintain such registers and records giving such particulars of persons employed. by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed. (2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein.

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THE CONTRACT LABOUR ACT


The Contract Labour (Regulation and Abolition) Act, 1970 is an impor tant piece of social legislation as it is for the welfare of labourers whose conditions of services are generally not at all satisfactory. It is meant to regulate the employment of contract labour and where necessary to abolish the same. It protects the contract labour from various abuses. Important Provisions of this Act 1. Constitution of Advisory Boards: To advise the Central Government on matters relating to this Act, a Central Advisory Board is constituted. Similarly State Advisory Boards are also constituted. The Central Advisory Boards and the State Advisory Boards have the powers to constitute committees for this purpose. 2. Registration of Establishments Employing Contract Labour: Every principal employer of an establishment to which this Act applies is required to apply for registration of the establishment with the registering officer as notified by the Government. If he fails to do so within the pre scribed time fixed for this purpose, he cannot employ contract labour in the establishment, under the provisions of this Act. 3. Prohibition of Employment of Contract Labour: The appropriate Government may, after consultation with the Central Board or a State Board, prohibit employment of contract labour in any process, operation or other work of any establishment, as per the provisions of this Act. 4. Licensing of Contractors: According to this Act, no contractor to whom this Act applies, shall undertake or execute any work through contract labour except and in accord ance with a licence issued by the licencing officer.

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5. Welfare and Health of Contract Labour (a) Canteens: The Act also contains provisions for making rules that every establishment to which this Act applies, wherein contract labour is of 100 workmen or more, shall provide and maintain one or more canteens for the benefit of contract labour. These rules may also provide for the date, number of canteens, standards in respect of construction, accommodation, furniture and other equipment and the foodstuffs as well as the charges. (b) Rest-rooms: There is a provision for providing rest-rooms, or alternative accommodation by the contractor to the contract labour in estab lishments to which this Act applies and in which workers (contract labour) is required to halt at night in connection with the work. (c) Other facilities: The Act also provides for other facilities such as : (i) A sufficient supply of wholesome drinking water for the contract labour at convenient places; (ii) A sufficient number of latrines and urinals of the prescribed types so situated as to be convenient and within reach to the contract labour in the establishment; and (iii) Washing facilities. (d) First-aid facilities: The contractor is also required to provide and maintain first-aid facilities. These should be readily accessible during all working hours. (e) Liability of principal employer: In case a contractor does not provide any amenity for the benefit of contract labour, such amenity shall be provided by the principal employer (one who has given contract to the contractor).

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The expenses on this account can be recovered by the principal employer, as per provisions of this Act. (f) Responsibility for payment of wages: The Act provides that a contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry, of prescribed period. If the contractor fails to make payment of wages within the prescribed time or makes short payment, then the principal employer shall be liable to make payment to the contract labour employed by the contractor and recover such amount from the contractor. 6. Penalties and Procedure: A penalty of imprisonment for a period up to three months or fine up to five hundred rupees or both can be imposed on the person who obstructs an inspector in the discharge of his duties under this Act. For contravention of provisions regarding employment of contract labour, imprisonment for term up to three months or a fine up to one thousand rupees or both can be imposed.

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GENDER SECURITY AND WBSETCL- PROTECTION OF WOMEN EMPLOYEES WORKPLACE


It is noticeable that the number of sexual harassment cases taking place is increasing rapidly, which gives a clear idea of the existence of many reasons, one of which is how people in authority are not taking this huge problem into account and are not trying to prevent it. Such actions have serious consequences and, which results in that the world should make fast moves towards preventing these actions from happening and saving many young teens in the best years of their lives from being mentally or even literally destructed. It is most likely for people, who hear the term sexual harassment to think that the victim is from the opposite sex, and is mostly a woman. In this matter it was cleared out that the harasser and the victim can be from the same sex no matter who harasses whom. Sexual harassment is any unwelcome or unwanted attention either by touching or talking to a reasonable person in a way he/ she does not like. This term sometimes extends to include gender harassment, harassment based on sexual orientation, and Sexual abuse. It also in result it is a very important step that the victim tells the harasser that what he is doing is not welcome nor is it wanted. In other words it is legally not considered harassment if the victim does not express his/ her rejection to the action the harasser is forcing on him. For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: a) Physical contact and advances; b) A demand or request for sexual favours; c) Sexually coloured remarks; d) Showing pornography; e) Any other unwelcome physical, verbal or non-verbal conduct

AGAINST

SEXUAL

HARRASMENT

AT

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of sexual nature Where any of these acts is committed in circumstances where-under the victim of such conduct has a reasonable apprehension that in relation to the victims employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

