STATUTE (central)
Factories Act, 1948
COMPLIANCE
Annual Returns
Employees’ Provident Funds Remittance of contributions
& Misc. Provisions Act, 1952
Employees’ State Insurance Remittance of ESI contributions
Act, 1948
Annual information about factory/estt.
Jan.,
2016
Maternity Benefit Act, 1961
Contract Labour (R&A) Act,
1970
Payment of Bonus Act, 1965
& Rules
LAST DATE
15th
15th
21st
31st
covered
Annual returns & details of payment
ending 31st Dec.
21st
Half yearly return by contractor
(in duplicate)
30th
Annual Return, within 30 days after the
expiry of 8 months from the close of the
accounting year
31st
journal section (A Journal of Decision Makers) from page 1 to 32
The best decisions are always the best informed ones
reporting section, Judgments of Supreme Court & High Courts with
Head Notes from page 1 to 112—january, 2016 (total pages 164 with cover)
• Usha Dawar vs. Management of Lady Harding Medical
College & Smt. Sucheta Kriplani Hospital through
Medical Superintendent
table of cases
SUPREME COURT OF INDIA
• Elkachenu Kistamma and Another vs. United India Insurance
Co. Ltd. and Another
57
• Jagdish Lal Gambhir vs. Punjab National Bank & Ors.
(SN) 84
• Palwinder Kaur & Ors. vs. Oriental Insurance Company
Ltd. & Anr.
1
• Prabhakar vs. Joint Director, Sericulture Department
and Another
(SN) 89
• Shiv Harbal Research Laboratory vs.
Assistant P.F. Commissioner
55
aLLAHABAD HIGH COURT
• Hindustan Lever Ltd., Orai Unit vs. Presiding Officer,
Industrial Tribunal, Kanpur and Others
• Majhola Distillery and Chemical Works, Pilibhit vs.
Presiding Officer, Labour Court, Bareilly, and Others
(SN) 90
(SN) 91
bOMBAY HIGH COURT
• Central Board of Trustees, Employes’ Provident Fund,
New Delhi & Anr. vs. M/s. Veekay Cotsyn Ltd., Khamgaon
5
• Deelip Manga Chaudhary vs. Managing Director, Maharashtra
State Co-Operative Marketing Federation Ltd.,and Another (SN) 92
• District Women and Child Welfare Officer, Beed vs.
Sunita Arun Barbade, Shramik Trade Union Centre,
Bashirganj, Beed
(SN) 93
• Indian Express Ltd. vs. P.P. Kothari and Others
58
• Provident Fund Commissioner vs. M/s. Bena Garments
4
• Vindyachal Security, Detective & Allied Services Pvt. Ltd.
vs. Assistant Provident Fund Commissioner
2
• Vivekanand Rugnalaya, Latur vs. Ganga
(SN) 92
cALCUTTA HIGH COURT
• Christopher Minj vs. Andaman and Nicobar Administration,
and Others
• Swapan Kumar Bankura vs. Union of India and Others
(SN) 93
52
DELHI HIGH COURT
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Anup Kumar Gupta vs. Sh. Surender Singh
(SN) 109
Asim Chowdhury vs. Swagatam Tours a
Tnradvels (P) Ltd. (SN) 104
Bedi & Bedi Associates (Regd.) vs. Central Board of Trustees
7
Delhi Tourist Bus Service vs. Dayal Singh
10
Delhi Transport Corporation vs. Anant Ram
(SN) 85
Delhi Transport Corporation vs. Bir Singh
61
Delhi Transport Corporation vs. Gulab Singh
66
Delhi Transport Corporation vs. Ranbir Singh
63
G.D. Engineering Works vs. Arvind Kumar
(SN) 105
Hari Prakash vs. Sh. Vipin Kumar Aggarwal & Anr.
(SN) 102
Indian Navigation Co. vs. Workers Through Engineering
Workers Lal Jhanda Union
(SN) 95
Indira Gandhi National Open University vs. Union of India
and Another
12
K.L. Chhabra vs. Assistant General Manager,
Punjab National Bank
(SN) 87
Management of Suraj Cinema vs. Presiding Officer,
(Labour Court No. 7) and Others
(SN) 94
Mani Lal vs. Matchless Industries of India
72
National Projects Construction vs. P.O., Industrial Tribunal & Ors. 19
R.N. Rattan vs. Oriental Bank of Commerce & Anr.
(SN) 107
Rajesh Kumar Gandhi vs. Shriram Institute for
Industrial Research
(SN) 95
Randhir Singh vs. D.T.C. & Ors.
(SN) 106
S. Maithani vs. Chairman-cum-Managing Director, Cement
Corporation of India Ltd. & Ors.
8
Shailender Kumar vs. The Secretary (Labour) & Anr.
(SN) 103
Shree Ji Sarees through its Proprietor Sh. Pankaj Jain vs.
Ved Prakash Sharma
(SN) 111
State of Haryana & Ors. vs. Ashok Kumar
(SN) 110
January, 2016 — 5
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www.labourlawreporters.co
m
scheme of index
(SN) 108
GAUHATI HIGH COURT
• Assam Roofing Limited vs. Sri Munchi Rai & Anr.
47
• Numaligarh Refinery Ltd. and Another vs. Commissioner,
Workmen’s Compensation-Cum-Assistant Labour
Commissioner, Golaghat,and Others
(SN) 96
• Oriental Insurance Co. Ltd. and Others vs. Md. Rafiqul Islam
and Others
(SN) 96
• Sekhar Rudra vs. The Union of India & Ors.
45
GUJARAT HIGH COURT
• Gokaldas Trading Co. vs. Regional Director, ESI Corporation (SN) 86
• Munirudin Vajirudin Kazi vs. Municipal Commissioner and Ors.
81
• Rajula Nagarpalika through Chief Officer vs.
Kamleshbhai Bhikhubhai Mehta & Anr.
23
• Vadodara Mahanagar Seva Sadan vs. Maha Gujarat
Industrial Employees Union & 3 Ors.
(SN) 103
HIMACHAL PRADESH HIGH COURT
• Udho Ram vs. Industrial Tribunal-cum- Labour Court,
Shimla & Anr.
50
JHARKHAND HIGH COURT
• Central Coalfields Ltd., Ranchi vs. Chaman Kumar
(SN) 97
• Lafarge India Ltd. and Another vs. State of Jharkhand and Anr.
41
• Siddhartha Misra and Another vs. State of Jharkhand
43
KARNATAKA HIGH COURT
• H.N. Shreedhar, Mysore vs. Regional Provident Fund
Commissioner-II, E.P.F. Organisation, Mysore
• Management of BWSSB, Cauvery Bhavan, and Others vs.
M. Mahadeva and Others
• Mazagon Dock Ltd. vs. Regional Director, ESI Corporation,
Bangalore and Others
40
36
(SN) 97
KERALA HIGH COURT
• C. Mammootty, Wayanad vs. Assistant Provident Fund
Commissioner, E.P.F. Organisation, Calicut & Anr.
• Punjab National Bank, rep. by Zonal Manager, Calicut vs.
Labour Court, Kozhikode and Ors.
34
(SN) 88
MADHYA PRADESH HIGH COURT
• Narayan Das vs. State of M.P. and Others
(SN) 98
MADRAS HIGH COURT
• Tyagi Jeevanandam Kattidam Matrum vs.
State of Tamil Nadu
• V. Selvam vs. Presiding Officer, Labour Court, Salem & Anr.
(SN) 99
33
ORISSA HIGH COURT
• Gulf Oil Corporation Ltd. vs. Manoj Kumar Sahu
• Nimai Charan Rout vs. General Manager,
M/s. Utkal Asbestos Ltd., Dhenkanal
• President, Mangalodayam Handloom Weavers’
Co-Operative Society vs. R. Sudha and Others
(SN) 100
29
(SN) 98
PATNA HIGH COURT
• Mahadeo Singh College, Bhagalpur vs. Union of India
and Other
(SN) 100
PUNJAB AND HARYANA HIGH COURT
• Executive Engineer, Dakshin Haryana Bijli Vitran Nigam Ltd.
RaJastHaN HIGH coURt
• Cimmco Birla Ltd. vs. Mahendra Singh and Others
(SN) 101
• National Insurance Co. Ltd. vs. Bhebha Ram and Another (SN) 101
• United India Insurance Co. Ltd. vs. Dashrath Singh and Another
54
SUBJECT INDEX
2
sUbJect INDex
ABANDONMENT
............ Of service – When presumption is justified – If provisions in
the certified Standing Orders of the Company define the abandonment, then by applying those provisions the presumption of
abandonment against the unauthorisedly absent delinquent employee is proper......................................................... 29 (Ori HC)
ABANDONMENT
............ When presumption by Management is justified –Averment
of the workman was that he was employed since 01.10.1987
– On 01.12.2007, his services were terminated without assigning any reason – His wages for November 2007 were not
paid – Management did not reply to his demand notice – He
was jobless since the date of his termination – Management
controverted the allegations of the workman stating that he himself submitted resignation earlier which was not accepted – He
was fully involved in solving his family problem – He himself is
absent unauthorisedly – He is not reporting for duty despite repeated letters sent to him – On order of court, he resumed duty
on 4.8.2008 and after that he did not turn up – Labour Court dismissed his claim – He challenged the Award by filing writ petition – Held, since workman did not resume duty vdaersiopuites
letters sent to him by the Management, it proves that he himself
was not interested in the employment of the Management – In
such circumstances, there was no question of issuing any show
cause notice or initiating any enquiry against the workman –
Writ petition is dismissed................................ 102 (SN) (Del HC)
ADMISSION OF DOCUMENTS
............ When not legally valid – Photocopies without production of
original thereof before the court at the time of admission/denial
and evidence, would not be admissible in evidence, if the opposite party has denied their genuiness............. 111 (SN) (Del HC)
AWARD
............ A preliminary order, which sets aside an enquiry – Could be
challenged along with the Final Award............. 98 (SN) (Ker HC)
............ Claim of increment, uniforms, shoes and HRA – Industrial
Tribunal has not decided the real issue – Which it had to
decide – That is “whether the appellant had means or capacity
to pay the increment amount and what was current prevailing
wages in establishments of like kind” – It was duty of Tribunal
to determine the wages on the principle of industry-cumregion – Hence impugned order is set aside – And matter is
remanded to learned Industrial Tribunal for adjudication afresh.
......................................................................... 95 (SN) (Del HC)
BACK-WAGES
............ Justification of – Workman admitted that he owns just
two bighas of agricultural land from which his earning is
Rs. 25,000 p.a. – Held, awarding 50% back-wages is fully justified.............................................................................63 (Del HC)
............ Justification of – Workman was awarded reinstatement with
50% back-wages – Management challenged the Award in writ
petition but confined its prayer to the extent of back-wages only
– Workman had specifically averred in his affidavit in evidence
that he remained unemployed throughout after his termination
– Management did not deny this fact – Due to unemployment
not only the workman but his entire family suffers grave
adversities – Employer is to plead and prove that workman
was gainfully employed – Denial of back-wags would amount to
indirectly punishing the employee and rewarding the employer
– Since the Management has not disproved the testimony of
the workman remaining unemployed, awarding back-wages is
justified. .....................................................................66 (Del HC)
BURDEN OF PROOF
............ Upon a party who sets up a plea – Workman claimed that
his services were illegally terminated on 01.06.2006 -Manage-
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ment asserted that the workman settled all his accounts on
31.03.2004 and left the, services on his own – Workman raised
an industrial dispute after 5 years in August 2009 – Labour
Court held the termination illegal awarding lumpsum compensation of Rs. 2.00 lacs – Management challenged the Award in
writ petition – Held, workman failed to prove his working with
the Management upto 01.06.2006 by way of any documentary
evidence – The onus was upon the workman to prove his assertion that he was in working till 01.06.2006 – Burden of proving a fact rests on party who substantially asserts the affirmative
of the issue and not upon the party who denies it, for a negative
does not admit of direct and simple proof – Finding of Labour
Court cannot sustain being improper – Writ petition is allowed –
Impugned Award is set aside. ........................ 105 (SN) (Del HC)
CHARGE-SHEET
............ Who can issue – Petitioner was Assistant General Manager
(AGM) in Hindustan Commercial Bank Ltd. (HCBL) which was
amalgamated in Punjab National Bank (PNB) – Employees of
HCBL were transferred to PNB – Charge-sheet was issued by
Assistant General Manager PofNB being disciplinary authority – Petitioner challenged his competency since petitioner was
AGM in HCBL – Learned Single Judge observed that, as per
amalgamation Scheme, PNB was entitled to classify and categorise the employees of HCBL – Accordingly, petitioner was
placed as a Scale-III Officer in PNB – Post of AGM in PNB is of
higher rank than that Scale-II Officer in PNB – Hence, chargesheet issued by a competent authority – Contention of the petitioner stands rejected. .............................................84 (SN) (SC)
COMPENSATION
............ In lieu of reinstatement – Justification of – Workman was
awarded lumpsum compensation instead of reinstatement observing that being driver, he would have not remained unemployed for a long time – High Court confirmed it as justified and
not excessive.............................................................10 (Del HC)
............ In lieu of reinstatement with back-wages – When not justified – Workman was out of job since 2002 – He was reinstated
into service by Labour Court in 2006 – Learned Single Judge
confirmed the Award – Workman is of 45 years – He is still to
serve for about 15 years – Workman shall not be able to get
any other job at athgise – Hence, compensation shall be meager enough for him to survive – Awarding lumpsum compensation is not appropriate............................................... 23 (Guj HC)
CONSTITUTION OF INDIA, 1950
............ article 226 – Interference by the writ court in the Award
passed by the Labour Court/Industrial Tribunal is not called for
if there is no error apparent on the face of Award, no perversity,
irrationality, any gross misleading of evidence adduce by the
parties on the record. ..............................................27 (P&H HC)
............ article 226 – Interferences – Award made by Labour Court
– Challenged – There is total absence of application of mind
by Labour Court on real issue between parties – Findings are
based on conjectures and presumption of facts, neither raised
by parties nor referred for adjudication – Award of Labour Court,
thus suffers with patent illegality on the face of it and is hereby
set aside. .......................................................... 94 (SN) (Del HC)
............ article 226 – In exercise of its writ jurisdiction, the Court is
not to intervene unless the petitioner could prove that the record
and material evidence adduced before the Labour Court was insufficient or inadequate or order suffers from any perversity or
there is any error loafw which is required to be corrected by a
writ of certiorari..........................................................66 (Del HC)
............ article 226 – In the absence of any illegality, perversity or
infirmity in the Award passed by the Labour Court, interference
of the Writ Court is not called for. ................... 103 (SN) (Del HC)
............ article 226 – Judicial review – Scope of – Judicial review
is not concerned with merits of decision – It is concerned only
with decision making process – To ensure that Labour Court/
January, 2016 — 2
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SUBJECT INDEX
Tribunal does not transgress its jurisdiction – Not as a Court of
appeal............................................................... 93 (SN) (Cal HC)
............ article 226 – Jurisdiction – It is trite that an Industrial Fora
is obliged to consider all relevant evidence and any omission
to do so would amount to an irregularity in the exercise of its
power justifying interference by Writ Court..... 104 (SN) (Del HC)
............ article 226 – Scope of – It is not the scope of the Writ Court
to re-appreciate the evidence – Interference by the Writ Court is
maintainable only if any error apparent on the face of record is
shown by the appellant in the impugned order – If court below
has passed an order without jurisdiction or it has acted in excess of its jurisdiction – Appellant has not pointed out such a
ground – Hence, writ appeal is dismissed........ 87 (SN) (Del HC)
............ article 226 – Writ – Jurisdiction to issue a writ of certiorari
– Is a supervisory jurisdiction—Writ Court cannot act as an Appellate Court. .................................................... 94 (SN) (Del HC)
............ article 226 – Writ Court cannot undertake the exercise of
liberally re-appreciating the evidence, drawing conclusion of its
own on pure questions of fact – Finding of fact-finding authority cannot be interfered when they are based upon some material relevant for the purpose or even on the ground that there is
yet another view which can reasonably and possibly be taken.
....................................................................... 102 (SN) (Del HC)
............ article 226 – Writ Court does not sit in appeal over the findings returned by the Domestic Inquiry Tribunal or Industrial Adjudicator – An Award can be set aside only if it is based on no
evidence or contrary to any substantive law or it is in violation of
principles of natural justice. .............................. 85 (SN) (Del HC)
............ article 226 – Writ Court will interfere with the Award only if
the findings of the Labour Court are perverse or in violation of
principles of natural justice or there is any error apparent on the
face of the record – Writ Court is not to sit as an Appellate Court
over the Award. .........................................................10 (Del HC)
............ article 226 and 227 – Obligation of parties – While
approaching a Court of enquiry such as High Court, invoking its
extra ordinary jurisdiction, the parties should come not only with
clean hands but also with clean mind, clean heart calnedan
objective – Undoubtedly, the Courts have to weigh interest
of justice vis-a-vis the private interest -Petition containing
inaccurate statements amounts to an abuse of process of court.
....................................................................... 111 (SN) (Del HC)
............ article 226/227 – Scope of judicial review in the matter of
punishment is extremely restricted – Unless it could be shown
that punishment, as imposed, is such as to shock the conscious
of the court or that no person of ordinary prudence would come
to such conclusion or it is ex facie arbitrary, the Court will not
interfere. ....................................................................72 (Del HC)
............ articles 226/227 – High Court does not sit as a Court of appeal over the award of inferior court – Writ Court can interfere
in the finding of the lower court only if it is shown that certain
important facts on record have not been considered which were
material for determination of the real issues between the parties
and not otherwise. .......................................... 105 (SN) (Del HC)
CONTRACTOR
............ Engaged by the principal employer – The worker of the
contractor, even on illegal termination, has no right to claim
reinstatement from the principal employer – Workmen did not
raise any contention in their statement of claim obreefovreen
the Conciliation Officer or Tribunal that the contract between
the contractor and the petitioner was sham and bogus – No
evidence was adduced by the parties in this respect – No arguments were heard on this issue – Only contention of the workmen was that their services have been illegally terminated by
the petitioner – A Tribunal is bound by the terms of reference
– It cannot go beyond it – Though Tribunal may decide matters incidental to the main dispute – A decision rendered on any
issue beyond the terms of reference is not sustainable under
law – Hence, finding of the Tribunal in this respect, awarding
reinstatement by the principal employer, is beyond the scope of
January, 2016 — 3
3
reference and must consequently fail – In the absence of pleadings and evidence, Tribunal could not have entertained such an
issue. .........................................................................12 (Del HC)
DISMISSAL
............ From service – Justification of – Workman engaged in night
shift was found sleeping during duty – He was issued chargesheet – Enquiry was conducted – Workman accepted his guilt
submitting apology – Disciplinary Authority dismissed him from
service since in past he had also committed such misconduct
agnydwaapsolgoranted to him – He raised an industrial
dispute – Labour Court held the enquiry fair and proper –
However, Labour Court found the punishment of dismissal to
be disproportionate, thereby awarding reinstatement with 30%
back-wages – Management challenged the Award by filing writ
petition – Held, manufacturing process in the factory is fully
automated – Such lapses will harm the manufacturing process –
Falling asleep during duty can’t be treated lightly – Labour Court
has not considered past such lapses and the law settled by the
Apex Court that where an employee is found to be sleeping
during duty, the punishment of dismissal is not disproportionate
– Hence, impugned Award is set aside -Writ petition is allowed.
................................................................................ 47 (Gau HC)
............ From Service – When justified – Charge against the appellant was that he embezzled the amount by not making payment to the customer despite debiting his account on the basis
of withdrawal slip – After conducting domestic enquiry, holding
the appellant guilty of the misconduct, his services were dismissed – Departmental appeal moved by him failed – He raised
an industrial dispute – Industrial Tribunal held the enquiry as
just, fair and leHgoawl e–ver, the punishment of dismissal was
substituted with removal from service with superannuation benefits – Bank filed writ petition challenging the order passed by
the Tribunal – Learned Single Judge allowed the writ petition
by setting aside the order of the Tribunal – Workman filed writ
appeal – Held, appellant has failed to rebut the evidence of
the witnesses of the Bank – Evidence produced by the Bank
witnesses are sufficient to prove the charges constituting misconduct of embezzlement – Writ appeal, having no merit, is dismissed. ............................................................. 87 (SN) (Del HC)
............ From service – When justified – Workmen holding transferable post steadfastly refused to proceed to transferred place
– He played a belligerent attitude towards the transfer order
– Remaining absent from duty for a long period of 4 years is
major misconduct – He was given fair opportunity to defend the
charges – Refusal to obey legitimate transfer order justifies punishment of dismissal. ............................................... 45 (Gau HC)
............ From service of a Bank employee – When justified – Employee committed misappropriation of funds, Charge-sheet was
issued to him – Enquiry was held – He was held guilty of the
charges – He was dismissed from service – Labour Court, exercising its power under section 11A of the Industrial Disputes
Act, 1947, set aside the order of dismissal, awarding reinstatement without back-wages – Employer challenged the Award in
writ petition – Held, evidence led by the Management remains
unshaken in cross-examination – Even no suggestion exists as
to the veracity of the same – Since the charges are grave and
serious, converting punishment of dismissal into forfeiture of
entire back-wages, seniority and directing reinstatement is not
appropriate – Hence, impugned Award is set aside Order of dismissal passed by the employer is justified. ...... 88 (SN) (Ker HC)
............ Justification of – Petitioner being Bank Officer was issued
charge-sheet for deliberately flouting the Bank norms thereby
accommodating some parties by putting huge funds of the
bank at stake – Enquiry was conducted – Charges were proved
against the petitioner – He was dismissed from service since he
had failed to discharge his duties with utmost integrity, honest
devotion and diligence – He filed writ petition challenging the
order of dismissal, which was dismissed by the learned Single
Judge – Writ appeal filed by him could not succeed – Petitioner
filed appeal challenging jtuhdegments of Division Bench and
4
SUBJECT INDEX
learned Single Judge – Held, no reason to interfere with the impugned judgments has been placed before the court – Hence,
appeal is dismissed. ................................................84 (SN) (SC)
............ When not justified – Workman remained absent due to
depression as his only son had expired in a roadside accident
– His services were dismissed after conducting enquiry – He
raised an industrial dispute – Labour Court awarded reinstatement without back-wages – Management challenged the Award
by filing writ petition which was allowed – Workman filed writ
appeal – Held, except 28 days absenteeism due to death of
only son of the workman, there was no charge against him that
he was habitual absentee during his 15 years’ service – Punishment of dismissal from service is not appropriate in the circumstances – Hence, writ appeal is allowed. Order of learned
Single Judge is set aside – Award passed by the Labour Court
is restored................................................................ 33 (Mad HC)
EMPLOYEES’ PROVIDENT FUNDS AND
MISCELLANEOUS PROVISIONS ACT, 1952
............ sections 7a – Constitution of India, 1950 – Article 226 –
Order under section 7A – Passed by Assistant P.F. CommissAionnderhe–ld that the provisions under the Act were applicable in respect of petitioner-college and an assessment order
was passed – Order challenged in writ petition and prayed for
its quashing – Fact remains, that the order under challenge,
is appealable under the EPF Act itself – And exercise of power under Article 226 of Constitution of India is discretanary
power – But in view of peculiar facts and circumstances –
This Court is refraining from exercising its writ jurisdiction.
....................................................................... 100 (SN) (Pat HC)
............ section 7a – Coverage of ‘excluded employees’ – EPF
Authority directed the petitioner to deposit the dues – Petitioner’s stand is that EPF dues were paid in respect of employees
covered under the Act – Petitioner did not pay EPF dues in respect of ‘excluded employees’ drawing more than Rs. 6,500 per
month whereas the EPF Authority has taken into account the
excluded employees – Neither the EPF Authority nor the Appellate Tribunal has examined as to how the ‘excluded employees’
were coverable under the Act while passing impugned order –
Hence, writ petition is allowed – Matter is remanded to EPF Appllate Tribunal for passing fresh ionrdaecrcordance with law
after weighing the evidence and position of law......26 (P&H HC)
............ section 7a – Determination of money due from an employer – Show Cause Notice – When liable to be quashed – EPF
Authority passed an order dated 08.12.2000 – Petitioner challenged the same in appeal – EPF Appellate Tribunal dismissed
the appeal – Petitioner challenged the order of the Tribunal
– Matter was remanded for conducting fresh enquiry by EPF
Appellate Tribunal vide order dated 09.10.2013 – Respondent
issued notices to the petitioner for attending the enquiry – Petitioner has questioned the validity of the notices – Held, order of
the Appellate Authority was quashed – Order dated 08.12.2000
has not been quashed – When the order of the EPF Authority
has not been quashed, it cannot hold an enquiry in respect of
the same subject again – Appellate Authority has to pass appropriate order in view of order dated 09.10.2013 – Consequently,
notices in question are quashed – Appellate Authority is directed to consider the matter in terms of order dated 09.10.2013 –
Writ petition is disposed of accordingly. ................. 41 (Karn HC)
............ sections 7a, and 7b(1) – EPF Authority called upon the
petitioner to pay the arrears of dues by passing an order without providing copy of deposition of Enforcement Officer – EPF
Authority also rejected the review application, filed by the petitioner under section 7B(l) of the Act without hearing the petitioner – Petitioner challenged that order of the EPF Authority in
writ petition – Held, whenever, the powers are to be exercised
for quasi-judicial purpose or whenever the authority is acting as
a quasi-judicial authority, the hearing is a must because passing of any order is to visit with civil consequences – Opportunity
of hearing is must to comply with the principles of natural justice
– Hence, impugned order is set aside – Matter remanded to the
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Authority to decide it on its own merits, providing all documents
relied by it, to the petitioner. ......................................2 (Bom HC)
............ sections 7a, 7-I, 7-o and 14b – Condition of pre-deposit
for entertaining appeal by Tribunal – Legality of – EPF Appellate Tribunal directed the appellant to deposit 50% of the damages imposed under section 14B of the Act – Appellant challenged that order by filing writ petition – Learned Single Judge
chose tnootinterfere with the order of the Tribunal – Appellant
filed SLP before the Supreme Court where the appellant was
directed to deposit 25% of the damages imposed at the time
of admission – Held, there is no such provision under the Act
that pre-deposit is mandatory in respect of filing appeal against
the order of the EPF Authority under section 14B of the Act imposing damages – Section 7-O of the Act makes specific reference only to orders, passed in terms of section 7A of the Act
that no appeal shall be entertained unless 75% of the amount
determined by EPF Authority under section 7A of the Act is deposited, provided the EPF Tribunal may waive or reduce the
amount by using its discretion giving reasons in writing thereto
– Appeal to be filed under section 7-I of the Act against orders
passed under section 14B of the Act is only within such time
and with such fees, as may be prescribed and no part of determined amount under section 14B of the Act is required to be
deposited – Hence, appeal is allowed – 25% amount already
deposited shall suffice the purpose. ................................ 55 (SC)
............ sections 7a and 7Q – Appellate Tribunal set aside the
order passed by the EPF Authority, holding that non-supply of
Enforcement Officer’s Report before passing an order by the
EPF Authority was a serious infirmity amounting to denial of
principles of natural justice – Petitioner has challenged the order of the EPF Appellate Tribunal by filing writ petition – Held, if
Appellate Tribunal was of the opinion that non-supply of copy of
Enforcement Officer’s Report is violation of principles of natural
justice, instead of setting aside the order of the EPF Authority, a
direction could have been given to supply the copy of the report
and thereafter to hear the matter afresh – Since Appellate Tribunal has not interfered with the merits of the case but has set
aside the order of the EPF Authority only on the ground of nonsupply of the report, the case remanded back to the Appellate
Tribunal to dispose it on merits. ................................4 (Bom HC)
............ section 7a(2) – Enquiry conducted under – Nature of –
Deemed to be judicial proceeding – No disciplinary action can
be taken against the delinquent for taking any decision under
section 7A of the Act unless it aislleged that the delinquent
took any decision pursuant to corrupt motive or an improper or
illegal motive to oblige someone or to take revenge on someone – In absence of specific allegation regarding discharge of
judicial/quasi judicial function of an officer pursuant to corrupt or
improper motive, no disciplinary action can be initiated – Perusal of charge-sheet – No corrupt motive or improper motive has
been alleged against the officer while discharging his function
under section 7A of the Act – No misconduct has been committed by the delinquent officer – Charge-sheet quashed alongwith
the subsequent proceedings – Authorities directed to allow the
officer to resume his duty forthwith and grant all admissible consequential service benefits. .......................................52 (Cal HC)
............ sections 7-I, 7l and 14b – Remanding an unreasoned order back to Appellate Tribunal is justified – Damages imposed
by the EPF Authority were reduced in appeal by the Appellate
Authority to the extent of 80% – Such an order of the EPF Appellate Tribunal challenged by the Petitioner – Held, Appellate
Tribunal can reduce quantum of damages though paragraph
32B of the EPF Scheme gives similar power to the Central
Board of Trustees – cItannot be said that the Appellate Tribunal
does not have such power – Since impugned order shows that
the Appellate Tribunal has not applied its mind giving reasons
in support of reducing the damages to 80%, it shows arbitrary
exercise of powers and jurisdiction by the Appellate Tribunal –
Hence, order is unsustainable in law – Impugned order is set
aside – Matter is remitted to the Tribunal for deciding the appeal
on merits according to law.........................................5 (Bom HC)
January, 2016 — 4
llR
SUBJECT INDEX
............ section 14b – Damages imposed – When not proper – Petitioner alongwith other partners purchased the firm M/s. Poonchola Plantations from M/s. Nedumattom Plantations Pvt. Ltd.
in 1998-99 – EPF Authority issued notice on 24.04.2009 under
section 14B of the Act towards contributions from 6/88 to 3/90
due from previous employer and damages under section 14B of
the Act from M/s Poonchola Plantations – M/s Poonchola Plantations was taken over by the Government in 2000 – Held, petitioner has already remitted the dues demanded by the EPF Authority – Default, if any, was committed by the previous owner
– Petitioner was not responsible for the payment at the relevant
time – Establishment was taken over by the Government within
2 years – Hence, matter is reminded back to EPF Authority to
consider determination of quantum of damages after hearing
the petitioner............................................................. 34 (Ker HC)
EMPLOYEES’ PROVIDENT FUNDS APPELLATE
TRIBUNAL (PROCEDURE) RULES, 1997
............ Rule 21 – Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952 – Sections 14B, 7A and 7Q – Appeal –
Against the order under section 14B – Appellate Tribunal by impugned odridreecr theadsthe petitioner to deposit 50% of damages levied in proceedings under section 14B of Act – However
requirement of pre-deposit under section 7Q is confirmed to the
determination of dues under section 7A of Act – And does not
apply to damages levied under section 14B of Act – Inherent
powers conferred upon the Tribunal by Rule 21 is confined to
give effect to its orders – It does not confer any discretionary
powers upon the Tribunal to insist for pre-deposit in appeals
– Hence impugned order is set aside – Tribunal is directed to
hear the appeal without any pre-condition. ................................ 7
EMPLOYEES’ STATE INSURANCE ACT, 1948
............ sections 75 and 82(2) – Application under section 75 –
Dismissed by Labour Court – Application under section 75
filed questioning the correctness or otherwise of determination
and consequential demand of damages and interest – At the
time of determination of levy of damages, no notice issued to
respondents 2 to 20 to have their say in the matter – If at all
any damages are be levied, then, the appellant as well as the
contractors are liable to pay equally – This aspect of matter has
not beenlyprloopoeker d into by Regional Director ESIC,
while determining the levy of damages or by Labour Courtcum ESI Court – Hence, the Court issued appropriate direction
to reconsider the matter only in so far as it relates to levy of
damages......................................................... 97 (SN) (Karn HC)
EMPLOYEES’/WORKMEN’S COMPENSATION
ACT, 1923
............ sections 3, and 4 – Award – Passed by Commissioner
W.C. awarding Rs. 2,12,824 as compensation, in favour of
claimant/respondent No. 1 – And enhanced rate of interest in
case of default in timely payment of compensation made by
Insurance Company – Commissioner was well within its powers
to impose such enhanced rate of interest – Committed no error
– No interference required with – Award, is, therefore, upheld.
....................................................................... 101 (SN) (Raj HC)
............ section 4 and 3 – Compensation – Actual income –
Consideration of – Accident had taken place on 20.9.2003 –
At that time there was an Explanation-II under section 4(1) of
Act – Under clause (b) Rs. 4,000 was, later on, substituted for
Rs. 2,000 by amendment w.e.f. 8.12.2000 only – If the income
is less than Rs. 4,000 after 8.12.2000 – In that event the W.C.
Commissioner is to consider the actual income only naontd
Rs. 4,000 – Once such a calculation is made, in that event the
amount of compensation shall also automatically come down.
........................................................................96 (SN) (Gau HC)
............ sections 4(1)(c)(ii) and 11 – Compensation – Claimant had
sustained injuries while in the course of employment – Claim
filed before the Commissioner W.C. allowed and awarded compensation as medical advice of Doctor – Presuming that workJanuary, 2016 — 5
5
man was entitled to get salary of Rs. 3,000 p.m. and that he
had lost earning capacity of 20% – Award challenged by insurance company under section 11 of Act, the Insurance company
could have opted for getting the workman examined by different
authorities – Appellant Insurance Company not having taken
recourse to provision of section 11 for medical examination –
Finding arrived at by W.C. Commissioner – Cannot be interfered with.........................................................96 (SN) (Gau HC)
............ section 30 – Appeal – There was a delay of 17 days in
lodging FIR – This is not any substantial question of law – Tractor was registered for agricultural purpose but used at the time
of accident for transportation of goods – Also not a substantial
question of law. .........................................................54 (Raj HC)
............ section 30 – Compensation – Deceased Husband of claimant/appellant No. 1 was working as a driver with respondent No.
2 in a rice mill – On direction by employer, the deceased had to
obey the orders of employer to replace the fuse in the transformer – And he received an electric shock and died on spot
– Hence, the Commissioner’ Workmen’s Compensation rightly
awarded the compensation. ............................................ 57 (SC)
............ sections 30, 4(a) and (b) – Permanent total disablement –
Case relating to 100% permanent total disablement – Section
4(1)(b) will be applicable – Monthly income calculated as Rs.
4000 p.m. – Commissioner has passed Award of Rs. 4,83,984
alongwith 12% simple annual interest on it from 28.5.2009 to
date of payment – No modification required in Award in this appeal – Appeal dismissed. ..........................................54 (Raj HC)
EMPLOYER-EMPLOYEE RELATIONSHIP
............ Depends upon various factors including as to who was
paying wages to the workmen and who was having power to
dismiss them from services – Primarily, burden of proof lies
upon the workmen to prove as to who is their pay-master or
employer................................................................. 36 (Karn HC)
............ Onus of proof upon workman – Appellant/workman failed to
prove that he is employee oefmthpeloyer by way of documentary evidence – Management denied his employment – Salarycum-Attendance Register, PF Register, Bonus Register were
not having the name of the workman – Labour Court dismissed
the claim of the workman – Writ petition filed by the workman
failed -Workman filed writ appeal – Held, onus of establishing the relationship of employer-employee is on the employee
– Though documents i.e. demand notice, postal receipts and
letter addressed to Management have been exhibited but their
reference is not there in his affidavit by way of evidence, hence
such documents would stand not proved before the Labour
Court – If the employer pleads that the employee was employed
by somebody else but fails to prove the same, it does not mean
that assertion by the employee to the contrary must be held to
be proved by default – Workman did not make any suggestion
to the witness of the Management that records of attendance
and salary, etc. were incorrect – Hence, the same stand proved
– Appeal is dismissed..................................... 104 (SN) (Del HC)
............ When would not be existing – Workman has claimed that he
was appointed as Recovery Officer on a salary of Rpse.r4,500
month plus 1% commission on sales of employer – His services
were terminated without notice or pay in lieu thereto and
retrenchment compensation – Employer denied his allegations
stating that he was never employed since he was Ferriwala
– He was paid commission on the basis of sale price of the
material as and when he brought any customer and he was
also doing such jobs for others – Workman produced certain
documents in evidence but the same were photocopies to which
the employer denied their authenticity – Labour Court held the
workman to be employee of the employer, awarding a lum-sum
compensation of Rs. 1.00 lac – Employer challenged the award
in writ petition – Held, the documents were placed only at the
time of evidence – Originals of the same were never produced
– Appointment letter on the letter head of employer if not
admitted to be signed by the employer would be treated as not
SUBJECT INDEX
6
proved – Only photo copies of documents cannot be admissible
in evidence – Books of accounts and other documents were
never summoned from the employer – Workman failed to prove
the documents in evidence – Where the employer-employee
relationship is denied, the duty primarily rests on the person so
asserting to give positive evidence in his favour and discharge
his initial burden – After that only the burden would shift upon
the management to counter the claims since it is always easier
to prove positive fact than a negative – Workman has filed his
claims containing misleading and inaccurate statements which
amount to an abuse of process of the Court – Accordingly,
the workman was not employee of the Management – Hence,
the writ petition is allowed – Impugned award is set aside.
....................................................................... 111 (SN) (Del HC)
............ When would not exist – Petitioner was having its corporate
office consisting of four floors in Nehru Place, Delhi – It
engaged employees through contractor of jobs of cleaning,
watch and ward only for its Corporate Office – Entire corporate
office was shifted to Faridabad – Consequently, service contract
with the contractor was not renewed resulting into termination
of services tohfe workmen – Only registered office consisting
of two rooms was kept – House keeping/Security was manned
by employees of petitioner at Delhi as well as in Faridabad –
Workmen raised an industrial dispute against the petitioner –
Petitioner denied relationship of employer-employee with the
workmen – Labour Court passed Award in favour of workmen
– Management challenged the Award in writ petition – Held,
in view of dictum of Apex Court in Steel Authority of India &
Ors. etc. etc. v. National Union Water Front Workers & Ors.,
etc. etc., 2001 LLR 961 to prohibit the employment of contract
labour, a Notification under section 10 of the Contract Labour
(Regulation and Abolition) Act, 1970 is required to be issued
– Since the petitioner is not prohibited by any such notification
to engage contract labour, it becomes quite evident that there
was no relationship of employer-employee between the parties
– It renders the impugned Award unsustainable – Wages and
Employees Provident Fund contributions were paid by the
contractor – Hence, there was no relationship of employeremployee between the parties – Impugned Award is set aside.
..................................................................................19 (Del HC)
EMPLOYES’ STATE INSURANCE ACT, 1948
............ section 2(12) – Factory – An Air Conditioner was used in
the Manager’s Room of tahpepellant – Appellant is engaged in
the business of trading in chocolates, bournvita, tomato catchup, food items, etc. – ESI Authority considered the air-conditioner for use as cold storage for preserving food items – ESI
Authority made the provisions of the ESI Act applicable upon
the appellant taking the preserving of articles as manufacturing process under section 2(k) of the Factories Act, employing 15 persons with the aid of power, the ESI Authority treated
the establishment of the appellant as a factory under section
2(12) of the ESI Act, demanding Rs. 62,278 for the period from
01.03.1983 to 31.03.1988 – Appellant challenged the order of
the ESI Authority before the Employees’ Insurance Court by
moving an application which was dismissed – Appellant moved
appeal against the order of the El Court – Held, evidence on
record reveals that no material was kept in the cabin of the
Manager – There was a separate room for storing the material
– Material can be kept for a few days without refrigerator – Appellant was trader and used to keep the material for 10-15 days
only – There is nothing on record to show that air-conditioner
was u2s4edhofourrs – Hence, the impugned order being on
the basis of mere presumption of the EI Court is not sustainable
– Appeal is allowed. ......................................... 86 (SN) (Guj HC)
ENQUIRY
............ Effect of its vitiation by Labour Court – Held, if enquiry finding is vitiated by the Labour Court, the workman would be entitled to reinstatement with back-wages. ...................63 (Del HC)
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............ Standard of evidence – Enquiry held by the Labour Court
was found to be proper but it found that there was dearth of
evidence to find that the charges were proved in the domestic
enquiry – Management was permitted to adduce evidence
– Witnesses were examined by the Management – Labour
Court found the worker responsible for making fictitious entries
in the bank books for personal gains – However, the Labour
Court found that there was no evidence to indicate that the
worker prevailed upon the customer – Bank has not initiated
any criminal action against the worker – Held, non-filing of
criminal complaint or making a searching investigation against
the workman by the employer does not mean that the workman
did not make fraudulent entries in the bank ledgers which have
been proved by cogent evidence – In banking industry, each
and every employee is expected to maintain absolute integrity
and impeccable honesty since Bank deals with the money of
general public, the deviation of one employee could lead to
huge loss to the Bank – Hence, in domestic enquiry to apply
the standard of proof applicable in criminal trial is not essential.
......................................................................... 88 (SN) (Ker HC)
............ When fair and proper – Effect of – Workman was issued
charge-sheet for slowing down the production – Enquiry was
conducted – Workman was held guilty of the charges – He was
terminated from service – He raised an industrial dispute – Labour Court held the enquiry to be fair and proper, observing that
that Enquiry Officer neither misconducted himself nor the enquiry had been concluded in violation of principles of natural justice
– Since enquiry was found fair and proper, the Labour Court
rejected the claim of the workman after recording evidence of
both the parties – Workman filed writ petition challenging the
Award passed by the Labour Court – Held, workman confined
the challenge only to the disproportionality of the punishsment
– Evidence on record reveals that enquiry has been conducted
by following principles of natural justice – Hence, interference in
the enquiry is not called for to substitute the finding already concluded by the disciplinary authority and confirmed by the Labour
Court..........................................................................72 (Del HC)
............ When liable to be vitiated – Workman was a Bus Conductor
– He was charge-sheeted for not issuing tickets to the
passengers after collecting fare while bus was intercepted by
the checking staff – He participated in the enquiry proceedings –
He requested for certain documents but only few were supplied
– He was issued show cause notice for filing reply within 10
days – He was removed from service even before expiry of
ten days – Appeal filed by him before General Manager did not
succeed – He raised an industrial dispute – Labour Court held
the enquiry, as conducted, was not fair and proper since no
opportunity was given to the workman to bring his evidence –
There was violation of principles of natural justice since copy of
enquiry report was not supplied to him – Workman was awarded
reinstatement without back-wages – Petitioner challenged
the Award in writ petition – Held, since the workman has not
been given fair and proper opportunity ptoroduce his defence
evidence in enquiry proceedings, the violation of principles of
natural justice has been proved, making the enquiry liable
to be set aside – Hence, enquiry proceedings are set aside.
