Monday, August 6, 2012

Indian Law: Why Copywriters are not and cannot be Government Servants

Most lawyers and bloggers like to discuss popular topics. The not-so-popularlydiscussed legal cases are the ones that catch my real attention and interest. One such case is what I am going to discuss here. It is based on the Supreme Court’s judgment in State of West Bengal vs W.B. Registration Copywriters Association (2009) 14 SCC.
Are copywriters actually document writers?

When we talk about copywriters, the reference is not to those who are in the advertising industry. In the context of Indian law, we refer to them as document writers. For decades, these document writers are considered as the extended arms of lawyers. They are highly trusted and essential to for the Sub-Registrars/Revenue authorities. While there is no clear process that can pinpoint how these legal ‘experts in document writing' emerged, the fact is that courts and lawyers depend on their expertise particularly in cases pertaining to transfer of property, ownership of property, title deeds and so on.  Take a look at any age old document of any property. You will be able to refer to a detailed narration of the devolution of ownership. Even the minute details will be recorded by these document writers. 

West Bengal Registration of Copywriters Rules of 1999
The West Bengal Registration of Copywriters Rules of 1982 were replaced by the West Bengal Registration of Copywriters Rules of 1999. Following this, the copywriters made a grievance before the Administrative Tribunal that they should be absorbed as Lower Division Clerks based on two grounds: 

Firstly, the State Government had absorbed extra muharrirs as LDCs and therefore these copywriters should be given the same treatment. Secondly, they were already doing the same work as was done by LDCs.

Core issue boils down to one serious question of law: Is there any master-servant relationship between copy writers and the State Government under which the State Government is obliged to absorb copy writers as LDCs?

Indian Law: Existence of Master-Servant Relationship between Copywriters and State Government
The Administrative Tribunal dismissed the copywriters’ applications; the High Court had a contrary view and held that there is a master-servant relationship. The High Court also directed that the State Government should create a separate cadre for copywriters and absorb them by framing separate rules for them.

Supreme Court on Copywriters as per West Bengal Registration of Copywriters Rules of 1982

Following this, the Supreme Court reversed the High Court judgment.

1.      Copywriters are mere licensees.
2.      Copywriters do not do any government duty. They are merely required to copy deeds which are to be presented for registration. Making that copy does not amount to doing government duty.
3.       Copywriters are not controlled in their matters of attendance, working hours, leave, pension and output of work by the Government.
4.      Copywriters are not paid from government coffers. They are paid by private parties who require those copies for the registration of their deeds.
5.      There is no fiduciary relationship between the Government and the copywriters.
6.      Grant of licence for copywriting does not amount to creating a service. Therefore, there is no master-servant relationship between copywriters and government.
There’s an interesting case is from GB Pant University of Agriculture & Technology vs State of Uttar Pradesh (2000) 7 SCC 109. Here, the question was whether the employees of a cafeteria run in the University can be recognized as regular employees of the said University. It was held that they are employees of the University.
However,  a legal comparison of this case with that of the copywriters was not encouraged by the Supreme Court.
Master-Servant Relationship as per Indian Law
In this case, a ruling pertaining to UPSC vs Girish Jayanti Lal Vaghela (2006) 2 SCC 482: 2006 SCC (L&S) 339 was widely discussed as it had laid down the following four factors pertaining to the contract of service were laid down: (see SCC page 487, para 6)

“a) the master’s power of selection of his servant
b) the master’s responsibility if paymentof wages or other remuneration
c) the master’s right of suspension or dismisaal
d) the master’s right to control the method of doing work
A study of the decision in UPSC vs Girish Jayanti Lal Vaghela suggests that the rules for appointment were given considerable importance. The Rules merely provided the manner in which the licensees were to be created and controlled but there are no rules for appointment of any service. There is a distinction here that is of legal importance here. That is one of the key points that the Supreme Court took into consideration while deciding this matter pertaining to the copywriters.


SG said...

Very interesting, informative, and educational. Thanks.

I have a question. If the university has given a contract to an individual to run the cafeteria, will the cafeteria employee (who is paid by the contractor) is considered the university employee?

By the way, are you reading the Apple vs Samsung patent case in California?

Mridula said...

I had to read it 3 times before I understood what was going on :D But learned something new.

dr.antony said...

I have not been visiting blogs for some time.
Are you a lawyer? honestly most of these things go way above my head !

Sanand said...

@SG - Thanks for taking the trouble to read this legal post.

Regarding the question you have asked, it depends on several other factors but most particularly whether the cafeteria can prove that the employees and the University have a master-servant relationship.

Some of the factors that I mentioned in my post under the said heading will need to be satisfied for a court ruling like that.

I've been reading about the case on and off but not totally. Thanks for suggesting it, SG.

Sanand said...

@Mridula: Thanks for still reading it.

Sanand said...

@Dr. Antony, I too haven't been active on Blogger for a long time. Good to meet you here. I liked your blog posts and I am following it now.

NRIGirl said...

Nice to see you after a long time Anand! Looks like somehow I missed you January post. Will read on.

Hope all is well at your end.


AJEYA RAO said...

Great blog. Thanks for dropping by

Sanand said...

@NRI Girl: Good to see you here too after a long time. Nice to catch up with all blogger friends here.

@Ajeya Rao: Many thanks, boss.

Felicity Grace Terry said...

Always good to read of the laws of another country, this was both interesting and informative.

PS Thanks for stopping by Pen and Paper, you are always welcome. Your comment on FB was oh so true.