DUTY OF THE EMPLOYER OR OTHER RESPONSIBLE PERSONS IN WORK PLACES AND OTHER INSTITUTIONS It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps required. PREVENTIVE STEPS All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: A. Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways. B. The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender. C. As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

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D. Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment. CRIMINAL PROCEEDINGS Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. DISCIPLINARY ACTION Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. COMPLAINT MECHANISM Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employers organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. COMPLAINTS COMMITTEE The complaint mechanism, referred to above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid
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guidelines including on the reports of the Complaints Committee to the Government department. WORKERS INITIATIVE Employees should be allowed to raise issues of sexual harassment at a workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings. AWARENESS Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner. THIRD PARTY HARASSMENT Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

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RIGHT TO INFORMATION AND WBSETCL


The Right to Information is a subject of fundamental importance in any civilised society. It is also a part of the fundamental right to freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution. The Preamble to the Right to Information Act, 2005 seeks to provide for "setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commission and for matters connected therewith or incidental thereto." Information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body.

The Right to Information (RTI) Act is a law enacted by the Parliament of India to provide for setting out the practical regime of right to information for citizens. It was passed by Parliament on 15 June 2005 and came fully into force on 13 October 2005. The RTI Act mandates timely response to citizen requests for government information. It applies to all States and Union Territories of India, except the State of Jammu and Kashmir, which is covered under a State-level law. Under the provisions of the Act, any citizen (excluding the citizens within J&K) may request information from a 'public authority' (a body of Government or 'instrumentality of State') which is required to reply expeditiously or within thirty days. The RTI Act specifies that citizens have a right to: request any information (as defined); take copies of documents; inspect documents, works and records; take certified samples of materials of work; and obtain information in the form of printouts, diskettes, floppies, tapes, video cassettes or in any other electronic mode. The officer who is the head of all the information under the Act is Chief Information Commissioner (CIC). At the end of year CIC is required to present a report which contains: the number of requests made to each public authority; the number of decisions when applicants were not given permission to access to the documents which they request, the provisions of the Act under which these decisions were made and the number of times such provisions were filed Under the Act, all authorities covered must appoint their Public Information Officer (PIO). When any person submits a request to the PIO for information in
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writing, it is the PIO's obligation to provide information. Further, if the request pertains to another public authority (in whole or part) it is the PIO's responsibility to transfer/forward the concerned portions of the request to a PIO of the other authority within five days. In addition, every public authority is required to designate Assistant Public Information Officers (APIOs) to receive RTI requests and appeals for forwarding to the PIOs of their public authority. The RTI Act specifies that a citizen making the request is not obliged to disclose any information except his/her name and contact particulars. The Act also specifies time limits for replying to the request. If the request has been made to the PIO, the reply is to be given within 30 days of receipt. In the case of APIO, the reply is to be given within 35 days of receipt. If the request is transferred by to PIO to another public authority the time allowed to reply is computed from the day on which it is received by the PIO of the transferee authority. In case of information concerning corruption and Human Rights violations by scheduled Security agencies, the time limit is 45 days but with the prior approval of the Central Information Commission. However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours. The information under RTI has to be paid for except for Below Poverty Level Card (BPL Card) holders. Hence, the reply of the PIO is necessarily limited to either denying the request (in whole or part) and/ or providing a computation of further fees. The time between the reply of the PIO and the time taken to deposit the further fees for information is excluded from the time allowed. If information is not provided within the time limit, it is treated as deemed refusal. Refusal with or without reasons may be ground for appeal or complaint. Further, information not provided in the times prescribed is to be provided free of charge. Information available to a person in his fiduciary relationship; information received in confidence from foreign Government; information which would impede the process of investigation or apprehension or prosecution of offenders; and cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers are some of the exemptions. Notwithstanding any of these exemptions, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.The Right to information act is applicable to W.B.S.E.T.C.L . as stated in the right to information act, this organisation too has a public information officer (PIO) to cater to the citizens of India a right to request for information that he or she desires from the Authority.
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DISCIPLINARY PROCEEDINGS IN WBSETCL


Why is it important to deal with poor performance or misconduct? Poor performance or misconduct on farms affects the morale and productivity of all staff. Effectively dealing with poor performance and misconduct shows your leadership skills and commitment as a fair and equitable employer. Failing to deal with performance and misconduct often results in the best employees leaving. Case law clearly demonstrates that sound judgement must be used at all times. In practical terms this means that decisions made would be the same decision that any other reasonable person would make.
It is important to follow a sound process to minimise the risk of a personal grievance. Get legal advice if you are unsure or the case is complex.

When do I need to use disciplinary procedures? Disciplinary procedures should be used when: There is continued poor performance which has not improved by following your usual performance management and coaching processes, or There is misconduct, which means someone has behaved in an unacceptable way. Misconduct can often be avoided by having a clear code of conduct and discussing it regularly with staff. However, this will not always be effective.