......................................................................... 85 (SN) (Del HC)
............ When not conducted before termination – Effect of – In
number of cases, the employer leads evidence before the Labour Court to prove the misconduct against the delinquent employee – It is not always necessary to conduct a domestic enquiry prior to effecting termination of services of the delinquent
employee................................................................... 29 (Ori HC)
ENQUIRY OFFICER
............ Change of – When request not justified – Petitioner made
representation seeking change of Enquiry Officer on the ground
that attested copies of documents have been exhibited without
production of original thereof, showing that Enquiry Officer is
biased against the petitioner – Petitioner also made representation to Appellate Authority which was rejected – Petitioner filed
January, 2016 — 6
llR
SUBJECT INDEX
writ petition against the order of the Appellate Authority – Held,
merely because some documents have been taken on record
despite objection of the petitioner, it cannot be pre-judged
amidst enquiry proceedings as to whether Enquiry Officer is biased or not – Hence, prayer of the petitioner for change of Enquiry Officer is not at all justified – Since the enquiry proceedings stand virtually completed, prayer for change of Enquiry
Officer cannot be entertained – Writ petition is disposed of accordingly. .....................................................................8 (Del HC)
............ Effect of non-supply of copy thereof to the delinquent employee – Petitioner has not challenged the merits of the enquiry
at any stage or the punishment awarded to him – It establishes
that petitioner was not prejudiced by the failure to supply a copy
of the Enquiry Report – Hence, non-supply of copy of enquiry
report is not fatal......................................................84 (SN) (SC)
EVIDENCE ACT, 1872
............ section 114 (iii)(g) – Adverse inference – In case trial
evidence is withheld by party – Court may draw adverse
inference........................................................... 93 (SN) (Cal HC)
EX-PARTE AWARD
............ When not liable to be set aside – Court notice was not received by the addressee/petitioner – Notice was affixed at the
site of the employer – An ex-parte Award was passed by the
Labour Court against the petitioner – Recovery notice was
served upon the petitioner - Petitioner moved an application for
setting aside the ex-parte Award inter-alia taking a plea that he
has no relationship of employer employee or otherwise with the
workman since he was not proprietor of M/s. Universal Electronics, the employer of the workman – Labour Court dismissed
the application – Petitioner filed writ petition seeking remedy –
Held, no witness to affixation was on record – However, petitioner never denied that he met with the process server or did
not receive the summons – Nor such a plea was taken in the
application filed for setting aside ex-parte Award – Advocate for
the petitioner has admitted that recovery notice was received
by the petitioner on the same address on which the summons
were sent to M/s. Universal Electronics – Even if the petitioner
had no concern with M/s. Universal Electronics, he could have
appeared before the court and informed that he had no concern
with the firm or there was no relationship of employer and-em
ployee between him and the respondent – He did not do so –
Hence, order of Labour Court does not suffer from an error of
jurisdiction or from breach of principles of natural justice – Petition is dismissed accordingly.......................... 109 (SN) (Del HC)
FACTORIES ACT, 1948
............ section 2(k) – clause – VI – Manufacturing process –
Cold-storage – Air-conditioner being used in the cabin of a Manager only for few working hours cannot be presumed to be used
as cold storage when no item was kept in the Manager’s room
for the purpose – Use of airconditioner is not covered under the
definition of ‘manufacturing process’. ............... 86 (SN) (Guj HC)
............ sections 92, 7a(2)(c) and 106 – Jharkhand Factories
Rules, 1950 – Rule 55A(2) – Cognizance – Taken by CJM
under section 92 of Act – While working in the factory, the deceased Mukesh was suddenly hit on head by a steel column
and resultantly died – Deceased was an employee of Contractor – And in terms and conditions of work contract, safety precautions, were to have been taken by contractor himself – Liability is with the contactor – And owner has absolutely no liability
concerning the employees of –coInntrtaecrtmors of contract,
responsibilities, duties and liabilities of the contractor have been
fixed with the contractor – Moreover prosecution report itself
submitted beyond the period of limitation in terms of section
106 of Act – Order taking cognizance has not considered it –
Petitioners cannot be prosecuted – Entire criminal proceedings
including the order of cognizance quashed............. 43 (Jhar HC)
January, 2016 — 7
7
INDUSTRIAL ADJUDICATION
............ Burden of proof of a plea – Is initially on party who sets up
it – In view of this, an employee in order to discharge his burden
to prove employer-employee relationship – Has to lead positive
evidence – And after that, the employer would lead his evidence
to rebut the assertions made by employee – Test for determining the relationship given.........................................58 (Bom HC)
............ Effect of non-production of records – Muster roll is prepared
by the Management – It is the material document to prove the
date of joining, working days, payment of wages etc. – It is the
best evidence in possession of the Management – Adverse
inference is liable to be drawn against the Management
if relevant attendance records is not produced by the
Management. ................................................. 110 (SN) (Del HC)
............ Effect of non-supply of documents) demanded by the delinquent employee – Certain documents were demanded by the
delinquent employee by moving an application before the Enquiry Officer – Out of which some documents were not supplied
being not traceable and non-relevancy – Employee was held
guilty of the charges – He was dismissed from service – His
departmental appeal was dismissed – While disposing of writ
petition filed by the employee, it is held that appellant, neither in
response to enquiry report submitted to the disciplinary authority nor in the appeal, raised the issue of any prejudice caused
to him by non-supply of documents nor any prejudice caused
to him, is observed on the basis of documents on the case file –
Settled law is that mere non supply of documents is not enough
to the established allegation by the delinquent employee – Prejudiced caused has to be shown – Merely because statutory auditors during inspection did not point out any illegality does not
mean that there was no illegality – Since non supply of documents has not caused any prejudice to the appellant, his such a
contention is not sustainable. ......................... 107 (SN) (Del HC)
............ Presumption of a fact without specific pleadings – Not sustainable – One Harvinder Singh was owner of the Truck which
was being driven by the deceased driver – During driving, driver received grievous injuries committed by unknown persons
causing his death – Petitioners claimed compensation before
the Employees’ Compensation Commissioner – Commissioner
awarded compensation – Insurance Company challenged the
Award by filing appeal which was allowed – Petitioner challenged the order of the High Court by filing Special Leave Petition – Held, Insurance Company had not taken any specific defence in its written statement that deceased-driver was owner of
the offending vehicle/truck – Even no document was filed by the
claimants showing the deceased as an employee of the owner/
respondent No. 1 – Commissioner, after considering the entire
facts, concluded that at the time of accident, deceased was driver and employee of the original owner – High Court ought not to
have come to the conclusion that deceased was not employee
of the original owner or he himself was the owner when there
was no such pleading by the Insurance Company – Hence, appeal is allowed – Judgment of CHoiguhrt is set aside – Award passed
by the Commissioner is restored. ......................... 1 (SC)
............ When a plea that impugned order is cryptic one is not
sustainable – Whether appellate authority applied its mind if it
has concurred with the view taken by the disciplinary authority?
– Held, records reveal that appeal was forwarded to the
appellate authority with the comments against each paragraphs
by the legal department – Considering appeal and parawise
comments, appellate authority rejected the appeal – A lengthy
appellate order need not be penned in administrative matters
– Concurring with the view taken by the disciplinary authority,
in such circumstances, suffice it to note that appellate has duly
applied its mind – Impugned order is appropriate and not a
cryptic one. ..................................................... 107 (SN) (Del HC)
INDUSTRIAL DISPUTES ACT, 1947
............ section 2(k) – Industrial dispute – Cannot be said to exist
unless demand is made by the workman and it has been rejected by the employer. ...........................................89 (SN) (SC)
VIII
SUBJECT INDEX
............ sections 2(oo)(bb) and 25f – Retrenchment –
Dismissal from service as penalty – Cannot be held as
retrenchment – And therefore section 25F would not be apply.
......................................................................... 95 (SN) (Del HC)
............ sections 2(oo), (bb) and 25f – Retrenchment – Termination – Award of Labour Court – Each appointment of appellant
would constitute a separate contract of employment for a specific period – And the service would stand terminated ipso facto
on expiry of such period – In which, section 2(oo), (bb) would be
attracted – And termination of service of such appellant would
not be retrenchment – Appellant’s service was not seasonal in
nature – Appointment letter not produced before Labour Court
by respondent – Hence the Award of Labour Court on basis of evidence, apparently cannot be faulted – Single Judge
should not have interfered with such Award of Labour Court.
......................................................................... 93 (SN) (Cal HC)
............ section 2(s) – Secretary – Subordinate to President under
Society Byelaws – Acting under supervision of
President
– Secretary could not be said to be a supervisory
staff.
......................................................................... 98 (SN) (Ker HC)
............ section 10(1) – Award – Termination – No relationship
of master and servant found between the Vitran Nigam and
the workman – Respondent-workman is in fact employee of
H.E.S.L. – Hence no direction to reinstate him in service can
be given to Nigam – And the impugned order is therefore modified, and respondent No. 2 H.E.S.L. is directed to reinstate the
respondent-workman— With consequential benefits without
back-wages. ............................................................25 (P&H HC)
............ section 10(1) – Back-wages – Justification of – Workman
was awarded reinstatement without back-wages by the Labour
Court – He filed writ petition challenging the Award, claiming
back-wages also – Held, evidentiary material on record portrays that workman was not gainfully employed since his illegal
termination/retrenchment – Hence, it was incumbent upon the
Labour Court to Award 50% back-wages from the date of his
illegal termination till his reinstatement in service – Management has not even rebutted the plea of the workman of being
not gainfully employed in its written statement – No issue was
framed by the Labour Court in this respect, consequently no
finding could be returned – Since, industrial dispute has not
been vitiated with the vice of staleness, as applied by the Management, saying that the relief of back-wages is unaffordable
to the workman, gets emaciated – Workman is entitled to 50%
back-wages – Management is directed to make the payment
of 50% back-wages to the workman within six weeks from the
date of receipt of copy of this judgment – Writ petition stands
disposed of. ............................................................... 50 (HP HC)
............ section 10(1) – Reference – Satisfaction of existence of
an industrial dispute or satisfaction that an industrial dispute is
apprehended – A condition precedent to the order of reference
– Appropriate Government must also be satisfied that person
whose dispute is being referred is a workman – Dispute not between an employer and his workman, not an industrial dispute
– Can justifiably be refused to be referred – Order of reference
open to judicial review if it is shown that the appropriate Government had no material before it or had not applied its mind to
material before it – Refusal to refer a dispute can be challenged
if it is shown that industrial dispute exists or is apprehended – A
reference will be subject to judicial review also where no dispute
exists or is apprehended. ........................................89 (SN) (SC)
............ section 10(1)— Limitation Act, 1963 – No period of limitation prescribed under the 1947 Act – Limitation Act not applicable to proceeding under the 1–94A7ppArcotpriate Government required to keep in mind whether dispute is still existing or
claim has become stale...........................................89 (SN) (SC)
............ sections 10(1) and 2(k) – Limitation Act, 1963 – Reference
– No limitation fixed to raise an industrial dispute – Workman
required to show that there is a dispute in presenti – If workman
can give satisfactory explanation for laches and delays and
demonstrate that circumstances disclosed that issue is still alive
LLR
– Delay would not come in his way – Else presumption would
be that he has waived his right or acquiesced to the act of the
other and issue has become stale – Appropriate Government
may refuse to refer a stale issue or Labour Court may also hold
that there is no industrial dispute – Very stale claims should not
be generally encouraged or allowed. ......................89 (SN) (SC)
............ section 10(4) – Requires that when Appropriate
Government has referred and specified points of dispute Labour
Court shall confine its adjudication to such points – Issue of
settlement of dispute was neither referred to nor included in
main issue. ................................................................94 (Del HC)
............ section 11a – Discretionary power of Industrial Adjudicator – When its use is not proper – Bank employee was found
guilty of the charges of misappropriation of funds in the domestic enquiry – He was dismissed from service – Labour Court
held the enquiry fair and proper – However, it substituted the
punishsment of dismissal into reinstatement without back-wages – Employer challenged the Award – Held, since the grave
and serious charges of making fraudulent entries in the bank
ledger, leading to huge loss to the Bank, were proved against
the employee, observing the punishsment of dismissal shocking
disproportionate by the Labour Court by exercising its power
under section 11A of the Act, only keeping in view the fact that
employee was physically handicapped, is a misplaced sympathy against the delinquent employee – Even admittedly, the employee was earlier too proceeded against, on charges of misappropriation and was demoted. .......................... 88 (SN) (Ker HC)
............ section 25b – Oral termination of respondent – Set aside
by Labour Court and directed the petitioner to reinstate the
respondent on post on which she has worked as “daily wage
cook” – Except affidavit there was no evidence before the
Labour Court to conclude that respondent has established
continuance in employment as required under section 25B of
Act – In petition, beyond an affidavit, the documentary evidence
filed assumes importance – Hence impugned judgment passed
by Labour Court is quashed and set aside – And reference
proceedings are remitted back to Labour Court to decide afresh
– However, petitioner shall pay Rs. 5,000 p.m. to respondent
during pendency of reference proceeding before Labour Court.
....................................................................... 93 (SN) (Bom HC)
............ section 25f – Effect of its non-compliance – While terminating the services of a workman, if the Management fails to
make compliance of section 25-F of the Act by issuing any notice or paying notice pay in lieu thereof, it would tentamount to
retrenchment under section 2(oo) of the Act i.e. an illegal termination, attracting reinstatement with back wages, continuity of
service, etc. .................................................... 110 (SN) (Del HC)
............ section 25f – Retrenchment – Compensation – In lieu of
reinstatement – Award of Labour Court, holding retrenchment is
in violation of section 25F – Learned Single Judge affirmed the
award and awarded lumpsum compensation of Rs. 1,50,000 in
lieu of reinstatement – In view of facts and guidelines as laid
down by Apex Court which is just and proper – Impugned order passed by Single Judge nthoetrreefoqrueir,ed any interference................................................................ 101 (SN) (Raj HC)
............ section 25f – When its compliance is not required –
Appellant was appointed on ad hoc basis for 3 months from
04.08.1986 – Which was further extended for 6 months – His
services were terminated on 08.02.1988 without any notice
or assigning any reason – She raised an industrial dispute –
Central Government Industrial Tribunal awarded reinstatement
with full back wages holding that her services were terminated
due to her involvement in a case without conducting any
enquiry, violating the principles of natural justice – Single
Judge set aside the impurgned order in the writ petition filed by
the Management – Appellant has challenged the order of the
learned Single Judge in writ appeal – Held, if termination order
does not cast any stigma, the same can not be faulted merely
because the opposite party in judicial proceedings replying to
the case states the reason for termination that the appellant
January, 2016 — 12
LLR
SUBJECT INDEX
remained absent from duty on account of her being kept in
juridical custody for 14 days – Since appellant was appointed
for a fixed term, her termination order is under section 2(oo)(bb)
of the Act which does not require compliance of Section 25F
of the Act – An employer is not under any obligation to keep
the post vacant waiting outcome of the criminal proceedings
whereas the workman was appointed to meet emergent work
of the business of the Management – Hence, writ appeal is
dismissed. ...................................................... 108 (SN) (Del HC)
............ section 25f(a) and (b) and 25f(c) – Notice – One month’s
notice as per section 25F(a) – Fulfils the requirement of section
25F(a) and (b) – If on expiry of period petitioners’ services are
terminated – Without paying retrenchment compensation – Interference can be made – Clause (c) of section 25F is directory
– Violation of sub-clause (c) Will not render the impugned notice
as illegal. .......................................................... 98 (SN) (MP HC)
............ sections 25N, 25f, 25G and 25H – Termination – Interfered with by Labour Court by award – On ground of not following the requirement of section 25F of Act – However, action of
department is in accordance with provisions of Act – If they are
following the requirement of section 25F – It cannot be said that
it amounts to unfair labour practice – And the respondents are
required to ensure that no retrenchment takes place on violation of section 25G read with Rule 76 of Rules – In the circumstances, petitioner is directed to submit a representation along
with seniority list, which will be decided before implementing the
impugned order terminating the service. .......... 98 (SN) (MP HC)
............ section 25N and 25l – Scope of –Section 25N is applicable to workman employed in any “industrial establishment” to
which Chapter VB applies ................................ 98 (SN) (MP HC)
......section 33(2)(b) – Approval – Removal of respondent-workman
after enquiry – For absenting from duty unathorisedly and without permission – Approval of denied by Tribunal – However on
remand approval allowed – However, habitual absence can be
deduced even from period of absence – And merely because
the leave period is finally adjusted the same would not amount
to a sanctioned leave – In view of fact that the respondentworkman was absent from duty from 17.4.1993 to 9.6.1993 –
Disciplinary authority was fully justified in directing removal from
service. ......................................................................61 (Del HC)
............ section 33(2)(b) – Effect of rejection of application – Workman was a conductor – He was caught by checking staff to have
issued tickets of less denominations to passengers – Checking
staff did not record the statements of concerned passengers –
On the report of checking staff, enquiry was conducted – Workman was held guilty of the charges – He was removed from service – Management moved an application under section 33(2)
(b) of the Act which was dismissed by the trial court since the
checking staff had not recorded the crucial evidence of passengers – Consequently, the workman was awarded reinstatement
with 50% back-wages................................................63 (Del HC)
......section 33c(2) – Claim under – Opposite party workman had
prayed to determine his dues relating to salary etc, against the
employer management on the basis of award passed by Labour
Court – However the Labour Court should have disposed of the
proceeding without Leaving anything to be done by Management by computing the entire claims Labour Court has not done
this – Has committed an error – Therefore the matter is liable to
be remanded back...........................................100 (SN) (Ori HC)
............ section 36(4) – Representation through advocate –
Objected – Advocate filed vakalatnama on behalf of employer
– Union Representative raised objection by filing an application
– Industrial Tribunal decided the objection in favour of the
Workmen/Union – Employer challenged the order of the
Industrial Tribunal before the High Court – Held, law on this
point is well settled that unless the workman is not represented
through a legal practitioner or advocate, the employer has no
legal right to make his representation through an advocate or a
legal practitioner without the consent of the workman or Union –
Since the Office bearer of the Union representing the workman
January, 2016 — 13
IX
is not an advocate or legal practitioner, Industrial Tribunal
has rightly allowed the objection by refusing the employer’s
representation through an advocate – Hence, writ petition
stands dismissed............................................ 103 (SN) (Guj HC)
INDUSTRIAL EMPLOYMENT (STANDING
ORDERS) ACT, 1946
............ sections 10, 1(3), 3, 4, 10a, 12a, 13b and 2a –
Amendment in Model Standing Orders – Questions referred
for adjudication by Full Bench – Whether amendments made
in Model Standing Orders become automatically applicable
to Certified Standing Orders without any amendment to the
Standing Orders of the establishment finally certified under
section 10 of the Industrial Employment (Standing Orders)
Act, 1946 – Full Bench answered the question by holding
that amendments made in Model Standing Orders do not
automatically apply to the Standing Orders of the establishment,
which have been finally certified under section 10 of Act, 1946 –
And any modification of Certified Standing Orders can be made
in accordance with procedure which is prescribed in section
10(2) of the Act – Industrial Employment (Standing Orders); Act,
1946 – Sections 1(3), 3, 4, 10, 10A, 12A, 13B, 2A and 10(2).
..... ....................................................................90 (SN) (All HC)
............ s.o. 25(1)(c), 25(3), 25(l)(d) and 25(5) – Payment of Wages Act, 1936 – Section 7 – Industrial Disputes (Bombay) Rules,
1957 – Industrial Disputes Act, 1947 – Punishment of suspension – It is clear that punishment of suspension for period exceeding 4 days – Can be imposed by Manager on a workman
– Who is guilty of misconduct under Standing Order 25(1)(c) –
And no enquiry under the MSO is required while awarding the
said punishment – A domestic enquiry as contemplated under
S.O. 25(3) is not mandatory for awarding punishment of suspension for period not exceeding 4 days – In the light of this,
the impugned order by Industrial Court, setting aside the order
of suspension of complainant for three days, is perverse, erroneous – And therefore quashed. .................... 92 (SN) (Bom HC)
INSURANCE
............ Insurance company has levelled charges of breach of policy
against the owner of tractor in this case – However, insurance
policy was neither given to the insured nor it was exhibited during course of hearing before Commissioner – Insurance company cannot be allowed to play the game of hide and seek –
Hence, this Court cannot take a liberal view in favour of Insurance Company. .............................................. 101 (SN) (Raj HC)
MINIMUM WAGES ACT, 1948
............ section 22a – Cognizance of offence – Taken for offence
under section 22-A of Act against petitioners—However, there
is no allegation against petitioners in the complaint that contractor’s employees were employed in company of petitioner,
in contravention of Contract Labour (Regulation and Abolition)
Act, 1970 – Since the allegations are specifically against M/s.
Torrent Pvt. Ltd. of not maintaining the statutory registers – M/s,
Torrent had its establishment in premises of petitioner’s M/s. Lafarge India Ltd. – Therefore no offence can be said to be made
out against the petitioners – Moreover no reason whatsoever
disclosed in order impugned and order is non-speaking order –
Hence impugned order taking cognizance against petitioner and
criminal proceedings are quashed. ......................... 41 (Jhar HC)
MISCONDUCT
............ Collecting full fare and issuing tickets of less denomination is a serious misconduct justifying punishment of removal/
dismissal from service since zero tolerance is to be shown to
dishonest conduct of the employees as observed by Supreme
Court in case Subhash Chander v. Presiding Officer, Labour
Court, 2013 SCC online Delhi 1275. .........................63 (Del HC)
............ Meaning of – Dictionary meaning is ‘impropr behaviour’ i.e.,
intentional wrong doing or deliberate violation of a rule of standard behaviour – Any conduct by an employee, inconsistent
X
SUBJECT INDEX
with the faithful discharge of his duties towards his employer,
would be a misconduct – Reduced production, refusal to give
the agreed output, deliberately working slow, not completing
the job in a proper time, is a breach of duty – It is dishonesty –
Workman is guilty of intentional omission of duty – It is a grave
misconduct justifying dismissal or discharge.............72 (Del HC)
............ Nature of – Sleeping during working hours by a workman
can’t be treated lightly since it is a grave and serious misconduct as held by Apex Court in case ‘Bharat Forge Co. Ltd. v.
Uttam Manohar Nakate, (2005) 2 SCC 489. ........... 47 (Gau HC)
............ Unauthorised absent – When would not justify removal
from service – Workman availed excessive leave say 63 days
in the year 1990; 81 days in 1991 and 129 days in 1992 – He
was issued charge-sheet for remaining unauthorisedly absent
from 22.11.1992 to 03.12.1992 without prior information or
permission – Enquiry was conducted – He was found guilty of
the misconduct – He was removed from service – He raised
an industrial dispute – Labour Court awarded reinstatement
with full back-wages holding the enquiry not conducted in
accordance with the principles of natural justice – Management
challenged the Award in writ petition – High Court set aside
the Award remanding the matter back to the Labour Court to
pass a fresh judgment in accordance with the decision of the
Supreme Court in DTC v. Sardar Singh, (2004) 7 SCC 574 –
Management examined two witnesses – Workman also led his
evidence – Labour Court held that the Management has proved
the charges – Holding further that the quantum of punishment of
removal from service is disproportionate, awarded reinstatement
with 50% back-wages – Management again challenged the
Award in writ petition – At the stage of admission, the advocate
of the petitioner confined his prayer to the extent of back-wages
only............................................................................66 (Del HC)
............ When stands proved – Workman abused and assaulted
the Cashier of DTC – Enquiry was conducted – Evidence
of Cashier was recorded – Workman did not participate
in the enquiry – He was held guilty of the charges – He was
removed from service – An application under – Section 33(2)
(b) of the Industrial Disputes Act, 1947, was moved – Industrial
Tribunal declined the approval on the ground that there is no
corroboration to evidence of cashier from ianndyependent
source and so, his evidence was not reliable for want of medical
evidence – Management approached the High Court by filing
writ petition – Held, in domestic enquiry misconduct is proved
on the yardstick of preponderance of probability and not on
the yardstick of criminal trial of proving it beyond reasonable
doubt – It is settled legal position that the evidence of material
witness, unless shown to be unworthy of reliance, ought to be
accepted – Hence, impugned order is set aside – Writ petition
is allowed........................................................ 106 (SN) (Del HC)
NOTICE
............ When taken to be served – Notice of enquiry was sent
through Registered A.D. but the acknowledgement card was
not available on the record – Industrial Tribunal held that notice
is not to be taken as served since Acknowledgement Due card
is not available – However, the ld. Single Judge, while allowing
writ petition, observed that notice for next date of hearing was
sent through registered post on correct address – Presumption
of service of notice arises – Workman himself avoided to attend
the enquiry till the decision of the Criminal case – Non-availability of A.D. Card on the case file is not fathtael ctoompliance of
principles of natural justice – Hence, the finding of the Labour
Court reversed................................................ 106 (SN) (Del HC)
PAST CONDUCT OF THE WORKMAN
............ Effect of – Workman challenged illegal termination of his
services – Management inter alia asserted that the workman
settled all his accounts on 31.03.2004 and left the services
on his own – Labour Court held the termination illegal –
Management filed writ petition against the award, inter alia on
the ground that Labour Court has not considered the fact that
LLR
the workman was of a litigant nature – He had raised industrial
disputes against his previous employers but could not succeed
– Held Management has placed on record the copies of the
industrial disputes raised by the workman against his two of
the previous employers which did not succeed – It proves that
the workman is in the habit of raising industrial dispute against
the Management wherever worked – It proves mala fide on
the part of the workman making him not entitled to any relief.
....................................................................... 105 (SN) (Del HC)
PAYMENT OF GRATUITY ACT, 1972
............ section 4(6) – Forfeiture of gratuity – When petitioner was
serving as driver in Fire Santadtioonn duty of Fire Station – Narcotic
Squad caught him with brown sugar – FIR filed and he was
convicted for offence punishable under NDPS Act – Involving
moral turpitude committed when he was on duty – His services
terminated for said offence – Hence the respondent Corporation
is entitled to forfeit the amount of gratuity under section 4(6) of
Act – No illegality is committed by respondent.
................................................................................. 81 (Guj HC)
PAYMENT OF WAGES ACT, 1936
............ section 2(vi) – Subsistence allowance – Industrial Disputes Act, 1947 – Section 2(rr) – Wages – Deduction from
subsistence allowance –Respondent employer has deducted
money from the suspension/subsistence allowance under various heads like P.F., Union contribution, repayment of P.F. loan
instalments, profession tax, Co-operative Society loan deductions, etc. – Suspension/subsistence allowance would not be
‘wages’ – Deductions carried out by Management is legally impermissible. .................................................... 92 (SN) (Bom HC)
PUNISHMENT
............ Proportionality of penalty – Held, merely because no loss
was caused to the Bank by the irregularities and illegalities
committed by the delinquent employee does not mean that
his acts of blatant abuse of power and misuse of authority
be overlooked – In banking industry, utmost good faith, due
diligence and probabity is warranted at every level, particularly
by a Branch Manager – Any deviation would obviously attract a
lack of confidence by the employer in the employee – Hence,
dismissal of the appellant from service is not disproportionate.
....................................................................... 107 (SN) (Del HC)
............ When not disproportionate to the misconduct – Go-slow is
a serious misconduct – Hence, punishment of dismissal from
service cannot be treated as exaggerated or disproportionate.
..................................................................................72 (Del HC)
REGULARISATION – When demand not justified – Contract labour
receiving wages from the contractor would not have relationship
of employer-employee with the principal employer – Hence,
demand for regularisation from principal employer is not
justified. .....................................................................19 (Del HC)
REINSTASTEMENT
............ When not justified – Claim of the workmen is that they were
working with the petitioner since long – They were residing in
the quarter allotted to them by the petitioner for which they were
paying electricity charges directly to Electricity Board – Petitioner took stand that workmen were employees of contractor
– Petitioner had an agreement with the contractor to supply
manpower – Wages and other benefits are paid to the workmen
by the contractor – Labour Court awarded reinstatement without
back-wages – Petitioner challenged the Award of reinstatement
whereas workmen challenged the Award claiming back-wages
– Held, workmen have faild to prove as to who was paying them
wages, who had power to dismiss them from service, hence
granting relief of reinstatement to them by the petitioner, is not
justified – Workmen cannot become employees of petitioner
only on the ground that it had not obtained registration and the
contractor had not obtained licence under the Contract Labour
(Regulation and Abolition) Act, 1970 – Matter is remanded back
January, 2016 — 14
LLR
SUBJECT INDEX
to the Labour Court for framing proper issues and adjudicate
the same in accordance with provisions of law – Petitions stand
disposed of accordingly.......................................... 36 (Karn HC)
REINSTATEMENT
............ Justification of – Petitioner failed to justify termination of
services of the workman after due compliance with the rule of
law especially section 25F of the Industrial Disputes Act, 1947
– Labour Court awarded reinstatement with full back-wages –
Writ petition filed by the employer was dismissed by the learned
Single Judge – In writ appeal, the Division Bench of the High
Court held, when the employer has failed to comply with the
mandatory provisions of section 25F of the I.D. Act, then all other pleadings would pale into insignificance or not supported by
law – Mere informing the workman that he can collect his dues,
is not sufficient compliance of section 25F of the Act – Hence,
writ appeal is dismissed. .......................................... 23 (Guj HC)
............ Without back-wages – When justified – Management has
not taken any plea that the workman was habitual absentee or
absented repeatedly unauthorisedly – Finding of the learned
Single Judge that workman was habitual absentee is not based
upon any e–viWdeonrkcmean had completed 15 years of
service – No misconduct is there in his past service record –
Hence, writ appeal is allowed – Order of learned Single Judge
is set aside – Award passed by the Labour Court is restored.
................................................................................ 33 (Mad HC)
............ Worker of contractor – By the principal employer – Not justified – Labour Court allowed the claim filed by the workers –
Management challenged the Award in writ petition – Held, validity of contract between contractor and the principal employer
was not challenged by the workers – No issue was framed on
this point – Wage-sheets, produced, confirm that wages were
paid by the contractor to its workers – EPF returns filed by the
contractor are having names of the workers – Bills raised by
the contractor upon the principal employer establish that workers were employees of the contractor – Thus workers failed to
prove their employment with the petitioner – Hence, awarding
reinstatement by the petitioner to the workers of the contractor
is not sustainable – Accordingly, impugned Award is set aside –
Writ petition is allowed...............................................12 (Del HC)
RELATIONSHIP OF EMPLOYER-EMPLOYEE
............ Factors for determination – Workers engaged through contractor raised an industrial dispute alleging them to be employees of the principal employer – They failed to prove relationship
of employer-employee with the principal employer on the basis
of any document – Contractor produced its record of attendance, payment of wages, ESI contributions and EPF contributions – Such records reveal that attendance of the workers was
maintained by the contractor, wage-bills were raised by the contractor alongwith copies of ESI challans and EPF challans confirming payment of respective contributions in the accounts of
the workers – Wages and other emoluments, if any, were paid
by the contractor to its employees through cheques – Held, in
view of such evidence, the Tribunal has correctly concluded that
relationship of employer-employee is not established between
the petitioner and the workmen. ................................12 (Del HC)
TERMINATION
............ Enquiry – Enquiry report does not disclose a specific finding
that charges have been proved – Hence, the Industrial Tribunal
rightly interfered with award – Respondent-workman was not
made accused in criminal case in which a final form was finally
submitted – Considering the gravity of charge found proved –
Penalty toefrmination from service was not warranted— Conclusion reached at by the Industrial Tribunal is correct— And
therefore, in exercise of power under Article 226, no interference made.......................................................97 (SN) (Jhar HC)
............ From services – When not justified – Management examined three witnesses – Workman did not lead rebuttal evidence
– Management failed to prove the misconduct since original
January, 2016 — 15
XI
un-punched tickets were not filed, charge against him was
that he did not issue tickets after collecting fare from passengers whereas cash was found short instead of being excess
– Shortage of cash casts a suspicion on the Management version – Neither passengers nor any independent evidence has
been produced by the Management to prove the charge except
statements of raiding party – Consequently, the termination of
services of the workman is not justified............ 85 (SN) (Del HC)
............ Of services of a Driver – When illegal – Claim of the workman was that we was working since 1977 – His services were
terminated illegally in 2006 – As per version of Management he
was with them since 1985-86 as a daily wager, he was regular
absentee, he caused accident, he was not having valid driving
licence, badge No. – However, Management did not prove any
deficiency on the part of workman by leading any cogent evidence – Since his services were terminated without any show
cause notice or conducting of enqluiry i.e. in violation of principles of natural justice as well as provisions of section 25F of
the Industrial Disputes Act, 1947, the Labour Court awarded
a lumpsum compensation of Rs. 1,50,000 Management challenged the Award in writ petition – Held, since the Management
failed to prove its version, the Award passed by the Labour
Court does not suffer from any infirmity – Writ petition is dismissed. ......................................................................10 (Del HC)
............ Of services of a workman – Without enquiry – On account
of unauthorised absence – Illegal – Workman was employed on
07.05.1990 by M/s. Ranbaxy Laboratories Ltd. which merged
with Sun Pharmaceutical Industries Limited later on – He remained absent from 16.06.2007 to 30.10.2007 – His services
were terminated without conducting enquiry or even issuance of
charge sheet – He raised an industrial dispute – Labour Court
awarded reinstatement with 50% back-wages – Management
challenged the Award in writ petition – Held, records reveal that
Management failed to pfraocvtes aofnter contest that the workman
had remained absent, workman being Medical Repre- sentative
was not a workman, workman has not completed 240 days of
service in preceding 12 months or the prerequisites in the
provision of section 25F of the Industrial Disputes Act, 1947
were complied since no notice or notice pay and retrenchment
compensation was paid to the workman – Hence, severance
without show cause notice or charge-sheet or enquiry or compliance of section 25F of the Act, has been rightly held to be illegal
by the Labour Court – No interference by writ court is called for
– Petition is rejected in limine..................................27 (P&H HC)
............ Principal of natural justice – non supply of copy of enquiry
report – Where copy of enquiry report is not supplied to employee – Court should direct to supply copy of enquiry report to
employee – And employee could establish prejudice caused to
him – Matter rightly remanded to decide the prejudice caused to
employee.......................................................... 95 (SN) (Del HC)
............ When not to be retrenchment – Workman was engaged
for a fixed term – Her services were liable to be terminated at
the discretion of the Management –wSahseissued a simple
termination letter, terminating her services – She raised an
industrial dispute – Writ appellate Court held, services of a
workman are terminated for non-renewal of contract or as per
terms and conditions stipulated in the contract of employment,
the same is not retrenchment since such a termination of
services is covered under section 2(oo)(bb) of the Industrial
Disputes Act which does not require compliance of Section 25F
of the Act. ....................................................... 108 (SN) (Del HC)
............ Without enquiry – When would not be illegal – Workman
was employed as Steno-typist w.e.f. 10.08.1982 – He remained
unauthorisedly absent from 20.11.1995 to 20.01.1996 – Management terminated his services simplicitor on 15.01.1996
without any prior notice or enquiry – Workman was habitual absentee – He had tendered apology on several occasions in the
past for being unauthorisedly absent – He did not submit any
explanation to his unauthorised absence this time also – Workman submitted medical certificate from ESI Dispensary – As per
XII
SUBJECT INDEX
provisions in Certified Standing Orders, there is no necessity of
any enquiry – Medical Certificate does not indicate nature of
disease and nature of treatment – Oral evidence indicated that
workman was admitted in ESI Hospital twice – Labour Court rejected the claim of the workman holding the ESI certificate as
doubtful – Workman challenged the Award by filing writ petition – Held, Labour Court has rightly doubted the genuineness
of ESI medical certificate in view of different nature of evidence
adduced by the workman – In view of doubtful evidence, necessity of enquiry is not fatal – Non-responding of notice by the
workman is sufficient compliance of provisions of section 25F of
the Industrial Disputes Act, 1947 and the principles of natural
justice, specifically in view of provisions in Standing Orders of
the Company – Hence, petition is dismissed. ........... 29 (Ori HC)
LLR
TRADE UNIONS
............ Constitution of India, 1950 – Article 226 – Impugned
order – Passed by learned Single Judge – Government letter
dated 31.10.2008 shows that the application forms have to be
submitted by each workman directly to Labour Officer – Not
through the trade Unions – Clause 3-7 of the Letter cannot be
read and understood as giving right to Trade Union to collect
application forms, to fill up the same on behalf of workman and
to submit the same to Labour Officer – Hence, in absence of
express permission from the Government, to permit the “Trade
Union” toaprpelciceaivtieon forms, to fill up the same and to
submit to 3rd respondent Labour Officer, etc.—This Court
cannot accede to the plea of appellant to permit them to do the
same................................................................99 (SN) (Mad HC)
TERRITORIAL JURISDICTION
TRANSFER
............ Court at the place where the workman was working, from
where his services were terminated – Not at the place of head
office or principal office of the employer – Workman was employed by the employer having its office at D–eHlhei worked at
Delhi – His termination took place at Delhi – Hence, the Labour
Court at Delhi has territorial jurisdiction to try and entertain the
dispute since entire cause of action had arisen at Delhi – Mere
approaching Punjab and Haryana High Court at Chandigarh
where the employer is having its principal office or direction
issued to approach the Labour Court cannot be said that the
workman was estopped from approaching the Labour Court at
Delhi. .............................................................. 110 (SN) (Del HC)
............ From one place to another – When justified – Employee
was holding a transferable post – He was transferred from Guwahati to Dumer in Bihar – Employee did not report for duty
at the place of transfer – After conducting enquiry, holding
him guilty of major misconduct as per provisions of the Standing Orders of the Company, his services were dismissed – He
raised an industrial dispute which was dismissed by the Labour
Court – He challenged the Award in writ petition – Held, nature
of misconduct of remaining absent from duty and defiance of legitimate transfer order would not warrant any lesser punishment
for such delinquent – Hence writ petition is dismissed being devoid of any merit. ..................................................... 45 (Gau HC)
............ Situs of last work-place – Workman was lastly performing
duty at Gautam Budh Nagar (UP) – Initially he performed duty
at Delhi – His services were illegally terminated from U.P. when
he raised demand for increase in salary – Demand notice, sent
by him, was not responded by the Management – He raised an
industrial dispute in Delhi – Management raised objection that
Delhi Courts have no jurisdiction to try the case – Labour Court
concluded that Courts at Delhi have no jurisdiction since the alleged termination of services of the workman was effected from
Noida (UP) – Rest of the issues were not decided – Claim of
the workman was dismissed for want of territorial jurisdiction –
Workman challenged the Award in writ petition – Held, admittedly the Management had closed its factory at Delhi – Thus, situs of employment was at Noida – Cause of action substantially
arose at Noida – Hence, courts at Delhi cannot be vested with
territorial jurisdiction on the allegations that intial appointment of
the workman was at Delhi or that PF etc. was being deposited
in Delhi or even the Head Office of the Management is in Delhi
– Impugned Award has no illegality, perversity or infirmity – Writ
petition is dismissed. ...................................... 103 (SN) (Del HC)
U.P. INDUSTRIAL DISPUTES ACT, 1947
............ Section 6H(1) – Recovery citation – Order passed by Dy.
Labour Commissioner under section 6H(1) of Act – In order to
implement the award passed by Labour Court, respondent No.
5apmpolivceadtion under section 6H(1) for his reinstatement
and for recovery of back-wages – Award passed directing reinstatement and full back wages – Dy. L.C. directed for recovery
of same – Award has to be implemented – Dy. L.C. has jurisdiction to deal with matter under section 6H(1) of Act – All controversies whether raised or not between the parties in respect of
implementation of the Award stood settled/decided – Petitioner
could not raise objection in those proceedings and it would stop
it in law in raising it by means of these proceedings on principle
of constructive res judicata – He had the opportunity to raise all
objections – Now he cannot be permitted to contest proceedings at this stage – Hence no force in any of the submissions of
petitioner – Petition is dismissed. .......................91 (SN) (All HC)
January, 2016 — 16
2016
JOURNAL SECTION
1
CONTRACT LABOUR SYSTEM SHAM WHEN
CONTROLLED BY PRINCIPAL EMPLOYER
With the globalization of the economy, high
level, fierce and aggressive competition among
multinationals and national organisations have
necessitated reorientation of business and
industry. In the present circumstances, production
is not only to be enhanced but also has to be
cost-effective and, therefore, outsourcing of
certain services i.e. engaging of contract labour
has become a necessity. But engaging of contract
labour is not that easy as perceived since there
are serious pitfalls which may result into
disastrous consequences.
The Constitution Bench of the Supreme
Court of India, in a landmark judgment1 had held
that even when the contract labour system is
prohibited by the appropriate government under
section 10 of the Contract Labour (Regulation &
Abolition) Act, 1970 (CLRA Act), the principal
employer will not be obliged to regularize or
absorb such workers. Even when the principal
employer has not sought registration and the
contractor has not obtained the licence under the
CLRA Act, the workers of the contractor can’t
be treated or become the employees of the
principal employer.2 An exception has been made
that if the contract labour system is found to be
sham or camouflage, then the workers of the
contractor will become the employees of the
principal employer.
Reference is made to a judgment of Bombay
High Court3 wherein it has been observed that a
contract between the contractor and the principal
employer will be deemed as sham, bogus and
camouflage when the workers, as engaged
through the contractor, were controlled by the
company, the rate of wages as payable was
decided by the principal employer and the
contractor was not frequently visiting the work
hence such workers will be entitled to
regularization of service. Amongst others, in
order to determine the control and supervision of
contractor’s workers by the principal employers,
there are several factors like –
(a) who is the appointing authority
(b) who is paying the wages to the workers
(c) who is directing as to how the job is to
be done, nature of establishment
The facts of one case 4 were that the
respondents No.1 to 8 (the workers) who were
engaged through contractor had raised an
industrial dispute against the principal employer
i.e. Ramjas Public School (Day Boarding), Anand
Parbat, New Delhi and the contractor i.e. Smt.
Promila Mehta, Proprietor of M/s Promila Mehta
January, 2016 - 17
1.
Steel Authority of India Ltd. vs. National Union Water
Front Workers, 2001 LLR 961 (SC)
2.
Sri Jatin Rajkonwar and Others vs. The Management of
Oil & Natural Gas Corporation Ltd. and Others, 2015 LLR 1170
(Gau. HC)
3.
General Manager (P&A), Hindustan Petroleum
Corporation Ltd. vs. General Secretary, General Employees
Association, 2010 LLR 957 (Bom. HC)
4.
Management of Ramjas Public School vs. Dharmendra
& Ors., 2015 LLR 1126.
2
JOURNAL SECTION
Caterers alleging these were illegal termination
of their services without any notice, non-payment
and arrears of minimum wages w.e.f. August 01,
2000 etc. It was stated by the respondents Nos.1
to 8 (the workers) that they were appointed by
Ramjas Public School, however, the wages were
paid to them through the contractor Vishwanath
Mehta, Proprietor of M/s Karan Caterers. The
respondents were also protesting against illegal
contract policy of the Management of Ramjas
Public School. When Vishwanath Mehta-the
contractor, died in May 2002 the man against of
Ramjas Public School terminated their services
as noted above and started taking work from the
newly appointed workers through Management
No.2, that is, M/s Promila Mehta Caterers run
by daughter-in-law of late Vishwanath Mehta,
Proprietor of Karan Caterers. Ramjas Public
School was registered as principal employer and
Karan Caterers obtained licence under the
Contract Labour (R&A) Act. The respondents
averred that they were actually employees of
Ramjas Public School i.e. principal employer and
not the contractor.
After the evidence was led, the learned
Labour Court, vide the Award dated November
20, 2010, held that the services of respondent
Nos.1 to 8 were illegally terminated hence granted
the relief of reinstatement with continuity of
service and 70% back-wages. Challenging the
Award dated November 20, 2010, Ramjas Public
School filed a writ petition being W.P.(C)
No.3495/2011 which was dismissed vide the
impugned order dated September 26, 2014 hence
an appeal was filed before the Division Bench of
the Delhi High Court.
On behalf of the appellant i.e. Ramjas Public
School, it was submitted that the payment of
provident fund which was deposited by Ramjas
Public School being the principal employer as per
the section 8A of the Employees’ Provident Funds
and Miscellaneous Provisions Act, 1952 (in short
‘the EPF Act’) and as the contractor Vishwanath
Mehta was not registered with the Employees’
Provident Fund. Hence merely by depositing
January, 2016 - 22
LLR
the provident fund, Ramjas Public School could
not be fastened with the liability of reinstatement
and back wages in respect of respondent Nos.1
to 8. It was urged that under section 8A of the
EPF Act, even for contract labour the
Management of the school had to deposit the
provident fund of the contract labour and could
recover the same from the contractor while
making payment to the contractor.
While relying upon the judgment of the
Supreme Court1, the Division Bench referred to
the following paragraph :
“The tests that are applied to find out
whether a person is an employee or an
independent contractor may not automatically
apply in finding out whether the contract labour
agreement is a sham, nominal and is a mere
camouflage. For example, if the contract is for
supply of labour, necessarily, the labour supplied
by the contractor will work under the directions,
supervision and control of the principal employer
but that would not make the worker a direct
employee of the principal employer, if the salary
is paid by contractor, if the right to regulate
employment is with the contractor, and the
ultimate supervision and control lies with the
contractor. The principal employer only controls
and directs the work to be done by a contract
labour, when such labour is assigned/allotted/sent
to him.”
While dismissing the appeal by Ramjas
School, the Division Bench held : –
(a) The contract between principal employer
and contractor is sham, nominal and camouflage
if attendance of such workmen is recorded in a
register, separately kept with the principal
employer, such workmen are to perform duty as
per direction, supervision and control of the
principal employer, material record to prove or
disprove the relationship of employer-employee
is not produced by the principal employer.
(b) If the contract between principal
1. International Airport Authority of India vs. International
Air Cargo Workers’ Union & Anr., 2009 (13) SCC 374 : 2009 LLR
923 : 2009 Lab. IC 3580.
2016
JOURNAL SECTION
employer and the contractor is proved to be sham
or nominal or camouflage, the workers of the
contractor would be treated of the principal
employer, entitled to all benefits of regular
employees of the principal employer.
The Allahabad High Court1 has also held that
the Labour Court has rightly awarded
reinstatement with full back-wages to a workman
who was allegedly appointed through the
contractor whereas the principal employer,
though registered under the Contract labour
(R&A) Act, has been paying wages and
exercising control over the workman hence the
High Court, in writ petition, would not interfere
in the Award. The High Court observed as under:
The contract labour arrangement between
the contractor and principal employer is sham
due to following reasons :
(i) The Labour Court found that the muster
roll (attendance register) stated to be maintained
by the contractor is not worthy of reliance as it
was not duly signed by the authorized
representative of the principal employer, as such,
it was against the Contract Labour (R&A) Rules.
(ii) There is no dispute that the initial burden
was upon the workman to prove that he was an
employee of the principal employer whereas it
was established that he was working for over 6
years.
(iii) In the facts and circumstances of the
case, the Labour Court found that once the
workman has come out with the clear case that
he was a direct employee of the principal
employer.
(iv) The wage register was not maintained
by the contractor but by the principal employer.
(v) The contractor, in fact, acted as a
mediator/link between the principal employer and
the workman and had no control and supervision
over working of the employee.
(vi) The principal employer not only
controlled and directed the work to be done by
the contract labour but also decided where and
how long the employee would work and the
conditions for his working hence it cannot be said
3
that the principal employer had only secondary
control over the working of the employee and
the primary control was with the contractor.
(vii) The officers of the principal employer
were assigning duties directly to workman and
regulating the place and period of working of the
employee and, therefore, it should be deemed that
he was working under the direct control and
supervision of the petitioner/principal employer.
The Calcutta High Court2 has summarised
the eventualities for sham contract :
(i) When the agreement does not disclose
the name and address of the contract.
(ii) When the agreement does not disclose
the exact nature of job to be assigned.
(iii) When the agreement narrates the nature
of job other than actually to be performed.
(iv) When the agreement is against the norm
of judicial pronouncement/statutory provisions.
(v) When the agreement is a tool or a devise
to deprive the right of livelihood or is a tool for
victimization or unfair labour practice.
(vi) When the agreement ensures and
discloses the obligations to pay the minimum wage
or agreed wages.
The Madras High Court3 has held that a
contract of employment with any contractor is
sham and nominal when over all day-to-day
administrative control and supervision upon those
workers is exercised by the principal employer
through its officials in addition to payment of
wages, allowances and other benefits are borne
by the principal employer and the work is of
regular nature. As such when it is proved that
the employment contract with the contractor is
sham and nominal, the employees of the
contractor will be having their right to be absorbed
as regular employees of the principal employer.
E-Mail : hlkumar@vsnl.com
1.
M/s. Indian Farmers Fertiliser Coop. Ltd. vs. Presiding
Officer, labour Court and Ors., 2015 LLR 505 (All. HC)
2.
Sailen Seth vs. Labour Commissioner, 2010 LLR 1078 :
2010 (2) LLJ 368 (Cal. HC)
3.
General Manager, Bharat Heavy Electricals Ltd., Ranipet
vs. Canteen Workers of BHEL, Rep. by BHEL Canteen Workers’
Union, Chennai & Ors., 2015 LLR 580 (Mad. HC)
January, 2016 - 23
4
JOURNAL SECTION
LLR
EPF&MP ACT ONCE BECAME APPLICABLE
WOULD CONTINUE TO APPLY EVEN IF NUMBER
OF EMPLOYEES BECOMES LESS THAN 20
In one case, the brief facts are that the petitioner is an
establishment functioning in the Forest Department under the State
of Gujarat. It is a non-profit making establishment and as per stand of
the petitioner, the provisions of EPF Act are not applicable to it.
To our Readers,
However, the EPF Authority brought it within the ambit of the Act and
assessed the dues by including the casual employees. The Advocate
The readers of the Labour Law of the petitioner challenged the order of the EPF Authority by filing
Reporter will bear testimony that writ petition inter alia on the ground that under section 7A of the
we have always endeavoured to EPF&MP Act, the respondent/EPF Authority was duly bound to conduct
provide the maximum possible the enquiry, which has not been done but in the absence of evidence
and relevant information since on record, the impugned order has been passed. On the other hand,
innovation is our passion. The the respondent-EPF Authority has stated that petitioner-establishment
variety of regular features by well has not produced the year-wise record of the workmen, as to how
known experts adds further value many workmen were engaged by the petitioner. Moreover, as per
to its utility. In a step towards better section 1(3) of the Act, the Scheme of the Act is applicable to all
service, another feature under the factories and other establishments and the petitioner-establishment
caption Case Study has been is squarely covered under the Act. The analysis of documents reveals
started.
that during the year 1986, the number of employees vary from 13 to
16, in 1987 from 8 to 17 in 1988 from 6 to 17, in 1989 from 7 to 18 and
An interesting and topical case is in 1990 from 9 to 20. In the year 1998-99, there were 9 occasions
being taken up to show that how it where the number of workmen touched 20, in the year 1997-98, the
is either won or lost. Intelligence number of workers reached to 20 on 13 occasions and in the year
plays pivotal role in every walk of 1991, the number of workmen touched 20 on 5 occasions only. Due
life, more so in the legal field where to non-payment of the EPF dues in time an interest amounting to
the parties are pitted against each Rs.3,07,249 for the period from 01.07.1987 onwards on the
other to fight the battle through outstanding dues under Section 7Q of the Act was imposed. Vide
experts in the subject.
order dated 23.01.2002, passed in review, the EPF Authority observed
that the petitioner being a government body does not exclude it from
Editor the purview of the Act. The establishment of the petitioner may not
be an industrial establishment but the provisions of the EPF Act are
applicable even to non-industrial establishments. Petitioner-establishment being engaged in socially
beneficial activities and working on a ‘no-profit no loss basis’ does not render its employees ineligible for
and disentitled to the vital social security benefits extended to them under the EPF Act. There is no
distinction in temporary and permanent employees in view of the provisions of the EPF Act. Casual
employees, engaged in the establishment, are entitled to the benefits of the EPF Act. The EPF Act becomes
applicable to an establishment as and when, the number of employees reaches to 20 or more. It is an
admitted fact that the petitioner is not an excluded establishment under section 16 of the EPF Act. As per
provisions of section 1(5) of the EPF Act, once it becomes applicable, the establishment shall continue to be
governed by the Act even if the number of persons employed falls below twenty. EPF Authority has made
the Act applicable to the petitioner from 1986 whereas it should be effective from 1990 since for the first time
on the basis of analysis of the documents, the number of employees reached 20 in September, 1990. The
records further reveal that subsequent to the year 1990, the number of employees went down from 20.
Hence, the impugned order dated 16.04.2010, passed by the Employees’ Provident Funds Appellate
Tribunal, New Delhi, is set aside to the extent that the starting period for making the contribution to the
provident fund would be February, 1986. If dues assessed are more than the amount already deposited, the
petitioner shall deposit the differential amount to the respondent and if less, the petitioner is entitled to get
the withdrawal from the Registrar. The EPF Authority is directed to assess the contribution of EPF dues from
September, 1990 instead of February 1986 and communicate the same to the petitioner. Writ petition is
disposed of accordingly.
M/s. Polythene Bag Factory vs. Assistant P.F. Commissioner, 2015 LLR 130 (Del. HC)
January, 2016 - 24
2016
JOURNAL SECTION
5
GOVT. SITTING ON HEAPS OF MONEY;
CONSTRUCTION WORKERS ARE LEFT IN LURCH
Those employed for building and other construction activities are unorganized labourers
who are forced to work under conditions of unsafe environment, unstable employment,
work without defined time limit making their conditions weak and miserable. In order to
streamline measures aimed at their welfare Building and Other Construction Workers
(Employment and Condition of Service) Act was created in 1996.
It is strange that the governments, which come
to power in the name of being a Welfare State, pay
scant regard for their own responsibilities. For
instance, the Government of Delhi has collected Rs.
18 hundred crore as levy for the labour welfare from
the construction companies has spent a very meagre
amount of Rs 39 crore to improve the life of workers
in Delhi. This information is not based upon any
guess or speculation but it has come from the Delhi
Government itself, which the social justice bench of
the Supreme Court of India consisting of Justices
Madan B Lokur and U.U Lalit that till June 30 an
amount of Rs 1796.63 crore has been collected as
Cess fund.
The government also informed that a drive has
been carried out by it to register construction workers
with Delhi Construction Board so that workers could
avail the benefit of welfare measures undertaken
from the money realised from the Cess fund. What
is, however, is intriguing that the AAP Government,
which boasts of being committed to the cause of poor
and downtrodden people, has been very niggardly
in spending the money to help them.
The Supreme Court was aghast to know that
the money, which should have been spent on the
welfare of the labourers, was being spent on
administration and advertisements, while the workers
are condemned to live miserable life. The bench
noted that it was extremely disturbed to find that the
poorer people were not getting any benefits from the
welfare measure. The bench was so perturbed with
this callousness of the Government that it remarked
that the collection of Cess should be stopped if the
Government was not able to spend on welfare of the
workers. The Supreme Court asked all the State
Governments to file affidavits stating the names of
labourers, who benefited from the fund with their
Adhaar numbers, which will be verified by the Court.
It may be mentioned here that most of the State
governments across the country are sitting tight over
Rs 27,000 crore collected for the welfare of workers
but the Labourers have been deprived of the benefits.
The cess for the welfare of building and
construction workers are levied under the building
and other construction workers regulation of
employment and conditions of service act 1996 in
UNBELIEVABLE BUT TRUE
• Amount of Cess for welfare of building
construction workers Rs.1800 crore
collected by Government of Delhi.
• Spent Rs.39 crore only.
short (BOCW). The very purpose of the act is to
charge levy from the builders for the welfare of the
construction workers. It may not be out of place to
state here that construction workers like masons,
plumbers, carpenters etc mainly constitute of the
migrant workers. They do not work at one place for a
very long period. The estimated number of
construction workers across the country is in millions.
January, 2016 - 25
6
JOURNAL SECTION
They are the most vulnerable segments of organised
labour in India their work is characterized by inherent
risk to the life and limb. It is also characterized by its
casual nature, temporary relationship between
employer and employee, uncertain working hours,
lack of basic amenities and inadequacy of welfare
facilities. In the absence of adequate statutory
provisions, the requisite information regarding the
number and nature of accident is also not forthcoming.
In the absence of such information, it is difficult to fix
responsibility or to take any corrective action.
Although it is a central act, yet there is a need for its
regulation with regard to safety, health, welfare and
other conditions for the service of labourers.
LLR
measures was not an easy. The Building and Other
Construction Workers (Regulation of Employment
and Conditions of Service) Bill, 1996 is considered
simultaneously. With a view to provide for the levy
and collection of a cess on the cost of construction
incurred by the employers for augmenting the
resources of the Building and Other Construction
Workers’ Welfare Boards constituted by the State
Governments under the Building and Other
Construction Workers (Regulation of Employment
and Conditions of Service) Act, 1996.
In the past, every state government encountered
this problem and this has been one of the main
reasons that a huge amount of fund has remained
largely unutilized.
Building workers have been defined under the
act a person who is employed to do any skilled, semiThere is no doubt this Act is a beneficial piece
skilled or unskilled, manual,
of legislation and it has
supervisory, technical or
withstood
the judicial
BITTER
FACTS
clerical work for higher or
scrutiny in many cases.
reward. Having said it all
• At least Rs.27,000 crore meant for the welfare A landmark judgment
there are significantly large
of casual workers in the construction sector handed down by the
number of construction
remains unutilized despite Supreme Court Supreme Court of India
workers who are not covered
in Diwan Chand Builders
orders.
under the BOCW Act.
and Contractors vs.
Therefore, it is necessary that • The Supreme Court earlier observed that
Union of India and others
all workers should be
some states had misused the fund, collected
(2012 LLR 1) wherein
brought in the ambit of the act
in the form of 1% cess on the construction the Hon’ble Supreme
so that they are entitled to get
industry.
Court
upheld
the
the benefit. Earlier it was very
decision
of
Delhi
High
•
It
directed
the
Delhi
government
to
return
difficult to locate the workers
Rs.2.7 crore utilized for publicity over the Court and the validity of
because they have been
the act. The Supreme
mostly mobile going from
years.
Court had on earlier
place to place for search of
occasions has said that
jobs. There has been a common feature of bouts of
the
fee
is
charged
for
special
services rendered to
unemployment among construction workers even if
individuals
but
the
levy
has
element
of Quid Pro
they have stayed at one place. Therefore linking of
Quo
but
the
traditional
view
of
Quid
Pro
Quo has
the registration of construction workers with Aadhar
card will prove to be a boon for them. Now it will not undergone a sea change.
be difficult for them to locate them because the
Hopefully, this intervention of Supreme Court
Aadhar card will remain same across the country.
will wake up the State Governments and they will
The constructions workers are one of the most take swift, necessary and effective steps to utilize
vulnerable segments of the unorganized labour in the huge amount of money for the vulnerable class
India. Their work is of temporary nature, the of construction workers. There is a need to open up
relationship between employer and the employee is temporary schools, health and hygiene centers for
temporary, working hours are uncertain. Basic maintaining the good health of the workers their
amenities and welfare facilities provided to these family members and education of their children. Some
workers are inadequate. Risk to life and limb is also recreational facility must also provided to them to
inherent. In the absence of adequate statutory rejuvenate themselves after hard and bone breaking
provisions to get the requisite information regarding
work.
the number and nature of accidents was quite difficult
E-Mail : hlkumar@vsnl.com
and due to this to fix responsibility or to take corrective
January, 2016 - 26
2016
JOURNAL SECTION
7
Though answers are available in these columns but in view of the complicated problems it is advisable to obtain legal
advice on the subject because labour laws are frequently amended and the Governments issue notifications from time
to time besides judicial pronouncements of varying connotations. The bird’s eye view clarifications, given in LLR, will
certainly enable the readers to ask their lawyer/adviser the right question with greater confidence.As desired by some of
questionnaires, not to disclose their identity, their names are not given against their questions.
Termination of a
probationer - necessity of
enquiry
We appoint every employee initially as a
probationer and dispense with his services
when it is not found to be satisfactory. My
query is whether an enquiry will be
necessary before termination of the
services of a probationer?
The object of appointing a probationer is to
enable the Management
to assess his suitability for
the establishment during
the period of probation.1
Be it clarified that no
enquiry will be necessary
while terminating the
services of a probationer
for unsatisfactory work.2
1. Dr. Padiyar Memorial Homeopathic Medical College
vs. State of Kerala, 2006 LLR 580 (Ker. HC)
2. Davinder Arora vs. Management of Albert and David
Ltd., 2002 LLR 612 (Del. HC)
Contract labour vis-à-vis
outsourcing
Does contract labour system differ from
outsourcing?
“Outsourcing” conveys more or less similar
meaning. If any activity which is outsourced to
someone and carried outside the premises of the
principal employer, such manpower engaged will
not be termed as “workman” under Contract
Labour (R&A) Act. When the jobs and services
are outsourced and are carried out in some other
premises not being premises under control and
management of the principal employer, Contract
Labour (R&A) Act will not apply. For all other jobs
ONLY THE PERSON IN-CHARGE CAN
BE PROSECUTED FOR VIOLATION OF
CONTRACT LABOUR (R&A) ACT
One Shekhar Sinha, the petitioner was
prosecuted by the Labour Department
through Labour Superintendent cum
Inspector, Jamshedpur stating that Tata
Motors Ltd. is engaging contract labour and
it was found that the petitioner has violated
the provisions of the Contract Labour (R&A)
Act and, as such, he should be punished as
per section 23 read with section 25 of the
said Act since there is violation on the part
of the petitioner. However, the complainant
did not state as to in what capacity the
petitioner has been responsible for non
compliance of the Act. The petitioner filed a
petition in the High Court and while accepting
the petition the court has held that the
complaint under section 10(1) and 23 of the
Contract Labour (Regulation and Abolition)
Act, 1970 is not sustainable against a person
who is not incharge of and responsible to the
company for the conduct of its business or
day-to-day at the time of commission of
offence. Reported in 2015 LLR 1266.
January, 2016 - 27
8
JOURNAL SECTION
and services outsourced which are carried out
in the premises of the principal employer will be
covered under the Contract Labour (R&A) Act.
Suspension allowance quantum of
We have to initiate disciplinary action
against an erring employee and before that
we resort to suspension. My query is as
to
(a) What should be the wages for the
suspension period?
(b) What should be the punishment when
the charges against the workman have
been proved in the enquiry?
LLR
(a) It is also well settled that if there is a
term in this respect in the contract of
employment or the service rules providing for
the scale of payment during suspension, the
payment will be made in accordance therewith
but in the absence of such a condition, an
employer will have to pay full wages for
suspension period.
(b) The punishment should neither be too
low nor too harsh. It should be adequate and
should be proportionate to guilt of the offender.
Awarding of lenient punishment may be a virtue
in itself, but it can be harmful for smooth
functioning of the industry as it would encourage
not only the delinquent but others too.
Statesmen Ltd. vs. Anil Dogra & another, 2015 LLR 795.
Contract labour for perennial
work
The activities for which we propose to
engage contract labour, are of perennial
nature. My query pertains as to whether
we can engage contract labour for such
type of work?
DEMONSTRATION BY THE WORKERS
HAS TO BE AT A DISTANCE
The Management of New India Assurance
Co. received a communication from the
Union representing the workers for staging
demonstration inside the office premises of
the company. The Assurance Company filed
a suit in the Delhi High Court praying that
due to demonstration ingress and egress of
the employees, willing to perform their duty,
will be adversely affected. While allowing
the plea of the company, the High Court has
held that the law is well settled that there
cannot be any demonstration, dharna etc.
which will result in disruption of the normal
work or activities inside the premises of the
company/plaintiff. Also, if demonstration
has to be carried out, it must be at a
sufficient distance ensuring that no
disruption would be caused to any ingress
and egress of any personnel who want to
visit the office. Normally demonstration,
dharna etc. should not be carried out within
a distance of 500 meters from the office/
premises of the plaintiff-company. Reported
in 2015 LLR 1242
January, 2016 - 28
As long as there is no prohibition by
notification issued by the appropriate
government under the Contract Labour (R&A)
Act, such work can be carried on.
Deduction from wages
When deduction for 8 days wages can be
made for absence in a concerted manner
or resorting to illegal strike?
There are two pre-requisites for invoking the
provisions of section 9(2) of the Act - (1) there
must be a strike without notice, and (2) there
must be a strike without a reasonable cause.
Also, there must be absence by 10 or more
employed persons acting in a concert. However,
notice before deduction is required to be given
to such employees.
Direction in gratuity
The director of our company is also getting
salary. A question arises as to whether he
will be entitled to gratuity?
2016
JOURNAL SECTION
Although the definition of ‘employee’ under
section 2(e) of the Act does not spell out as to
whether the Director is an employee or not, it
depends upon the functions or the duties
performed by a Director. It is, however, made
clear that if a Director of a company is performing
duties and is working for the company then he
can come within the purview of an ‘employee’
under the Act.
Monitron Securities (P) Ltd. vs. Mukundlal Khushalchand
Dhavan, 2001 LLR 339 (Guj. HC).
Bonus on Commission
Our establishment is covered by Payment
of Bonus Act, 1965. We engage people for
promotion of sales and pay them
commission. Will bonus be payable on the
commission as paid
Section 2(21) of the Payment of Bonus Act
defines ‘salary’ or ‘wages’. Its opening provision
includes within it all
remunerations
(other than the
remuneration in
case of overtime
work) capable of
BONUS
being expressed in
terms of money,
which would, if the
terms
of
employment,
express or implied, were fulfilled, be payable to
an employee in respect of his employment and
includes dearness allowance, yet in express
terms. The definition of ‘wages’ does not include
any commission payable to the employee vide
clause (vii) of section 2(21) of the Act.
Approval/permission for
dismissal/discharge of a
workman
I am practising in labour laws. I am
anxious to know as to what are the
formalities to be complied with when an
employer wants to dismiss an employee
after holding enquiry but there is a
pendency of an industrial dispute before
the Industrial Tribunal.
9
You are required to read section 33(3)(b)
inter alia providing for approval and permission
depending upon the facts. Be it clarified that
granting approval for dismissal of a workman the
authority shall have to see that the two
conditions of the proviso to clause (b) are
satisfied viz., (i) the workman has been paid one
month’s wages; and (ii) the employer has made
application for approval of his action to the
proper authority. Thus when one month’s notice
pay has not been given the application for
approval has been rightly rejected by the Labour
Court and the High Court will not interfere in the
writ petition.
Mahalakshmi Fibres and Industrial Ltd. vs. Presiding
Officer, Labour Court, Ranchi, 2003 LLR 1020 (Jhar. HC).
BACK WAGES ON REINSTATEMENT
TO DISHONEST BUS CONDUCTOR
NOT JUSTIFIED
A bus conductor in the State Transport
Corporation was on a route between
Manaparai and Thogamalai. He was chargesheeted for receiving Rs.2.25 from a male
passenger and did not issue ticket to him; at
the time when the checking was done, there
was an excess of Rs.10.30; abandoned the
bus at the time of inspection and when the
Checking Inspector gave the defect memo,
failed to receive the same. As a result he
was dismissed from service and filed a writ
petition which was allowed and he was
directed to reinstatement with 30% backwages. The transport corporation filed an
appeal and the Division Bench has held that
the workman employed as a bus conductor
indulging in misappropriation of money but
having not been fully proved, has been
erroneously awarded reinstatement with 30%
back-wages which was set aside by the
Learned Single Judge and the judgment of
the Learned Single Judge is confirmed by the
Division Bench in appeal. Reported in 2014
LLR 1261
January, 2016 - 29
10
JOURNAL SECTION
Labour Court vis-a-vis Civil
Court - Forum for relief to a
workman
It would be appreciated if it is elucidated
that why a workman should prefer to
challenge his illegal termination under
Industrial Disputes Act instead of other
forums?
It is always in the interest of the workmen
that disputes concerning them are adjudicated
in the forums created by the Industrial Disputes
Act and not in a civil court to ensure that the
workmen are not caught in the labyrinth of civil
courts with layers upon layers of appeals, revisions
and the elaborate procedural laws, which the
workmen can ill afford whereas the Awards of
the Labour Courts or the Industrial Tribunals are
amenable to jurisdiction of the High Court under
A PERSONAL DRIVER OF A
COMPANY EXECUTIVE NOT TO BE
AN EMPLOYEE OF COMPANY
The petitioner was employed as a personal
driver for A.K. Tangri, Dy. General Manager
of the Oriental Bank of Commerce, Karnal
Haryana and the salary was paid by the
office which was reimbursement. On
discontinuation of his service, the driver
raised an industrial dispute which was
rejected in the absence of relationship of
employer and employee between the
petitioner and the bank. Being aggrieved,
the petitioner filed a writ petition in the
High Court which was dismissed with
observation that a personal driver of a
Deputy General Manager of a bank to
whom the salary of driver was reimbursed
cannot challenge his termination by raising
an industrial dispute against the Bank,
hence the Tribunal has rightly rejected the
dispute in adjudication. No interference
was called for. Reported in 2013 LLR 400
January, 2016 - 30
LLR
Article 226 as also to the jurisdiction of this Court
under Article 32 of the Constitution of India, but
they are extraordinary remedies subject to
several self-imposed constraints.
Uttar Pradesh State Bridge Corporation Ltd. vs. Uttar
Pradesh Rajya Setu Nigam, 2004 LLR 289 (SC).
Punishment when can be
interfered by Court
My query pertains as to whether Labour
Court or Industrial Tribunal can interfere
with the punishment as imposed by an
employer upon a workman?
Under section 11A of the Industrial Disputes
Act, the Labour Court/Industrial Tribunal is
empowered to give appropriate relief in cases
of dismissal or discharge of
a workman. Normally
interfere
with
the
punishment imposed by the
employer only when it is
disproportionate. 1 The
Supreme Court has held
that supporting reasons
are to be given by Labour
Court while modifying the
punishment, as imposed by
the employer.
1. Gujarat Ambuja Cemenet Pvt. Ltd. vs. U.B. Gadhe,
2006 LLR (SN) 544 (Guj. HC).
2. U.B. Gadhe vs. G.M., Gujarat Ambuja Cement Ltd.,
2007 LLR 1178 (SC).
Exception for proving 240
days working
We frequently read that it is always for
the workman to prove that before his
illegal termination he has worked for 240
days with the employer. Is there any
exception?
Reference is made to one case wherein the
Andhra Pradesh High Court has held that if an
illiterate woman sweeper avers before the
Labour Court that she has worked for 240 days,
the burden lies upon the management to unprove it.
K. Chandramma vs. Labour Court-I, Hyderabad, 1997 LLR
811 (AP HC).
2016
JOURNAL SECTION
Doctor - not entitled to
protection under ID Act
Ours is a hospital and doctors have
resorted to agitational activities. My
query pertains as to whether a doctor
enjoys the job security under Industrial
Disputes Act?
Earlier it used to be as long as a doctor was
not a ‘workman’ under section 2(s) of Industrial
Disputes Act. Now the Supreme Court has held
that medical profession is not a mere occupation
that earns wages since it requires extensive study,
training and mastery for the subject like law or
teaching and, as such, like a teacher, the doctor
is also not a workman under the Industrial Disputes
Act.
11
was to be given by him in lieu of notice
deducted from gratuity as payable. My
query pertains whether the amount
equivalent to notice pay can be deducted
from the amount of his gratuity as
payable?
Section 4(6) of the Payment of Gratuity Act
prohibits any recovery from the gratuity and as
such the Controlling Authority has rightly allowed
the claim of the respondent (employee) for
gratuity by holding that neither the leave salary
as paid nor the notice pay as prescribed for
resignation can be recovered from the gratuity
of an employee.
he Fertilizers and Chemicals, Travancore Ltd. vs.
Sebastian K. John and Others, 2014 LLR 72 (Ker. HC).
ESIC Medical Officers’ Association vs. ESIC & Another,
2014 LLR 53 (SC)
Forfeiture of gratuity
We have terminated the services of an
employee who has been guilty of sexual
harassment as proved against him. Can
we forfeit his gratuity? Any case law will
be appreciated.
Forfeiture of gratuity has to be on the ground
of moral turpitude which can
be squarely applied to the
facts as stated in the query.
Reference is made to one
case wherein it has been
held that gratuity can be
withheld if charge-sheeted
employee is guilty of moral
turpitude which must have
been proved by conducting
domestic enquiry in the
course of employment of
the employee with the
employer.
P.K. Kataria vs. Chairman & Managing Director, National
Fertilisers Ltd., 2014 LLR 6 (Del. HC)
Deduction from Gratuity
One of our employee has resigned from
his job stating that the notice pay which
An enquiry violative of principle of
natural justice is liable to be
vitiated
The petitioner was the Head Clerk of the said
college. He was served with a charge-sheet
containing six articles of charge, such as,
neglect of performing duties, habitual
absence, violation of the orders of the
superior, unwillingness to perform the duties
allotted to him, dereliction of duty, etc. The
petitioner denied the articles of charge by
filing an appropriate written statement.
Thereafter, an enquiry was held. The Enquiry
Officer found him guilty of misconduct.
Accordingly, the petitioner was dismissed
from service. The petitioner challenged his
termination and the High Court set aside his
termination by holding that when the
procedure followed in conducting the
departmental proceedings does not have
all essential ingredients of a fair trial
including recording of evidence of
Management witnesses, exhibiting the
relevant documents, giving opportunity of
cross-examination to opposite party, the
finding on the basis of proceedings is not
valid and liable to be set aside. Reported in
2013 LLR 938
January, 2016 - 31
12
JOURNAL SECTION
LLR
FACTORIES ACT RELATED
PROBLEMS AND THEIR SOLUTIONS
Q. At times, we have to detain the
workers beyond duty hours and pay them
overtime. My queries are -
be exceed 13 hours in any day
a) Whether any permission of the
Inspector of Factories is required for
detaining workers to work overtime?
b) What should be the components of
wages which are to be paid at double the
rate since we have some allowances like
conveyance allowance, house rent allowance
and special allowance?
c) Is there any limit for working of an
employee on overtime basis? Thro. E-Mail
(iv) No worker shall be allowed to work
overtime for more than 7 days at a stretch and
the total number of hours of overtime work in a
quarter shall not exceed 75 hours.
A. Overtime work can be taken from the
workers for exigencies such as carrying out
‘urgent repairs’, to the extent prescribed in
column 4, subject to the conditions and for the
period prescribed in column 5 of the Schedule
appended below the relevant rule in the State
Factories Rules, framed under section 64 of the
Factories Act, 1948. This Schedule also provides
for exemptions to certain classes of factories
specified mentioned in column 2, for the nature
of work specified in column 3, to the extent
provided in column 4, subject to the conditions
and for the period prescribed in column 5 of this
Schedule.
For exigencies, such as for executing urgent
orders, the prior permission of the Chief Inspector
of Factories for exceptional pressure of work
under section 65 of this Act is required, which
may be granted, subject to the following
conditions–
(i) The total number of hours of work on
any day shall not exceed 12 hours
(ii) The, inclusive of intervals for rest, shall
January, 2016 - 32
(iii) The total hours of work in any week,
including overtime shall not exceed 60 hours
For calculation of overtime wages, all
allowances to which all workers are entitled, are
required to be included with the basic wages.
Only those allowances, say for example in a
factory, in which some workers are residing in
factory accommodation and others workers are
living outside the factory residential complex,
HRA (which is normally given only to those
workers, who are not residing in the factory
accommodation), may be excluded.
Q. We are having an automatic plastic
moulding machine which is operated by a
team of total 8 employees. Since we cannot
run night shift under Shops &
Establishments Act, my query is whether we
can get ourselves registered under the
Factories Act so that we could run 3 shifts?
R.D. Dwivedi, Ahmedabd
A. You may get your factory, registered
under the provisions of the Factories Act, 1948
and the State Factories Rules (framed under this
Act), if you employ 10 or more workers (including
workers employed through contractor/(s) and
staff, connected with the manufacturing process
or subject of the manufacturing process) on any
day during preceding 12 months. It is permissible
under the provisions of this Act, to run a factory
in different shifts, in accordance with the
provisions of Chapter VI of this Act.
2016
JOURNAL S ECTION
13
ESI ACT RELATED PROBLEMS
AND THEIR SOLUTIONS
Q. I recollect that sometimes back in
order to avail maternity benefit, a female
employee must have worked for 70 days in
two contributory periods. I fail to understand
that if such an employee has worked for 70
days in one block (for the contributory
period), will she be deprived of the benefit?
R.K. Singh, Ludhiana
A. Even if an individual has worked for 70
days in one block, even then she is entitled for
the benefit of maternity leave.
Q. Section 53 of the ESI Act debars an
employee covered under ESI Act to receive
compensation for excellence under any
other law. My query is that if an employee
is insured with an insurance company which
is regulated and functions under the law, will
such employee be deprived of the
compensation from the insurance company?
Tapan Srivastava, Gwalior
A. An employee covered under ESI Act is
debarred from getting benefit under Maternity
Benefit Act and Employees’ Compensation Act
as no one can claim benefit twice for the same
cause. As far as insurance policy (individual) is
concerned, it is for the insurance company to
decide.
Q. Is there any bar for terminating the
services of a probationer during the period
when he is availing sickness benefit?
Thr. E-Mail
Q. Recently the construction sites have
been covered by ESI Act. Do you endorse
that it is a wise step on the part of the ESIC?
Thr. E-Mail
A. Being a retired officer, I have no right to
comment on the coverage of contribution of
workers. It is for the authorities of ESIC/Ministry
of Labour to decide. If you are unhappy you can
go to the court of law.
Q. A trade union in our establishment
is insisting that we should seek exemption
from the coverage under ESI Act since our
company has its own hospital and provides
quality services to the employees also. Is
it desirable and beneficial to the employer
and the employees?
S.P. Singh, Noida
A. An organization can seek exemption
from the provisions of ESI Act provided the
organisation is providing better or equivalent
services as compared to ESI Corporation. I would
like to inform you that besides medical facilities
including hospitalization, ESIC is providing care
benefits, rehabilitation benefits and pension to the
family if an employee dies as a result of
employment injury which I am sure you are not
providing.
Q. Will an employee, meeting with an
accident on his way to work, be entitled to
compensation from ESI if he has suffered
injuries to become partially disabled?
Thr. E-Mail
A. Any employee who is covered under ESI
A. Such employee who meets with an
Act and is under certificate of sickness from ESI accident while travelling from home to factory/
Hospital/Dispensary is protected against establishment and vice versa is entitled to all the
termination/dismissal from service.
benefits available under ESI Act.
January, 2016 - 33
14
JOURNAL SECTION
LLR
EPF ACT RELATED PROBLEMS
AND THEIR SOLUTIONS
Q. My queries are with regard to
clarifications for pension scheme a) Is it compulsory for a new employee
to be enrolled to indicate his option towards
pension scheme?
b) If an ‘excluded employee’ is to be
covered under the Act, can he have a choice
not to be enrolled as a member of the pension
scheme?
c) Can an employee also contribute his
share towards pension scheme?
Thr. E-Mail
covered under wages ceiling of PF or not
(b) Suppose out of 20 there are 16
employees who are under the wages ceiling
of PF, then PF applicability will be eligible
on organization or not.
(c) Suppose if there are 20 employees
including 3 director of company who are
getting the salary from company, then PF
applicability will be eligible on organization
or not.Munish Verma, New Delhi
A. Provision of 20(Twenty) Employees
requirement for applicability clause in sec.1(3)of
A.(a) Provident Fund Members drawing the EPF&MPAct,’52 is a statutory requirement,
salary upto prescribed pay ceiling, which is whereas the ‘Prescribed Pay’ ceiling limit for
currently Rs.15000/- (Fifteen thousand) per contribution payment obligation is provided for in
month, and those already member of the Pension Para-26A(2) of the EPF Scheme,’52. Same are
Scheme need compulsorily contribute to Pension independent of each other for specified purposes
Fund without any option.
and that statutory provision of section 1(3) will
(b) Membership provision of Pension prevail over subordinate scheme provision in the
precedence of law. On aforesaid legal analysis
Scheme,’95, as amended from 1.9.2014, provides
the answer to sub-para (b) and (c) will be on
for new pension fund membership effective from
affirmative basis in favour of applicability, in my
1.9.2014 limited to such EPF Members only
humble understanding.
whose pay on such day is less than or equal to
Q. Whether food allowance, being paid
Rs.15,000/- per month only. As such an excluded
employee upon joining the membership of to the employees will attract the PF
Provident Fund after 1.9.2014 will not be required contributions? To some of the employees
to be enrolled to the Pension Fund membership. we give food coupons. What will be the
position for provident fund contributions?
(c) Pension Fund contribution is to be
Thr. E-Mail
diverted from and out of ‘Employers Share’ of
A. Allowances, other than those excluded
Provident Fund Contribution only as per provision
under
sec.2(b) specifically are normally held to
contained in Para-3 and Para-4 of the Employees
Pension Scheme, 95. There is no provision for be attracting contribution payment obligation by
the Employer. As such food allowance, in all
payment by any Employee.
likelihood, will attract liability. However, the whole
Q.(a) PF applicability on 20 employees issue is currently under consideration of the apex
is mandatory, whether they should be court awaiting final verdict.
January, 2016 - 34
2016
15
JOURNAL SECTION
MODEL FORMS AND PRECEDENTS
Some of the formats
have to be repeated but
every time we keep on
making improvements
depending upon the
changing scenario and
judicial pronouncements.
Pro-forma suggested for
agreement between
employer and employee and
his surety
period of appointment is only for................
Now this Agreement witnesseth
that
1. it is agreed between the parties that the
years.
2. The Employee shall be on probation for
a period of...............months. The period of
THIS AGREEMENT is made at.............. on
probation may be extended or terminated at the
the.............day of. ........................... 20............
BETWEEN M/s................ (hereinafter called as
discretion of the Employer unless a letter to this
the ‘Employer’, which expression shall include
his successors heirs, and assigns where the
to the entire satisfaction of the Employer is
context so admits of the first part.
AND
A.B son of C.D. resident of................
(hereinafter called the ‘Employee’ of the Second
Part), E.F. son of G.H. resident of ..................
effect after completion of the probationary period
given, the Employee shall not be deemed to be a
confirmed Employee and the benefits, privileges
etc. which may be available to other confirmed
employees of Employer, shall not be available to
the Employee.
3.
It is further agreed that continuous
(hereinafter called the ‘Surety’) of the third part.
absence or over-stay of leave for.......................
WHEREAS the Employee applied to the
Employer for employment vide his application
declares that all the statements made by him in
days without prior sanction on the part of the
Employee inwriting by the appropriate authority
will be considered as the abandonment of the job
by the Employee unless the Employer condons
his default. This provisions shall not be affected
by any number of defaults that may be condoned
his application with respect to his qualifications,
by the Employer.
dated................
AND W HEREAS the said Employee
experience, etc. are absolutely true and
correct.
AND WHEREAS the Surety has agreed to
guarantee the due discharge of duties by the said
Employee and indemnify the Employer on
demand for any money due or which may
become
due
in
consequence
of
the
carelessness, negligence, or/and fraud or any act
of commission or omission during the
Employee’s employment with the Employer,
whether the said act is committed by the
Employee himself or any other person for whose
acts, omission the Employee is
responsible.
AND WHEREAS on the basis of statements
made in the application by the Employee as well
as the aforesaid guarantee of the Surety, the
Employer has decided to take the Employee into
employment.
4. The terms and conditions contained in
the appointment advice/Order dt....................
given to the Employee and the Service Rules/
Standing Orders will be read as a part of this
Agreement.
5.
During the period, this Agreement is in
force, it may be terminated by either side without
assigning any reason therefor by giving one
month notice or on payment of an amount
equivalent to one month’s salary in lieu of notice,
no notice or pay in lieu thereof shall, however, be
necessary if the contract is terminated by either
party within three months of the execution hereof
and/or the services are terminated by way of
punishment for any misconduct, or if termination
is on account of breach of the terms of the
agreement. This Agreement shall automatically
January, 2016 - 35
16
JOURNAL SECTION
LLR
come to an end on the expiry of the specific
relating to this agreement shall be referred for
period mentioned hereinbefore unless extended
arbitration and the decision of the arbitrator shall
by mutual consent of the Employer and the
be final and binding upon the parties.
Employee from time to time.
Having
clearly
understood
terms
and
6. This Agreement of Surety provided
herein shall subsist throughout the service of the
conditions settled hereinabove and in witness
Employee with the Employer and shall not be
on the day mentioned above.
withdrawn by the said Surety for any reason
whatsoever unless three calendar months’ notice
in writing is given of his intention to do so and till
the expiry of the said notice period and without
prejudice to whatever liability that he has
incurred till the expiry of the notice period. The
Surety shall continue to be responsible for acts/
omissions of the Employee as stipulated
hereinbefore and shall be discharged only when
a letter to this effect has been issued by the
Employer.
7. In the event of the said Surety
withdrawing or any said Surety becoming
financially unsound or otherwise, the Employer
believes that the Surety is no longer sound
because the employee has been entrusted with
higher responsibilities or otherwise, then unless
the said Employee agrees to give another sound
surety acceptable to the employer within one
month of his being required to do so, he will be
liable to be discharged from the service with one
month’s notice.
8. The Surety shall inform the Employee in
writing as and when there is material change in
his financial position but that in itself, will, in no
way, absolve him from the responsibility
under
this Agreement.
9. This Agreement of Surety provided
herein shall continue to be in force irrespective
of the variation in the terms, tenure,
responsibilities and duties of the employee.
10. The Employee and Surety do hereby
agree and bind themselves joinly and severally
to indemnify and to pay to the Employer actual
amount of loss accruing due to negligence,
dishonest act, commission or omission by the
Employee or on account of misappropriation or
loss of any property of the Employer and the
thereof the parties do hereby affix their signature
.......................Signature of the Employee
............................Signature of the Surety
.............................Signature of Employer
Witnesses:
1................................
2................................
Pro-forma suggested for
agreement between
employer and employee
when the latter is sent
abroad for training & to work
with employer for a specified
period
THIS AGREEMENT is made this............
day of......20.... at................BETWEEN......... a
Company registered under the provisions of the
Companies Act, 1956 and having its registered
office at................................and Head Office
at...................................... hereinafter called
“the Company”, which expression shall unless
repugnant to the context or meaning thereof,
mean and include its successors and assigns,
of the one part, and Shri.....................son
of............................... age.........years, residing
at............................... hereinafter called “the
Employee” which expression shall unless
repugnant to the context or meaning thereof,
mean
and
include
heirs,
executors,
administrators, and assigns of the other part.
WHEREAS the Employee is in the
employment of the Company on the terms and
conditions contained in the letter of appointment
Surety hereby expressly agrees that the
dated................
Employer on suffering such a loss or damage
AND W HEREAS for its growth, the
Company is interested to provide training abroad
to some of its personnels and has made
may proceed against the Surety for the recovery
of the amount etc. irrespective of Agreement
seeking remedy against the Employee.
11. It is hereby agreed that all
January, 2016 - 36
disputes
arrangement
with
another
Company
e.g...........................at...................... (name of
2016
JOURNAL SECTION
17
the country) hereinafter referred to as Trainer
wilfully created the compelling circumstances for
Company for sake of brevity.
the Company to terminate this
AND W HEREAS, the Employee has
represented the Company to select and send him
faithfully and adhere to the rules and regulations,
for training at................or at any other country
office orders including attending the classes as
so that he could also improve his career
assigned by the Training Company and in case
prospects.
of any dereliction, deviation or negligence on the
AND W HEREAS both the parties have
discussed the modalities and implications
including respective rights and obligation and
have decided to execute an agreement with
following:
4.
agreement.
The Employee will carry on his training
part of the Employee, he will make himself liable
for violation of this agreement whereby the
Employee as well as his surety will become liable
for refund of all the money as incurred
and/or
paid to the Employee by this Company towards
his training assignment.
TERMS AND CONDITIONS
1. The Company has agreed to sponsor the
5. The Employee will maintain a daily diary
and record all the important aspects pertaining to
Employee and the Employee has agreed to go
to................for training as................... with the
Trainer Company for a period of................years
from the date he starts his training.
his training and the progress of the training shall
be notified to the Management of this Company
2. The Company agrees to pay to the
6. During the tenure of training, the
employee will neither apply nor seek any
employment in................or in any other
Company in India or abroad since this
Employee the travelling expenses to the place of
training and back to India after successful
completion of his training. The boarding, lodging
and other incidental expenses incurred during the
training period abroad will be borne by the
Company subject to verification if felt necessary
at any time during the training. The Employee
shall also be entitled to receive in India, the
salary payable to him under the said Agreement
and the letter of appointment.
through e-mail or any other mode as assigned by
the Company.
arrangement has been made with the Employee
with a clear understanding that on the completion
of the training at the cost of the Company, the
Employee will sincerely and faithfully serve the
Company
for
a
specified
period
of................years and in case of any violation
or creating circumstances which will compel the
Management to dispense with the arrangement,
3. Be it clearly understood and agreed by
the Employee that he will sincerely devote his
the Employee alongwith his surety, will reimburse
whole time for obtaining training while
in................by adhering to the punctuality and
regularity besides abiding by the instructions and
directions by the Management of the Trainer
Company as providing training and, under no
circumstances, he will give any cause of
and the decision of the Management in this
complaint to the trainer or the executives of
Company can shift the Employee from the
present Company to some other Company.
Trainer Company while the Employee is being
imparted training. In case there is any complaint
by the Trainer Company as providing training
about the conduct of the Employee, this
Company reserves the right to terminate the
training arrangement with the Employee without
any notice or any payment thereof and in that
eventuality, the Employee will reimburse to this
Company all the expenditure as incurred on
travelling, boarding including the payments as
paid by the Company to the Employee by drawing
an irresistible presumption that the Employee has
all the expenditure as incurred by the Company
respect will be final and will not be questioned or
contradicted by the Employee.
7. The Company reserves the right to
curtail or extend the training period of the
Employee at its discretion besides that the
8. The employee shall, on his return to
India after completion of the training abroad, join
his duties with the Company immediately and
faithfully serve for a period of specified period
of................years from the date of resumption
of his duties in India. During the said period, the
Employee shall not seek employment or enter
into employment with any other Employer, or
actively engage or be employed in any other
business or similar business as that of the
January, 2016 - 37
18
JOURNAL SECTION
LLR
Company. The failure of the Employee to serve
13. Upon the termination of the employment
the Company as aforesaid shall be a breach of
of the Employee during the period of this
this Agreement for which the company will be
Agreement either by the Company for reasons
the sole judge and the Employee will be liable for
stated in the preceding paragaph(s) or upon
termination of employment by the Employee he
all its legal consequences.