A guide to the disciplinary process:


The most important rule when working through a disciplinary process is to make sure that you act in a fair and reasonable manner, especially when disciplining or dismissing staff. Each situation is different and defining what is fair is not easy

A step by step process of the disciplinary proceedings


Step 1

Conduct an initial investigation


Is there a specific action to be dealt with? What evidence is available? How has part of the employment environment or the way in which the person has been managed contributed to the issue? Is there an alternative to disciplinary action that would give a better result?

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Step 2

Arrange an investigative meeting with the employee


Inform the employee of the purpose for the meeting. Let the employee know that the meeting may result in disciplinary action. Let them know they have the right to bring a legal representative or support person along to the meeting. It is also advisable for you to have an independent support person. Ensure the employee has enough information about the issue so they can consider their response. You should let them know about your evidence. Record that a meeting has been arranged and give the employee a copy of this. Step 3

At the meeting:
Allow the employee to respond. Listen carefully to their point of view. Ask questions for clarification but do not argue. If it becomes clear that further investigation is needed then adjourn the meeting until this has been completed. If no further information comes to light you should still adjourn the meeting to consider the employees explanation. Step 4

Consider your response


Complete any additional investigation required. Reflect on the meeting, and consider your response. Take time to consider if your planned course of action is fair and reasonable.

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Step 5

Arrange a meeting to discuss your response


Once again make sure the employee has the opportunity to bring a legal. It is also wise for you to have a support person present as they will view the situation from an independent perspective. Outline your decision and your reasons for it. If concerns are not founded then you must ensure this is removed from the employees file and you cannot raise this issue again in further disciplinary proceedings. Give the employee time to respond and if new evidence arises adjourn the meeting to investigate further. Decide with the employee the corrective measures they need to take. Notify employee of disciplinary action if appropriate. Step 6

Record outcomes
Minutes should be taken throughout the process. Have the employee and the witnesses sign the minutes as a record of the meeting. Provide the employee a letter formalising the outcomes of the meeting. Follow any requirement outlined in the employment agreement that requires removing a warning from the employees file or setting expiry dates for warnings to be removed. If expiry dates are not outlined in employment agreements then verbally agree when you will remove them (standard is usually 9-12 months).

THE DISCIPLINARY PROCEDURE FOR MISCONDUCT

The purpose of these explanatory notes is to supplement the disciplinary procedure below and offer suggestions on how to apply the draft disciplinary procedure. These notes also highlight innovations introduced in the procedure.

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THE CODE OF GOOD PRACTICE


This procedure has been drafted in accordance with the principles set out in the Code of Good Practice, which is contained in Schedule 8 of the Labour Relations Act, no. 66 of 1995. It is recommended that this procedure be read in conjunction with the Code of Good Practice. Misconduct is one of the grounds in law that justifies an employer terminating the contract of employment of an employee. However, for a dismissal for reasons of misconduct to be fair the dismissal must be: Substantively fair- there must be a valid reason for the termination of the contract of employment. The facts of each case will determine whether the dismissal is for a fair reason and whether dismissal is the appropriate penalty; and Procedurally fair - the dismissal must be effected in a procedurally fair manner. This means that an employer may not just give notice in accordance with the contract of employment or in terms of governing legislation. An employer must also ensure that dismissals for misconduct are for a valid reason after a fair procedure has been followed.

Structure of the Disciplinary Procedure


The procedure is drafted on the assumption that an employer will apply progressive discipline on the understanding that discipline should be corrective rather than punitive. This means that the employer should endeavor to first correct an employee's behavior, such as by issuing: verbal warnings for minor transgressions; written warnings for consistent misconduct; and final warnings for persistent misconduct.

Dismissal should be considered as a last resort.


The procedure provides that before an employer issues a warning (written warning or final written warning) to an employee, the employer must meet with the employee concerned (see paragraphs 5.2 and 6.2). The purpose of this meeting is for the employer to hear the employee before the employer issues the written warning. The procedure is intended to provide a framework for parties to use in drafting their own disciplinary procedure.

How to use the Procedure


The procedure sets out the minimum requirements, which any disciplinary procedure should contain. Parties may wish to supplement their own procedure with this procedure or use this procedure to provide a basic structure for developing their own procedure. However, it is a procedure,
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which, if applied as it currently stands, should ensure that discipline is fairly and effectively administered. The Code of Good Practice requires employers to adopt disciplinary rules that establish the standard of conduct required of employees. The Code recognises that the content of disciplinary rules will vary, depending upon the nature, size and type of undertaking in which the employees are employed. Throughout the procedure square brackets "[ ]"are used to indicate where the parties must insert details to make the procedure specific to their own situations. For instance, the appropriate designation of the manager who will be required to manage the type of discipline described in the procedure is left open for the parties to complete. The designation of the appropriate manager will depend on the size and structure of the employer.