9. If any time during his employment, the
Employee is found guilty of misconduct or any
wilful neglect of work or dereliction of the duties
and/or non-compliance of the instructions given
to him from time to time by the Company, it may
without any notice put an end to and determine
the employment of the said Employee with the
Company and in such eventuality, it shall be
deemed that the Employee has brought about
such a situation by his misconduct in compelling
shall not, for a period of................years
calculated from the date of his joining duties in
India or in case he fails to join his duty in India
from the date of his return to India, undertake or
carry on either alone or in partnership or as
employed with any concern or be interested
directly or indirectly in any capacity whatsoever
in the business of or in any other business
carried on by the Company on the date of such
determination.
the Company to put an end to his services and
14. The Employee shall provide two persons
the employee shall, therefore, continue to be
liable for all losses/damages to the Company.
of solvent status to furnish bond in the sum of
Rs........... (Rupees..................) towards surety
for the due performance of this Agreement.
10. The Company shall not ordinarily
terminate the services of the employee during
the continuance of the agreed
tenure
15. The Employee undertakes not to
disclose or divulge to any person any information
when it becomes necessary to dispense with the
services of the Employee, the Company shall
give three months’ notice or pay in lieu thereof to
the employee, and the Company shall not claim
concerning the Company’s business or finances
or any of its dealings, transactions or any other
matters which may come to his knowledge by
reason of his training/employment, aforesaid,
except so far as is necessary and proper in
normal course of his duties, service and
any refund of the amount which it has spent on
his travel and training.
employment. Also, the Employee shall disclose
fully to the Company such inventions, discovery,
of................years except for the reasons
mentioned in the preceding paragraph(s) but
11. The Employee shall be liable to pay to
the Company, by way of liquidated damages, a
sum of Rs............(Rupees..............................)
if the Employee fails to complete period of
training or leave the services of the Company
before completing the service period referred to
hereinabove or brings about a situation by
committing misconduct compelling the Company
to terminate his services. It is hereby agreed and
declared that the loss that will be suffered by the
Company on this account cannot be ascertained
in terms of the money and the sum calculated as
aforesaid is reasonable compensation for the
breach that may be caused by the Employee.
12. All the terms and conditions of the
service as contained in the Agreement
dated...........................
and
letter
of
appointment dated…………….shall remain in full
force and operation, save and except to the
extent the same is contradictory to the terms of
this Agreement and to that extent terms of this
agreement contained herein shall prevail.
January, 2016 - 38
process, improvement or data while on training
and deliver to the Company all papers, working
drawings, statistics, formula and specifications
relating thereto.
16. The Employee shall not, during or after
the termination of this Agreement, canvass,
solicit, interfere with or entice away person, who
shall at any time during the continuance of the
Employee’s employment hereunder have been
in the employment and/or in the business
relations with the Company.
17. In the event of any dispute or difference
arising between the parties hereto either during
the subsistence of this Agreement or afterwards
relating to this Agreement, the same shall be
referred to the Arbitration of a Single Arbitrator to
be nominated by the Managing Directors of the
Company, whose decision shall be final and
binding on the parties. The provisions of the
Arbitration & Conciliations Act or any statutory
modifications or re-enactment thereof for the time
being in force shall be applicable.
2016
JOURNAL SECTION
The Courts alone at................(name of the
place) will have exclusive jurisdiction in all
matters connected with this Agreement.
IN WITNESS WHEREOF, the parties hereto
have set and subscribed their respective hands
on the day, month and year first above
written.
Singed and delivered
for and on behalf of the Company
In the presence of
................................................
Signed and delivered by the Employee
19
Pro-forma suggested for
warning letter for overstaying leave
To
………………….........
………………………..
It is reported that you have over-stayed
by……days of the leave without any application,
intimation or getting the leave sanctioned. This
is not the only instance but previously also
you
have over-stayed without prior sanction of leave
and you have been warned orally, as well as in
In the presence of
................................................
Pro-forma suggested for
notice to an employee
absenting without leave by
giving an opportunity for
personal hearing
writing.
The above omission on your part is of grave
and serious nature and makes you liable for
severe disciplinary action not excluding the
possibility of dismissal from service. However,
considering your explanation, regretting for your
mistakes and your sincere assurance that you
will not absent or over-stay your leave in future it
is decided to give you another opportunity to
improve your attendance.
REGISTERED A.D.
To
You are hereby warned that if in future, you
……………....................
......................................
will absent yourself or over-stay your leave in
the aforesaid manner, the management will be
constrained to dispense with your services.
Dear Sir,
We note with concern that despite previous
For & on behalf of the Management
warnings issued to you on..........you were again
Authorised Signatory
absent without leave on.....and .....No more such
unauthorised absence can be viewed leniently.
Now, therefore, explain why you should not be
dismissed from service, or punished otherwise
for such habitual absence from work.
You are further directed to explain your
absence in writing by..........at the latest. I shall
give you a personal hearing on....at........at my
office, should you so desire. If you fail to submit
your written explanation by.........or do not appear
before at the appointed date and time, action as
deemed fit will be taken against you in your
absence.
For & on behalf of the
Management
Authorised Signatory
Note: While terminating the services of an employee
even for absence for a continuous period an enquiry is
necessary to comply with the principles of natural justice.
However, a notice can be sent in order to ascertain the
intentions of the employee.
Pro-forma suggested for
charge-sheet for habitual
absence when the sanction of
leave has been refused
To
………………….........
…………….................
On..........you applied for grant of leave
from......to.......The said leave was refused on
account of exigencies of work and you were also
intimated to this effect. Inspite of that, you
absented yourself from duty in defiance of the
instructions knowing fully
well that the
production/work will suffer due to your wilful
absence. Your attendance record also reveals
that you are in the habit of remaining absent
without getting prior sanction of leave or
even
January, 2016 - 39
20
JOURNAL SECTION
without applying for the
LLR
In view of the above, you are called upon to
same.
On.........you remained absent without leave
explain in writing within three dyas as to why an
being granted to you. Earlier also you have
remained absent without taking leave on
numerous occasions, the details of which are
appropriate disciplinary action should not be
given below:
the specified time, it shall be presumed that you
You are hereby warned that if, in future, you
will absent yourself or over-stay leave in the
aforesaid manner, the management will be
accept the charges to be correct and have no
constrained to dispense with your
For & on behalf of the
services.
Management
Authorised Signatory
Note: The basic requirement of drafting a charge-sheet
is that it would give to the employee a fair idea of the case
which he is to face. So, while drafting a charge-sheet, care
must be taken to see that it contains all the facts and for this,
standing orders as well as the service rules which define
various misconducts must be read carefully. If a particular act
e.g., absence without leave, late attendance or negligence
is misconduct only when it is habitual then the word, ‘habitual’
is an essential constituent of the charge and must be
mentioned in the charge-sheet. Similarly, if absence from
duty without sanction of leave is a misconduct in the standing
order then the words ‘absence from duty without sanction of
leave’ must be mentioned. The charge of unauthorised
absence on false pretext of illness is not vague.
Pro-forma suggested for
charge-sheet for habitual
absence from duty
To
………….....................
.…………....................
It is reported against you as under:
You are absenting yourself from duty
w.e.f........without prior permission/application or
even intimation. In the past also you have
remained absent without obtaining prior sanction
of leave details of which are given below:
(Here in give the details of
absence)
Sudden absence dislocated the normal work
of the establishment/factory, while such
repeated absences, on your part, notwithstanding
oral and written warnings, issued more
particularly on ..............have adverse effect
both on output as well as on
discipline.
(Herein give details of warnings)
Habitual absence from duty is a serious
misconduct under Service Rules/Standing Order
No.........
January, 2016 - 40
taken against you.
If you fail to submit your explanation within
explanation to offer,
in that event
the
management will be at liberty to take an
appropriate action without further reference to
you.
For & on behalf of the
Management
Authorised Signatory
Note: In case of prolonged or habitual absence without
leave or intimation, an enquiry is necessary in order to comply
with the principles of natural justice. But equally well
established is the principle that absence for short period is
not misconduct and hence an employee cannot be dismissed
in case he remains absent on one or two occasions for short
periods. But when such is a misconduct under the service
rules or the standing order, then it is but desirable that the
person concerned should be charge-sheeted and an enquiry
be held.
However, mere absence on three occasions in a
month, the absence being only for one day on each occasion
will not suffice in law to prove habitual absenteeism. When
the workman gave an explanation to the effect that on
account of an accident to his hand on 26-10-1961 he used
to get pain now and then in consequences of which he was
unable to attend to his duties, the employer should get him
examined by the doctor particularly to ascertain if his
explanation was true or not. When the standing order says
that even habitual absence with leave or with sufficient cause
will not amount to an act of misconduct, it would primarily be
the duty of the employer to satisfy the Tribunal that the
explanation given by the workman for his absence will not
amount to sufficient cause. It cannot be said that it was the
duty of the workman to go to the doctor and obtain a
certificate in support of his explanation.
The basic requirement of drafting a charge-sheet is
that it should give to the employee a fair idea of the case
which he is to face. So, while drafting a charge-sheet, care
must be taken to see that it contains all the facts and for this,
the standing orders as well as the service rules which define
various misconducts must be mentioned carefully. If a
particular act, e.g. absence without leave, late attendance or
negligence is a misconduct only when it is habitual then the
word, ‘habitual’ is an essential constituent of the charge and
must be mentioned in the charge-sheet. The attempt should
be to ensure that the charge mentioned in the charge-sheet
is specific as well as complete in all essential constituents.
When the workman gave an explanation that he could not
attend the duties, now and then, due to pain on account of
an accident and when the standing order provided habitual
absence without sufficient cause as misconduct then it was
for the employer to show that the explanation given by the
workman did not constitute sufficient cause and he should
have been got examined during enquiry by a medical doctor
and it was open to the Tribunal to rely on the statement of
the worker himself unsupported by the doctor. Tata Iron &
Steel Co. Ltd. vs. Latu Tury, 1968 Lab IC 719 (Pat HC).Tata
Iron & Steel Co. Ltd. v. Latu Tury, 1968 Lab IC 719 (Pat HC).
2016
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21
DIGEST OF EPF APPELLATE TRIBUNAL ORDERS
Minimum wages canbe split
into allowances for provident
fund contributions
Employees’ Provident Fund Appellate
Tribunal, New Delhi
ATA No. 743 (8) 2010
…… Appellant
Delight Services
vs.
….. Respondent
RPFC, Indore
ORDER
26.11.2015
Present: Sh. S.K. Gupta, Advocate for the
Appellant
Sh. Shivnath Mehanta, Advocate for the
Respondent
1. By the present appeal filed by the
appellant under section 7- 1 of the Employees’
Provident Funds & Miscellaneous Provisions Act,
1952 (here-in-after referred to as “the Act”),
appellant seeks quashing of order dated
24.09.2010 pass on 29.09.2010 by respondent
under section 7A of the Act.
2. The brief facts as emerging from the
appeal are that the appellant is a contractor
engaged in the work of supplying labours to
various industries. The provisions of EPF & MP
Act, are applicable on the appellant establishment
and is registered at Code No. MP/17836 and it
has been assiduously depositing the contribution
of its employees. Respondent served the appellant
with a notice observing that the salary/ wages
shown is negligible even lesser in
comparison to the minimum basic wages as
notified under the Minimum Wages and
further observed that PF contribution on the
wages less than minimum wages is not justifiable
and defeats the very purpose of the social welfare
legislation aimed for providing old ages social
security in the name of PF and Pension to the
poor workers. Contribution has been assessed in
tune of Rs. 1,37,599/- on basis of minimum wages
of semi-skilled employee. Appellant provides
labours to hospital and nursing homes, call centres
which were not subjected to Minimum Wages
Act at all. The provisions of the Minimum wages
Act have not been made applicable to these class
of establishments, hence this appeal.
Editor’s Note :
Strenge of the ways of Employees’ Provident Fund
Organisation (EPFO). It shows swiftness in issuing those
circulars, which have possibility to be misunderstood
but it becomes slack and lethargic in conveying
those decisions succinct and contain no ambiguity.
It will, thus, be seen that as and when there is a
favourable judgment for the EPFO, the circular or
clarification is issued without any loss of time but if
the position is otherwise, no such clarifications are
circulated.
Keeping in view the space constrained and also obstinacy
of the provident fund authorities determining of money
due from employers etc. don’t abide by the orders of the
EPF Appellate Tribunal but keeping in view
the significance of the landmark order in ATA No.743(8)
2010 decided on 30.11.2015, We have decided to
publish the whole.
3. Shri S.K. Gupta, Counsel for appellant
contended that the impugned order was passed
without application of mind in a highly laconic
manner as a matter of routine.
4. Counsel for appellant further contended
that appellant establishment is depositing PF
contribution according to law and respondent with
mala-fide intention inflicted a notice to the
appellant establishment, directing the appellant
establishment to change policy regarding payment
of salary to employees according to minimum
basic wages. Whereas respondent was not
supposed to direct the appellant establishment to
January, 2016 - 41
22
JOURNAL SECTION
LLR
change the policy of employees of appellant
establishment.
the parties and have also perused the material
on record.
5. Counsel for appellant further contended
that as per law appellant establishment is liable
to deduct PF contribution on the basic wages
defined under Section 2(b) of the Act, read with
Section 6 of the Act but respondent without
considering written objections and written
representations, passed impugned order against
the principals of naturals justice. Respondent was
having no power under the Act to direct any
employer that how and in what manner employee
is to be paid. In support of his argument
counsel for appellant cited a case law titled
Assistant PF Commissioner Vs G4s Security
Services (India) Limited 2011 LLR 316 P &
H HC.
9. The primary contention on behalf of the
appellant is that respondent is not empowered to
direct the appellant establishment to pay minimum
wages to its employees and further to pay PF
contribution on the basis of minimum wages.
6. Per contra learned counsel for the
respondent contended that the, EPF Act is meant
to provide social and financial security to the
downtrodden section of the society at the time of
their retirement, death during service, medical
treatment, etc. The EPF Act is a special welfare
legislation which cannot be done away with and
strict adherence to its provisions is mandatory.
Under this Act, the employer is duty bound to
pay the minimum wages to every employee and
thereafter employer is also duty bound to pay the
Provident Fund contributions on time.
12. As per case of appellant, appellant is
depositing PF contribution as per law i.e. on the
basis of basic wages, dearness allowances and
retaining allowances.
7. Counsel for appellant further contended
that a notice was served upon to appellant
establishment for making contribution under
section 7A of the Act and as appellant
establishment was found paying the PF
contribution on the wages lesser than the
minimum wages prescribed for employees under
the category of semi-skilled and appellant evaded
amount of Rs. 5,37,072/- so respondent was
having no option but to assess amount of Rs.
1,37,599/- under Section 7A of the Act. There is
no illegality in the order of respondent hence
appeal filed by appellant may be dismissed.
8. I have given my thoughtful consideration
to the submissions made by learned counsels for
January, 2016 - 42
10. Admittedly, there is no dispute regarding
applicability of the provisions of the Act to
appellant establishment and that PF Code No.
MP/17836 allotted to the appellant establishment.
11. As per Section 6 of the Act, employer is
supposed to contribute/ pay in the Fund on the
basis of the basic wages, dearness allowance and
retaining allowance for the time being payable to
each of the employees.
13. In case in hand, controversy is with
regard to basic wages. ‘Basic Wages’ has also
been defined in Section 2(b) of the Act which is
reproduced here:Section 2(b) “basic wages” means all
emoluments which are earned by an
employer while on duty [on leave or on
holidays with wages in either case] in
accordance with the terms of the contract
of employment and which are paid or
payable in cash to him, but does not
include:(i) the cash value of any food concession;
(ii) any dearness allowances (that is to
say, all cash payment by whatever name
called paid to an employee on account
of a risen the cost of living) house rent
allowance, overtime allowance, bonus
commission or any other similar
allowance payable to the employee in
respect of his employment or of work done
in such employment;
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JOURNAL SECTION
(iii) any present made by the employer;
14. Section 2(b) of the Act does not
prescribe how much amount shall be considered
as basic wages. So now this is to be seen by this
Tribunal whether respondent is empowered to
direct the appellant establishment to pay minimum
wages to employees. During course of argument,
no provision of the Act cited by counsel for
respondent which could reveal that
‘Commissioner’ is empowered to direct the
employer to pay minimum wages to the employee.
15. Bifurcation of wages below minimum
wages or basic wages and DA etc. are the issue,
completely out of the purview of PF Authorities.
PF authorities have no jurisdiction to ensure the
compliance of Minimum Wages Act or to issue
any direction in this regard. Wages are to be
determined is a decision between employee and
employer and further authority appointed under
the Minimum Wages Act is only empowered to
raise issue regarding Minimum Wages, to be given
to the employee.
16. Being quasi judicial authority respondent
has statutory power to direct the appellant
establishment to deduct PF contribution on the
basis of Section 6 of the Act only.
17. Keeping in view all the circumstances,
this Tribunal reached at a considered opinion that
order dated 24.09.2010 passed by respondent
under Section 7A of the Act is illegal, hence set
aside. Copy of the order be sent to parties. File
be consigned to record room after due
compliance.
(HARISH GUPTA)
Presiding Officer, EPFAT
Less than 20employees
would not attract
applicability ofEPF&MP Act
The appellant filed an appeal before the
Employees’ Provident Fund Appellate Tribunal,
challenging the order dated 12.10.2010, passed
23
by the EPF Authority, under section 7-A of the
Act, determining the EPF dues, levying damages
and interest on account of delayed remittance
of PF dues and directing payment thereof.
The EPF Appellate Tribunal observed that
the appellant has pleaded that it never engaged
20 or more employees and EPF Authority has
made the Act applicable upon it, illegally and
arbitrarily. EPF Authority has admitted that
appellant was never found having 20 or more
employees. Impugned order is based upon the
recommendations of the squad of Enforcement
Officers. EPF Authority is required to give
reasonable opportunity to the employer before
passing such orders. EPF Authority is not to
decide abstract question of law but to determine
actual concrete differences in payment of
contributions by identifying the workmen. Enquiry
under section 7-A of the Act is more or less a
trial of a suit before a civil court. Ironically, the
EPF Authority did not dare to do so and also failed
to exercise its powers while confirming the
recommendations of the squad of Enforcement
Officers. Hence, impugned order is set aside.
Appeal is allowed.
Shiv Processors vs. APFC, Rajkot
ATA No. 16(5) 2011, decided on 06.11.2015
An order passedmerely on
the basis of presumptions
without any material on
record is liable to bequashed
The appellant filed an appeal before the
Employees’ Provident Fund Appellate Tribunal,
challenging the orders dated 26.05.2009 and
20.12.2010, passed by the EPF Authority, under
section 7-A of the Act.
The EPF Appellate Tribunal observed that
the appellant was covered under the Act and was
making compliance of the same since June, 2007.
Some payments and returns were filed late due
to unavoidable reasons. EPF Authority, without
giving any opportunity to the appellant, passed
January, 2016 - 43
24
JOURNAL SECTION
ex-parte order dated 26.05.2009. Appellant
challenged the same before the High Court of
Gujarat and as per directions of the High Court,
the required documents and returns were
submitted to the EPF Authority stating that it
employed only 4 to 7 employees but the EPF
Authority, on the basis of report of Enforcement
Officer which was never supplied to the
Appellant, passed impugned order dated
20.12.2010. Appellant, thus, challenged both the
orders in appeal. Copy of Form No.12A
(Revised) dated 12.06.2010, received by EPF
Department on 23.08.2010 shows 5 employees
and the 7-AAuthority was supposed to consider
it but failed to do so. It is an admitted fact that
the appellant had submitted records as mentioned
in the summons letter dated 13.08.2010. EPF
Authority has not recorded statement of any
employee of the appellant in support of its
presumption. EPF Authority passed the
impugned order only on the basis of presumptions
and assumptions since it has not exercised its
powers which is failure to exercise the jurisdiction
as well as against the principles of natural justice.
EPF Authority had not disclosed the material on
the basis of which it passed the impugned order.
Hence, impugned order must go. Appeal is
allowed. EPF Authority is directed to refund the
amount, if any, recovered from the appellant,
within 60 days of this order, after deducting the
dues of actual employees as stated by the
appellant in Form 12A.
M/s BS Engineering vs. APFC, Ahmedabad
ATA No. 23(5) 2011, decided on 06.11.2015
Damages are leviable if
amount of EPF contributions
is depositedbelatedly
The appellant filed an appeal before the
Employees’ Provident Fund Appellate Tribunal,
challenging the order dated 04.01.2010, passed
by the EPF Authority, under sections 14-B and
7-Q of the Act, levying damages on account of
delayed remittance of PF dues.
January, 2016 - 44
LLR
The EPF Appellate Tribunal observed that
the damages under section 14-B of the Act are
leviable in respect of delayed deposit of EPF
contribution and it is no ground for waiver of
damages that on the date of levy of damages, no
EPF dues were in arrear. There is no prescribed
limitation of period for service of notice and/or
commencement of the proceedings under the
Act. Circular dated 28.11.1990 is just a guideline
for the officials of the department. Since statute
does not prescribe any time limit, the circular being
contrary to statute is not effective and even till
today EPFO has not implemented the alleged
circular. On the basis of departmental circular,
the defaulter cannot be allowed for waiver of
penalty, damages or interest since the Act is a
beneficial piece of legislation. As soon as any
default in payment of statutory dues arises and
the same are paid belatedly, provisions of section
14-B of the Act came into motion. Ignorance of
non depositing of PF dues by the employer on
time, cannot be allowed to escape him from its
statutorily liability and the same will attract
damages and interest. Hence, appeal in respect
of damages, as assessed under section 14-B of
the Act, is not allowed.
Chanana Brothers vs. APFC, Delhi
ATA No. 159(4) 2010, decided on 12.11.2015
Merely because company has
been referred to BIFR is not
an impediment for
recovering the EPF dues
The appellant filed an appeal before the
Employees’ Provident Fund Appellate Tribunal,
challenging the orders dated 24.05.2006 and
12.02.2007, passed by the EPF Authority, under
section 7-A of the Act.
The EPF Appellate Tribunal observed that
the appellant establishment was smoothly
functioning prior to 1995-96. Thereafter due to
recession in the industry, it was badly affected.
It approached Board for Industrial and Financial
Reconstruction (BIFR) in 2001 under the
2016
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provisions of Sick Industrial Companies (Special
Provisions) Act, 1985 for rehabilitation scheme.
BIFR declared it a sick industrial company. It
was called upon to pay damages and interest
under sections 14B and 7Q respectively of the
Act for the period from April, 2004 to June, 2004
and October, 2004. Appellant submitted its reply/
representation making a request to drop the
proceedings till final decision by the BIFR. EPF
Authority passed order to cease the Bank
Account of the appellant. The EPF Appellate
Tribunal inter alia observed that despite notice,
none appeared on behalf of appellant before the
EPF Authority nor any justified reason has been
given for its non-appearance. Even the appellant
did not produce any mitigating evidence, claiming
waiver of damages and interest on delayed
remittance of EPF dues. Merely because the
company is a sick company and it has been
referred to BIFR is not an impediment for
recovering the dues of the provident fund
contributions. As per appellant weak financial
condition was after 1996 but the EPF dues relate
to 06/2004 and 10/2004 so appellant cannot be
allowed to claim waiver of such damages on
account of belated remittance of statutory dues.
Hence, appeal devoid merits and dismissed.
Parasrampuria International vs. APFC, Indore
ATA No. 200(8) 2007, decided on 27.11.2015
Levy of damages and
interest - not only for
arrears but for belated
payments also
The appellant filed an appeal before the
Employees’ Provident Fund Appellate Tribunal,
challenging the order dated February, 2003,
passed by the EPF Authority, under sections 14B and 7-Q of the Act, levying damages and
interest on account of delayed remittance of PF
dues.
25
directing it to deposit EPF dues from 01.07.2005
- Appellant did not make compliance of instruction
dated 22.09.2005 - Appellant was served a notice
dated 31.03.2014 under sections 14B and 7Q of
the Act demanding damages and interest from
December, 2008 to February 2014 - Appellant
represented vide communication dated
05.05.2014, explaining the delay was neither
intentional nor willful but being cooperative society
having less than 50 employees, is exempted from
the provisions of the Act. It was not in a position
even to disburse salary and wages to its
employees and delay in payment was beyond its
control and on the date of imposition of damages,
there was no default or arrears of EPF dues.
EPF Authority imposed damages and interest
upon the appellant. EPF Act is a beneficial
legislation. Act does not prescribe that
proceedings cannot be commenced if there was
no arrears on the date of levying damages even
if remittance of EPF dues was made belatedly.
Appellant never challenged the applicability of
the Act after allotment of code No. So, at this
stage the appellant cannot be allowed to say that
the Act is not applicable to it. An employer, who
is at fault, cannot be allowed to take benefits of
inactiveness of officials of the EPF Organisation
in initiating action against the defaulter. Ignorance
of non-depositing of PF dues on time, cannot be
allowed to escape from statutory liabilities which
attracts damages and interest. Hence, appeal is
dismissed.
Bhutpurv SSTSS Ltd. vs. APFC, Jodhpur
ATA No. 506(12) 2015, decided on 13.11.2015
An order passed on the basis
of physical verification of
beneficiaries – cannot be
challenged on account of noncompliance of technicalities
of law
The EPF Appellate Tribunal observed that
appellant employed 20 persons in July, 2005. Vide
The appellant filed an appeal before the
letter dated 22.09.2005, the EPF Authority Employees’ Provident Fund Appellate Tribunal,
allotted the code No.17064 to the appellant,
January, 2016 - 45
26
JOURNAL SECTION
challenging the order dated 15.12.2009, passed
by the EPF Authority, under section 7-A of the
Act.
The EPF Appellate Tribunal observed that
the premises of the appellant was visited by the
Enforcement Officer, name of 40 persons were
recorded working there and the report was signed
by one Shri Suresh Ganpath, Kotwdekar, Plant
Incharge. Appellant failed to produce the relevant
records of employees either before the 7-A
Authority under the Act or before the EPF
Appellate Tribunal. It has not been denied by
the appellant that said Shri Suresh Ganpath
Kotwdekar was not Plant Incharge. Appellant
has not averred that a false report was prepared
by the Enforcement Officer in collusion with the
said Plant Incharge. Objection of the appellant
was only that reports and other documents relied
upon by the Enforcement Officer were not
supplied to it but since the EPF Authority passed
the impugned order on the basis of physical
verification report which was duly signed and
certified by the Plant Incharge of the Appellant,
benefits of any kind of technicalities, committed
by the EPF Authority, cannot be taken sufficient
to reject the order under challenge. During the
course of argument, contention submitted on
behalf of the appellant that Enforcement Officer
prepared a false memo showing 40 workers
because there was lunch time in the appellant
establishment and workers of other
establishments of the surrounding areas were
there whose names were noted by the
Enforcement Officer, is not sustainable in the
eyes of law since the verification memo signed
by the Plant Incharge, cannot be ignored. Hence,
appeal is dismissed.
Tavoy Workwear vs. APFC, Vapi
ATA No. 110(5) 2010, decided on 27.11.2015
Determination of money by
RPFC on the basisof balance
sheet – liableto be quashed
The appellant filed an appeal before the
January, 2016 - 46
LLR
Employees’ Provident Fund Appellate Tribunal,
challenging the order dated 30.04.2012, passed
by the EPF Authority, under section 7-A of the
Act.
The EPF Appellate Tribunal observed that
the appellant is a Sugar Factory in Maharashtra
State. It was allotted code number. It is
scrupulously and diligently complying with the
provisions of the Act. Respondent initiated
enquiry under section 7A of the Act on the basis
of a complaint. Appellant informed the
respondent that the complainants have no
connection with it. Besides it, the appellant
supplied to the respondent a copy of order of the
Industrial Court in support of their version.
However, authority passed the impugned order
without considering the submissions of the
appellant. Complainants were never employees
of the respondent. Respondent passed the
impugned order without verification of records,
examination of contractor and identification of
beneficiaries. The stand taken by the respondent
is that despite due notice, the appellant did not
produce the relevant records. Complainants
failed to produce any authentic document to show
that they were employees of the Management.
The 7-AAuthority under the Act is having power
similar to the Civil Court for trying a suit. EPF
Authority is empowered to determine actual
concrete differences in payment of contributions
and other dues by identifying workers and not to
decide abstract question of law. Merely granting
opportunity of hearing is not sufficient to uphold
the finding of EPF Authority. Contractors were
not summoned for ascertaining the real facts of
employment of casual labour. Assessment took
place on the basis of balance sheet and squad’s
report. Identification of beneficiaries has not been
done. Hence, impugned order cannot sustain.
Matter is remanded back to the respondent for
deciding it afresh in light of observations as made
above. Appeal is disposed of.
Chatrapati Sahakari Sakhar Karkhana Ltd. vs. RPFC, Pune
ATA No. 529(9) 2012, decided on 26.11.2015
2016
27
JOURNAL SECTION
PROVIDENT FUND UPDATE
1,401 employers held up for
not contributing to PF
As many as 1,401 prosecutions were launched
against the employers till September end this fiscal,
who defaulted on payment of PF contribution to the
retirement fund body Employees’ Provident Fund
Organisation (EPFO), Parliament was informed.
Under the Employees’ Provident Funds &
Miscellaneous Provisions Act 1952, 1,401
prosecutions were launched till September in the
current fiscal, Minister of State for Labour Bandaru
Dattatreya said in a written reply to Lok Sabha.
According to the reply, 1,401 prosecutions were
launched under the Act for default in payment of PF
contributions by the employers in 2014-15 whereas
the number of such cases were 414 and 317 in 201314 and 2013-12 respectively.
Remove hurdles,revamp PF
systemthoroughly
The Employees’ Provident Fund Organisation
(EPFO) and the Government of India seem to believe
that the employees, in general, are spendthrift. They,
therefore, want to check this attitude by hook or by
crook. They think that the employees, unmindful of
their action leading to an eventuality of depending
on their offspring or others in the evening years of
their life, prematurely withdraw and squander their
own provident fund, if they are given the freedom to
lay hands on it. The EPFO has the proof for this
‘irresponsible’ attitude of employees. The Central
Provident Fund Commissioner K.K. Jalan says that
as many as 65 lakh claims out of a total 1.3 crore
annual claims at present are for premature
withdrawals.
Now file PFwithdrawal
claims without employers’
attestation
Moving a step closer to online settlement of PF
withdrawal claims, retirement fund body EPFO
allowed its subscribers to file their applications
directly to the body without employers’ attestation.
At present, subscribers submit their claims
regarding provident fund withdrawals manually
through their present or former employers. The
attestation of the forms was mandatory for the
purpose.
This facility will be available to all those
subscribers whose Universal (or portable PF) Account
Number (UAN) is activated and seeded with the KYC
details like bank account and Aadhaar number.
EPFO money : Give
subscribers choiceto invest
With the stock market in a correction mode, the
contentious issue of whether the Employees’
Provident Fund Organisation (EPFO) should invest
part of their corpus in stock market has flared up
once again. The government wanted the EPFO
money in equities for several years and at first, it
tried to push EPFO by “allowing” upto 15% investment
in equities. While government nominees and
employer nominees on the EPFO board were in
favour of equity investments, the trade union
nominees were against it, so the Board of Trustees
rejected equity investments.
Government plans to cap
premature withdrawal of PF
money at 75% of total amount
The
Employees’
Provident
Fund
Organissation (EPFO) has proposed that an
employee be allowed to withdraw only 75% of
the overall kitty, instead of 100% as permitted
under the existing Employees’ Provident Funds
Scheme, 1952, in case of resignation from a job
or for any other use before retirement. The idea
is to retain the worker in the PF net and ensure
that the money saved under the PF account as
social security for old age is used only in case of
dire need and not as a saving bank
account.
January, 2016 - 47
28
January, 2016 - 48
JOURNAL SECTION
LLR
2016
JOURNAL SECTION
Employees’ Provident
Fund Organisation
Bhavishya Nidhi Bhawan, 14-Bhikaji Cama Place,
New Delhi – 110066
No.Coord./40(5)2015/Misc./clarification/27308
Dated 12.10.2015
To
All Addl. Central P.F. Commissioners
(Zone)
All Regional P.F. Commissioners/OICs
(Regional Office/SRO)
Sub : Clarification of status of studenttrainees of educational/technical institutes
recognized by Central/State Government or
any authority constituted by them, vis-à-vis
the Employees’ Provident Funds &
Miscellaneous Provisions Act, 1952-Reg.
Sir,
A reference was received in which a
clarification on the status of student – trainee
vis-à-vis the provision of the Employees’
Provident Funds & Miscellaneous Provisions
Act, 1952 was sought from Head Office.
29
hands-on-training of working on sophisticated
equipments/instruments etc. Stipend may also
be provided to such student-trainees, sometime.
After such industrial/on the job training, the
student-trainee goes back to his respective
institution for completion of the academic course.
3. In such cases, it is made clear that
employer employee relationship does not exist
between the industry and student-trainee, who
is on industrial on the job training as an integral
component of a recognised course of an
educational/technical institute recognized by the
Central/State Government or any other authority
constituted by the Central/State Government.
Therefore, the payment of stipend, if any,
provided by the industry to such student-trainees
do not attract the provisions of the Employees’
Provident Funds & Miscellaneous Provisions
Act, 1952. However for the students getting
placement in companies and appointed as
employees of establishment, Employees’
Provident Funds & Miscellaneous Provisions
Act, 1952 will be applicable on such employees
even during on the job training/induction/other
trainings taken after becoming employees.
2. It is a matter of common observation
4. All concerned are advised to proceed
that now-a-days most technical/professional in the matter accordingly.
educational institutes impart industrial training/
(This issue with the approval of CPFC)
practical on the job training to their students’ as
Yours faithfully,
an integral components of academic curriculum.
During such training period, student-trainees are
( K.L. Taneja)
exposed to modern technical development and
Additional Central PF Commissioner-I
Unlike other labour journals reporting cases pertaining to police/army
personnels and government servants, to swallow the volumes the Labour
Law Reporter promptly reports cases pertaining to labour related cases.
January, 2016 - 49
30
JOURNAL SECTION
LLR
Andhra Pradesh tops in
employability
TOI, CFO Robert Jan van de Kraats
and Randstad India CEO Moorthy Uppaluri, say
India is one of the important sourcing centres for
Andhra Pradesh ranks first among all States the Amsterdam based company.
with largest employability level, according to India
Reliance Life to hire 5k
Skills Report. The report is a joint initiative of
insurance agents, 2k
online talent assessment firm, Wheebox, in
association with the Confederation of Indian
sales staff more
Industry (CII), Linkedin, PeopleStrong and
Leading private insurer Reliance Life plans
Association of Indian Universities (AIU).
to hire 5,000 insurance advisors and nearly 2,000
Andhra Pradesh has the highest front-end sales staff in the next three months as
employability level with 65.2 per cent of part of its distribution network expansion plans.
employable workforce in the 22-25 years age The company has already hired close to 15,000
group, a considerable increase from 31 per cent insurance advisors in the recent months and the
posted in 2015 report.
planned hiring activities would take the total
Travel E-comm Cos to recruitment of agents to 20,000 people in the
current fiscal ending March 31, 2016. In addition,
See Brisk Hiring
nearly 2,000 front-end sales staff would be
With the travel market showing signs of recruited across channels, in the next three
promise, half a dozen e-commerce companies are months.
planning to hire 1,500 people in the next 12
Genpact plans to hire
months.
10k by Dec. 2016
Half a dozen travel ecommerce companies
Genpact, the global business process
are hiring about 1,500 people in the next 12
months, at a time when most startups are outsourcing (BPO) services provider, is planning
to hire 10,000 professionals for its India operations
struggling to stay alive.
by 2016-end. It is also looking at setting up a fifth
Outsourcing of
site in the country, to focus on addressing the
recruitment process is increasing demand for analytics, according to its
growing rapidly
vice-president and head (financial services
Randstad, the second biggest global staffing analytics), Amit Bhaskar. Genpact currently
company by sales, believes that recruitment employs around 70,000 people globally, of which
process outsourcing (RPO) - where an employer two-thirds is based out of its four India centres,
transfers all or part of its recruitment processes at Hyderabad, Bengaluru, Gurgaon and Kolkata.
to an external service provider - will be the next Of this, banking and financial services (BFS), and
big trend in HR. In an exclusive interaction with analytics staff account for nearly 45 per cent.
January, 2016 - 50
2016
JOURNAL SECTION
Q. in spite of trying our best, still we find
unhappy employees at work place and such
employees are capable of making a dent on
productivity and overall morale index of employees.
How we can handle such employees?
-Munmun Pathak
A. Though unhappiness is understood as an
individual emotion and comes from state of mind which
one chose and also it is not the responsibility of
manager to keep all employees all the time in happy
state of mind as it can be very subjective and is related
to one’s core needs satisfaction, but at least manager
has to check where this unhappiness comes from
and if it does come from work, you have to take notice
of it and address but if it comes from outside work,
you can at least help and lead that employee to more
engagement.
Such employee should be handled with care
and sense. Manager can also make efforts to find
cause why he remains unhappy and of what
degree.Counseling may help reduce unhappiness if
generated from any job content factor, and
engagement may help ease any inconvenience, while
recognition and rewards may help him to come out
from unhappy feeling. Job fit can also be a reason of
unhappiness. The idea is that employees values
should be aligned with the core values of the
organization and he should be kept engaged.
Q. It is felt that most of the problems related to
people management in any organisation are
generated from the wrong hire. Can you please give
me some tips to make the right recruitment?
-Sumani
A. This is very serious concern for HR persons.
One wrong hire in the organisation is capable of
creating very adverse impact on people and
productivity. The replacement of one wrong hire also
brings enormous cost to the company. By not hiring
the right person for the job we also run the risk of poor
performance which may not only impact the bottom
line, but also likely to have a negative effect on other
employees. It can also create morale issues. First of
31
all, you should build a component into the selection
process where candidates must eleborate on past
experience and peformance. Ask such questions so
that candidate reply makes your assessment easier
in terms of his behavioural and technical competance.
Secondly, now many fake CV's are in air. It is
assessed by many agencies that 60% of candidates
fudge there experience. So it is necessary to tap
candidate reference to secure and accurate portrait
of the individual's professional capabilities. Reference
is a true presentation of how a person performed in
their past services. Thirdly, apart from qualifications
and experience you can also focus on his general
outlook towards work and life. Make sure that the
person is enthusiastic, adaptable, optimistic, realistic
and has a good mind set. You should prefer someone
who can stay positive but still be honest and
acknowledge what his challenges are.
Q. In organisations there is very much focus
on developing leadership qualities in managers and
for this HR has to take responsibility. I would like to
know from you few points as to how a leader in the
organisation is perceived as effective ?
-Praduman
A. It is good that your organisation is focusing on
investing in managers to develop leadership
qualities in them because sound leadership will be
one of the key ingredients for success in all the times.
One critical skill for managers to develop is the ability
to deal with uncertaintly. Sometime you have to look
into fog and find out the reality. It may be all
ambiguous but you have to figure out and reach to
reality. In the present era of technology where
every thing is done by technology to get all the
details and information but what is not embedded in
the technology is the ability to think, to have critical
thought and analyze and extrapolate from data.
Managers should not over depend on technological
support and lose thinking and analytical skills. They
have to continue to sharpen the skills. Managers
should always make attempts to break this status
quo. They should be counter intuitive. This can only
help them develop "out of box thinking". It is seen
that as soon as managers feel that they
January, 2016 - 51
32
JOURNAL SECTION
LLR
REDUCING SITTING TIME IN OFFICE
In the western countries, standing desks have come into fashion,
where you stand and work. Companies in London, Denmark and South
Korea are offering sitting standing desks to their employees to keep them
fit. Notable companies like Hubspot, the global leader in Cloud
based CRM software and Pharma major, Giaxo have experimented
with standing desks in their office.
You could buy an elevated stand and covert your table into a
standing desk, that’s a make shift arrangement and would not burn a
big hole in your pocket.
The trend, however, is yet to catch up in India and most of the
employers we interacted with do not plan to introduce it in the near future.
have become leaders they stop learning by doing.
They should not leave learning by doing and also
they should trust others to do so. They have to be
comfortable with uncomfortable-and pushing the
person to that level to discomfort. Over and above
managers should develop and exercise soft skills.
Much of what to do is in the realm not of skills but in
the realm of personility or ethics. The only way to
develop ethics in these dilemmas where managers
have to make a ruling and there is not a right or wrong
to the answer. Exercising soft skills can only help.
Honing these skills can help your managers develop
into effective leaders.
Q. It is generally said that employees should
be loyal to the organisation and HR should make all
efforts in this direction to make employees loyal
but I am unable to understand how we can do this?
-Navdeep
A. Gaining employee loyalty is not easy. It can
not be obtained mechanically, but for this company
has to draw a well thought out company HR processes
and systems reflecting to people importance. First
company needs to go through a kind of self
recognition. Seniors and responsible managers need
to examine what their employees are saying and
feeling about their organisation and its leaders.
Company should use those feed back to implement
an employee loyalty programme that will ensure
loyalty from the employee to his immediate officer
and from officer to employee in a circular approach.
Sometime you make mistake by understanding
retention as loyalty. Loyalty is no longer synonymous
with retention. Just because employees stay in the
organisation, it does not mean that they are engaged,
productive and loyal too. Employee loyalty no longer
means one directional communication. It can not be
one way. Actually it starts with top creating initiatives
that will earn employee loyalty. It starts when leaders
implement "walk the talk" and treat employees how
they want to be treated. If you do this, I am sure results
can be tremendous. Employees will respond
positively and be more loyal to the company and their
managers.
Q. Though I have been working in HRM and
admin area since last many years but have not got
any exposure in T&D, performance apprisal etc.
Can you suggest some books on these topics?
-A.S. Gupta
A. There are many books available in the market
regading training and development and performance
appraisal. Management Books are published by many
publishers like Oxford, Sage Publications,
Bloomsbury, Penguin, Random House etc. Dr. T.V.
Rao books on HRD and peformance management
are best. Robin Hoyle, Armstrong and Tony Bray on
training have given good books. You can call for
catalogue and select the books of your choice or
alternatively you can contact any related book shop
of your town.
Readers are welcome to ask for solutions of their work place HR Problems to Labour Law Reporter or
directly to Mr. Anil Kaushik through his e-mail at : akaushikus@yahoo.com OR hrsolutionsin@yahoo.com
(Mob.: 09829133699)
-Editor
January, 2016 - 52
MADHYA PRADESH
LABOUR LAWS (AMENDMENT) AND
MISCELLANEOUS PROVISIONS ACT, 2015
M.P.G.G. dt. 27.11.2015
November 27, 2015
MADHYA PRADESH ACT
No. 21 of 2015
PART I
PRELIMINARY
1. Short title and commencement.
PART II
AMENDMENT OF THE BUILDING AND OTHER
CONSTRUCTION WORKERS (REGULATION OF
EMPLOYMENT AND CONDITIONS OF SERVICE) ACT,
1996
2. Amendment of Central Act No. 27 of 1996 in its application
to the State of Madhya Pradesh.
3. Amendment of Section 7.
PART III
AMENDMENT OF THE BUILDING AND OTHER
CONSTRUCTION WORKERS WELFARE CESS ACT,
1996
4. Amendment of Central Act No. 28 of 1996 in its application
to the State of Madhya Pradesh.
application to the State of Madhya Pradesh.
13. Amendment of Section 4.
PART VIII
AMENDMENT OF THE MOTOR TRANSPORT WORKERS
ACT, 1961
14. Amendment of Central Act No. 27 of 1961 in its
application to the State of Madhya Pradesh.
15. Amendment of Section 3.
PART IX
COMPOSITION OF OFFENCES ANDABATEMENT OF
TRIALS UNDER CERTAiN LABOURLAWS
16. Composition of offences under certain Labour Laws in
the State of Madhya Pradesh.
PART X
EXEMPTION FROM MAINTAINING MULTIPLE
REGISTERSAND SUBMISSIONOFMULTIPLE RETURNS
PART IV
17. Exemption from maintaining multiple registers and
submission of multiple returns under certain Labour Laws
in the State of Madhya Pradesh.