Service of Notices referred to the Procedure.


All written notices must be properly served on the employee concerned (written warning, final written warning, notice to attend a disciplinary procedure etc.) It is recommended that the employee who is served with a notice should be asked to sign acceptance of receipt of the notice. However, if the employee refuses to sign when served with a notice, the employer should record this fact on the notice and state the time, date and place where the notice was handed to the employee concerned. The procedure suggests that: a verbal warning should remain valid for 3 months (see paragraph 4.3); a written warning should remain valid for 6 months (see paragraph 5.4); and a final written warning should remain valid for 12 months (see paragraphs 6.5). However, the length of time warnings should remain valid are suggestions only (note the square brackets) and this issue should be decided upon by the employer and the employees or unions with whom the employer negotiates the procedure.

Disciplinary Records
The Code of Good Practice recommends that employers keep a record for each employee specifying the nature of any disciplinary transgression/s, the actions taken by the employer and the reason/s for such action/s. For this reason the disciplinary procedure requires the employer to file copies of any written warning, final written warning or any representation made by the employee on the employee's personal file.

Representation at a Disciplinary Enquiry


The disciplinary procedure provides that a fellow employee or a shop steward of a recognised trade union should represent an employee. If a shop steward is called to attend a disciplinary hearing the Code of Good Practice requires an employer to consult with the shop steward's
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trade union prior to issuing any notice to attend a disciplinary enquiry. This is set out in paragraph.

Disciplinary Enquiry
The chair of the disciplinary enquiry must, insofar as it is possible, be a person who is able to make an independent decision based on the facts presented at the enquiry. The chair of the disciplinary enquiry must be a person who has not been involved with investigating the employee concerned or who is going to prosecute the charges against the employee in the disciplinary hearing. The chair of the disciplinary hearing must consider whether: the employee being charged broke a rule of conduct in the workplace; the rule was valid or reasonable; the employee knew about the rule or should have known about the rule; and the employer has been consistent in applying the rule. Once the chairperson of the disciplinary hearing has made a determination about whether or not the employee is guilty of the offence with which the employee is charged the chairperson must consider the appropriate sanction to impose, after having heard the employee in this regard. The chairperson must consider whether dismissal is the appropriate remedy to take against the employee for breaking the rule or whether a less severe penalty, such as a final written warning or suspension would not be more appropriate. Each case must be judged on its own particular facts and the chairperson of the disciplinary hearing should always take into account the nature of the job and the circumstances surrounding the commission of the offence itself.

The Code of Good Practice recommends that when deciding whether or not to impose the penalty of dismissal, the employer should consider :
The gravity of the misconduct; the employee's circumstances, including length of service, previous disciplinary record and personal circumstances; the nature of the job; and the circumstances of the infringement itself. It is imperative that the employer applies the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past and consistently between two or more employees who participate in the misconduct under consideration.

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Appeals The procedure does not contain an appeal procedure. It recommends that provided there has been a fair enquiry, which accords the accused employee all the elements of a fair hearing, there is no need for an appeal hearing. This view is based on a reading of Schedule 8 of the Labour Relations Act, being the Code Good Practice.

The decision not to include an appeal procedure is also premised on the view that the parties may prefer to include in their disciplinary procedure provision that if the outcome of the disciplinary enquiry is challenged, the dispute is referred to private arbitration for a final and binding award.
After receiving of Final Order of punishment the Charged Employee may be apply for an APPEAL before the Board Committee of Appeal. Time Period: Preferably within 45days from the date of receipt of order. Decision of the Board Committee for Appeal is treated as Final.

DISCIPLINARY AUTHORITY IN WBSETCL


For all Class-I posts- Director (HR) is the D.A. For all others posts up to and including Class-II posts- GM (HR&A) is the D.A.

Member of the Board Committee for Appeal


Director (HR). Any other member appointed by the Chairman not below the rank of Director.

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CONCLUSION
Since the split of the WBSEB into WBSEDCL and WBSETCL from 1st April, 2007, the whole transmission business of electricity in West Bengal has been taken up by this institution. For this reason, an amalgamation of complex mechanisms and operating bodies can be found within it. Not only is it a company but also a Government enterprise with the State Government having major control over it. For this reason not only has WBSETCL been recruiting and engaging technical experts but also it is employing legal pioneers to ensure adherence with full legal and legislative compliance. It ensures social security benefits to all such persons who are directly or indirectly employed under this institution. WBSETCL promotes gender security, ensures good work conduct, promotes transparency, entertains litigations and ensures answers to all such person who seek information from it. An attempt has been made in the above project to analyse, discuss and envisage the above machineries, mechanism and functionaries of WBSETCL. THANK YOU.

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