AMENDMENT OF THE CONTRACT LABOUR
(REGULATION AND ABOLITION) ACT, 1970
MISCELLANEOUS PROVISIONS
5. Amendment of Sections 3 and 11.
6. Amendment of Central Act No. 37 of 1970 in its application
to the State of Madhya Pradesh.
7. Amendment of Sections 7 and 13.
PART V
PART XI
18. Power to make rules.
19. Removal of difficulties
The Madhya Pradesh Labour Laws (Amendment)
And Miscellaneous Provisions Act, 2015
AMENDMENT OF THE FACTORIES ACT, 1948
M.P.G.G. dt. 27.11.2015
8. Amendment of Central Act No. 63 of 1948 in its application
to the State of Madhya Pradesh.
MADHYA PRADESH ACT No. 21 of 2015
9. Amendment of Sections 65, 66 and 79.
PART VI
AMENDMENT OF THE INDUSTRIAL DISPUTES ACT,
1947
10. Amendment of Central Act No. 14 of 1947 in its
application to the State of Madhya Pradesh.
11. Amendment of Sections 2-A, 25-F and 25-K.
PART VII
AMENDMENT OF THE INTER-STATE MIGRANT
WORKMEN (REGULATION OF EMPLOYMENT AND
CONDITIONS OF SERVICE) ACT, 1979
12. Amendment of Central Act No. 30 of 1979 in its
November 27, 2015
(Received the assent of the President on the 11th
November, 2015 assent first published in the
“Madhya Pradesh Gazette (Extra-ordinary)”, dated
the 27th November, 2015).
An Act further to amend the(i) Building and Other Construction Workers (Regulation
of Employment and Conditions of Service) Act, 1996 (No.
27 of 1996);
(ii) Building and Other Construction Workers’ Welfare Cess
Act, 1996 (No. 28 of 1996);
(iii) Contract Labour (Regulation and Abolition) Act, 1970
(No. 37 of 1970);
January, 2016 - 17
(iv) Factories Act, 1948 (No. 63 of 1948);
(v) Industrial Disputes Act, 1947 (No. 14 of 1947);
(vi) Inter-State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1979 (No. 30
of 1979);
(vii) Motor Transport Workers Act, 1961 (No. 27 of 1961).
in their application to the State of Madhya Pradesh and to
make miscellaneous provisions regarding other Labour
Laws.
Be it enacted by the Madhya Pradesh Legislature in the
Sixty-sixth year of the Republic of India as follows:PART I
PRELIMINARY
1. Short title and commencement.- (1) This Act may
be called the Madhya Pradesh Labour Laws (Amendment)
and Miscellaneous Provisions Act, 2015.
(2) It shall come into force from the date of its publication in
the Madhya Pradesh Gazette.
PART II
AMENDMENT OF THE BUILDING AND OTHER
CONSTRUCTION WORKERS (REGULATION OF
EMPLOYMENT AND CONDITIONS OF SERVICE) ACT,
1996
2. Amendment of Central Act No. 27 of 1996 in its
application to the State of Madhya Pradesh.- The
Building and Other Construction Workers (Regulation of
Employment and Conditions of Service) Act, 1996 (No. 27
of 1996) (hereinafter in this Part referred to as the principal
Act) shall in its application to the State of Madhya Pradesh
be amended in the manner hereinafter provided in this
Part.
3. Amendment of Section 7.- In the principal Act, in
Section 7, after sub-section (3), the following sub-section
shall be inserted, namely“(3-A) If no adverse order is passed in regard to
registration of establishment by the Registering Officer
within the prescribed period from the date of submission of
application, then the registration shall be deemed to be
duly granted.”
PART III
AMENDMENT OF THE BUILDING AND OTHER
CONSTRUCTION WORKERS WELFARE CESS ACT,1996
4. Amendment of Central Act No. 28 of 1996 in its
application to the State of Madhya Pradesh.- The
Building and Other Construction Workers’ Welfare Cess
Act, 1996 (No. 28 of 1996) (hereinafter in this Part referred
to as the principal Act) shall in its application to the State of
Madhya Pradesh be amended in the manner hereinafter
provided in this Part.
5. Amendment of Sections 3 and 11.- In the principal
Act,(i) in section 3, after sub-section (1), the following subsection shall be inserted, namely:January, 2016 - 18
“(1-A) Notwithstanding anything contained in sub-section
(1), costs incurred on purchase and transportation of plant
and machinery meant to be used in a factory and such
other costs as may be specified by notification issued by
the State Government shall be excluded from the cost of
construction incurred by an employer”;
(ii) in Section 11, for sub-section (1), the following subsection shall be substituted, namely:“(1) Notwithstanding anything contained in the rules made
under this Act, any employer aggrieved by an order of
assessment made under Section 5 or by an order imposing
penalty under Section 9 may, within such time as may be
prescribed, appeal to such appellate authority in such form
as may be prescribed and in such manner as may be
specified by the State Government”.
PART IV
AMENDMENT OF THE CONTRACT LABOUR
(REGULATION AND ABOLITION) ACT, 1970
6. Amendment of Central Act No. 37 of 1970 in its
application to the State of Madhya Pradesh.- The
Contract Labour (Regulation and Abolition) Act, 1970 (No.
37 of 1970) (hereinafter in this Part referred to as the
principal Act) shall in its application to the State of Madhya
Pradesh be amended in the manner hereinafter provided
in this part.
7. Amendment of Sections 7 and 13.- In the principal
Act,(i) in Section 7, after sub-section (2), the following new
sub-section shall be inserted, namely:“(3) Upon submission of an application complete in all
respects, in accordance with sub-section (1), the
establishment in respect of which such application is made
shall be deemed to be duly registered if the registering
officer fails to pass an order either granting or refusing or
objecting to grant or amend the registration within a period
of 30 days from the date of submission of application”;
(ii) in Section 13, after sub-section (3), the following new
sub-section shall be added, namely:“(4) Upon submission of an application complete in all
respects in accordance with sub-section (1), the contractor
in relation to an establishment in respect of which such
application is made shall be deemed to be duly licensed if
the licensing officer fails to pass an order either granting or
refusing or objecting to grant or renew or amend the license
within a period of 30 days from the date of submission of
application”.
PART V
AMENDMENT OF THE FACTORIES ACT, 1948
8. Amendment of Central Act No. 63 of 1948 in its
application to the State of Madhya Pradesh.- The
Factories Act, 1948 (No. 63 of 1948) (hereinafter in this
Part referred to as the principal Act) shall in its application
to the State of Madhya Pradesh be amended in the manner
hereinafter provided in this Part.
9. Amendment of Sections 65, 66 and 79.- In the
principal Act,(i) in Section 65,(a) sub-section (2) shall be deleted;
(b) for sub-section (3), the following sub-section shall be
substituted, namely:“(3)(a) Notwithstanding anything contained in Sections 51,
52, 54 and 56, an adult male worker may be allowed to
work in a factory for more than 48 hours in a week subject
to fulfilment of following conditions:(i) the total number of hours of work in any day shall be not
exceed twelve;
(ii) the spread over, inclusive of intervals for rest, shall not
exceed thirteen hours in anyone day;
(iii) the total number of hours of work in any week, including
overtime, shall not exceed sixty;
(iv) no worker shall be allowed to work overtime, for more
than seven days at a stretch and the total number of hours
of overtime work in any quarter shall not exceed one
hundred and twenty five;
(v) such overtime work shall not be made compulsory or
obligatory for any worker.
(b) The occupier shall maintain information of working
hours and overtime work of workers in such manner as
may be prescribed.
Explanation.- In this sub-section “quarter” has the same
meaning as in sub-section (4) of Section 64";
(ii) in Section 66,(a) in sub-section (1), clause (b) and proviso shall be
omitted;
(b) after sub-section (1), the following sub-section shall be
inserted, namely:“(1-A) The State Government may, by order, specify
conditions for ensuring safety of women who are required
or allowed to work in any factory or manufacturing process
between the hours of 8 P.M. and 6 A.M.”;
(iii) in Section 79, for sub-section (1) and Explanation 1,
the following sub-section and Explanation shall be
substituted, namely:“(I) Every worker who has worked for a period of 180 days
or more in a factory during a calendar year shall be allowed
during the same calendar year, leave with wages for a
number of days calculated at the rate of(i) if an adult, one day for every twenty days of work
performed by him during the calendar year;
(ii) if a child, one day for every fifteen days of work performed
by him during the calendar year.
Explanation 1.- For the purpose of this sub-section(a) any days of lay-off, by agreement or contract or as
permissible under the standing orders;
(b) in the case of a female worker, maternity leave for any
number of days not exceeding twelve weeks; and
(c) the leave earned in the year prior to that in which the
leave is enjoyed,
shall be deemed to be days on which the worker has
worked in a factory for the purpose of computation of the
period of 180 days or more”.
PART VI
AMENDMENT OF THE INDUSTRIAL DISPUTES ACT,
1947
10. Amendment of Central Act No. 14 of 1947 in its
application to the State of Madhya Pradesh.- The
Industrial Disputes Act, 1947 (No. 14 of 1947) (hereinafter
in this Part referred to as the principal Act) shall in its
application to the State of Madhya Pradesh be amended in
the manner hereinafter provided in this Part.
11. Amendment of Sections 2-A, 25-F and 25-K.-ln
the principal Act,(i) in Section 2-A, in sub-section (3), for the words, “the
Labour Court or Tribunal”, the words “the Labour Court or
Tribunal or Conciliation Officer’ shall be substituted;
(ii) in Section 25-F,(a) in clause (a), for the words “one month’s notice”, the
words “three months’ notice” shall be substituted;
(b) for clause (b), the following clause shall be substituted,
namely:“(b) the workman has been paid, at the time of
retrenchment, compensation which shall be equivalent to
fifteen days’ average pay for every completed year of
continuous service or any part thereof in excess of six
months, or an amount equivalent to his three months’
average pay, whichever is more; and”:
(iii) in Section 25-K, in sub-section (1), for the words “one
hundred”, the words “three hundred” shall be substituted.
PART VII
AMENDMENT OF THE INTER-STATE MIGRANT
WORKMEN (REGULATION OF EMPLOYMENTAND
CONDITIONS OF SERVICE) ACT, 1979
12. Amendment of Central Act No. 30 of 1979 in its
application to the State of Madhya Pradesh.- The
Inter-State Migrant Workmen (Regulation of Employment
and Conditions of Service) Act, 1979 (NO. 30 of 1979)
(hereinafter in this Part referred to as the principal Act)
shall in its application to the State of Madhya Pradesh be
amended in the manner hereinafter provided in this Part.
13. Amendment of Section 4.- In the principal Act, in
Section 4, in sub-section (3), for full stop, the colon shall be
substituted and thereafter the following proviso shall be
added, namely:“Provided that if no adverse order is passed by the
Registering Officer within thirty days from the date of
submission of application under sub-section (1), then the
registration shall be deemed to be duly granted”.
PART VIII
AMENDMENT OF THE MOTOR TRANSPORT WORKERS
ACT, 1961
14. Amendment of Central Act No. 27 of 1961 in its
January, 2016 - 19
application to the State of Madhya Pradesh.- The
Motor Transport Workers Act, 1961 (No. 27 of 1961)
(hereinafter in this Part referred to as the principal Act)
shall in its application to the State of Madhya Pradesh be
amended in the manner hereinafter provided in this Part.
15. Amendment of Section 3.- In the principal Act, in
Section 3, in sub-section (2), for full stop, the colon shall be
substituted and thereafter the following proviso shall be
inserted, namely:“Provided that if no adverse order is passed by the
prescribed authority within a period of 30 days from the
date of submission of application, then the registration shall
be deemed to be duly granted”.
PART IX
COMPOSITION OF OFFENCES ANDABATEMENT OF
TRIALS UNDER CERTAIN LABOUR LAWS
16. Composition of offences under certain Labour
Laws in the State of Madhya Pradesh.- (1)
Notwithstanding anything contained in the following Acts,
namely:(i) Equal Remuneration Act, 1976 (No. 25 of 1976);
(ii) Labour Laws (Exemption from Furnishing Returns and
Maintaining Registers by certain Establishments) Act, 1988
(No. 51 of 1988);
PART X
EXEMPTION FROM MAINTAINING MULTIPLE
REGISTERSAND SUBMISSIONOFMULTIPLE RETURNS
17. Exemption from maintaining multiple registers
and submission of multiple returns under certain
Labour Laws in the State of Madhya Pradesh.Notwithstanding anything contained in the provisions of
the following Acts, namely:(i) Contract Labour (Regulation and Abolition) Act, 1970
(No. 37 of 1970);
(ii) Equal Remuneration Act, “i976 (No. 25 of 1976);
(iii) Factories Act, 1948 (No. 63 of 1948);
(iv) Industrial Disputes Act, 1947 (No. 14 of 1947)’
(v) Inter-State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1979 (No. 30
of 1979)’
(vi) Labour Laws (Exemption from Furnishing Returns and
Maintaining Registers by certain Establishments) Act, 1988
(No. 51 of 1988);
(vii) Maternity Benefit Act, 1961 (No. 53 of 1961);
(viii) Minimum Wages Act, 1948 (No. 11 of 1948);
(ix) Motor Transport Workers Act, 1961 (No. 27 of 1961);
(x) Payment of Bonus Act, 1965 (No. 21 of 1965);
(iii) Minimum Wages Act, 1948 (No. 11 of 1948);
(xi) Payment of Gratuity Act, 1972 (No. 39 of 1972);
(iv) Payment of Wages Act, 1936 (No.4 of 1936);
(xii) Payment of Wages Act, 1936 (No.4 of 1936);
(v) Sales Promotion Employees’ (Conditions of Service)
Act, 1976 (No. 11 of 1976), an officer authorized by the
State Government in this behalf by notification may
compound.
(xiii) Sales Promotion Employees (Conditions of Service)
Act, 1976 (No. 11 of 1976);
(a) any offence punishable with only fine under these Acts
committed for the first time or after expiry of a period of two
years of commitment of previous offence (if any), either
before or after institution of the prosecution, on realization
of such amount of composition fee, as he thinks fit, not
exceeding the maximum amount of fine but not less than
half of the maximum amount of fine for the offence, or
(b) any offence punishable with fine and imprisonment upto
three months under these Acts committed for the first time,
either before or after institution of the prosecution, on
realization of composition fee of an amount equivalent to
ten time of the maximum fine subject to a minimum of
Rs.10,000 for offences punishable with imprisonment upto
one month Rs. 20,000 for offences punishable with
imprisonment upto two months or Rs. 30,000 for offences
punishable with imprisonment upto three months.
the State Government by order may devise or notify forms
for maintaining registers and records and furnishing returns
by an employer or establishment in lieu of the forms
prescribed under the said Acts and the Rules made
thereunder:
Provided that the State Government may allow the registers
and records to be maintained in computerized or digital
formats.
PART XI
MISCELLANEOUS PROVISIONS
18. Power to make rules.- (1) The State Government,
subject to the condition of previous publication, may make
rules for the purpose of giving effect to the provisions of
this Act;
(2) All rules made under this Act shall, as soon as after
they are made, be laid on the table of the Legislative
Assembly.
(i) before the institution of the prosecution the offender
shall not be liable to prosecution and shall, if in custody, be
set at liberty;
19. Removal of difficulties.- (1) If any difficulty arises in
giving effect to the provisions of this Act, the State
Government may, by general or special order published in
the Gazette, make such provision not inconsistent with
the provisions of this Act as appear to it to be necessary or
expedient for removal of the difficulty.
(ii) after the institution of prosecution, the composition shall
amount to acquittal of the offender.
(2) Every order made under sub-section (1) shall be laid
on the table of the Legislative Assembly.
(2) When the offence is so compounded-
January, 2016 - 20
Palwinder Kaur & Ors. vs. Oriental Insurance Company Ltd. & Anr.
2016
2016 LLR 1
SUPREME COURT OF INDIA
Hon’ble Mr. M.Y. Eqbal, J.
Hon’ble Mr. Arun Mishra, J.
SLA(C) No. 26908/2014, D/–21-7-2015
Palwinder Kaur & Ors.
vs.
Oriental Insurance Company Ltd. & Anr.
INDUSTRIAL ADJUDICATION – Presumption of
a fact without specific pleadings – Not sustainable – One Harvinder Singh was owner of the
Truck which was being driven by the deceased
driver – During driving, driver received grievous
injuries committed by unknown persons causing his death – Petitioners claimed compensation before the Employees’ Compensation Commissioner – Commissioner awarded compensation – Insurance Company challenged the Award
by filing appeal which was allowed – Petitioner
challenged the order of the High Court by filing Special Leave Petition – Held, Insurance
Company had not taken any specific defence in
its written statement that deceased-driver was
owner of the offending vehicle/truck – Even no
document was filed by the claimants showing
the deceased as an employee of the owner/respondent No. 1 – Commissioner, after considering the entire facts, concluded that at the time
of accident, deceased was driver and employee
of the original owner – High Court ought not to
have come to the conclusion that deceased was
not employee of the original owner or he himself
was the owner when there was no such pleading
by the Insurance Company – Hence, appeal is
allowed – Judgment of High Court is set aside –
Award passed by the Commissioner is restored.
Paras 5 to 8
For Petitioners: Mr. R.K. Nain, Ms. Pratima N.
Chauhan and Mr. Jinendra Jain, Advocates.
For Respondents: Mr. S.L. Gupta, Mr. Virender
Kumar Sharma, Mr. Brahm Shankar Kumar, Mr.
Vikash Chandra and Ms. Mala Dubey, Advocates.
IMPORTANT POINT
In the absence of specific
pleading in respect of a fact and
in the absence of any document in
support of that fact, presumption
drawn by accepting the submission
of the Advocate of the party, for
45 — January, 2016
existence of that fact by
Court, is not sustainable.
1
the
ORDER
M.Y. EQBAL, J.—We have heard learned counsel
for the parties.
Leave granted.
1. The appellants, who are the claimants, are aggrieved by the judgment and order dated 5th April,
2014 passed by the High Court of Delhi at New
Delhi in FAO No. 50 of 2012 reversing the judgment
and Award passed by the Commissioner, Workmen
Compensation awarding a sum of Rs. 3,84,280 (Rupees three lacs eighty four thousand two hundred
and eighty only) as compensation for the death of
the deceased while driving the motor vehicle.
2. Admittedly, one Harvinder Singh was the owner
of the truck bearing No. HR-55-9697 and the deceased said to have been driving the vehicle. In
the course of driving the said vehicle, he sustained
grievous injuries committed by the unknown persons, which caused his death.
3. The Commissioner, Workmen Compensation,
after considering the entire facts of the case, came
to the conclusion that the deceased was, in fact, an
employee of Harvinder Singh, who was the owner
of the vehicle and in course of employment he was
murdered by unknown persons. Consequently, the
compensation of Rs. 3,84,280 was awarded.
4. The respondent – Oriental Insurance Company
Limited challenged the aforesaid order mainly on
the ground that the deceased was not the employee
of Harvinder Singh, rather he himself was the owner
of the vehicle and therefore, under the conditions of
insurance policy, the owner is not covered and no
compensation is payable.
5. From bare perusal of the impugned judgment
passed by the High Court, it appears that without
framing any substantial question of law, the High
Court proceeded on the basis that the deceased
was the owner of the truck. Accepting the submission of the learned counsel appearing for the Insurance Company, the High Court came to the conclusion that the deceased being the owner of the
truck, is not entitled to get any compensation. From
perusal of the written statement filed by the Insurance Company it reveals that no specific defence
was taken by the Insurance Company that the deceased was the owner of the truck. Moreover, the
only pleading appears to be in the written statement is that no document was filed by the claimants
showing the deceased as an employee of the original owner-respondent No. 1.
2
Vindyachal Security, Detective & Allied Services Pvt. Ltd. vs. Assistant Provident Fund Commissioner
6. We are, therefore, of the view that on the basis of
mere submission made by learned counsel for the
parties, the High Court ought not to have come to
that conclusion specifically when there was no such
pleading by the Insurance Company. The Commissioner, Workmen Compensation, after considering
the entire facts of the case pleaded by the parties,
came to the conclusion that at the time of the accident, the deceased was, in fact, driver and employee of the original owner Harvinder Singh.
7. In that view of the matter, we fully agree with the
view taken by the Commissioner, Workmen Compensation.
8. Consequently, the appeal is allowed. The impugned order passed by the High Court is set aside,
and the Award given by the Commissioner, Workmen Compensation is hereby restored.
—————
2016 LLR 2
BOMBAY HIGH COURT
Hon’ble Mr. K.K. Tated, J.
CAJ W.P. No. 1564/2013, D/–9-4-2013
Vindyachal Security, Detective & Allied Services
Pvt. Ltd.
vs.
Assistant Provident Fund Commissioner
LLR
For Respondent: Mr. Suresh Kumar, Advocate
Mr. S. Yadagiri, Enforcement Officer present in the
Court.
IMPORTANT POINTS
Whenever, the powers are to
be exercised for quasi-judicial
purpose or whenever the authority
is acting as a quasi-judicial authority, the hearing of the parties concerned is a must because
passing of any order is to visit
with civil consequences.
Opportunity of hearing is
must to comply with the principles of natural justice.
No doubt, clause (a) of proviso to sub-section (4) of section 7B of the Act does
not make
it mandatory to authority to give
hearing if the application is to
be allowed but thereby it cannot
be read that no hearing is necessary if application is to be rejected.
P.C.
EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Sections
7A, and 7B(1) – EPF Authority called upon the
petitioner to pay the arrears of dues by passing
an order without providing copy of deposition of
Enforcement Officer – EPF Authority also rejected the review application, filed by the petitioner
under section 7B(l) of the Act without hearing
the petitioner – Petitioner challenged that order of the EPF Authority in writ petition – Held,
whenever, the powers are to be exercised for
quasi-judicial purpose or whenever the authority
is acting as a quasi-judicial authority, the hearing is a must because passing of any order is
to visit with civil consequences – Opportunity
of hearing is must to comply with the principles
of natural justice – Hence, impugned order is
set aside – Matter remanded to the Authority to
decide it on its own merits, providing all documents relied by it, to the petitioner.
Paras 7 to 10
For Petitioner: Mr. S.C. Naidu a/w Mr. T.R. Yadav
i/b M/s. C.R. Naidu and Co., Advocates.
PER K.K. TATED, J.—1. Heard the learned counsel for the petitioner.
2. By consent, matter is taken on board for final
hearing at the stage of admission.
3. By this petition, under Article 226 and 227 of the
Constitution of India, petitioner challenges the order
under section 7A of the Employees’ Provident Fund
and Miscellaneous Provisions Act, 1952 dated 11th
December, 2012 and the order dated 2nd January,
2013 under section 7B(1) of the said Act. By order
dated 11th December, 2012 under section 7A of the
said Act, Authority called upon the petitioner to pay
a sum of Rs. 3,94,21,674 towards dues under the
said Act.
4. It is the case of the petitioner that at the time of
passing order dated 11th December, 2012, the Assistant Provident Fund Commissioner relied on deposition of Enforcement Officer. He further states
that copy of the said deposition was not provided by
the Authority and therefore, the order passed by the
Assistant Provident Fund Commissioner dated 11th
December, 2012 is against justice, equity and good
conscious and same is liable to be set aside.
5. The learned counsel for the respondent after taking instructions from the concerned officer, Mr. S.
January, 2016 — 46
2016
Vindyachal Security, Detective & Allied Services Pvt. Ltd. vs. Assistant Provident Fund Commissioner
Yadagiri who is present in the court made a statement that it is an admitted fact that copy of deposition of Enforcement Officer was not provided to the
petitioner.
6. In view of this fact, it is crystal clear that Authority
passed impugned order dated 11th December, 2012
without providing the material facts and documents
to the petitioner and therefore, same is against justice, equity and good conscious and same is liable
to be set aside.
7. The learned counsel for the petitioner further
pointed out that the order is passed by the Assistant
Provident Fund Commissioner in Review Application
under section 7B(1) of the said Act without hearing
the petitioner. These facts have also been admitted
by the Advocate for the respondent. Counsel for the
petitioner in support of his contention states that if
the order is passed without hearing, the same is liable to be set aside. He relies on the judgment of the
Gujarat High Court in the matter of Cookvel Foods
India Private Limited v. Assistant Provident Fund
Commissioner in Civil Appeal No. 17769 of 2003
dated 25th March, 2005 in para 5 as under:
“(5) No appeal shall lie against the order of the
officer rejecting an application for review, but an
appeal under this Act shall lie against an order
under review as if the order passed under review
were the original order passed by him under section 7A.
7. The perusal of Section 7B shows that if a
new ground is discovered or new matter or evidence could not be produced to the notice of the
authority, the review application can be preferred.
What would be the scope and ambit of review on
the basis of new material or which can be said
as new material etc. is not the subject matter of
this petition, therefore, it would not be necessary
to examine the scope and ambit of the power
of review under Section 7B of the Act on the
aforesaid aspects, except the only aspect as to
whether the opportunity of hearing is required or
not. Sub-section (3) of Section 7B provides that
where it appears to the officer receiving an application for review that there is no sufficient ground
for a review, he shall reject the application and,
therefore, the contention possibly based on the
said sub-section is that there is no express provision made for giving opportunity of hearing. It
is well settled that whenever the powers are to
be exercised for quasi-judicial purpose or whenever the authority is acting as a quasi-judicial authority, the hearing is a must, because passing
of any order is to visit with civil consequences.
Such principles are in certain matters read even
47 — January, 2016
3
for administrative decision. In the present case, if
the scheme of the Act, more particularly sections
7A and 7B are considered, firstly the powers under section 7A with the Provident Fund Authority are as quasi-judicial authority. Express powers are provided as per Section 7B for review on
the ground mentioned in review. Even otherwise
also, it is well settled that even if the statute does
not provide for opportunity of hearing unless it
is expressly excluded or unless there are any
emergent circumstances warranting for such purpose, the section or any power under statute as
that of quasi judicial authority are to be read with
the principles of natural justice and such scheme
of giving opportunity of hearing by observance of
principles of natural justice is to be read as inbuilt mechanism of any decision-making process
by a quasi judicial authority. Therefore, the contention of Mr. Mehta that hearing is required only
if new material to the satisfaction of the authority
is found for exercise of the power of review cannot be accepted. Whether such material is new
material or whether such contention is required
to be considered for attracting the power of review or not would also require that the -person
concerned who has preferred the review application is heard. The authority before concluding the
proceedings of the review application must give
an opportunity of hearing to the party concerned.
Mr. Mehta made an attempt to submit that in
proviso to Sub-section (4) of section 7B hearing is provided as per Clause (a) and, therefore,
power under section 7B(3) may not be read with
principles of natural justice. As such Clause (a)
of proviso to sub-section (4) of section 7B does
make it mandatory to authority to give hearing
if the application is to be allowed but thereby it
cannot be read that no hearing is necessary if
application is to be rejected. Since in the present case, as observed earlier, it is an admitted
position that no opportunity of hearing has been
given, the order passed in review application dated 26.12.2002 cannot be sustained in the eye of
law and deserves to be quashed and set aside
on the ground that opportunity of hearing has not
been given.”
8. Considering the fact that the Advocate for the respondents admits that at the time of deciding Review Petition, personal hearing was not given to the
petitioner and the law laid down by the Gujarat High
Court in the matter of Cookvel Foods India Private
Limited v. Assistant Provident Fund Commissioner,
(Supra), I am of the opinion that it is necessary to
set aside the order dated 2nd January, 2013 dismissing the petitioner’s Review Application.
4
Provident Fund Commissioner vs. M/s. Bena Garments
9. The learned counsel for the respondents after
taking instructions from his officer who is present in
the court makes a statement that they will provide
all the documents relied by them in the proceeding
under section 7A of the said Act either to the petitioner or his Advocate on record within four weeks
from today. Statement is accepted.
10. Considering these facts, petition is disposed of
with following directions:
a. Order dated 11th December, 2012 passed
under section 7A of the said Act and order
dated 2nd January, 2013 under section 7B(1)
of the said Act is set aside.
b. Matter is remanded to the 7A Authority to decide on its own merits.
c. Respondents to provide all documents relied
by them in 7A proceeding either to petitioner
or their Advocate within four weeks from today.
d. Liberty granted to the petitioner to file additional application and/or documents before
the 7A Authority within 8 weeks from today.
e. Authority under section 7A to decide the application as early as possible after giving
hearing to both the sides and allowing them
to file additional documents, if any.
—————
LLR
– Since Appellate Tribunal has not interfered
with the merits of the case but has set aside the
order of the EPF Authority only on the ground
of non-supply of the report, the case remanded
back to the Appellate Tribunal to dispose it on
merits.
Paras 3 to 5
For petitioner: Ms. Sangeeta Yadav i/b Mr. Suresh
Kumar, Advocates.
For respondent: Mr. M.D. Nagle i/b Mr. P.V.
Satam, Advocates.
IMPORTANT POINTS
Quashing an order of the
EPF
Authority only on the ground that
copy of the Enforcement Officer’s
Report was not supplied to the
employer which was violation of
principles of natural justice, is
justified.
EPF
Appellate
Tribunal could
have directed the EPF Authority
to supply copy of the Enforcement Officer’s Report to the employer and then decide the appeal
on merits.
2016 LLR 4
BOMBAY HIGH COURT
Since
Appellate
Tribunal has
Hon’ble Mr. N.M. Jamdar, J.
CASJC W.P. No. 2220/2015, D/–24-8-2015
Provident Fund Commissioner
vs.
M/s. Bena Garments
EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Sections
7A and 7Q – Appellate Tribunal set aside the
order passed by the EPF Authority, holding that
non-supply of Enforcement Officer’s Report before passing an order by the EPF Authority was
a serious infirmity amounting to denial of principles of natural justice – Petitioner has challenged the order of the EPF Appellate Tribunal
by filing writ petition – Held, if Appellate Tribunal was of the opinion that non-supply of copy
of Enforcement Officer’s Report is violation of
principles of natural justice, instead of setting
aside the order of the EPF Authority, a direction
could have been given to supply the copy of the
report and thereafter to hear the matter afresh
not interfered with the merits of
the case but has set aside the
order of the EPF Authority only
on the ground of non-supply of
the report, the case is remanded
back to the Appellate Tribunal to
dispose it of on merits.
ORAL JUDGMENT
PER N.M. JAMDAR, J.—1. By order dated 19 August 2015 parties were put to notice that the Petition will disposed off finally at the admission stage.
Accordingly Rule. Rule made returnable forthwith.
Respondent waives service.
2. The Respondent had filed an Appeal in the Employees’ Provident Fund, Appellate Tribunal, New
Delhi challenging the order dated 24 June 2011
passed by the Provident Fund Commissioner, Mumbai under Section 7A of Employees’ Provident Fund
Act. One of the ground of challenge by the Respondent before the Appellate Authority was that the
copy of the Enforcement Officer’s report was not
January, 2016 — 48
supplied to the Respondent. The Appellate
Tribunal accepted this grievance and held nonsupply of En-
49 — January, 2016
2016
Central Board of Trustees, Employes’ Provident Fund, New Delhi vs. M/s. Veekay Cotsyn Ltd., Khamgaon
forcement Officer’s Report before passing an order
was a serious infirmity and it amounted to denial of
principles of natural justice. Accordingly, the Appellate Tribunal, by order dated 11 October 2013, allowed the Appeal and set aside the order passed
by the Provident Fund Commissioner on 24 June
2011.
3. Though nothing is shown by the learned Counsel
for the Petitioner to assail the feeling that there was
breach of principles of natural justice, the Appellate
Tribunal has adopted a course which is not as per
law. If the Appellate Tribunal was of the opinion that
non-supply of copy of Enforcement Officer’s Report
vitiated the order of the Provident Fund Commissioner, then a direction could have been given to
supply the report and thereafter, to hear the matter
afresh. The Appellate Tribunal has not interfered
with the impugned order on merits but only on the
ground of non-supply of the report.
4. The Appellate Tribunal has closed the further
inquiry as to the liability of the Respondent to pay
the Provident Fund dues. The approach adopted
by the Appellate Tribunal is against the spirit of the
Act which is enacted to ensure that certain benefits
are given to the workmen. By closing the inquiry on
merits the rights of the workmen are seriously affected. Such course of action cannot be permitted
to stand. The learned Counsel for the Petitioner
is therefore justified in contending that the order
passed by the Appellate Tribunal should be modified and the proceedings should not be allowed to
be closed.
5. Accordingly, the order passed by the Appellate
Tribunal on 11 October 2013 is modified as follows:—
(I) The order passed by the Provident Fund
Commissioner, Mumbai dated 24 June 2011
is set aside.
(II) The Petitioner shall supply the copy of the
Enforcement Officer’s report to the Respondent within period of four weeks from today.
(III) The proceedings before the Provident Fund
Commissioner, Mumbai under Section 7A of
the Act shall stand restored as regard the
Respondent.
(IV) The Respondent shall remain present in the
Office of the Assistant Provident Fund Commissioner, Mumbai on 28 September 2015 at
11.00 a.m. thereupon the Commissioner will
give further dates of hearing in the matter.
(V) The proceedings before the Assistant Provident Fund Commissioner will be disposed off
on their own merits, all contentions are kept
open.
5
(VI)
The Assistant Provident Fund Commissioner,
Mumbai shall make an endeavour to dispose
off the proceedings within period of twelve
weeks from the date the parties appear before it, if there are no earlier time bound commitment.
Rule made absolute in above terms. No order as to
costs.
—————
2016 LLR 5
BOMBAY HIGH COURT
Hon’ble Mr. Z.A. Haq, J.
W.P. No. 5565/2010, D/–15-4-2015
Central Board of Trustees, Employes’ Provident
Fund, New Delhi & Anr.
vs.
M/s. Veekay Cotsyn Ltd., Khamgaon
EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Sections
7-I, 7L and 14B – Remanding an unreasoned
order back to Appellate Tribunal is justified –
Damages imposed by the EPF Authority were
reduced in appeal by the Appellate Authority to
the extent of 80% – Such an order of the EPF
Appellate Tribunal challenged by the Petitioner
– Held, Appellate Tribunal can reduce quantum of damages though paragraph 32B of the
EPF Scheme gives similar power to the Central
Board of Trustees – It cannot be said that the
Appellate Tribunal does not have such power –
Since impugned order shows that the Appellate
Tribunal has not applied its mind giving reasons
in support of reducing the damages to 80%, it
shows arbitrary exercise of powers and jurisdiction by the Appellate Tribunal – Hence, order is
unsustainable in law – Impugned order is set
aside – Matter is remitted to the Tribunal for deciding the appeal on merits according to law.
Paras 8 to 10
For petitioner : Mr. H.N. Verma, Advocate.
For respondent: Mr. A.C. Dharmadhikari, Advocate.
IMPORTANT POINTS
Appellate Tribunal can reduce quantum of damages though
paragraph 32B of the EPF Scheme
January, 2016 — 50
6
Central Board of Trustees, Employes’ Provident Fund, New Delhi vs. M/s. Veekay Cotsyn Ltd., Khamgaon LLR
gives similar power to
tral Board of Trustees.
the
Cen-
If an order passed by the EPF
Appellate Tribunal reducing the
damages to 80% does not
contain
supporting reasons, the same is
liable to be quashed.
Substantial reduction in quantum of damages by the EPF Appellate Tribunal without giving reasons thereof, shows arbitrary exercise of its powers and jurisdiction.
ORAL JUDGMENT
PER Z.A. HAQ. J.—1. Heard learned advocates for
the parties.
2. RULE. Rule made returnable forthwith
3. The petition has been filed challenging the order
passed by the Employees Provident Fund Appellate
Tribunal, under section 7I of the Employees Provident Fund and Miscellaneous Provisions Act, 1952
(hereinafter referred to the as “the Act of 1952”).
4. Initially, the writ petition was filed by the Assistant
Provident Fund Commissioner, however, in view
of the judgment given by this Court in the case of
the Assistant Provident Fund Commissioner, Goa v.
Nirmitee Holidays (P) Ltd., Pune, reported in 2011
II LLJ 469 (Bom) and the judgment given by this
Court in the case of The Regional Provident Fund
Commissioner, Employees’ Provident Fund Organisation v. Malegaon Sah. Sakhar Karkhana Ltd., reported in 2014 LLR 1035, the writ petition has been
amended and the Central Board of Trustees has
been shown as petitioner No. 1.
5. In this petition, the issue which arises for consideration is, as to whether the order passed by
the Appellate Tribunal reducing the damages as
imposed by the Assistant Provident Fund Commissioner while exercising powers under Section 14-B
of the Act of 1952 to the extent of 80%, is proper.
6. Shri Dharmadhikari, the learned advocate for the
respondent has raised preliminary objection to the
maintainability of the petition on the ground that the
Assistant Provident Fund Commissioner, who is petitioner No. 2, cannot maintain the writ petition as he
is quasi-judicial authority whose order is set aside
by the Appellate Tribunal and therefore, cannot file
writ petition. The learned advocate for the respondent has further submitted that the Central Board
of Trustees i.e. petitioner No. 1 has delegated the
powers to prosecute the petition to the Assistant
51 — January, 2016
Provident Fund Commissioner i.e. petitioner No.
2 which is not permissible. It is submitted that the
Appellate Tribunal is supreme authority under the
Act of 1952 and this is clear from the provisions of
Section 7L(4) of the Act of 1952, which lays down
that the order made by the Tribunal finally disposing
of the appeal shall not be questioned in any Court
of law. It is submitted that the Assistant Provident
Fund Commissioner is subordinate authority under
the scheme of the Act and it cannot challenge the
order passed by the Appellate Tribunal. It is further
submitted that Section 7L(2) of the Act of 1952 provides alternate remedy and the petitioners could
have approached the Tribunal under Section 7L(2)
of the Act of 1952 if at all they are aggrieved by the
impugned order. On these grounds, the respondent
No. 1 has objected to the maintainability of the petition.
7. Shri Verma, the learned advocate for the petitioners has submitted that the Appellate Tribunal
has committed an error of jurisdiction by reducing
the amount of damages upto 80%, as assessed by
the Assistant Provident Fund Commissioner. It is
submitted that the Assistant Provident Fund Commissioner had imposed penalty after considering
the relevant material on the record and the order
passed by the Assistant Provident Fund Commissioner could not have been interfered with by the
Appellate Tribunal in the circumstances of the case.
The learned advocate for the petitioner has submitted that the Tribunal has no jurisdiction to reduce
the amount of damages and the power lies only with
the Central Board of Trustees under paragraph 32B
of the Employees Provident Fund Scheme, 1952.
It is submitted that the Appellate Tribunal has reduced the amount of damages substantially by 80%
without recording any reasons and therefore, the
impugned order is unsustainable in law. It is prayed
that the impugned order be set aside and the order
passed by the Assistant Provident Fund Commissioner be restored.
Shri Dharmadhikari, the learned advocate for the
petitioners has submitted that the Appellate Tribunal while deciding the appeal under Section 7L of
the Act of 1952 has power to reduce the quantum
of damages and for this he relied on the judgment
given by this Court in the case of Regional Provident Fund Commissioner, Nagpur v. M/s. Manoharbhai Ambalal, reported in 2011 (3) Mh LJ. 908.
The learned advocate has submitted that the Tribunal has rightly reduced the quantum of damages
and the impugned order does not require any interference by this Court.
8. After considering the submissions made on behalf of the respective parties and after examining
2016
M/s. Bedi & Bedi Associates (Regd.) vs. Central Board of Trustees
the judgments relied by them, I find that the Division
Bench of this Court in the case of Regional Provident Fund Commissioner (supra) has laid down that
the Appellate Tribunal while deciding the appeal under Section 7L of the Act of 1952 can reduce quantum of damages and though paragraph No. 32B of
the Employees Provident Fund Scheme of 1952
gives similar power to the Central Board of Trustees, it cannot be said that the Appellate Tribunal
does not have such power. In view of this, it cannot
be said that the order passed by the Appellate Tribunal is without jurisdiction.
9. However, the impugned order shows that the Appellate Tribunal has not applied its judicious mind in
the matter. The Appellate Tribunal has not recorded
any reasons on the basis of which the reduction in
the quantum of damages upto 80% of the amount
as assessed by the Assistant Provident Fund Commissioner has been reduced. The absence of reasons for reducing the quantum of damages substantially shows arbitrary exercise of powers and
jurisdiction by the Appellate Tribunal which is unsustainable in law.
10. In view of the above, the petition is allowed. The
impugned order is set aside. The matter is remitted
to the Tribunal for deciding the appeal filed by the
respondent on merits according to law.
The respondent and the representative of the petitioner shall appear before the Tribunal on 19th
June, 2015 at 11.00 a.m. and abide by the further
orders/ instructions in the matter.
As the appeal is of 2005, the Tribunal is directed to
dispose the appeal till 30th September, 2015.
Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
—————
2016 LLR 7
DELHI HIGH COURT
Hon’ble Mr. Sunil Gaur, J.
W.P. (C) No. 8576/2015 and C.M. Nos. 18547-48/2015,
D/–7-9-2015
M/s. Bedi & Bedi Associates (Regd.)
vs.
Central Board of Trustees
EMPLOYEES’ PROVIDENT FUNDS APPELLATE
TRIBUNAL (PROCEDURE) RULES, 1997 – Rule
21 – Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 – Sections 14B,
7A and 7Q – Appeal – Against the order under
section 14B – Appellate Tribunal by impugned
order has directed the petitioner to deposit 50%
7
of damages levied in proceedings under section 14B of Act – However requirement of predeposit under section 7Q is confirmed to the
determination of dues under section 7A of Act
– And does not apply to damages levied under
section 14B of Act – Inherent powers conferred
upon the Tribunal by Rule 21 is confined to give
effect to its orders – It does not confer any discretionary powers upon the Tribunal to insist for
pre-deposit in appeals – Hence impugned order
is set aside – Tribunal is directed to hear the appeal without any pre-condition.
Para 6
For Petitioner: Mr. S.P. Arora and Mr. Rajiv Arora.
Advocates.
For Respondent: Mr. R.R. Rajesh, Advocate.
IMPORTANT POINTS
Pre-requisite of deposit of
the amount determined is applicable to the order passed by the
EPF Authority under section 7A
of the Employees’ Provident Funds
and Miscellaneous Provisions Act,
1952 and no other provisions of
the Act including damages levied
under section 14B of the Act.
The
inherent
powers
conferred
upon the Employees’ Provident Fund
Appellate Tribunal by Rule 21
of
the Employees’ Provident
Funds
Appellate
Tribunal
(Procedure)
Rules, 1997, are confined to give
effect to its orders and it
does
not confer any discretionary powers upon the Tribunal to insist
for pre-deposit in appeals pertaining to determination of
damages leviable under section 14B
of the Act.
JUDGMENT
SUNIL GAUR, J.—1. The Employees’ Provident
Funds Appellate Tribunal, vide impugned order of
18th August, 2015 directs petitioner to deposit 50%
of the damages levied in proceedings under Section
14B of The Employees Provident Funds and Miscellaneous Provisions Act, 1952 as a precondition for
entertaining petitioner’s appeal against order (Annexure P-2) under Section 14B of the aforesaid Act.
Notice.
January, 2016 — 50
8
S. Maithani vs. Chairman-cum-Managing Director, Cement Corporation of India Ltd.
Mr. R.R. Rajesh, Advocate, accepts notice of this
petition.
2. With the consent of learned counsel for the parties, this petition is taken up for final hearing and
disposal.
3. The submission of learned counsel for petitioner is that the Employees Provident Funds Appellate Tribunal has no inherent powers to direct
pre-deposit of any amount in proceedings under
Section 14B of the aforesaid Act. To submit that
the impugned order is illegal and invalid, reliance
is placed upon decisions in Old Village Industries
v. APFC, EPFO & Anr. 2005 (104) FLR 876 (Del):
2005 LLR 552; RPFC v. RPFAT & ors., (2013)
169 PLR 290; Ayureved Rugnalaya v. APFC, 2014
SCC Online Del 7086 and decisions of Co-ordinate
Bench of this Court of 15th May, 2013 in W.P.(C)
No. 3176/2013; Saraya Sugar Mills v. RPFC; of
4th February, 2015 in W.P.(C) No. 1085/2015 V.B.
Secrity Services v. Assistant Provident Fund; 31st
July, 2013 in W.P.(C) No. 4439/2012; Employees
P.F. Organization v. Etoile Creations & anr., and of
28th August, 2015 in W.P. (C) No. 8248/2015 M/s.
Evershine Housekeeping Services v. Central Board
of Trustees Through Assistant Provident Fund Commissioner.
4. Learned counsel for respondent supports the impugned order and submits that the learned Tribunal has rightly relied upon decision of High Court
of High Court of Karnataka in Talaguppa Plywood
Products (P) Ltd. v. The Employees’ Provident
Fund Appellate Tribunal & Anr. 2006 (109) FLR 209
(Kar). It is submitted by learned counsel for respondent that the decisions relied upon by petitioner do
not take into consideration the inherent powers of
the learned Tribunal. Attention of this Court is drawn
to Rule 21 of The Employees’ Provident Funds Appellate Tribunal (Procedure) Rules, 1997 to highlight
the inherent powers of the Appellate Tribunal.
5. Upon considering the submissions advanced by
both the sides and on perusal of the impugned order, the relevant provisions of the Act and applicable Rules as well as decisions cited, I find that the
decision of High Court of Karnataka in Talaguppa
(Supra) does not take into consideration the distinction between the ‘levy of damages’ as provided
under Section 14B of the aforesaid Act and ‘the
amount due’, as determined in Section 7A of the
aforesaid enactment and so, the aforesaid decision
has no persuasive value. There are string of decisions by this Court declaring that the pre-requisite
of deposit of 75% of the amount determined is applicable to the orders passed under Section 7A and
to no other provisions of the aforesaid enactment.
The view taken by this Court in Old Village Indus-
& Ors.
LLR
tries & Saraya Sugar Mills (supra) holds good even
today.
6. Thus, it is no longer res integra that the requirement of pre-deposit under Section 7-O of this enactment is confined to the determination of dues under
Section 7A of this Act and does not apply to the
damages levied under Section 14B of this Act. So
far as question of exercising discretionary powers by
the learned Tribunal is concerned, this Court finds
that the inherent powers conferred upon the learned
Tribunal by Rule 21 of The Employees’ Provident
Funds Appellate Tribunal (Procedure) Rules, 1997,
is confined to give effect to its orders and it does
not confer any discretionary powers upon the Tribunal to insist for pre-deposit in appeals pertaining to
determination of the damages leviable under Section 14B of this Act. It needs to be remembered that
the discretion cannot be exercised to supplant the
substantive law.
7. With aforesaid clarifications, this petition and applications are allowed, thereby setting aside the impugned order and the Appellate Tribunal is directed
to hear petitioner’s appeal without any pre-condition.
Dasti.
Petition Allowed.
—————
2016 LLR 8
DELHI HIGH COURT
Hon’ble Mr. Sunil Gaur, J.
W.P. (C) 10302/2015 & C.M. 25641-42/2015,
D/–3-11-2015
S. Maithani
vs.
Chairman-cum-Managing Director, Cement
Corporation of India Ltd. & Ors.
ENQUIRY OFFICER – Change of – When request not justified – Petitioner made representation seeking change of Enquiry Officer on the
ground that attested copies of documents have
been exhibited without production of original
thereof, showing that Enquiry Officer is biased
against the petitioner – Petitioner also made representation to Appellate Authority which was rejected – Petitioner filed writ petition against the
order of the Appellate Authority – Held, merely
because some documents have been taken on
record despite objection of the petitioner, it cannot be pre-judged amidst enquiry proceedings
as to whether Enquiry Officer is biased or not
– Hence, prayer of the petitioner for change of
January, 2016 — 52
2016
S. Maithani vs. Chairman-cum-Managing Director, Cement Corporation of India Ltd. & Ors.
Enquiry Officer is not at all justified – Since the
enquiry proceedings stand virtually completed,
prayer for change of Enquiry Officer cannot be
entertained – Writ petition is disposed of accordingly.
Paras 5 to 7
For Petitioner: Mr. V.P. Singh, Advocate.
For Respondents No. 1 & 2: Mr. K.K. Rai, Senior
Advocate with Mr. S.K. Pandey and Mr. Anshul Rai
with Mr. Ajay Kumar Sharma, Company Secretary,
Cement Corporation of India Ltd.
IMPORTANT POINTS
Merely
because
some
documents
have been taken on record despite
objection of the petitioner, it
cannot be pre-judged amidst enquiry proceedings as to whether
Enquiry Officer is biased or not.
Request for change of Enquiry
Officer on the ground that he has
allowed attested copies of documents to be exhibited by the Management witness without production
of original thereof, is not justified.
Since
the
enquiry
proceedings
stand virtually completed, prayer
for change of Enquiry Officer cannot be entertained.
JUDGMENT ORAL
SUNIL GAUR, J.—1. Petitioner is aggrieved by exhibition of document Nos. 5, 7, 8 & 9 on the ground
that the attested copies of these documents have
been exhibited whereas the originals have not
been produced and so, it is asserted on behalf of
petitioner that Inquiry Officer is biased against petitioner. A Representation (Annexure A-22) seeking
change of Inquiry Officer was made by petitioner to
respondent-Corporation on 23rd April, 2015, which
stands rejected vide impugned order of 1st September, 2015 (Annexure A-26). Petitioner has also
made Representation (Annexure A-23) to the Appellate Authority to respondent-Corporation on 27th
August, 2015.
2. Learned counsel for petitioner submits that the
Representation (Annexure A-23) to the Appellate Authority has been summarily rejected by the
Chairman-Managing Director (CMD) of respondent53 — January, 2016
9
Corporation in the capacity of Chairman of the Appellate Authority, but the Representation (Annexure
A-23) ought to have been considered by the Board
of respondent-Corporation.
3. During the course of hearing, learned counsel
for petitioner had placed on record copy of inquiry
proceedings containing examination and cross-examination of witnesses i.e. MW-1 & MW-2 to submit that the inquiry proceedings are not being conducted in consonance with the principles of natural
justice, as inadmissible documents are taken on record.
4. Learned senior counsel for respondent-Corporation informs that the Inquiry proceedings stand concluded on 16th October, 2015 and the parties have
been directed to file their respective written brief.
He points out that the Representation made by petitioner to the Appellate Authority does not lie as the
impugned orders (Annexures A-24 & A-26) are not
appealable.
5. Upon hearing and on perusal of the Representation (Annexure A-22), impugned orders (Annexure
A-24 & A-26) as well as material on record, I find
that merely because some documents have been
taken on record would not justify the change of Inquiry Officer, as I find that the objection of petitioner
has been duly noted in the inquiry proceedings and
the said objection has been over-ruled. Whether
over-ruling of petitioner’s objection is justified or not
cannot be pre-judged amidst inquiry proceedings.
On a bare perusal of the copy of deposition of the
witnesses as well as impugned order, I find that
petitioner’s prayer for change of Inquiry Officer is
not at all justified. The question of admissibility/ inadmissibility of documents placed on record during
inquiry proceedings is left open to be considered at
the final stage in the inquiry proceedings.
6. Since the Inquiry proceedings stand virtually
completed, therefore, petitioner’s prayer for change
of Inquiry Officer cannot be entertained while invoking the writ jurisdiction of this Court. As already observed above, there is no justification for change of
Inquiry Officer in the circumstances of this case.
7. With above said observations, this petition and
applications are disposed of while not commenting
on the merits of the case, lest it may prejudice either side in inquiry proceedings.
—————
M/s. Delhi Tourist Bus Service vs. Dayal Singh
10
2015 LLR 10
DELHI HIGH COURT
Hon’ble Ms. Sunita Gupta, J.
W.P.(C) 1559/2013, D/—28-10-2015
M/s. Delhi Tourist Bus Service
vs.
Dayal Singh
A. TERMINATION – Of services of a Driver –
When illegal – Claim of the workman was
that we was working since 1977 – His services were terminated illegally in 2006 – As
per version of Management he was with
them since 1985-86 as a daily wager, he was
regular absentee, he caused accident, he
was not having valid driving licence, badge
No. – However, Management did not prove
any deficiency on the part of workman by
leading any cogent evidence – Since his
services were terminated without any show
cause notice or conducting of enqluiry i.e.
in violation of principles of natural justice
as well as provisions of section 25F of the
Industrial Disputes Act, 1947, the Labour
Court awarded a lumpsum compensation
of Rs. 1,50,000 Management challenged
the Award in writ petition – Held, since the
Management failed to prove its version, the
Award passed by the Labour Court does not
suffer from any infirmity – Writ petition is
dismissed.
Paras 11 to 14
B. COMPENSATION – In lieu of reinstatement
– Justification of – Workman was awarded
lumpsum compensation instead of reinstatement observing that being driver, he
would have not remained unemployed for a
long time – High Court confirmed it as justified and not excessive.
Para 17
C. CONSTITUTION OF INDIA, 1950 – Article 226
– Writ Court will interfere with the Award
only if the findings of the Labour Court are
perverse or in violation of principles of natural justice or there is any error apparent on
the face of the record – Writ Court is not to
sit as an Appellate Court over the Award.
Para 16
For Petitioner: Mr. Shashi Shanker with Mr. Vikas
Chaubey, Advocates.
For Respondent: Mr. Jayant Kumar, Advocate.
LLR
IMPORTANT POINTS
Termination of services of
a
workman would be illegal if
the
same has been effected by the
Management
without
conducting
proper domestic enquiry since such
an action on the part of the Management is in violation of section 25F of the Industrial Disputes Act, 1947 and principles of
natural justice.
Awarding lumpsum compensation
instead of reinstatement observing
that workman being driver would
not have remained unemployed for
a long time, is justified.
Writ Court, under Article 226
of the Constitution of India, will
interfere with the Award only
if
the findings of the Labour Court
are perverse or in violation of
principles of natural justice or
there is any error apparent on
the face of the record and it is
not to sit as an Appellate Court
over the Award.
JUDGMENT
SUNITA GUPTA, J.—1. The petitioner (hereinafter
referred to as ‘the management’) lays challenge to
the award dated 30.08.2011 passed by the Labour
court – V, Karkardooma Courts, Delhi in ID No. 3/07
vide which a compensation of Rs. 1,50,000 was
awarded in favour of the respondent (hereinafter referred to as ‘the workman’).
2. The workman filed a claim alleging inter alia that
he was employed with the management as driver
since January, 1977 on a monthly salary of Rs.
4,000. His services were illegally terminated with
effect from 15.12.2006 in violation of Section 25 of
the Industrial Disputes Act (hereinafter referred to
as ‘the ID Act’).
3. The management contested the case of the
workman by alleging that he was working as a
daily wager since 1985 – 86. He was negligent in
performance of his duties and was a regular absentee. He had also caused an accident while he
was driving bus bearing registration number DL 1P
8237 and a case was registered which was later on
compounded. The management had to pay a sum
of Rs. 10,000 on behalf of the workman to the other
January, 2016 — 54
2016
M/s. Delhi Tourist Bus Service vs. Dayal Singh
party. In the month of June, 2006, the management
found that the workman was not having a valid license as the same had expired. He was also not
having the badge in accordance with the guidelines
of the Hon’ble Supreme Court and had not got it renewed from 01.06.2006 onwards. The management
never terminated his services and he was asked not
to drive the vehicle till he was having a valid license
and badge. The workman is gainfully employed as
such dismissal of the claim of the workman was
prayed.
4. On 14.01.2008, following issues were framed:
(1) Whether the services of the workman were
terminated illegally and/or unjustifiably by the
management?
(2) Whether workman was having valid license
and badge number to drive the bus at the
time of his alleged termination?
(3) Whether the workman left the services of the
management of his own?
(4) Relief
5. Vide the impugned award, the issues were decided in favour of the workman and against the management and it was held that the services of the
workman were terminated illegally and unjustifiably
by the management. Although the workman alleged
that he is unemployed, however, being a driver, he
would not have remained unemployed for a long
time, therefore, the Labour Court did not deem it
fit to order reinstatement of the workman. Instead,
a compensation for Rs. 1,50,000 was awarded to
the workman and the management was directed to
pay the same within a period of one month from the
date of publication of award failing which the management was also directed to pay interest @ 8%
per annum till actual payment.
6. Feeling aggrieved, the management has filed the
present writ petition.
7. The basic submission of learned counsel for the
management is that the workman was not having
valid license and badge and, therefore, he could not
drive vehicle. He was asked to get the same before
driving the vehicle. In the absence of having driving
license and badge, the management could not take
the risk of getting the vehicle plied from the said
workman.
8. The counsel for the workman, on the other hand,
referred to the conduct of the management from the
inception of filing of the claim by stating that initially
when the claim was filed, the management did not
file written statement and was proceeded ex parte.
Subsequently, the ex parte order was set aside
and the written statement was filed. Again during
the course of evidence, the management was pro55 — January, 2016
11
ceeded ex parte which on the application moved by
the management was again aside aside and at the
time of final arguments none appeared for the management to address arguments and despite opportunities granted written submissions were also not
filed. Not only that, when this writ petition was filed,
the operation of the impugned award was stayed
subject to deposit of 75% of the awarded amount
within four weeks. The amount was not deposited
and the writ petition was dismissed in default due
to non-appearance of the petitioner. Thereafter, the
petition was restored subject to cost of Rs. 2,000.
The same was also not deposited in time. The 75%
of the awarded amount and the costs were deposited at a belated stage. Even thereafter, it was the
endeavour of the management to delay the disposal
of the writ petition as on one or the other pretext,
adjournments were being sought. The writ petition
itself has been filed after a delay of one and a half
years of passing of the impugned award.
9. On merits, it was submitted by the counsel for the
workman that the impugned award does not suffer
from any infirmity. The management witness admitted in cross examination that the respondent was
having a valid license upto the period 2009. The
termination of the workman was in violation of Section 25F of the ID Act. Neither any show cause notice was given to the workman nor any opportunity
of hearing or explaining the default, if any, was afforded to him. That being so, the Labour Court was
justified in passing the impugned award as such the
petition is liable to dismissed.
10. The basic controversy involved in this case is
whether the workman was having valid license and
badge as according to the management since the
workman was not having valid license and badge
therefore he was asked not to drive the vehicle till
he possesses the same.
11. As regards valid license is concerned the Labour Court came to the conclusion that the workman had discharged its initial burden to show that at
the time of termination, he was having valid license.
He had proved documents Ex.WW1/7. The license
was issued on 20.01.1978 for Heavy Transport Vehicle which was renewed and on renewed license,
the date of issue was 6.11.2006 which was valid
upto 5.11.2009. As such on the date of termination
i.e., 15.12.2006, the workman was having a valid
license for driving heavy vehicle. The management
had alleged that the workman was not having a
valid during the period 2003 to 2006, however, this
suggestion was denied by the workman and no evidence to the contrary was led by the management.
As such, regarding the issue of workman having
valid license, there is no infirmity in the order.
12
Indira Gandhi National Open University vs. Union of India and Another
12. However, as regards ‘badge’ is concerned, no
specific finding has been given by the learned Labour Court in this regard. It was the case of the
management that as per guidelines of Supreme
Court, the driver was required to undergo certain
tests for having valid badge which the workman did
not undergo. The workman admitted in his cross
examination that he was having a badge which was
issued in the year 1978. He admitted that he did not
undergo any test regarding the badge. Under the
circumstances, the fact that the driver was having
a valid badge was not proved but no finding in this
regard was given by the Labour Court.
13. However, this fact itself is not sufficient to interfere in the findings of the Labour Court as findings on the other issues were also given in favour
of the workman. The onus of proving issue No. 3
as to whether the workman left the services of the
management of his own was on the management.
The management had taken the plea that the workman himself had stopped coming to the office of the
management as he was not having a valid license
and proper badge. However, no show cause notice was given to the workman with regard to his
absence from service nor any charge-sheet was
given to him nor any enquiry was conducted. The
learned Labour Court relied upon D.K. Yadav v. M/s
J.M.A. Industries Ltd., (1993) 3 SCC 259 wherein it
was held that striking off the name of the workman
from the rolls on the ground of absence from duty
amounts to retrenchment and in the interest of justice and fairness, a reasonable opportunity must be
given to an employee to enable him to put forth his
case. The management, in the instant case, did not
produce any evidence to show that the workman did
not join duty since June, 2006 onwards as such the
management failed to prove that the workman left
the services of his own.
14. As regards the issue No. 1 as to whether the
services of the workman were illegally terminated
by the management, the claim of the workman was
that he was working with the management as driver
since 1977 and his last drawn salary was Rs. 4,000
per month. According to him, his services were illegally terminated on 15.12.2006. In order to substantiate this fact, the workman proved certain documents including a certificate issued by Shri S.P.
Kakkar, a partner of the petitioner wherein it was
certified that the workman was working as a driver
with the management for the last 20 years and that
he was a good driver having license bearing number C030722000207265 and badge number 51830.
Although an objection was taken that there was an
overwriting on the words ‘twenty’ but no evidence
was led by the management to prove that the work-
LLR
man was not working with the management for the
last 20 years and therefore it was held that despite
the fact that the workman was having a valid license, his services were illegally terminated by the
management. The aforesaid finding does not suffer
from any infirmity.
15. Moreover, although the award was passed
on 30.08.2011, the instant petition has been filed
only on 07.03.2013 i.e. after a lapse of one and
half years of passing the impugned award. In Ajay
Kumar & Ors. v Killburn Office Automation Ltd.,
MANU/DE/4753/2009 the delay in filing the writ petition after expiry of more than two years from the
date of award was considered to be fatal and the
writ petition was dismissed on account of delay and
laches.
16. Last but not the least, while exercising writ jurisdiction under Article 226 of the Constitution of India,
this Court is not sitting in appeal over the award given by the Labour Court. The scope of interference
is very limited. The Court will interfere only if the
findings are perverse or is in violation of principles
of natural justice or there is any error apparent on
the face of record. The instant case does not fall
within the four corners of any of the aforesaid criteria which warrants interference.
17. The learned Labour Court while granting relief
has not even directed reinstatement keeping in view
the fact that the workman being a driver would not
have remained unemployed for a long time therefore compensation was awarded which cannot be
termed as excessive.
18. In view of aforesaid discussion, the writ petition
is dismissed.
There shall be no order as to costs.
Trial Court record be sent back forthwith.
—————
2016 LLR 12
DELHI HIGH COURT
Hon’ble Mr. Vedprakash Vaish, J.
W.P. (C) No. 901, 902, 903 etc. etc./2014, D/–5-8-2015
Indira Gandhi National Open University
vs.
Union of India and Another
A. CONTRACTOR – Engaged by the principal
employer – The worker of the contractor,
even on illegal termination, has no right to
claim reinstatement from the principal employer – Workmen did not raise any contention in their statement of claim or even
January, 2016 — 12
2016
Indira Gandhi National Open University vs. Union of India and Another
before the Conciliation Officer or Tribunal
that the contract between the contractor
and the petitioner was sham and bogus –
No evidence was adduced by the parties in
this respect – No arguments were heard on
this issue – Only contention of the workmen
was that their services have been illegally
terminated by the petitioner – A Tribunal is
bound by the terms of reference – It cannot
go beyond it – Though Tribunal may decide
matters incidental to the main dispute – A
decision rendered on any issue beyond the
terms of reference is not sustainable under
law – Hence, finding of the Tribunal in this
respect, awarding reinstatement by the principal employer, is beyond the scope of reference and must consequently fail – In the
absence of pleadings and evidence, Tribunal could not have entertained such an issue.
Para 24
B. REINSTATEMENT – Worker of contractor
– By the principal employer – Not justified
– Labour Court allowed the claim filed by
the workers – Management challenged the
Award in writ petition – Held, validity of contract between contractor and the principal
employer was not challenged by the workers – No issue was framed on this point –
Wage-sheets, produced, confirm that wages
were paid by the contractor to its workers –
EPF returns filed by the contractor are having names of the workers – Bills raised by
the contractor upon the principal employer
establish that workers were employees
of the contractor – Thus workers failed to
prove their employment with the petitioner –
Hence, awarding reinstatement by the petitioner to the workers of the contractor is not
sustainable – Accordingly, impugned Award
is set aside – Writ petition is allowed.
C. RELATIONSHIP OF EMPLOYER-EMPLOYEE
– Factors for determination – Workers engaged through contractor raised an industrial dispute alleging them to be employees
of the principal employer – They failed to
prove relationship of employer-employee
with the principal employer on the basis of
any document – Contractor produced its record of attendance, payment of wages, ESI
contributions and EPF contributions – Such
records reveal that attendance of the workers was maintained by the contractor, wagebills were raised by the contractor alongwith
copies of ESI challans and EPF challans
confirming payment of respective contribu13 — January, 2016
13
tions in the accounts of the workers – Wages and other emoluments, if any, were paid
by the contractor to its employees through
cheques – Held, in view of such evidence,
the Tribunal has correctly concluded that
relationship of employer-employee is not
established between the petitioner and the
workmen.
Para 20
For Petitioner: Mr. Aly Mirza and Mr. Kulish Tanwar, Advocates.
For Respondent: Mr. V.N. Kaushik, Advocate.
IMPORTANT POINTS
The workers of the contractor, even on illegal termination,
have no legal right to claim reinstatement from the principal employer.
If the workmen did not
raise
any contention in their statement
of claim or even before the Conciliation Officer or Tribunal by
way of evidence or arguments that
the contract between the contractor and the petitioner was sham
and bogus, giving finding by the
Industrial Tribunal/Labour Court
that the contract between the
principal employer and the contractor was sham or bogus, is not
sustainable.
An Industrial Tribunal/Labour
Court is bound by the terms
of
reference, it cannot go beyond it,
though it may decide matters incidental to the main dispute but
a decision rendered on any issue
beyond the terms of reference is
not sustainable under law.
When the appointment letters
are issued to the employees by
the contractor, wages and attendance records are matained by the
contractor, wages are paid by the
contractor, ESI and EPF contributions are deposited by the contractor in the respective accounts
of its workers, disciplinary action against the employes,
if
14
Indira Gandhi National Open University vs. Union of India and Another
any, is managed by the
contractor, such employees cannot
claim
to be employees of the
principal
employer.
Mere performing of work for
the principal employer or in
the
premises of the principal employer is not sufficient to establish
relationship of employer-employee
between the principal employer and
the employees when the contractor
is registered under the
Contract
Labour (Regulation and Abolition)
Act, 1970, having Code numbers
under the Employees’ State Insurance Act, 1948 and
Employees’
Provident Funds and Miscellaneous
Provisions Act, 1952.
ORDER
VEDPRAKASH VAISH, J.—1. By all these petitions under Articles 226 and 227 of the Constitution of India, the petitioner has impugned the award
dated 09.12.2011 passed by the Presiding Officer,
Central Government Industrial Tribunal No. 1 (hereinafter referred to as the “Tribunal’), Karkardooma
Court, Delhi in ID No. 04/2010, 17/2010, 03/2010,
15/2010, 08/2010, 10/2010, 16/2010, 18/2010,
07/2010, 09/2010, 05/2010, 14/2010 and 06/2010
respectively whereby the labour court allowed the
claim filed by the respondent No. 2 (workman in all
the respective petitions) and accordingly directed
reinstatement of the respondent No. 2 in the service
of the University with continuity and consequential
benefits alongwith 20% back-wages from the
date
of alleged retrenchment till the date of the award
becoming operative under Section 17A of the Industrial Disputes Act, 1947 (hereinafter referred to
as the ‘ID Act’).
2. Since all these petitions are between the same
parties, all the petitions are against award dated
09.12.2011 passed by the Tribunal and involve
identical question of law, they are being disposed
of by this common judgment. For the sake of brevity the facts are being extracted from
W.P.(C)
No. 901/2014.
3. Briefly stating the facts as emerging from the
said petition are that the petitioner entered into a
contract with Sybex Computer System Pvt. Ltd. vide
agreement dated 01.11.2004 for outsourcing housekeeping services. This contract was subsequently
extended upto 31.10.2007. Respondent No. 2 was
working with the said contractor to provide house-
LLR
keeping services in the petitioner’s campus. With
effect from 01.11.2007, the contract for providing
housekeeping services was given to Spick & Span
Facilities Management Pvt. Ltd. The new contractor
brought his own housekeeping staff for the duration
of its contract.
4. Against this new contract, the housekeeping staff
including respondent No. 2 resorted to illegal strike
in the Petitioner University and tried to hinder the
functioning of the University. In view of the obstruction so caused by the staff of the previous contractor, the University was compelled to file a suit for
injunction bearing CS(OS) No. 83 of 2008 before
this court. On 15.01.2008, an interim injunction was
passed in favour of the Petitioner University. Thereafter, on 13.03.2009, the said suit was decreed and
it was held that workmen of Sybex Computer System Pvt. Ltd. cannot be stated to be appointed by
the petitioner.
5. The respondent No. 2 raised an industrial dispute against her termination and on the failure of
the conciliation proceedings, a reference was made
by the appropriate government to the Tribunal vide
order No. L-42012/96/2009-IR(DU) New Delhi dated 07.01.2010 under the following terms of reference:—
“Whether the action of the management of
Indira Gandhi National Open University, in terminating the services of their workman Smt. Saroj w.e.f. 01.11.2007 is legal and justified: If not,
what relief the workman is entitled to?”
6. In the said industrial dispute, the parties were
heard, evidences were adduced from both sides
and witnesses were cross-examined leading finally to the passing of the impugned award dated
09.12.2011.
7. Learned counsel for the petitioner contended that
the impugned award is contrary to law and judicial
pronouncements. The tribunal had framed certain
issues for adjudication which were although decided
in favour of the petitioner, however, it proceeded to
consider and adjudicate on the issues which were
neither pleaded nor on which any evidence was led
nor any argument advanced by respondent No. 2.
Even though the tribunal had reached a conclusion
on the basis of material on record, that respondent
No. 2 was the employee of the contractor, i.e., Sybex Computer Pvt. Ltd, despite this, Tribunal granted the relief in favour of the workman on the basis
of the issues which were never framed nor argued
much less any evidence led in that behalf.
8. It was further contended by learned counsel for
the petitioner that the Tribunal reached to the conclusion that the contract between the University and
January, 2016 — 14
2016
Indira Gandhi National Open University vs. Union of India and Another
the contractor was sham and granted reinstatement
to the workman respondent No. 2 without appreciating the fact that nowhere in the entire statement of
claim it was contended that the said contract was
sham and bogus. The contractor was never made
a party to the proceedings. The Tribunal could not
have given such finding in the absence of the contractor. Despite this, the petitioner led evidence to
show that the contractor was paying EPF and ESI
dues to the authority concerned. The Tribunal also
acknowledged that the evidence was led in this
behalf and observed that the contractor was regularly making contribution in respect of housekeepers
such as respondent No. 2 to the authorities concerned.
9. It was also contended on behalf of the petitioner
that in case the workers engaged by the contractor are made regular employees of the principal
employer, then the whole purpose of the contract
labour would get frustrated. In case of violation by
either party of the Contract Labour, the remedy,
if any, lies with the Authorities under the Contract
Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the “CL Act”) and under such
circumstances, no direction for regularisation of the
contract workers could have been passed.
10. Lastly, it was contended by the learned counsel
for the petitioner that the Tribunal failed to appreciate that the services of the respondent No. 2 cannot
be regularised with the petitioner. There is no provision for absorption/regularisation of the said respondent in the employment of the petitioner. There was
no relationship of employer-employee between the
management and respondent No. 2. The petitioner
had no right, control and supervision over the appointment, place of work, transfer, promotion, fixation of wages and service condition of the said respondent.
11. In support of his contentions, learned counsel
for the petitioner has placed reliance on, ‘Manager,
RBI, Bangalore v. S. Mani & Ors., 2005 LLR 737:
2005 (5) SCC 100: AIR 2005 2179; Haldia Refinery
Canteen Employees Union & ors. v. M/s. Indian Oil
Corpn. Ltd. & Ors., 2005 LLR 592: 2005 (5) SCC
511: AIR 2005 SC 2412; Steel Authority of India
Ltd. & Ors. v. National Union of Water Front Workers, 2001 (7) SCC 1: 2001 LLR 961: AIR 2001 SC
3527: and ‘Gopal v. Bharat Sanchar Nigam Ltd.,
(2014) 213 DLT 325: 2015 (1) ADR 167.
12. Per contra, learned counsel for respondent No.
2 contended that the respondent No. 2 had rendered continuous service with the petitioner for a
period more than one year when she was illegally
retrenched. At the time of her removal, neither was
any notice issued to her nor was she paid retrench15 — January, 2016
15
ment compensation and other legal dues. The petitioner did not challenge the order of reference and
at this stage it is precluded from challenging the
award pursuant to such a reference. Contributions
towards social securities namely ESI, medical benefits and provident fund were deducted from her
wages by the University. Despite the said contribution made by the workman, the University never issued any medical card, provident fund statement or
account number rather passed on this responsibility
on the shoulders of the contractor.
13. It was further contended by learned counsel
for respondent No. 2 that the facilities of earned,
annual, privileged, casual, festival and medical
leaves were not accorded to respondent No. 2.
The work was also taken on Sundays and holidays but no compensatory leave or overtime wages
were given to her. The services of respondent No.
2 were placed at the disposal of the contractor on
01.11.2007 however the engagement of the contractor for housekeeping work was neither communicated nor was such contractor introduced to her.
14. I have learned counsel for the parties and have
perused the material on record.
15. In all these petitions two questions arise for
consideration before this court. Firstly, whether the
workmen (respondent No. 2 in all the petitions)
were employed by the petitioner for housekeeping
services as their own employees or were the said
workmen employees of the contractor, Sybex Computer System Pvt. Ltd. as contended by the management. Secondly, whether the Tribunal exceeded
the scope of its reference by holding that the agreement between the petitioner and the said contractor
was sham and bogus.
16. So far as the first contention of the workmen is
concerned it is observed that in all these petitions
the workmen have stated in their claim statement
and evidence by way of affidavit that they were the
employee of the petitioner establishment. At the
time of taking in employment, they were asked to fill
in certain prescribed form of the Petitioner University and sign the same, which they did. However, the
said form and documents are in the custody of the
petitioner management. They have also asserted
that despite the fact that the petitioner completed all
formalities at their end but they were not issued any
appointment letter. The workmen have also stated
that EPF and ESI numbers were also not supplied
to them.
17. Dr. S.S. Bisht (MW-3) who has appeared as a
witness on behalf of the management before the
trial court has stated in his evidence by way of affidavit that said workmen were neither appointed by
16
Indira Gandhi National Open University vs. Union of India and Another
the petitioner management nor were their services
terminated by the petitioner. No salary/wages or any
other emoluments were ever paid by the petitioner
to them. The petitioner had engaged the services
of the contractor Sybex Computer System Pvt. Ltd.
for outsourcing housekeeping services vide agreement dated 01.11.2004 which was subsequently extended to 31.10.2007. In the said agreement it was
categorically stipulated that all personnel/employees
appointed by the contractor for the purpose of rendering housekeeping services at no time would be
treated as employees of the petitioner. It was further stated therein, that the salaries/wages and/or
any other emoluments including ESI contribution or
EPF contribution were all given to respondent No.
2 by the said contractor. No payments were ever
made by the petitioner to them. For the services
rendered by Sybex Computer System Pvt. Ltd., the
contractor used to raise bills every month and payments were made to it from time to time and were
made by cheques. Before the payments could be
released by means of cheques, Sybex Computer
System Pvt. Ltd. used to raise its monthly bills.
Alongwith the bills the said contractor used to annex
EPFO challan, ESIC challan, service tax challan,
list of housekeepers who worked for the period and
their attendance and proof of payment to them. After the said bills were verified, a contingent bill was
raised thereafter and sanction was given for making the payment. The cheques used to be thereby
drawn by the finance department after sanction was
given. Some of the bills for the arrears of JanuaryMarch 2007, April 2007, May 2007, June 2007, July
2007, August 2007, September 2007 and October
2007 raised by Sybex Computer System Pvt. Ltd.
alongwith respective EPFO challan, ESIC challan, Service Tax challan, list of housekeepers who
worked for the period and their attendance, proof of
payments to them, contingent bill and sanction were
proved before the trial court as Ex.MW3/11 to Ex.
MW3/19.
18. It is no longer res integra that the burden of
proving the employer-employee relationship primarily rests upon the person who asserts its existence.
In a situation where a person asserts to be an employee of the management which the management
denies, the duty primarily rests on the person so asserting to give positive evidence in his favour and
discharge his initial burden. Once such a person
has given positive evidence in his favour, only then,
the burden would shift on the management to give
evidence to counter such claims. This is because it
is always easier to prove positive fact than a negative.
LLR
19. The Hon’ble Supreme Court in ‘Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu’,
AIR 2004 SC 1639 held as under:—
“47. It is a well-settled principle of law that the
person who sets up a plea of existence of relationship of employer and employee, the burden
would be upon him.
48. In N.C. John v. Secretary Thodupuzha Taluk Shop and Commercial Establishment Workers’ Union and Others, 1973 Lab IC 398, the
Kerala High Court held:
“The burden of proof being on the workmen to
establish the employer- employee relationship an
adverse inference cannot be drawn against the
employer that if he were to produce books of
accounts they would have proved employer-employee relationship.”
49. In Swapan Das Gupta and Others v. The
First Labour Court of West Bengal and Others,
1975 Lab. IC 202] it has been held:
“Where a person asserts that he was a workman of the Company, and it is denied by the
Company, it is for him to prove the fact. It is not
for the Company to prove that he was not an
employee of the Company but of some other
person.”
50. The question whether the relationship between the parties is one of the employer and
employee is a pure question of fact and ordinarily the High Court while exercising its power of
judicial review shall not interfere therewith unless
the finding is manifestly or obviously erroneous
or perverse.”
20. From a perusal of the copies of the wage sheets
it is seen that the payment was made to the workmen through the contractor. The documents exhibited as the copies of EPF returns filed by the contractor bear the name of workmen which indicate
that the EPF contributions on their behalf was paid
by the contractor and not the petitioner. Even from
a perusal of the copies of the bills raised by the
contractor for various months and sanction given
by the petitioner for their payment vide documents
Ex. MW3/11 to Ex. MW3/19, the contention of the
petitioner that workmen were not its employee is
fortified. The workmen have not produced any evidence to prove their employment with the petitioner. They have only claimed that at the time of their
appointment they were made to sign some documents by the petitioner and despite their repeated
requests, no appointment letter was issued to them.
As aforementioned, the workmen have claimed that
their ESI and EPF numbers were issued by the petitioner, however the workmen have failed to give
January, 2016 — 60
2016
Indira Gandhi National Open University vs. Union of India and Another
any evidence in support of this contention. In fact,
documents on record show that the payment on behalf of the workmen towards the said account was
made by the contractor Sybex Computer System
Pvt. Ltd. and not the petitioner. Clearly, workmen
have failed to discharge even their primary burden to prove their employment with the petitioner.
On the other hand, the petitioner/management has,
by documents aforementioned clearly shown that
their services were employed through the contractor, Sybex Computer System Pvt. Ltd. Therefore, in
my opinion, the Tribunal has correctly reached at
a conclusion that the relationship of employer and
employee is not established between the petitioner
and the workmen.
21. So far as the question of the Tribunal reaching
at the conclusion that the contract between the petitioner and the contractor Sybex Computer System
Pvt. Ltd. being sham and bogus is concerned, it is
observed that once an industrial dispute is referred
to Labour Court/Tribunal by an appropriate government under a term of reference, the Labour Court/
Tribunal is bound by it and cannot travel beyond it.
Labour Court/Tribunal is a creation of the reference
and the Labour Court cannot go beyond the terms
of reference except that the question incidental to
such a dispute. It is a settled law that where the
workmen claim that the contract between the principal and the contractor was a sham and camouflage,
they have to raise an industrial dispute to that effect and only on a specific term of reference in this
regard, the industrial adjudicator can adjudicate and
decide on it.
22. The Hon’ble Supreme Court in ‘Mukand Ltd. v.
Mukand Staff & Officers’, (2004) 10 SCC 460: AIR
2004 Sc 3905 held as under:—
“36. We, therefore, hold that the reference is
limited to the dispute between the Company and
the Workmen employed by them and that the Tribunal, being the creature of the Reference, cannot adjudicate matters not within the purview of
the dispute actually referred to it by the order of
reference.”
17
pute about the contract being sham and camouflage. They rather claimed that they were direct
employees of the management and did not claim
that they were employees of the contractor. It is
now settled law that where the workmen claim
that the contract between principle employer and
contractor was sham and camouflage, they have
to raise an industrial dispute to that effect and it
is industrial adjudicator who, after going through
the evidence and the terms and conditions of the
contract and other circumstances has to decide
whether the contract between principal employer
and the contractor was sham and camouflage.
If the Industrial Adjudicator comes to conclusion
that the contract was sham and camouflage, the
industrial adjudicator can order the absorption of
the workman by the principal employer. Similarly
in a case where the workman considered that
though they were contractor’s employees but
the contract labour system should be abolished,
they have to approach the appropriate Government under Section 10 of the CLRA Act and it is
the jurisdiction of the appropriate Government to
consider the demand of the workman and after
taking into account the parameters, as laid down
under Section 10 of the CLRA Act, issue a notification of abolition of the contract labour system
in the industry/establishment in respect of specific jobs. The Tribunal or the High Court cannot
exercise powers under Section 10 of the CLRA
Act. This power vests with the Government.
xxxx xxxx xxxx
7. It is obvious that the workmen in this case
did not raise correct dispute and did not approach the appropriate Government with the contentions that the contract was sham and camouflage or that the contract labour system should
be abolished. They got referred a dispute that
they were the employees of the management
and were not being regularized. This claim was
found false. The Labour Court had no alternative
but to dismiss the claim.
23. This court in ‘Ashok Kumar v. The State, W.P.
(C) Nos. 9438-42/2004 decided on 20.12.2006
held that where no reference is made to the Labour Court for determining whether the contract
was sham or camouflage, the Labour Court could
not have entered into this issue. This court held as
under:—
It is settled law that the Labour Courts/Tribunals cannot travel beyond the term of reference.
If no reference had been made to the Labour
Court for determining whether the contract was
sham and camouflage, the Labour Court could
not have entered into this issue and decided
whether the contract was sham and camouflage.”
“5. I consider that this argument of the counsel of the petitioner must fail. The petitioners,
before Conciliation Officer as well as before the
appropriate Government, did not raise any dis-
(Emphasis supplied)
24. In the instant case, the workmen have not
raised any contention in their statement of claims or
even before the conciliation officer and the Tribunal
61 — January, 2016
62
Indira Gandhi National Open University vs. Union of India and Another
that the contract entered into between the contractor and the management was sham and bogus. No
evidences were adduced by the parties to this effect
and even no arguments were heard on this issue. In
fact the only contention that was raised by the workmen was that they were employees of the petitioner
and that their services were illegally terminated by
the management petitioner. Under such circumstances, in an absence of specific reference to the
Tribunal on the issue whether the contract between
the petitioner and the contractor was a sham or not,
the Tribunal could not have gone into this question.
As already observed a Tribunal is bound by the
term of reference and cannot go beyond it. While
deciding such issues, although a Tribunal may decide on matters incidental to the dispute. However,
a decision rendered on any issue beyond the terms
of reference is not sustainable under law. Clearly,
in the instant case, the question of the contract between the petitioner and the contractor being sham
or not was neither a term of reference nor was it an
issue incidental to the dispute. Therefore, the finding on the said issue was beyond the scope of reference and must consequently fail.
25. At this juncture it is pertinent to mention here
that the Tribunal had reached this conclusion on a
mere reading of the contract between the parties
and in the absence of the contractor. The petitioner
had moved an application for impleadement of the
contractor as a party to the proceedings. However
the permission for impleadement was declined by
the Tribunal vide its order dated 24.04.2010. Further in the civil suit bearing CS (OS) No. 83/2008
for permanent injunction preferred by the petitioner
against the workmen and other persons restraining
them from organizing or leading mob in picketing,
gathering, demonstrating, putting tent or shamiana
etc. in front of the petitioner premise, this court has
already reached a conclusion that the workers employed by the contractor Sybex Computer System
Pvt. Ltd. (defendant No. 2 therein) were not the
employees of the petitioner. It was also observed
therein that on conclusion of the agreement between the petitioner and the said contractor, the
persons so employed by them ceased to have any
connection with the petitioner.
26. Another submission of learned counsel for the
workman in respective petitions is that Central Government issued notification S.O. No. 779(E) dated
09.12.1976 whereby the Central Government after
consultation with the Central Advisory Contract Labour Board, in exercise of the power conferred by
Sub-section (1) of Section 10 of the Contract Labour (Regularisation and Abolition) Act, 1970 (37 of
1970) prohibited the employment of contract labour
LLR
on and from the 1st March, 1977, for sweeping,
cleaning, dusting and watching of buildings owned
or occupied by the establishments in respect of
which the appropriate Government under the said
Act is the Central Government. The said notification
reads as under:—
“S.O. No. 779(E)8/9-12-76 in exercise of the
power conferred by Sub-section (1) of Section 10
of the Contract Labour (Regulation and Abolition)
Act, 1970 (37 of 1970) the Central Government
after consultation with the Central Advisory Contract Labour Board hereby prohibits employment
of contract labour on and from the 1st March,
1977, for sweeping, cleaning, dusting and watching of buildings owned or occupied by the establishments in respect of which the appropriate
Government under the said Act is the Central
Government:
Provided that this notification shall not only
apply to the outside cleaning and other maintenance operations of multi-storeyed buildings
where such cleaning or maintenance operations
cannot be carried out except with specialised experience.”
27. However, it is observed in this regard that the
said notification came up for consideration before
the Apex Court in “Steel Authority of India Ltd. and
Ors. v. National Union Waterfront Workers and
Ors.,.(supra), wherein the Hon’ble Supreme Court
while setting aside the said notification observed as
under:—
“53. xxxx xxxx xxxx
A glance through the said notification, makes
it manifest that with effect from March 1, 1977,
it prohibits employment of contract labour for
sweeping, cleaning, dusting and watching of
buildings owned or occupied by establishment
in respect of which the appropriate Government
under the said Act is the Central Government.
This clearly indicates that the Central Government had not adverted to any of the essentials,
referred to above, except the requirement of consultation with the Central Advisory Board. Consideration of the factors mentioned above has
to be in respect of each establishment, whether
individually or collectively, in respect of which
notification under Sub-section (1) of Section 10
is proposed to be issued. The impugned notification apart from being an omnibus notification
does not reveal compliance of Sub-section (2) of
Section 10. This is ex-facie contrary to the postulates of Section 10 of the Act. Besides it also
exhibits non-application of mind by the Central
Government. We are, therefore, unable to susJanuary, 2016 — 62
2016
M/s. National Projects Construction vs. P.O., Industrial Tribunal & Ors.
tain the said impugned notification dated December 9, 1976 issued by the Central Government.”
(Emphasis supplied)
28. It is also worth mentioning here that in the case
of similarly placed workman in ID No. 117/2011
titled as “Rakesh v. The Vice Chancellor, IGNOU,
ID No. 118/2011 titled as ‘Deepak v The Vice Chancellor, IGNOU’, ID No. 119/2011 titled as ‘Sonu
Kumar v. The Vice Chancellor, IGNOU’, ID No.
120/2011 titled as ‘Raj Pal v. The Vice Chancellor,
IGNOU’, and ID No. 121/2011 titled as ‘Mukesh v.
The Vice Chancellor, IGNOU?, the Tribunal has
refused to decide on the question of whether the
contract between the management and the contractor is sham or bogus holding that the said issue was
never referred by the appropriate government for
adjudication of the Tribunal under its terms of reference. While reaching such conclusion, it was also
observed therein that the Tribunal is bound by the
terms of reference and cannot enlarge its scope.
29. In the light of the above discussion, the petitions are allowed to the extent that the impugned
award dated 09.12.2011 passed by the Presiding Officer, Central Government Industrial Tribunal
No. 1, Karkardooma Court, Delhi is set aside to the
extent which directs reinstatement of respondent
No. 2/workmen in the service of the petitioner with
continuity and consequential benefits alongwith 20%
back-wages from the date of his alleged retrenchment.
30. Trial Court record(s) be sent back forthwith.
C.M. Appl. Nos. 1206/2015 & 2173/2015 in W.P.(C)
No. 901/2014
C.M. Appl. Nos. 1212/2015 & 2176/2015 in W.P.(C)
No. 902/2014
C.M. Appl. Nos. 1210/2015 & 2180/2015 in W.P.(C)
No. 903/2014
C.M. Appl. Nos. 8208/2015 & 1813/2014 in W.P.(C)
No. 904/2014
C.M. Appl. Nos. 1217/2015 & 2179/2015 in W.P.(C)
No. 905/2014
C.M. Appl. Nos. 1213/2015 & 2174/2015 in W.P.(C)
No. 912/2014
C.M. Appl. Nos. 1215/2015, 2178/2015 & 1845/2014
in W.P.(C) No. 916/2014
C.M. Appl. Nos. 1214/2015, 2181/2015 & 1849/2014
in W.P.(C) No. 917/2014
C.M. Appl. Nos. 1205/2015 & 2170/2015 in W.P.(C)
No. 919/2014
C.M. Appl. Nos. 1207/2015 & 2177/2015 in W.P.(C)
No. 921/2014
C.M. Appl. Nos. 1211/2015 & 2171/2015 in W.P.(C)
No. 922/2014
63 — January, 2016
19
C.M. Appl. Nos. 1216/2015 & 2175/2015 in W.P.(C)
No. 923/2014
C.M. Appl. Nos. 1204/2015 & 2172/2015 in W.P.(C)
No. 991/2014
In view of my aforesaid findings, the applications
are dismissed as infructuous.
The Registry is directed to release the amount deposited in terms of order dated 15.04.2014 to the
petitioner.
Order accordingly.
—————
2016 LLR 19
DELHI HIGH COURT
Hon’ble Mr. Sunil Gaur, J.
W.P. (C) No. 1961/2001, 1962/2001, 2207/2001,
2212/2001, 2213/2001, 2216/2001 and 2277/2001,
D/–5-11-2015
M/s. National Projects Construction
vs.
P.O., Industrial Tribunal & Ors.
A. EMPLOYER-EMPLOYEE RELATIONSHIP –
When would not exist – Petitioner was having its corporate office consisting of four
floors in Nehru Place, Delhi – It engaged
employees through contractor of jobs of
cleaning, watch and ward only for its Corporate Office – Entire corporate office was
shifted to Faridabad – Consequently, service contract with the contractor was not
renewed resulting into termination of services of the workmen – Only registered
office consisting of two rooms was kept
– House keeping/Security was manned by
employees of petitioner at Delhi as well as
in Faridabad – Workmen raised an industrial
dispute against the petitioner – Petitioner
denied relationship of employer-employee
with the workmen – Labour Court passed
Award in favour of workmen – Management
challenged the Award in writ petition – Held,
in view of dictum of Apex Court in Steel Authority of India & Ors. etc. etc. v. National
Union Water Front Workers & Ors., etc. etc.,
2001 LLR 961 to prohibit the employment of
contract labour, a Notification under section 10 of the Contract Labour (Regulation
and Abolition) Act, 1970 is required to be issued – Since the petitioner is not prohibited
by any such notification to engage contract
labour, it becomes quite evident that there
64
M/s. National Projects Construction vs. P.O., Industrial Tribunal & Ors.
was no relationship of employer-employee
between the parties – It renders the impugned Award unsustainable – Wages and
Employees Provident Fund contributions
were paid by the contractor – Hence, there
was no relationship of employer-employee
between the parties – Impugned Award is
set aside.
Paras 14 and 15
B. REGULARISATION – When demand not
justified – Contract labour receiving wages
from the contractor would not have relationship of employer-employee with the principal employer – Hence, demand for regularisation from principal employer is not justified.
Para 16
For Petitioner: Mr. Paritosh Budhiraja, Mr. Arun
Vashista, Advocates.
For Respondents: Mr. Vijay Sharma, Advocate.
IMPORTANT POINTS
Apex Court in Steel Authority of India & Ors. etc. etc.
v.
National Union Water Front Workers
& Ors. etc. etc., 2001 (5) SCALE
626 has held that to prohibit the
employment of contract labour, a
Notification under section 10 of
the Contract Labour
(Regulation
and Abolition) Act, 1970 is required to be issued.
If required notification under
section 10 of the Contract Labour
(Regulation and Abolition) Act,
1970 is not issued, the principal employer is not prohibited to
engage contract
labour through
independent contractor(s).
be
no
relaThere
will
employer-employee
of
tionship
employer and
between principal
contract labour engaged through
contractor(s), in the absence
of
notification under section 10 of
the Contract Labour
(Regulation
and Abolition) Act, 1970.
When the wages and Employees Provident Fund contributions
were paid by the contractor,
the
employees would be treated of
the contractor and
principal employer.
LLR
not
of
the
Demand for regularisation by
the employees of the contractor(s)
is not justified when the employees were receiving wages from the
contractor.
JUDGMENT
MR. JUSTICE SUNIL GAUR.—1. Petitioner is a
Public Sector Undertaking (PSU) (wholly owned
by the Union of India and Ministry of Water Resources), who had placed two work orders with M/s.
S.S. Placement Services (Regd.) for the purpose of
cleaning, maintaining, upkeeping, etc. vide the work
order of 24th February, 1986 for the Registered/Corporate Office at Raja House, 30-31, Nehru Place,
Sant Nagar and Office at Transit Camp At S-439,
Greater Kailash-II, New Delhi. Respondent workmen herein are the employees of M/s. S.S. Placement Services (Regd.), who had worked with petitioner at their office at Nehru Place at G.K.-II and
after doing the cleaning work, etc., for about three
years, respondent-workmen herein had sought regularization by raising an industrial dispute.
2. During the pendency of the industrial dispute,
petitioner had not renewed the yearly work orders
for the purposes of cleaning, maintenance, etc.,
because the entire corporate office of petitioner at
Nehru Place and Transit Camp had to be vacated
and the entire corporate office of petitioner had
shifted to Faridabad in January, 1994. The transit camp in G.K.-II was also closed. The corporate
office in Nehru Place comprised of four floors and
with the shifting of the Corporate Office and the
Transit Camp, there is no requirement of engaging
workers for the purpose of cleaning, etc., and so,
the work orders were not renewed thereby resulting
in termination of service of respondents-workmen.
The termination of service of respondents-workmen
was challenged by filing a complaint under Section
33A of the Industrial Disputes Act and the trial court
vide impugned Award has decided the Reference
seeking regularization as well as complaint under
Section 33A of the Industrial Disputes Act.
3. The twin issues which are required to be considered in these petitions are as under:—
• Whether relationship of employer and employee
existed· between the parties?
• Whether the workmen concerned named in the
Reference were performing perennial nature of
work?
January, 2016 — 64
2016
M/s. National Projects Construction vs. P.O., Industrial Tribunal & Ors.
4. On the issue of existence of employer-employee
relationship, the finding returned in the impugned
Award is as under:—
“In the case before us, the workmen concerned
were admittedly employed through the contractor
to carry out the jobs of cleaning, watch and ward
and doing other misc. works, whereas the workmen concerned have claimed and succeeded in
establishing that some of them were also doing
supervisory as well as clerical jobs and there existed no genuine contract labour system prevailing with the management. It is not even averred
that the respondents No. 2 or 3 had any licence
to engage contract labour, that the management No. 1 was registered as principal employer.
Therefore, the plea of the management No. 1
that the workmen concerned were not their employees is devoid of any merit. Hence, considering the case of the parties in the light of the law
as laid down in the decisions cited above, I come
to the irresistible conclusion that there existed
relationship of employer and employee between
management No. 1 and the workmen concerned.
I hold accordingly. All the three issues thus stand
decided against the management No. 1.”
5. On the afore-noted second issue, the finding returned, while reproducing the submissions of petitioner-Management, was that the work performed
by respondent-workmen was of perennial nature
6. Petitioner-Management’s submission, as noticed
in the impugned Award, is as under:—
“The work orders which were placed on
M/s. S.S. Placement for the purpose of cleaning, maintaining, upkeep etc. vide work orders
No. 5000002A dt. 24.2.86 exhibit MW1/A and
MW/B were only for the registered office/Corporate Office at Raja House, 30-31, Nehru Place,
Sant Nagar and office at Transit Camp at S-439,
Greater Kailash-II. The entire Corporate Office
has been vacated and shifted to plot No. 67-68,
Sector-25, Faridabad (Har) on 14.1.1994 and
consequent thereto the transit Camp at S-439,
Greater Kailash-II, was also closed and possession thereof has been surrendered to the landlord. After the shifting of the Corporate office
which comprised of Four floors from Raja House,
Nehru Place, Sant Nagar, New Delhi and the
surrender of the transit Camp at Greater Kailash
Part-II, there was and there has been no requirement of the continuance of the work orders for
the aforesaid building. The Registered Office of
the Company alone exists in Raja House, 30-31,
Nehru Place, New Delhi and is housed in only
two rooms and that has to be kept as a statutory formality. The house keeping/Security work
65 — January, 2016
21
as Raja House, ever since then is being manned
by the NPC’s own employees. Even the Security, Cleaning, upkeep of the Corporate office at
67-68, Sector-25, Faridabad is being manned by
the NPCC’s own employees.”
7. At the hearing, learned counsel for petitioner in
the above captioned seven petitions submitted that
the common impugned Award of 31st January, 2000
is assailed in these petitions on identical grounds,
therefore, these petitions were heard together and
by this common judgment, they are being disposed
of.
8. Learned counsel for petitioner assailed the impugned Award on the ground that there existed no
employer-employee relationship between the parties as respondent-workmen were employed by the
contractor, who had taken the work orders in question. Attention of this Court was drawn by learned
counsel for petitioner to paragraph No. 37 of the
impugned Award to point out that the learned Tribunal itself has noted that the contract labour was
engaged by petitioner, but had erroneously concluded that the contract labour system prevailing
with the Management of petitioner was not genuine.
It was pointed out that due to work requirement at
the Nehru Place Office and the Transit Camp, work
orders were placed and the decisions relied upon
by the learned Tribunal in the impugned Award are
of no assistance because in a later Constitutional
Bench decision of the Apex Court in Steel Authority
of India Ltd. & Ors. etc. etc. v. National Union Water
Front Workers & Ors. etc. etc. 2001 (5) SCALE 626,
it has been declared that a Notification under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as CLRA)
has to be issued prohibiting employment of contract
labour and no such Notification was ever issued in
respect of petitioners and even if a Notification under Section 10 of CLRA is issued, but it does not
mean that there is an automatic absorption of contract labour on issuance of such Notification.
9. It was vehemently asserted by learned counsel
for petitioner that the impugned Award is erroneous on the face of it as there was no basis for the
learned Tribunal to come to a conclusion that the
work orders in question were not genuine and in instant case, it cannot be said that the work orders
were camouflaged to evade compliance of beneficial legislation to deprive the workers to avail benefit thereof, as Employees Provident Fund’s benefits
were being extended to the contract labour by the
contractor and so, there is no basis to conclude that
the work orders in question were not genuine. Thus,
it was submitted that the finding on the crucial issue
of there being relationship of employer-employee
66
M/s. National Projects Construction vs. P.O., Industrial Tribunal & Ors.
deserves to be set aside and it ought to be held
that there is no relationship of employer-employee
relationship of petitioner with respondent-workmen.
10. Attention of this Court was drawn by learned
counsel for petitioner to the deposition of petitioner’s witness-S.C. Kalra (MW-1) to point out that he
had specifically stated in his evidence that no wages were being paid by petitioner to respondentsworkmen and no supervisory work was being got
done from respondents-workmen. It was pointed out
that the evidence of petitioner’s witness S.C. Kalra
(MW-1) remains unchallenged and it was pointed
out that it is not even the case of respondents-workmen that any fresh employment was given to do the
work at the Corporate Office of petitioner at Faridabad or at the Registered Office in Delhi.
11. Regarding the perennial nature of work, it was
submitted that the finding returned in the impugned
Award is clearly faulty because it was not disputed
that with the shifting of the entire Corporate Office
of petitioner from Nehru Place/G.K.-II to Faridabad,
there was no work left for respondent-workmen. It
was pointed out that after non-renewal of the work
orders, no workman was appointed/engaged by petitioner in Registered Office in Delhi. It was asserted
that it was the statutory requirement of petitioner to
have a Registered office at Delhi and the said office
was maintained by petitioner’s own employees. It
was pointed out that registered office at Delhi, after
shifting Corporate Office to Faridabad, comprised of
two rooms only and the security, cleaning, upkeeping of the Corporate Office to Faridabad as well as
in Delhi was done by petitioner’s own employees.
Thus, it was submitted that the finding on the aforenoted two issues also deserves to be set aside and
the impugned Award deserves to be quashed.
12. In support of the above submissions, reliance
was placed upon decisions in Goa Sampling Employees’ Association v. General Superintendance
Co. of India Pvt. Ltd. & Ors., AIR 1985 SC 357;
Steel Authority of India Ltd. & Ors. Etc. Etc. v. National Union Water Front Workers & ors. Etc. Etc.
2001 (5) SCALE 626; Hindustan Aeronautics Ltd.
& anr. v. Hindustan Aero Canteen K. Sangh & Ors.
2002 (5) SCALE 78 & International Airport Authority
of India v. International Air Cargo Workers’ Union &
Anr., AIR 2009 SC 3063.
13. On behalf of respondent-workmen, it was submitted that the impugned Award suffers from no illegality or infirmity and respondent-workmen ought
to be given the reinstatement and that the right of
respondent-workmen to seek regularization cannot
be defeated by the subsequent events. It was maintained by learned counsel for respondents-workmen
that although the office of petitioner has shifted, but
LLR
the nature of work remains perennial and so, petitioner ought to be directed to reinstate respondentsworkmen.
14. After having heard both the sides and on perusal of the impugned Award, material on record and
the decisions cited, I find that in view of dictum of
Apex Court in Steel Authority of India Ltd. (supra)
to prohibit the employment of contract labour, a
Notification under Section 10 of CLRA is required
to be issued and in the case of petitioner, no such
Notification was ever issued. Thus, it is clear that
petitioner is not prohibited from employing contract
labour and from the unchallenged evidence of petitioner’s witness S.C. Kalra (MW-1), it becomes
quite evident that there was no employer-employee
relationship between the parties and this by itself
renders impugned Award unsustainable.
15. The impugned finding of engaging respondentworkmen on contract basis being not genuine, is not
supported by evidence on record. Learned Tribunal
was not justified in returning such a finding as the
Employees Provident Fund benefits were being extended to respondent-workmen and they were being
paid waged by the Contractor. Pertinently, wages
were not paid to respondent-workmen by petitioner. Respondent-workmen were employed through
Contractor by means of work orders by petitioner’s
office and with the shifting of the entire Corporate
Office of petitioner from Delhi to Faridabad, there
was no requirement of employing labour on contract basis and so, the work orders were rightly not
renewed by petitioner. This part of evidence led on
behalf of petitioners remains unchallenged. Thus,
finding of there being perennial nature of work is
unsustainable on the face of it.
16. As already noted above, evidence of petitioner
of not employing any person to do the work of security, cleaning, upkeep of the Corporate Office in
Faridabad and Registered Office in Delhi after shifting of the Corporate Office, remains unchallenged.
The claim of respondent-workmen seeking regularization cannot be entertained for the reason that the
relationship of employer-employee never existed
between the parties. Thus, impugned order is rendered unsustainable and is hereby set aside.
17. The above captioned petitions are accordingly
allowed, while leaving the parties to beard their own
costs.
—————
January, 2016 — 66
Rajula Nagarpalika through Chief Officer vs. Kamleshbhai Bhikhubhai Mehta & Anr.
2016
2016 LLR 23
Disputes Act, 1947, it would
be
an illegal termination of services, attracting reinstatement with
back-wages.
GUJARAT HIGH COURT
Hon’ble Mr. K.S. Jhaveri, J.
Hon’ble Mr. A.G. Uraizee, J.
LPA No. 452/2015 in SCA No. 12519/2010 With
C.A. No. 3121/2015, D/–6-4-2015
Rajula Nagarpalika through Chief Officer
vs.
Kamleshbhai Bhikhubhai Mehta & Anr.
A. REINSTATEMENT – Justification of – Petitioner failed to justify termination of services of the workman after due compliance
with the rule of law especially section 25F
of the Industrial Disputes Act, 1947 – Labour Court awarded reinstatement with full
back-wages – Writ petition filed by the employer was dismissed by the learned Single
Judge – In writ appeal, the Division Bench
of the High Court held, when the employer
has failed to comply with the mandatory
provisions of section 25F of the I.D. Act,
then all other pleadings would pale into insignificance or not supported by law – Mere
informing the workman that he can collect
his dues, is not sufficient compliance of
section 25F of the Act – Hence, writ appeal
is dismissed.
Paras 3 and 8
B. COMPENSATION – In lieu of reinstatement with back-wages – When not justified
– Workman was out of job since 2002 – He
was reinstated into service by Labour Court
in 2006 – Learned Single Judge confirmed
the Award – Workman is of 45 years – He is
still to serve for about 15 years – Workman
shall not be able to get any other job at this
age – Hence, compensation shall be meager
enough for him to survive – Awarding lumpsum compensation is not appropriate.
Para 7
For Appellant No. 1: Ms. Vinita S. Vinayak, Advocate.
For Respondent No. 1: Mr. T.R. Mishra, Caveator/
Advocate.
IMPORTANT POINTS
While
terminating
services
of
a workman by way of retrenchment
if the employer fails to comply with the mandatory provisions
of section 25F of the
Industrial
67 — January, 2016
23
When the employer has
failed
to comply with the mandatory provisions of section 25F of the
I.D. Act, then all other pleadings would pale into insignificance
or not supported by law.
Mere informing the workman
that he can collect his dues,
is
not sufficient compliance of section 25F of the Industrial Disputes Act, 1947.
Awarding
lumpsum
compensation is not appropriate, in
view
of the fact that the workman was
out of job since 2002, he was reinstated into service by
Labour
Court in
2006, learned Single
Judge
of 45 confirmed the Award, he is
about years, still to serve for
15 years and he shall not
be able to get
any other job at
this age, compensation shall be
meager enough for him to survive.
ORAL JUDGMENT
PER: KS JHAVERI, J.—1. Admit. With the consent
of learned advocates for both the sides, matter is
taken up for hearing today.
2. The present appeal arises from the judgement
and order dated 25.11.2014 passed by the learned
Single Judge in Special Civil Application No. 12519
of 2010 wherein the writ petition was dismissed the
learned Single Judge and the award passed by the
Labour Court was confirmed. The Labour Court
passed award reinstating the workman with full
back-wages vide award dated 1.7.2010.
3. The learned Single Judge vide judgement and order dated 25.11.2014 had directed as under:
“... Thus, the plain and simple reading of these
observations cannot be considered as a license
conferred upon the petitioner to discharge or terminate the employee without following minimum
of the law in form of Section 25F and other provisions of I.D.Act. It is indeed unfortunate that
the observations of this Court have been misconstrued or attempted to be breached, as if it was
a permission to discharge the employee. The
24
Rajula Nagarpalika through Chief Officer vs. Kamleshbhai Bhikhubhai Mehta
Court has in an unequivocal terms recorded that
the discharge or termination shall be made only
after following the procedure of law. Therefore,
the emphasis placed upon these observations on
the part of the petitioner, is absolutely unjustified
to canvass the submission that the employer was
at liberty to discharge and justify it’s termination.
19. The second submission made on behalf
of the petitioner, that petitioner being back door
entrant could not ordered reinstatement, is also
required to be rejected, as the plain and simple
reading of the order would clearly indicate that
neither the petitioner raised an issue qua respondent-workman being an employee seeking any
other relief. In absence of any appropriate pleadings, the employer could not have found fault
with the order of reinstatement. The written statement, which is indeed a cryptic statement running into page and a half, bereft of any other material followed by no evidence worth the name,
could not have interalia persuade the Court to
pass an order, than the order, which is impugned
in this petition. The employer, in my opinion, did
not did his duty to invite the concerned Court to
pronounce upon the submissions, which have
sought to be canvassed at the bar in this petition. To say the least, when the petitioner has
not bothered to justify it’s stand in any manner
and when the petitioner had failed miserably in
establishing due compliance with the rule of law
especially with the provisions of Section 25F of
the I.D. Act, then all other pleadings would pale
into insignificance and therefore, required to be
ignored as not warranted and not supported by
law.
20. Bearing the aforesaid observations in
mind, if one looks at the decisions cited at bar
(1) State of Himachal Pradesh v. Suresh Kumar
Verma and another, reported in AIR 1996, SC
1565 (2); State of U.P. and others v. Ajay Kumar, reported in (1997) 4 SCC 88 (3) Suo Motu
v. State of Gujarat & others, reported in 2002 1
CLR 730 (Guj) (4) B. Satyanarayana and others v. Tirumala Tirupathi Devasthanam and others, reported in 1999 LIC 2428, it can well be
said that these decisions are hardly of any avail
to the petitioner, as to say the least, it was misconceived on account of counsel thinks these
judgments are applicable to the facts of the present case. On plain and simple reading of these
judgments, it transpires that these judgments
are pertaining to the facts, which were essential
in the realm of service jurisprudence and not in
the jurisprudence of labour, which flows in the
jurisprudence of I.D. Act. As against this, the Su-
& Anr.
LLR
preme Court’s decision cited at bar on behalf of
the respondent-workman, in case of Bhuvnesh
Kumar Dwivedi (Supra), contains elaborate discussion with regard to the relief to be granted
when in a given facts, it is proved that there is a
clear violation of Section 25F. The labour Court’s
decision, impugned in this petition, contains specific findings and also decision based upon the
Supreme Court judgment that mere informing the
workman that you can collect your dues, is not
sufficient to compliance of Section 25F. Section
25F of the I.D. Act, 1947 have two limbs. (1) Notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the
workman has been paid in lieu of such notice,
wages for the period of the notice; (2) the compensation found to be violated, and therefore,
there was absolute justification for passing the
order impugned in this petition.
21. The petition being hopelessly meritless,
which deserve rejection and is accordingly rejected with costs. Rule discharged.”
4. As the appellant is a public authority, this Court
had shown inclination to reduce the back-wages.
However, the orders passed by the labour court
as well as the learned Single Judge have not been
implemented by the appellant till date inspite of the
fact that no stay had been operating. It is required
to be noted that the respondent workman is out of
job since 2006. It is clear that the appellant is not
inclined to comply with the order passed by this
Court.
5. Ms. Vinayak, learned advocate for the appellant
contended that in view of the decision of the Apex
Court in the case of Bharat Sanchar Nigam Limited
vs. Bhurumal reported in (2014) 7 SCC 177, this
court may direct some amount of compensation to
be paid to the respondent workman.
6. We do not find any merit in the contention raised
by learned advocate for the appellant. The respondent workman has been out of job since 2002. He
has been reinstated into service by the labour court
since 2006 and the learned Single Judge has confirmed the said award of the labour court. But till
date the respondent has not been able to enjoy
the fruits of the same. Pending appeal no stay was
granted to the appellant and the court was trying to
find an amicable solution in terms of back-wages.
However, it appears that the appellant is adamant
in its attitude which amounts to flouting the orders
passed by the learned Single Judge as well as the
labour court.
7. So far as the proposition of granting some compensation is concerned, we are of the view that
considering the fact that the respondent is around
January, 2016 — 68
2016
Executive Engineer, Dakshin Haryana Bijli Vitran Nigam Ltd. vs. Presiding Officer and Others
45 years of age and the fact that he still has 15
more years to serve and also the fact that he has
been running from pillar to post for this litigation and
though the orders were in his favour he was not
granted reinstatement by the appellant, we do not
think it fit to award compensation to the respondent
workman at this stage. The respondent workman
shall not be able to get any other job at this age
and the compensation shall be meagre enough for
him to survive. Hence we are of the opinion that the
judgement and order passed by the learned Single
Judge is required to be confirmed.
8. In the premises aforesaid, appeal is dismissed.
The award passed by the labour court be complied forthwith. Civil Application stands disposed of
accordingly.
—————
2016 LLR 25
PUNJAB AND HARYANA HIGH COURT
Hon’ble Mr. Amit Rawal, J.
C.W.P. Nos. 6793 and 6785/2015 (O&M), D/–13-5-2015
Executive Engineer, Dakshin Haryana
Bijli Vitran Nigam Ltd.
vs.
Presiding Officer and Others
INDUSTRIAL DISPUTES ACT, 1947 – Section
10(1) – Award – Termination – No relationship
of master and servant found between the Vitran
Nigam and the workman – Respondent-workman
is in fact employee of H.E.S.L. – Hence no direction to reinstate him in service can be given
to Nigam – And the impugned order is therefore modified, and respondent No. 2 H.E.S.L. is
directed to reinstate the respondent-workman—
With consequential benefits without backwages.
Para 4
For Petitioner: Mr. Suvir Sehgal and Mr. Daman
Dhir, Advocates.
For Respondents No. 2 in CWP No. 6793 of
2015: Mr. Jagat Singh, Advocate.
IMPORTANT POINTS
In the absence of relationship of employer-employee, the
principal employer cannot be
directed by the Labour Court to reinstate the employee of the contractor.
69 — January, 2016
25
Contractor’s employee is entitled to seek relief of reinstatement or back-wages, etc. only
from the contractor and not from
the principal employer.
JUDGMENT
AMIT RAWAL.—1. This order of mine shall dispose
of two writ petitions bearing Nos. 6793 and 6785 of
2015.
For the sake of convenience, the facts are being
taken from CWP No. 6793 of 2015.
Challenge in the present writ petitions is to the
award dated 05.12.2014 (Annexured P-9) passed
by the Presiding Officer, Industrial Tribunal-cumLabour Court, Hisar, whereby, the Labour Court
while holding that there was no relationship of the
employer and employee between the workman
and the Nigam, but in fact, with the HESL. In relief
clause, the Labour Court has directed respondents
No. 1 and 2 i.e. the petitioner and respondent No.
2 to reinstate the workman into service with all consequential benefits with immediate effect but denied
relief qua back-wages.
2. Mr. Suvir Sehgal, learned counsel for the petitioner submitted that there is clear cut illegality and
perversity in the relief clause. In order to lend support to the aforementioned argument,he has drawn
attention of this Court to the finding rendered in
paragraph 14 and 15 which read thus:—
“14. From the evidence on the file, the claim
of the petitioner that he was employed by the
Nigam directly and he remained in the employment of the Nigam continuously for the period
from 27.11.2005 to 19.08.2012 is not proved. In
fact it is borne out from the evidence on the file
that the Haryana Government vide letter dated
01.09.2006 Ex.M-13 took a policy decision for
outsourcing services/activities to meet the emergent requirement of staff. Said policy was adopted by the Nigam vide letter dated 14.09.2006
and it was reviewed CWP No. 6793 of 2015 3
from time to time. It was in pursuance of said
policy the Nigam decided to outsource the numerous services activities as and when required
which included meter reading, bill distribution
and cash collection. The work of meter reading,
bill distribution and cash collection was given by
the Nigam to HSEL. An agreement to that effect
was executed between the Nigam and HESL on
31.10.2005 Ex.M-1 for a period of one year. After
the expiry of said year of one year a fresh agreement dated 31.10.2006 Ex.M-2 was executed for
26
M/s. U.S. Callnet vs. Employees’ Provident Fund Appellate Tribunal,
a period of two years and it was extended from
time to time upto 31.03.2010 vide letters Ex.M-5
to Ex.M-11 when a fresh agreement dated
01.11.2011 Ex.M-4 was executed. The agreement dated 01.11.2011 was also for a period of
2 years. To carry out the work of meter reading,
bill distribution and cash collection, HESL employed number of persons and petitioner was
one of them. As such, there was no relationship
between the work force engaged by the HESL to
carry out the contractual work and the Nigam. All
the payments of the work executed by the HESL
were made by the Nigam to HESL directly and
it was HESL which used to pay the salary to the
work force employed by the HESL to carry out
the contractual work. In that regard Clause (B) of
the terms and conditions of the contract agreement between the Nigam and HESL Ex.M-1 is
relevant which reads as under:—
“For the purpose of payment, the District President of the Ex-Services League will raise the bill
to the concerned Xen-Operation within 3 days of
the end of every month, giving details of Meter
Reading, Bill Distribution and Cash Collection
Sub-division wise. The monthly bills once presented along with the meter reading register on
monthly basis to the Executive Engineer of the
concerned division, will be honored, based on
‘Self-Certification’ by the Nodal Officer of the ExServices League of the concerned district, on the
same day. The bills will thereafter be scrutinized, checked and passed in the normal course
(3-4 weeks). Deductions, if any, will be adjusted
in the next month’s bill.”
15. As such there was no relationship of employer and employee between the petitioner and
the Nigam. In fact said relationship was between
the petitioner and the HESL. Although it is pleaded by the respondents No. 1 and 2 i.e. HESL
that the petitioner was employed on commission
basis and not on payment of fixed salary, but
they did not lead any evidence to prove said fact.
Therefore, the claim of the petitioner that he was
employed on payment of fixed salary will have to
be accepted.”
3. The Labour Court since already held that there
was no relationship of the employer and employee
between the workman and the Nigam, yet in relief
clause, the Labour Court has directed respondents
No. 1 and 2 to reinstate the workman, which according to the finding rendered in paragraphs supra
is totally vague/converse.
4. In view of the fact that the Labour Court has already held that there is no relationship of employer
and employee between the workman and the Nigam
& Ors.
LLR
but, in fact, between the workman and the HESL,
thus, no direction can be issued to respondent No.
1 before the Labour Court and petitioner herein. Accordingly, the relief clause is modified to the extent
that respondent No. 2 is, hereby, directed to reinstate the workman into service with all consequential benefits.
5. It is made clear that in view of the finding of the
Labour Court extracted supra, there is no relationship of employer and employee between the workman and the Nigam-petitioners, therefore, respondent No. 1 is not entitled to give benefits of service,
if any, to the workman.
Writ petitions stand disposed of.
Petition Disposed of.
—————
2016 LLR 26
PUNJAB AND HARYANA HIGH COURT
Hon’ble Mr. Rajiv Narain Raina, J.
CWP No. 17156/2010, D/–29-10-2015
M/s. U.S. Callnet
vs.
Employees’ Provident Fund Appellate
Tribunal & Ors.
EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Section
7A – Coverage of ‘excluded employees’ – EPF
Authority directed the petitioner to deposit the
dues – Petitioner’s stand is that EPF dues were
paid in respect of employees covered under the
Act – Petitioner did not pay EPF dues in respect
of ‘excluded employees’ drawing more than Rs.
6,500 per month whereas the EPF Authority has
taken into account the excluded employees –
Neither the EPF Authority nor the Appellate
Tribunal has examined as to how the ‘excluded
employees’ were coverable under the Act while
passing impugned order – Hence, writ petition
is allowed – Matter is remanded to EPF Appllate
Tribunal for passing fresh order in accordance
with law after weighing the evidence and position of law.
Para 2
For Petitioner: Ms. Harpriya Khaneka, Advocate.
For Respondent: Mr. Rajesh Hooda, Advocate.
IMPORTANT POINTS
A non-speaking or unreasoned
order passed by the lower authority is liable to be quashed.
January, 2016 — 70
2016
Sun Pharmaceutical Industries Limited vs. Presiding Officer and Another
When for passing an order,
the lower authority has not given
detailed reasoning in support
of
its finding, the case may be remanded back to that lower authority to pass fresh order in accordance with law giving reasoning
to its finding.
ORDER
RAJIV NARAIN RAINA, J.—1 The appeal in this
case is preferred against the order passed by the
PF authority under Section 7A of the Employees’
Provident Fund and Miscellaneous Provisions Act,
1952 directing the appellant to deposit the dues.
2. The case of the appellant is that the appellant is a company registered under the Companies Act and appellant was covered under in
the year 2006, the EPF authority included the
excluded employees but the appellant deposited
the dues. The EPF authority started a proceeding under Section 7A and EPF assessed the
dues by including the excluded employees.
3. The case of the respondent is that the appellant engaged more than 20 persons but had
not extended the benefit of EPF Act to all the eligible employees. So the assessment was made
correctly.
4. It is contended that most of the employees
were receiving salary more than Rs. 6,500. So
the appellant is not liable to pay for them and reliance is placed on Annexure-A.
5. The Ld. Advocate for the respondent supported the order.
6. Annexure-A reveals that allowances are included in the salary as a result the employees
received the salary more than Rs. 6,500/ The allowances should not have been included in the
basic wages as basic wages does not include
the allowances and no other document is filed to
show that the excluded employees who is drawing Rs. 6,500 as basic wages was included while
assessing the dues. No infirmity is noticed in the
order of the authority.
7. Hence ordered, the appeal is dismissed.
Copy of order be sent to the parties. File be consigned to record room.
Sd/- (Srikanata Nayak)
Presiding Officer
2. To say the least, the order is bereft of reasons
and even the basic provisions of the Act involved
of excluded employees has not been discussed in
71 — January, 2016
27
the context of facts, which were before the Assessing authority while passing the order under Section
7A of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952. The order does not
pass the test of an appellate order from where this
Court can examine what precisely has weighed in
the mind of the appellate authority in passing the
sketchy order, which is most unsatisfactory work
and leaves this Court with no other option except
to set aside the order and remand the case back to
the Employees’ Provident Fund Appellate Tribunal,
New Delhi, to pass fresh order in accordance with
law after weighing the evidence and the position of
the law applicable. Accordingly, the writ petition is
allowed and the case is remanded to Employees’
Provident Fund Appellate Tribunal, New Delhi. The
parties to appear before the Employees’ Provident
Fund Appellate Tribunal, New Delhi, on 14.12.2015.
—————
2016 LLR 27
PUNJAB AND HARYANA HIGH COURT
Hon’ble Mr. Rajiv Narain Raina, J.
CWP No. 24016/2015, D/–16-11-2015
Sun Pharmaceutical Industries Limited
vs.
Presiding Officer and Another
A. TERMINATION – Of services of a workman
– Without enquiry – On account of unauthorised absence – Illegal – Workman was
employed on 07.05.1990 by M/s. Ranbaxy
Laboratories Ltd. which merged with Sun
Pharmaceutical Industries Limited later on
– He remained absent from 16.06.2007 to
30.10.2007 – His services were terminated
without conducting enquiry or even issuance of charge sheet – He raised an industrial dispute – Labour Court awarded
reinstatement with 50% back-wages – Management challenged the Award in writ petition – Held, records reveal that Management
failed to prove on facts after contest that
the workman had remained absent, workman being Medical Representative was not
a workman, workman has not completed
240 days of service in preceding 12 months
or the prerequisites in the provision of section 25F of the Industrial Disputes Act, 1947
were complied since no notice or notice pay
and retrenchment compensation was paid
to the workman – Hence, severance without show cause notice or charge-sheet or
enquiry or compliance of section 25F of the
Sun Pharmaceutical Industries Limited vs. Presiding Officer
28
Act, has been rightly held to be illegal by
the Labour Court – No interference by writ
court is called for – Petition is rejected in
limine.
Paras 4 and 8
B. CONSTITUTION OF INDIA – Article 226 –
Interference by the writ court in the Award
passed by the Labour Court/Industrial Tribunal is not called for if there is no error
apparent on the face of Award, no perversity, irrationality, any gross misleading of evidence adduce by the parties on the record.
Para 7
and Another
LLR
sufficient length on the merits of the case, this Court
For Petitioner: Mr. M.P.S. Mann, Advocate.
For Respondents: None.
IMPORTANT POINTS
Termination
of
services of a workman without making
compliance
of
prerequisites in the provision of section 25F of the Industrial Disputes Act, 1947 including service
of due notice or notice pay and
payment of retrenchment compensation, is illegal attracting reinstatement with back-wages.
If
the
Management
fails
before the Labour Court that
the
workman being Medical Representative was not a workman or he had
not completed 240 days of service
in preceding 12 months, termination of his services on account
of absenteeism,
without
issuing charge-sheet and conducting a
proper enquiry, is illegal.
Interference by the writ court
in the Award passed by the Labour
Court/Industrial Tribunal is not
called for if there is no error
apparent on the face of Award or
there is no perversity, irrationality or any gross misleading of
evidence adduced by the parties
on the record.
ORAL JUDGMENT
RAJIV NARAIN RAINA, J.—1. Having heard Mr.
Mann learned counsel appearing for the petitioner at
January, 2016 — 72
has turned around to the view that interference
with the impugned award passed by the Presiding
Of- ficer, Industrial Tribunal, Gurdaspur in
Reference No. 69 of 2008 is not called for. Of the
several rea- sons why this Court would not like to
interfere with the award is that the management
failed to prove
on facts after contest that the
workman, a Medical Representative employed by it
seventeen years ago had remained absent from
duty from June 16, 2007 till his services were
terminated on October 30, 2007. The severance
was without show cause notice, a charge sheet or
inquiry held against the respondent workman with
respect to the alleged pe- riod of absence June 16,
2007 till October 30, 2007.
2. When the management has failed on this vital
front, it would be very difficult to hold that there is
an error in the award which may tend to vitiate the
proceedings. Admittedly, the respondent-workman
served Ranbaxy Laboratories Limited from May 7,
1990 till his services were terminated illegally on
October 30, 2007.
3. It happened in the meanwhile that M/s. Ranbaxy
Laboratories
Limited
merged
with
Sun
Pharmaceuti- cal Industries Limited by a process of
amalgamation approved by the Company Court
and that is how, M/s Sun Pharmaceutical
Industries Limited is be- fore this Court challenging
the award as a liability incurred by it consequent
upon amalgamation and merger of the companies.
4. Mr. Mann has not been able to dislodge any of
the jurisdictional facts established on record with
respect to the status of the Medical Representative as a workman or with respect to completion
of
240 days of service in the preceding 12 calendar
months from the date of termination and absence
of meeting prerequisites in the provisions of
Section 25-F of the Industrial Disputes Act, 1947
when nei- ther notice nor wages in lieu of notice
and retrench- ment compensation were paid to the
workman on the fateful day i.e. on October 30,
2007 when he lost his livelihood.
5. The Labour Court has held the termination to
be illegal. It is well settled that void termination
can take no effect and the workman has to be put
back to the original position that he held but for
the illegal termination. Reference may be had to
the recent judgment of the Supreme Court in State
of U.P. v. Charan Dass; (2015) 8 SCC 150: 2015
LLR 603 (SC). It would not be necessary to burden this judgment and order with a discussion on
the weight of ratio of each of the cases starting
from Harjinder Singh v. Punjab State Warehousing Corporation Limited; (2010) 3 SCC 192: 2010
73 — January, 2016
LLR (SN) 335, Anoop Sharma v. Executive Engineer, Public Health Division No. 1, Panipat; (2010)
74
Nimai Charan Rout vs. General Manager, M/s. Utkal Asbestos Ltd., Dhenkanal
5 SCC 497; Devinder Singh v. Municipal Council
Sangrur; (2011) 6 SCC 584: 2011 LLR 785 (SC);
Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya & Ors; (2013) 10 SCC 324 and Jasmer Singh v. State of Haryana and another, (2015)
4 SCC 458: 2015 LLR 225 (SC). Suffice it to say a
termination which is void ab initio puts victim back
to square one with all consequential benefits when
there are present hardly any obstacles in the way
to reinstatement and the defences available to management are of no moment.
6. In view of the clear legal position, the Labour
Court committed no fundamental error in the award
dated March 3, 2015 when it set aside the termination order, reinstated the workman with continuity of
service but denied 50% of the back-wages from the
date of termination and ordered that balance 50%
would be due and payable together with all other
consequential benefits. However, the claim for an
amount of Rs. 91,920 has been declined by the Labour Court for good and sufficient reason.
7. This Court finds no error apparent on the face of
the record warranting interference in the writ jurisdiction while reviewing awards of tribunals as there
is neither perversity nor irrationality nor is there
found any gross misreading of evidence adduced by
the parties on record and findings arrived therefrom.
8. Consequently, the petition is found without merit
and is ordered to be rejected in limine as not requiring any further probe based on original record or
debate in absence of moot points.
—————
2016 LLR 29
ORISSA HIGH COURT
Hon’ble Mr. C.R. Dash, J.
W.P. (C) No. l3814/2006, D/–10-7-2015
Nimai Charan Rout
vs.
General Manager, M/s. Utkal Asbestos Ltd.,
Dhenkanal
A TERMINATION OF SRVICES – Without enquiry – When would not be illegal – Workman was employed as Steno-typist w.e.f.
10.08.1982 – He remained unauthorisedly
absent from 20.11.1995 to 20.01.1996 – Management terminated his services simplicitor
on 15.01.1996 without any prior notice or
enquiry – Workman was habitual absentee
– He had tendered apology on several occasions in the past for being unauthorisedly
absent – He did not submit any explanation
LLR
to his unauthorised absence this time also
– Workman submitted medical certificate
from ESI Dispensary – As per provisions in
Certified Standing Orders, there is no necessity of any enquiry – Medical Certificate
does not indicate nature of disease and nature of treatment – Oral evidence indicated
that workman was admitted in ESI Hospital
twice – Labour Court rejected the claim of
the workman holding the ESI certificate as
doubtful – Workman challenged the Award
by filing writ petition – Held, Labour Court
has rightly doubted the genuineness of ESI
medical certificate in view of different nature
of evidence adduced by the workman – In
view of doubtful evidence, necessity of enquiry is not fatal – Non-responding of notice
by the workman is sufficient compliance of
provisions of section 25F of the Industrial
Disputes Act, 1947 and the principles of
natural justice, specifically in view of provisions in Standing Orders of the Company –
Hence, petition is dismissed.
Paras 9 to 12
B. ENQUIRY – When not conducted before termination – Effect of – In number of cases,
the employer leads evidence before the Labour Court to prove the misconduct against
the delinquent employee – It is not always
necessary to conduct a domestic enquiry
prior to effecting termination of services of
the delinquent employee.
Paras 11 & 12
C. ABANDONMENT – Of service – When presumption is justified – If provisions in the
certified Standing Orders of the Company
define the abandonment, then by applying
those provisions the presumption of abandonment against the unauthorisedly absent
delinquent employee is proper.
Para 12
For petitioner: M/s. Satyabadi Das, S. Mohanty
and S.K. Das, Advocates.
For respondent: M/s. S. Das, Miss. Sujata Jena
and Mr. Subhashree Mohanty, Advocates.
IMPORTANT POINTS
Termination simplicitor of a
delinquent employee without any
prior notice or enquiry would be
justified if he is habitual absentee, has tendered apology on several occasions in the past for
being unauthorisedly absent, has
January, 2016 — 74
Nimai Charan Rout vs. General Manager, M/s. Utkal Asbestos Ltd., Dhenkanal
2016
not submitted any explanation
to
his unauthorised absence, medical
certificate issued from ESI Dispensary does not indicate nature
of disease and nature of treatment as well as if there is such
a provision in certified Standing
Orders of the Company.
A medical certificate issued by
the ESI Dispensary may be
deemed
to be doubtful if it does not indicate the nature of disease and
nature of treatment and the oral
evidence led by the delinquent
employee are somewhat doubtful.
Non-responding of notice by
the workman is sufficient compliance of provisions of section 25F
of the Industrial Disputes Act,
1947 as well as the principles
of natural justice, if there are
such provisions in Standing Orders
of the Company.
Non-conducting
of
enquiry
prior to effecting termination of
services of an employee is not
fatal since the employer may lead
evidence before the Labour Court
to prove the misconduct against
the delinquent employee.
If
provisions
in
the certi-
fied Standing Orders of the
Company define the abandonment, then
by applying those provisions the
presumption of abandonment against
the unauthorisedly absentee delinquent employee is proper.
JUDGMENT
PER C.R. DASH, J.—1. The petitioner workman
has assailed the award dated 30.06.2006 passed
by learned P.O., Labour Court, Bhubaneswar in I.D.
Case No. 3 of 1998 refusing any relief in favour of
him (workman).
2. The service of the petitioner workman was terminated on 15.01.1996. He moved the Labour Machinery, but in vain. Ultimately, reference was made
for adjudication of the following question:—
75 — January, 2016
29
“Whether the termination of service of Sri Ni- mai
Charan Rout, Steno-Typist with effect from
76
Nimai Charan Rout vs. General Manager, M/s. Utkal Asbestos Ltd., Dhenkanal
15.1.96 by the Management of M/s. Utkal
Asbes- tos Ltd., Dhenkanal is legal and
justified? If not, what relief Sri Rout is entitled
to?”
The petitioner workman filed Statement of Claim
before the Labour Court. In the Statement of Claim
it is averred that the petitioner workman was appointed as a Steno-Typist under the Management
of the Company w.e.f. 10.08.1982. He was
confirmed
in the said post on 22.08.1984.
According to him, he had rendered continuous
service with much sin- cerity, devotion and to the
utmost satisfaction of the authorities of the
Management. During his employ- ment he
submitted Leave Application on the ground of his
illness and, in fact he was under the medical
treatment in the E.S.I. Dispensary, Dhenkanal from
20.11.1995 to 20.01.1996. Without any rhyme and
reason however the Management terminated the
service of the workman with effect from 15.01.1996
without giving any prior Notice on the ground of his
unauthorized absence from 15.12.1995. It is
alleged that, termination of service of the petitioner
work- man with the stigma of unauthorized
absence with- out conducting any enquiry is
violative of the prin- ciple of natural justice and,
otherwise it is also viola- tive of the mandate in
Section 25F of the Industrial Dispute Act, 1947
(‘the Act’ for short).
3. The Management on the other hand entered appearance and filed written statement denying the
claim of the opposite party workman. According
to the Management, the petitioner workman being a Steno-Typist was holding a post of trust and
confidence, but he was remaining on unauthorized
absence frequently. Owing to such unauthorized
absence on the part of the petitioner workman, he
was
warned
several occasions by the
Management. But, every occasion the petitioner
workman used to beg apology and the
Management, 3 taking a le- nient view, used to
allow him to work. It is further asserted by the
Management that on 20.09.1993 the petitioner
workman tendered his resignation and the
Management had also accepted his resignation
with effect from the said date. But, subsequently
the petitioner workman begged apology in writing
and requested the Management to withdraw his
resig- nation and let him allow to work. This time
also the Management taking a lenient view allowed
the peti- tioner workman to withdraw his
resignation and al- lowed him to work. During the
period of his service
in 1995 the petitioner
workman had served for 89 days only by the time
of termination of his service and with effect from
20.11.1995 he again remained absent and for that
LLR
he was asked to submit expla- nation within a
stipulated time. The petitioner work- man did not
submit any explanation by the time stipulated and
the Management was constrained to
January, 2016 — 76
2016
Nimai Charan Rout vs. General Manager, M/s. Utkal Asbestos Ltd., Dhenkanal
terminate his service w.e.f. 15.01.1996. The order
of termination was sent to the petitioner workman
by Registered Post and the petitioner has also received the Notice Pay for one month. The Management has denied violation of the principle of natural
justice, as the action is a termination simplicitor in
accordance with the Certified Standing Order of the
Company and it has further been asserted that provision of Section 25F of the Act has been complied
with.
4. Both the parties adduced oral as well as documentary evidence to substantiate their respective
claim.
5. Learned P.O., Labour Court, after going through
the evidence on record, disbelieved the medical evidence adduced by the petitioner workman and held
that in view of the provisions contained in Clause19 of the Certified Standing Order of the Company,
there is no necessity of any enquiry and there has
been no violation of the principle of natural justice.
Learned P.O., Labour Court further found that the
petitioner workman has received the Notice Pay and
4 in that view of the matter it was held that there is
no violation of the provision of Section 25F of the
Act.
6. From the submission advanced by learned counsel for the parties and the findings arrived at by the
learned P.O., Labour Court, Bhubaneswar, it is clear
that while the petitioner workman is relying heavily
on the Medical Certificate issued by the Medical Officer of the E.S.I. Dispensary, Dhenkanal vide Ext.4,
the Management is relying on Clause-19 of the Certified Standing Order of the Company.
7. Learned counsel for the petitioner workman relies
on a catena of decisions to substantiate his contention that the termination of service of the petitioner
workman is bad for violation of the principle of natural justice. It is specifically submitted that, as there
is stigma of unauthorized absence against the petitioner workman, which amounts to a misconduct,
the Management would have done well to initiate a
Disciplinary Proceeding against the petitioner workman and the termination of service simplicitor in absence of any enquiry is bad in the eye of law.
I shall refer to the decisions relied on by the learned
counsel for the petitioner workman, if they are held
to be applicable in the facts and circumstances of
the present case in view of the Certified Standing
Order on which much reliance is placed by learned
counsel for the Management.
8. It is an admitted fact that the petitioner workman
was absent in duty from 20.11.1995 to 20.1.1996.
Learned P.O., Labour Court, in paragraph- 20 of the
impugned order has specifically held that, “nowhere
it has been elicited that the workman had applied
77 — January, 2016
31
for leave from 20.11.1995 to 20.01.1996 and that
the above leave period has been sanctioned by the
competent authority……”.
Neither it has been proved by the petitioner workman that he had applied for leave for the above period nor such a fact was suggested to the witness
for the Management anywhere, as I understand
from the above finding of the learned Labour Court.
9. So far as the Medical Certificate vide Ext.4 is
concerned, it is a Certificate issued by the Medical
Officer-in-Charge, E.S.I. Dispensary, Dhenkanal on
20.01.1996. The petitioner workman as a witness
before the Labour Court had ipse dixit stated that
during the aforesaid period he was admitted twice
in the E.S.I. Hospital, Choudwar for treatment of
his disease, i.e. amoebic colitis and dysentery. The
Medical Certificate vide Ext.4 does not indicate the
nature of the treatment given to the petitioner workman nor it reveals for what disease the petitioner
was undergoing treatment and the period of treatment mentioned in the Certificate is from 13.01.1996
to 20.01.1996. The oral evidence is indicative of the
fact that the petitioner was admitted twice in the
E.S.I. Hospital, Choudwar in between 20.11.1995
to 20.1.1996 for treatment of his disease. But the
Medical Certificate, vide Ext.4 had been issued by
the Medical Officer-in-charge of the E.S.I. Dispensary, Dhenkanal showing the period of treatment from
20.11.1995 to 20.01.1996 without indicating the
nature of the disease and the nature of treatment
given to the patient. All the aforesaid features in the
evidence, inter alia, prompted the learned P.O., Labour Court to doubt the genuineness of the Medical
Certificate vide Ext.4 and the veracity of the assertions made by the petitioner workman so far as his
disease and treatment is concerned.
I do not find any justification to take a different view,
especially in view of the nature of evidence adduced by the parties. From the materials on record
it is therefore clear that the petitioner workman remained absent without applying for any leave and
without sanction of such leave by the authority concerned. The forceful assertion of his illness during
the period from 20.11.1995 to 20.01.1996 is bellied
by the nature of evidence adduced, as discussed
supra, which the learned P.O., Labour Court has seriously suspected and doubted, and I am one in my
view with him. In view of such evidence and especially the findings of the learned P.O., Labour Court
on the issue, it is now apposite to find out whether
there was any necessity of a domestic enquiry.
10. When the petitioner workman remained absent from service without any leave application and
sanction of such leave, the Management waited for
some days and called for an explanation from the
78
Nimai Charan Rout vs. General Manager, M/s. Utkal Asbestos Ltd., Dhenkanal
workman regarding his unauthorized absence vide
Ext.P on 01.12.1995. The petitioner workman did
not respond to the said Notice and the Management was constrained to terminate his service w.e.f.
15.01.1996 in accordance with Clauses 17 and 19
of the Certified Standing Order.
11. Learned counsel for the petitioner workman
submits that when the petitioner being a regular
employee submitted the leave application and was
admitted as an in-door patient for his ailment, the
Management would not have acted on the basis
of explanation called for in the Home Address of
the petitioner workman. Such a submission of the
learned counsel for the petitioner has no basis in
view of the evidence adduced and the findings arrived at by the learned P.O., Labour Court. There
is nothing on record to prove that the petitioner
workman had submitted leave application for sanction of his leave from 20.11.1995. There is nothing
also on record to prove that the petitioner workman
was admitted as a in-door patient. There is nothing
also on record to suggest that the petitioner workman had conveyed the Management during the period of his absence, regarding his whereabouts or
about his treatment as an in-door patient. In such
view of the fact, it was incumbent on the part of the
Management to send the show-cause notice for explanation in the last known address of the petitioner
workman, i.e. his Home Address. There is nothing
on record to show that the petitioner was away from
home during the entire period from 20.11.1995 to
20.01.1996. He could have given reply, or at least
about his ailment and admission as an in-door patient, in response to the Notice vide Ext.P by the
specified date. The petitioner workman having not
responded by the date specified in the Notice, the
Management had no option than to proceed in the
matter.
12. Here we are concerned with Clause-19 of the
Certified Standing Order applicable to the Management of the Company. The relevant provision of
Clause-19 is quoted hereunder for ready reference.
“19. ABANDONMENT OF SERVICE
Except as otherwise expressly provided for in
these standing orders, no workman shall be allowed to absent himself from work without the
previous sanction of the authority competent to
grant him leave. Whenever during a period of
twelve months, if any employee remains absent
from his duty on two occasions without intimation or permission from the management, he
shall be given a notice by the letter and in the
event of such employee repeating such conduct
thereafter shall forfeit his lien in his service and
his name will be removed from the rolls of the
LLR
Company. Besides, absence from duty without
permission shall also be treated as misconduct
and dealt with accordingly. When the unauthorized absence in respect of an employed person
exceeds eight consecutive days excluding any
intervening declared holidays, the said employed
person shall be deemed for all purposes to have
voluntarily abandoned his employment whereafter his name will be removed from the Company’s rolls……”
From the above Standing Order it is seen
that, it contains four parts. Part-1 relates to the
general provision that, except as otherwise expressly provided for in the standing orders, no
workman shall be allowed to be absent himself
from work without the previous sanction of the
authority competent to grant him leave. This relates to general provision regarding unauthorized
absence.
Part-2 relates to absence of a workman from
duty on two occasions during a period of twelve
months, without intimation or permission from the
Management.
Part-3 deals with absence from duty without
permission and it speaks that such a conduct
shall be treated as misconduct and shall be dealt
with accordingly. So, it is clear from Part-1 and
Part-3 that, absence from duty without permission is a misconduct, and a misconduct shall be
dealt with accordingly means in accordance with
the rules.
Part-4 deals with the situation when the unauthorized absence of the workman exceeds eight
consecutive days excluding the intervening declared holidays. If such an occasion arises, the
said employed person shall be deemed for all
purposes to have voluntarily abandoned his employment, whereafter his name will be removed
from the Company’s Rolls.
13. In the present case, Part-1, Part-3 and Part-4
are applied to the facts of the case. Firstly, the petitioner workman has remained absent from duty
without previous sanction of leave by the competent authority. In the fitness of things, such absence
should have been treated as misconduct, if the petitioner workman would have joined in duty shortly
or would have sought for permission of his leave,
giving justifiable grounds of acceptance by the Management. The petitioner workman has however exceeds eight consecutive days excluding the intervening declared holidays, so far as his absence in
duty is concerned, and the Management in such a
situation invoked Part-4 of Clause 19 of the Certified
Standing Order and issued a letter seeking explanation from the petitioner workman vide Ext.P, within
January, 2016 — 78
V. Selvam vs. Presiding Officer, Labour Court, Salem & Anr.
2016
a specified time. When the petitioner workman did
not respond to the letter, the Management had no
scope/option except to treat the petitioner workman
to have abandoned his service voluntarily. In such
situation it was justified and proper for the Management to issue a letter of termination of service
simplicitor without going for a full-fledged disciplinary enquiry. In the present case, issuance of letter
vide Ext.P seeking explanation from the petitioner
workman is sufficient compliance of the principle of
natural justice in view of the provision contained in
the Certified Standing Order, which is equally applicable to the Management and the workmen of the
Company.
14. So far as compliance of Section 25F of the I.D.
Act is concerned, learned P.O., Labour Court has
specifically held that the provisions of Section 25F
have been complied with and the petitioner workman has been paid one month’s Notice Pay.
15. Without referring to the catena of decisions cited
by learned counsel for the petitioner for the sake of
brevity, it would suffice to say that those decisions
are not applicable to the facts of the present case,
as they relate to absence of enquiry in a given case
and the observance of the principle of natural justice and for general rules of the principles of natural
justice.
16. In view of the above discussions, I do not find
any merit in the contentions raised by learned counsel for the petitioner workman. None of the decisions relied on by the learned counsel for the petitioner has any application to the facts of the present
case. Accordingly, the writ petition is dismissed.
—————
2016 LLR 33
MADRAS HIGH COURT
Hon’ble Mr. V. Ramasubramanian, J.
Hon’ble Mr. T. Mathivanan, J.
W.A. No. 2132/2012, D/–18-6-2015
V. Selvam
vs.
Presiding Officer, Labour Court, Salem & Anr.
A. DISMISSAL – When not justified – Workman remained absent due to depression as
his only son had expired in a roadside accident – His services were dismissed after
conducting enquiry – He raised an industrial
dispute – Labour Court awarded reinstatement without back-wages – Management
challenged the Award by filing writ petition
which was allowed – Workman filed writ ap79 — January, 2016
33
peal – Held, except 28 days absenteeism
due to death of only son of the workman,
there was no charge against him that he
was habitual absentee during his 15 years’
service – Punishment of dismissal from service is not appropriate in the circumstances – Hence, writ appeal is allowed. Order of
learned Single Judge is set aside – Award
passed by the Labour Court is restored.
Paras 1 to 12
B REINSTATEMENT – Without back-wages –
When justified – Management has not taken
any plea that the workman was habitual absentee or absented repeatedly unauthorisedly – Finding of the learned Single Judge
that workman was habitual absentee is not
based upon any evidence – Workman had
completed 15 years of service – No misconduct is there in his past service record
– Hence, writ appeal is allowed – Order of
learned Single Judge is set aside – Award
passed by the Labour Court is restored.
Paras 5 to 12
For Appellant: Mr. V. Ajoy Khose, Advocate.
For Respondent-2 : Mr. P. Paramasiva Dass,
Advocate.
IMPORTANT POINTS
Law is well settled that
the
exercise of power under section
11A of the Industrial
Disputes
Act, 1947 by the Labour Court,
cannot be very lightly interfered
with in a writ petition under Article 226 of the Constitution of
India.
Dismissal of services of a
workman on account of his remaining absent unauthorisedly due to
depression as his only son had
expired in a roadside accident is
not justified.
Keeping in view clean past
record, length of service of
15
years, absenteeism due to expiry
of only son, awarding reinstatement without back-wages substituting the punishment of dismissal
from services awarded by the disciplinary authority, is justified.
34
C. Mammootty, Wayanad vs. Assistant Provident Fund Commissioner, E.P.F. Organisation, Calicut & Anr. LLR
JUDGMENT
PER V. RAMASUBRAMANIAN, J.—1. This appeal
is directed against an order of the learned Judge
passed in a Writ Petition, setting aside an Award
passed by the Labour Court in favour of the appellant/workman.
2. Heard Mr. V. Ajoy Khose, learned counsel for
the appellant and Mr. P. Paramasiva Dass, learned
counsel appearing for the second respondentTransport Corporation.
3. On the ground that the appellant unauthorisedly
absented himself continuously for a period of 28
days, the second respondent Corporation initiated
disciplinary proceedings which culminated in an order of penalty of dismissal dated 08.02.2001. The
appellant raised an Industrial Dispute under Section 2A of the Industrial Disputes Act, 1947 (hereinafter called as the Act). By an award passed on
17.11.2003 in I.D. No. 221 of 2002, the Labour
Court, in exercise of the jurisdiction conferred under Section 11A of the Act, set aside the order of
dismissal and directed reinstatement without backwages, but with continuity of service.
4. Challenging the award, the Management of the
Transport Corporation filed a writ petition in W.P.
No. 27908 of 2004. The Writ Petition was allowed
by a learned Judge, by an order dated 29.08.2011,
on the short ground that the appellant was an habitual absentee and that therefore, the Labour Court
ought not to have interfered with the quantum of
penalty. Therefore, the workman has come up with
the above appeal.
5. It is seen from the claim statement filed by the
appellant before the Labour Court that his absence
for 28 days was actually due to the depression that
he suffered on account of the death of his only son
in a road traffic accident. Though Mr. P. Paramasiva Dass, learned counsel appearing for the second
respondent-Corporation contended that there was
no proof to show this, we do not think that a person will go to the extent of stating such a reason for
overcoming an allegation of unauthorised absence
for 28 days.
6. A careful look at the Award passed by the Labour Court shows that the Labour Court upheld the
findings of the Enquiry Officer that the appellant
was guilty of unauthorised absence. However, the
Labour Court looked into the reason for such unauthorised absence and chose to exercise jurisdiction
under Section 11A of the Act.
7. It is now well settled that the exercise of jurisdiction by the Labour Court under Section 11A of the
Act cannot be very lightly interfered with in a Writ
Petition under Article 226 of the Constitution of In-
dia. The power under Section 11A of the Act is a
Special Power. The power of judicial review under
Article 226 of the Constitution of India over exercise of such special power of the Labour Court under Section 11A is permitted only in cases where it
shocks the conscience of the Court.
8. In the case on hand, the learned Judge has
proceeded on the footing that the appellant was
an habitual absentee from work. But there was no
evidence adduced by the Management before the
Labour Court to come to the conclusion that the
appellant habitually absented himself without prior
permission. As a matter of fact, it is not even the
case of the second respondent-Corporation, in the
counter filed before the Labour Court that the workman was always guilty of absenteeism.
9. Even the charges did not take note of the past
conduct of the appellant as a person, who absented
himself repeatedly, unauthorisedly.
10. It is an admitted fact that the appellant joined
the service on 17.07.1985 and at the time when he
went on leave, he had completed about 15 years of
service. Neither the charge memo, nor the counter
filed by the Corporation before the Labour Court accuses the appellant of any past misconduct. This
is despite the fact in the claim petition filed by him,
the appellant has stated that his 15 years of service
was blemishless.
11. Therefore, the finding of the learned Judge that
the appellant absented himself frequently, is not
borne out of records. In such circumstances, the interference by the learned Judge with the Award of
the Labour Court, cannot be sustained.
12. In view of the above, the appeal is allowed,
the order of the learned Judge is set aside and the
Award of the Labour Court is restored. The second
respondent shall reinstate the appellant within a period of eight weeks. No costs.
—————
2016 LLR 34
KERALA HIGH COURT
Hon’ble Mrs. P.V. Asha, J.
W.P. (C) No. 2547/2014 (P), D/–29-6-2015
C. Mammootty, Wayanad
vs.
Assistant Provident Fund Commissioner, E.P.F.
Organisation, Calicut & Anr.
EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Section
14B – Damages imposed – When not proper –
January, 2016 — 80
2016
C. Mammootty, Wayanad vs. Assistant Provident Fund Commissioner, E.P.F. Organisation, Calicut & Anr.
Petitioner alongwith other partners purchased
the firm M/s. Poonchola Plantations from M/s.
Nedumattom Plantations Pvt. Ltd. in 1998-99
– EPF Authority issued notice on 24.04.2009
under section 14B of the Act towards contributions from 6/88 to 3/90 due from previous employer and damages under section 14B of the
Act from M/s Poonchola Plantations – M/s Poonchola Plantations was taken over by the Government in 2000 – Held, petitioner has already remitted the dues demanded by the EPF Authority
– Default, if any, was committed by the previous
owner – Petitioner was not responsible for the
payment at the relevant time – Establishment
was taken over by the Government within 2
years – Hence, matter is reminded back to EPF
Authority to consider determination of quantum
of damages after hearing the petitioner.
Paras 6 to 8
For petitioner: Mr. R. Ramadas, Advocate.
For respondents No. 1 & 2: Mr. Thomas Mathew
Nellimoottil, S.C.P.F.
IMPORTANT POINTS
Section 14B of the Employees’ Provident Funds and
Miscellaneous Provisions Act, 1952 provides for recovery of damages by
way of penalty, “such damages not
exceeding the amount of arrears”.
Section 14B of the Employees’
Provident Funds and Miscellaneous
Provisions Act, 1952, does not
prescribe anywhere that an amount
equal to the arrears of contribution should be levied as damages.
The successor of the defaulter is liable to pay the amount of
contributions as well as damages,
by virtue of section 17B of the
Act.
JUDGMENT
PER P.V. ASHA, J.—1. The petitioner has filed this
writ petition, aggrieved by Exts.P1 and P2 proceedings, initiated for recovery of Provident Fund dues
outstanding in respect of M/s. Poonchola Plantations Pvt. Ltd.
2. The petitioner is a partner of M/s Poonchola
Plantations. The plantation was purchased by the
81 — January, 2016
35
petitioner along with other partners from M/s. Nedumattom Plantations Pvt. Ltd., during the period
1998-1999.
3. Whileso Ext.P1 notice was issued by the
Assistant Provident Fund Commissioner, Calicut,
on 24.4.2009 under Section 14B of the Employees Provident Fund and Miscellaneous Provision
Act 1952 (hereinafter referred to as ‘the Act 52’).
The contribution towards the Employees Provident
Fund due from the Nedumattom Plantations Pvt.
Ltd. for the period from 6/88 to 3/90 and the damages for the same was levied against the Poonchola Plantations, under Section 14B of the Act 52
read with Section 17B of the Act. A total amount
of Rs. 21,852 was found due towards contribution
and equal amount of Rs. 21,852 was ordered as
the damages for the said period. The contributions
were found defaulted, with arrears due for the period from 5.1.1981 to 1989. Thereafter by Ext.P2
dated 22.12.2013 the petitioner was requested to
ensure remittance of a sum of Rs. 57,799 towards
contribution for the period from 5/81 to 1/89, damages for the period 12/83 to 5/88 and damages for
the period from 6/88 to 3/90.
4. The petitioner submits that he purchased the
property in the year 1998-1999 and immediately
after the purchase the said establishment was
taken over by the Government in the year 2000.
According to him he did not default any payment
and it was the original/previous owner of Nedumattom Plantations, who was in arrears. Moreover as
far as the damages are concerned, the petitioner
says that he has neither done anything in defiance
of law deliberately nor was guilty of conduct contumacious or dishonest nor did he act in gross disregard to its obligations. According to him he is not
liable to be penalised for the default committed by
the previous owner.
5. Respondents have filed a counter affidavit justifying the proceedings for recovery of the amount
from the petitioner. It is stated that the proceedings
initiated under Section 14B of the Employees Provident Fund Act is in accordance with the Rules and
petitioner being the successor of the defaulter is liable to pay the amount, by virtue of Section 17B of
the Act. The employer of the establishment had defaulted payment of Provident Fund contribution for
the period from 6/88 to 3/90 and belatedly remitted
the Provident Fund dues for the period 6/88 to 3/90
and damages. It is stated that the employer of the
establishment was served with a notice to as to why
the damages should not be levied on him for the
non remittance of Provident Fund dues for the period from 6/88 23/90 as provided under section 14B
of the Act. In Ext.P1 it was stated that the present
36
The Management of BWSSB, Cauvery Bhavan, and Others vs. M. Mahadeva and Others
employer is liable for payment of the contribution
dues under Section 17B of the Act. As, it is stated
that it was on the basis of Ext.P1 order which was
passed after hearing the petitioner with due notice
that damages of Rs. 21,850 was levied for the period of 6/88 3/90 and a sum of Rs. 21,302 towards
contribution for the period from 5/81 to 1/89 and Rs.
14,645 towards damages for the period from 12/83
to 5/88. It is the said amount of Rs. 57,790 i.e.,
sought to be recovered under Ext.P2 issued by the
Enforcement Officer.
6. I heard the learned counsel appearing for the
petitioner and learned Standing counsel for the respondents. The learned counsel for the petitioner
pointed out that there is no willful or deliberate action on the part of the petitioner who purchased
the establishment in the year 1998. Therefore the
damages levied on him is excessive and the same
could have been awarded. Section 14B provides for
recovery of damages by way of penalty “such damages not exceeding the amount of arrears”. It does
not prescribe any where that an amount equal to
the arrears of contribution should be levied as damages.
7. Learned Standing Counsel pointed out the judgment of the Apex Court in Mcleod Russel India Ltd.
v. Reg. Provident Fund Commissioner & others,
CDJ 2014 SC 516 wherein Apex Court upheld the
proceedings initiated for recovery of contribution as
well as the recovery of damages after elaborately
considering the provision Section 14B as well as
Section 17B of Employees Provident Fund Act. It
is also pointed out that the petitioner did not invoke
his appellate remedy as against Ext.P1 order.
8. In this case the petitioner has already remitted
the amount demanded. His grievance is against
quantum of damages levied. In view of the fact that
the petitioner was not responsible for the payment
at the relevant time and default was committed by
the previous owner and in view of the fact that the
petitioner’s establishment is already taken over by
Government within a period of 2 years of its purchase, I feel it necessary to remit the matter to the
1st respondent to consider the question of quantum
of damages, after affording an opportunity of hearing to the petitioner.
Therefore the writ petition is disposed of by directing the 1st respondent to reconsider the matter and
take a decision on the question of quantum of damages levied as per Ext.P1, after affording an opportunity of hearing to the petitioner and to pass orders
within a period of 3 months.
—————
LLR
2016 LLR 36
KARNATAKA HIGH COURT
Hon’ble Mr. Ashok B. Hinchigeri, J.
W.P. No. 33086/2013 (L-RES), W.P. Nos. 7396 &
22790-22807/2015, D/–23-7-2015
The Management of BWSSB, Cauvery Bhavan,
and Others
vs.
M. Mahadeva and Others
A. REINSTASTEMENT – When not justified
– Claim of the workmen is that they were
working with the petitioner since long –
They were residing in the quarter allotted
to them by the petitioner for which they
were paying electricity charges directly to
Electricity Board – Petitioner took stand
that workmen were employees of contractor – Petitioner had an agreement with the
contractor to supply manpower – Wages
and other benefits are paid to the workmen
by the contractor – Labour Court awarded
reinstatement without back-wages – Petitioner challenged the Award of reinstatement whereas workmen challenged the
Award claiming back-wages – Held, workmen have faild to prove as to who was paying them wages, who had power to dismiss
them from service, hence granting relief of
reinstatement to them by the petitioner, is
not justified – Workmen cannot become
employees of petitioner only on the ground
that it had not obtained registration and the
contractor had not obtained licence under
the Contract Labour (Regulation and Abolition) Act, 1970 – Matter is remanded back to
the Labour Court for framing proper issues
and adjudicate the same in accordance with
provisions of law – Petitions stand disposed
of accordingly.
Paras 25 and 26
B. EMPLOYER-EMPLOYEE RELATIONSHIP –
Depends upon various factors including as
to who was paying wages to the workmen
and who was having power to dismiss them
from services – Primarily, burden of proof
lies upon the workmen to prove as to who
is their pay-master or employer.
Paras 22 and 29
For Petitioner: Mr. S.N. Murthy, Senior, Advocate
for Mr. B.L. Sanjeev, Advocate.
Respondent: Mr. Subbaro, Senior Advocate for Mr.
Sateesha K.N., Advocate.
January, 2016 — 80
The Management of BWSSB, Cauvery Bhavan, and Others vs. M. Mahadeva and Others
2016
IMPORTANT POINTS
If
the
workmen
fail
to
prove as to who was paying
them
wages, who
them from
relief of
by the principal employer is
not
justified.
Workmen are not employees
of
petitioner/principal employer only
on the ground
employer had
istration and
not obtained
Residing
in
the
quarter
allotted to the workmen by the
petitioner for which they were
paying electricity charges directly to Electricity Board, is no
ground to prove employer-employee relationship between principal
employer and the workmen.
Employer-employee
relation-
ship depends upon various factors
including as to who was paying
wages to them and who was having power to dismiss them from
services.
Primarily
it
is
the
burden
of the workmen to prove that they
are employees of the principal
employer.
JUDGMENT
ASHOK B. HINCHIGERI, J.—1. Both the batches
of Writ Petitions arise from the common Order, dated 16.4.2013 passed by the Presiding Officer, Principal Labour Court, Bangalore in I.D. No. 21/2008
c/w I.D. Nos.16/08 to 30/08, 33/08 to 36/08, 40 &
41/2008 allowing the Petitions filed by the Workmen
invoking Section 10(4) of the Industrial Disputes
Act, 1947 by directing their reinstatement but by denying the back-wages, continuity of service and Sother consequential benefits.
2. W.P. Nos. 33086-33106/2013 are filed by the
81 — January, 2016
37
Management of Bangalore Water Supply and Sewerage Board (‘BWSSB’ for short) questioning that
38
The Management of BWSSB, Cauvery Bhavan, and Others vs. M. Mahadeva and Others
part of the impugned Award which directs the reinstatement if the Workmen. W.P. No. 7396/2015
and W.P. Nos. 22790-22807/2015 are filed by the
Workmen agitating their entitlement to backwages, continuity fef service and consequential
benefits.
had power to dismiss
3. Sri S.N. Murthy,
the learned
Senior
Counsel
service
etc.
granting
appearing for Sri B.L.
Sanjeev
for
the
petitioning
reinstatement to them
Management submits that not a single Appointment Order is produced by the Workmen. He takes
serious exception to the Labour Court not putting
M/s. Creative Assets Protection Group [hereinafter
M/s. Creative ‘for short’] on Notice despite taking a
definitive stand by the Management in its Counter
that the principal
that the Workmen in question have come through a
not obtained regSecurity Agency, M/s. Creative’.
the contrator had
4. The learned Seniorlicence
Counsel submits
the
under that
the
Labour
Officer Labour
and the (Regulation
Authority underand
the
Contract
Minimum
Wages Act,
Act, 1948
by his Order, dated
Abolition)
1970.
30.7.2007 in No. LOM-l/MWA/CR-24/2007 directed
M/s. Creative and BWSSB to pay the difference of
Minimum Wag- es. The said Order was challenged
by the function- aries of BWSSB by filing W.P. No.
15293/2007. The direction issued by the said
Authority to BWSSB and M/s. Creative to pay the
difference of Minimum Wages is upheld. He also
brings to my notice what the BWSSB Employees’
Union, has to say in Para- graph No. 4 of the
Caveat Petition (Annexure-M):
“4. The First Respondent failed to pay Minimum Wages to the Workmen working in the
Pumping Station. Hence, the Authority under
the
Minimum
Wages,
1948,
initiated
proceedings
in
LOM-l/MWA/CR-24/2007.
Thereafter, it passed an Order on 30.7.2007
and held that 43 Security Employees
employed through the 2nd Re- spondent are
entitled to receive the difference of Minimum
Wages and certain Compensation and directed
them to deposit the same failing which it was
held that the Respondents are liable for
prosecution under Section 22B of the Minimum
Wages Act, 1948. The Respondents being aggrieved by the Order bearing Ref. No. LOM-l/
MWA/CR-24/2007 dated 30.7.2007 passed by
the Authority under the Minimum Wages Act,
1948, may prefer a Writ Petition before this
Hon’ble Court.”
5. He relies on the Apex Court’s Judgment in the
case of International Airport Authority of India v. International Air Cargo Workers’ Union and Anr.,
2009
(3) LLN 489 (SC): 2009 LLR 923, to advance the
submission that the Industrial Adjudicator can grant
the sought relief, if it finds that the contract
LLR
between the Principal Employer and the Contractor
is sham, nominal or merely a camouflage to deny
the em- ployment benefits to the Employer. The
tests for as- certaining as to whether the Workmen
are directly
January, 2016 — 80
82
The Management of BWSSB, Cauvery Bhavan, and Others vs. M. Mahadeva and Others
employed by an organization or they have come
through the Contractor, are:
(a) who has the power to remove or dismiss
them from service or initiale disciplinary action;
(b) who can tell the Employee the way in which
the work should be done; and
(c) who has been paying the salary to the Workmen.
6. Nextly, he relies on the Apex Court’s Judgment in
the case of General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon v. Bharat Lal and
Anr., 2011 LLR 113 (SC): 2011 (1) LLN 368 (SC):
2010 AIR SCW 7312. Paragraph No. 9 of the said
decisions read out by him is extracted hereinbelow:
“9. On a careful consideration, we are of the
view that the Industrial Court committed a serious error in arriving at those findings. In regard
to the first test as to who pays the salary, it
placed the onus wrongly upon the Appellant. It is
for the Employee to aver and prove that he was
paid salary directly by the Principal Employer
and not the Contractor. The First Respondent
did not discharge this onus. Even in regard to
second test, the Employee did not establish that
he was working under the direct control and supervision of the Principal Employer. The Industrial Court misconstrued the meaning of the terms
‘control and supervision’ and held that as the officers of Appellant were giving some instructions
to the First Respondent working as a guard, he
was deemed to be working under the control
and supervision of the Appellant. The expression
‘control a supervision’ in the context of Contract
Labour was explained by this Court in International Airport Authority of India v. International Air
Cargo Workers’ Union, (2009) 13 SCC 374: AIR
2009 SC 3063, thus:
“If the contract is for supply of Labour, necessarily, the Labour supplied by the Contractor will
work under the directions, supervision and control of the Principal Employer but that would not
make the worker a Direct Employee of the Principal Employer, if the salary is paid by Contractor, if the right to regulate employment is with
the Contractor, and the ultimate supervision and
control lies with the Contractor.
The Principal Employer only controls and directs the work to be done by a Contract Labour,
when such Labour is assigned/allotted/sent to
him. But it is the Contractor as Employer, who
chooses whether the worker is to be assigned/
allotted to the Principal Employer or used otherwise. In short, worker being the Employee of the
LLR
Contractor, the ultimate supervision and control
lies with the Contractor as he decides where the
Employee will work and how long he will work
and subject to what conditions. Only when the
Contractor assigns/sends the worker to work
under the Principal Employer, the worker works
under the supervision and control of the Principal Employer but that is secondary control. The
primary control is with the Contractor.”
Therefore, we are of the view that the Industrial
Court ought to have held that First Respondent was
not a direct Employee of the Appellant, and rejected
the Application of the First Respondent.
7. He also read Paragraph No. 25 of the Hon’ble
Supreme Court’s decision in the case of Dena Nath
and others v. National Fertilizers Ltd. and others,
1992 (1) LLN 53 (SC) : AIR 1992 SC 457. It is extracted hereinbelow:
“25 .......... The only consequences provided
in the Act where either the Principal Employer or
the Labour Contractor violates the provision of
Sections respectively is the penal provision, as
envisaged under the Act for which reference may
be made to Sections and of the Act. We are thus
of the firm view that in proceedings under Article
of the Constitution merely because Contractor or
the Employer had violated any provision of the
Act or the Rules, the Court could not issue any
Mandamus for deeming the Contract Labour as
having become the Employees of the Principal
Employer ..........”
8. Per contra, Sri Subbarao, the learned Senior
Counsel appearing for Sri Sateesha K.N. for the
Workmen submits that they have been working in
BWSSB from 2002. That the Workmen are sent
by M/s. Creative is a camouflage. The agreement
between BWSSB and M/s. Creative is a paper arrangement. He submits that, as the Workers have
no bargaining power, they are being exploited by
creating a sham arrangement. He asserts that the
wages were being paid to the Workmen by the
Management and BWSSB and the same is clear
from the oral evidence of WW1. He submits that the
officials of the Labour Department have inspected
the premises of BWSSB and found that the Workmen have been working as helpers, fitters, computer operators, etc.
9. He brings to my notice Ex.W2 to W4 to show that
the Workmen were allotted the quarters by BWSSB
and that they have also been paying the Electricity
charges directly. He submits that Ex.WS & W6 are
the postal Inland Letters which show that the Workmen have been residing in the quarters belonging
to and allotted by BWSSB.
January, 2016 — 82
2016
The Management of BWSSB, Cauvery Bhavan, and Others vs. M. Mahadeva and Others
10. The learned Senior Counsel submits that
BWSSB ought to have examined the Contractor. He
submits that the finding of fact delivered by the Labour Court need not be disturbed. He submits that
the Writ of Certiorari can be issued only for correcting the jurisdictional errors and that too, if the errors are leading to grave injustice. Merely because
it is possible to take a different view, the conclusions reached by the Tribunal cannot be altered. He
submits that if an opportunity is given to BWSSB
by remanding the matter to the Labour Court, it
would only enable the Management to remove the
lacuna, which will have the effect of putting the
Workmen to prejudice.
11. He submits that the conjoint reading of both oral
and documentary evidence reveals that the Workmen are the Direct Employees of BWSSB.
12. Relying on the Apex Court’s Judgment in the
case of Bhilwara Dagdh Utpadak Sahakari S. Ltd. v.
Vinod Kumar Sharma Dead by L.Rs and Ors., AIR
2011 SC 3546: 2011 LLR 1079 (SC) the learned
Senior Counsel submits that the Apex Court has
come down very heavily on the Management for
their adopting the new technique of subterfuge in
order to deny the rights of the Workmen by showing
that they are the Workmen of the Contractor.
13. He relies on the Apex Court’s Judgment in the
case of The Workmen of the Food Corporation of
India v. Food Corporation of India, AIR 1985 SC
670, wherein it is held that if the termination of service by the First Employer is contrary to the well established legal position, the effect of employment by
the Second Employer is wholly irrelevant. The termination of service of the Workmen of an organization
cannot be justified by the subtle device of introducing a Contractor so as to bring out a cessation of
contract of employment between the Workmen and
the Organization.
14. Citing the decision of the Apex Court in the case
of Hussainbhai v. The Alath Factory Tezhilali Union
and others, 1978 (2) LLN 276 (SC) AIR 1978 SC
1410, the learned Senior Counsel submits that if the
veil, which is draped in perfect paper arrangement,
is lifted, it becomes clear that the real Employer is
BWSSB and not M/s. Creative.
15. Drawing support from the Apex Court’s Judgment in the case of Sankar Mukherjee and others
v. Union of India and others, 1989 (2) LLN 953
(SC): AIR 1990 SC 532, the learned Senior Counsel would submit that the system of contract labour
is an improved version of Bonded Labour. He submits that the Supreme Court has disapproved of the
system of Contrat Labour holding it to be ‘archaic’,
primitive’ and ‘baneful nature’.
83 — January, 2016
83
16. Relying on the latest Judgment of the Hon’ble
Supreme Court in the case of Jasmer Singh v. State
of Haryana and another, 2015 (4) SCC 458: 2015
LLR 225 (SC) he contends that, as the Workmen
have worked for 240 days in any given year from
2002 till they were retrenched, they are entitled to
full back-wages, because the Order of Termination
is void ab initio for non-compliance with the requirements of Section 25F of the Industrial Disputes Act,
1947.
17. The submissions of the learned Counsel have
received my thoughtful consideration.
18. I have browsed through the L.C.Rs. The claim
of the Workmen is that they are the Direct Employees of BWSSB. The stand of the BWSSB is that
they have come through the Contractor, namely,
M/s. Creative. The matter directly and substantially
in issue would be whether the Workmen are the Direct Employees of BWSSB. On the other hand, the
first issue framed by the Labour Court is as follows:
“Whether the First Party Applicant proves that
he is Workmen as defined under Section 2(s) of
the Industrial Disputes Act, 1947.”
19. It is not even the resistance of the BWSSB
Management that the Respondents are not the
Workmen at all. As it is not in dispute that the Respondents are the Workmen, the framing of the issue extracted hereinabove was wholly uncalled for.
Framing of an uncalled for issue would only drift the
adjudicating body into the side stream.
20. Based on the averments in the Claim Statement
and the Counter Statement, the first issue ought to
have been framed as follows:
Whether the First Party Applicants prove that
they are the direct Employees of the Second
Party BWSSB? Neither the Management nor the
Workmen have filed any draft issues; none of
them have made any Application for the amendment of the issues framed by the Labour Court.
21. The second question that arises is who has to
discharge the burden of proving that they are the
Direct Employees of BWSSB. As held by the Apex
Court in the case of Bengal Nagpur Cotton Mills
(supra) the onus is on the Workmen to aver and
prove that the salary was being paid directly by the
Principal Employer and not by the Contractor.
22. The documentary evidence produced by the
Workmen showing that they had been residing in
the quarters, that they had been paying the Electricity Bills to the Electricity Board, that they had been
receiving the Betters to their quarters address can
also be considered when the parties adduce proper
evidence on the properly framed issues.
40
H.N. Shreedhar, Mysore vs. Regional Provident Fund Commissioner-II, E.P.F.
23. I also notice that there is no serious cross-examination on the agreement between BWSSB and
M/s. Creative (Ex.M3).
24. All these things do not mean that there is nothing wanting on the part of the Management of
BWSSB. For the reasons best known to itself, the
Management has not produced the Order, dated
30.7.2007 passed by the Labour Officer and the Authority under the Minimum Wages Act, this Court’s
Order, dated 12.9.2011 and the Caveat Petition. My
attention is drawn to the said documents only in the
course of argumentation here. If they were only to
be brought to the notice of the Labour Court, it may
arrived at different conclusions.
25. The Workmen have not conclusively proved as
to who was paying the salary to them and who had
the power to dismiss them from service. These two
tests, applied by the Apex Court in the case of International Airport Authority of India (supra), are to
be passed by the Workmen before the Industrial
Adjudicator grants the relief to the Workmen.
26. The Labour Court is also not justified in holding
that the Workmen are the Employees of BWSSB
merely because BWSSB has not obtained the registration and the Contractor has not obtained the
License under the Contract Labour (Regulation and
Abolition) Act, 1970. In saying so, I am fortified by
the Apex Court’s Judgment in the case of Dena
Nath (supra).
27. Further, in the earlier proceedings arising under
the Minimum Wages Act, both the Management of
BWSSB and the Contractor, namely, M/s. Creative
are jointly directed to pay the differential amounts.
This aspect of the matter also cannot be overlooked.
28. Thus, viewed from any angle, I find that the impugned Order is not sustainable. I, therefore, quash
the same. The matter is required to be remanded to
the Labour Court for framing the proper issues and
to enable the parties to lead the evidence in support
of their cases. The parties and or/their respective
learned Advocates are directed to be present before the Labour Court on 13.8.2015 without waiting
for any Notice from the Labour Court. Needless to
observe that all the contentions are left open to be
urged before the Labour Court. The Labour Court
shall adjudicate the remanded matter in accordance
with law and independently of and uninfluenced by
the reasons given herein for the disposal of these
Petitions.
29. Further, I notice with concern that the Management of BWSSB is atleast partly responsible for
inviting the impugned Orders. It has not brought to
the notice of the Labour Court the Order passed
Organisation, Mysore
LLR
under the Minimum Wages Act and in the Writ Petition arising therefrom and the Order passed by
this Court thereon. The decisions of the Hon’ble
Supreme Court in the cases of International Airport
Authority of India, Bengal Nagpur Cotton Mills and
Dena Nath (supra) prescribing the tests to be applied for determining as to whether the Workmen
are the direct Employees of the Principal Employer,
stating that the burden of proving it is on the Workmen and holding that the non-obtaining of the registration by the Principal Employer and the licenset
the Contractor under the Contract Labour (Regulation and Abolition) Act, 1970 does not ipso facto
entitle the Workmen to claim the status of the Direct Employees of the Principal Employer, have not
been brought to the notice of the Labour Court by
the Management.
30. Considering these aspects of the matter, I deem
it necessary and just to impose the Cost on the petitioning Management, though its Petition is being
allowed in part. Yet another reason for imposing
the Cost is that the Workmen in question are out of
employment. They may not be having the means to
fight the remanded litigation. I award the Cost of Rs.
63,000 on the petitioning Management - at the rate
of Rs. 3,000 for each of the Respondents. The Cost
shall be paid by the Petitioner to the Respondents
13.8.2015 before the Labour Court.
31. W.P. Nos. 33086-33106/2013 are allowed but to
the extent indicated hereinabove.
32. W.P. No. 7396/2015 and W.P. Nos.2279022807/2015, filed by the Workmen, do not survive
for any consideration in view of the quashing the
impugned Order and remanding the matter to the
Labour Court. That entitlement to back-wages, continuity of service, consequential benefit would obviously depend on the outcome of the remanded
matter. W.P. No. 7396/2015 and W.P. Nos. 2279022807/2015 are dismissed as having become unnecessary.
—————
2016 LLR 40
KARNATAKA HIGH COURT
Hon’ble Mr. S. Abdul Nazeer, J.
W.P. No. 430/2015 (L-PF), D/–14-9-2015
H.N. Shreedhar, Mysore
vs.
Regional Provident Fund Commissioner-II,
E.P.F. Organisation, Mysore
EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Section
January, 2016 — 84
Lafarge India Ltd. and Another vs. State of Jharkhand and Another
2016
7A – Determination of money due from an employer – Show Cause Notice – When liable to be
quashed – EPF Authority passed an order dated
08.12.2000 – Petitioner challenged the same in
appeal – EPF Appellate Tribunal dismissed the
appeal – Petitioner challenged the order of the
Tribunal – Matter was remanded for conducting
fresh enquiry by EPF Appellate Tribunal vide
order dated 09.10.2013 – Respondent issued notices to the petitioner for attending the enquiry
– Petitioner has questioned the validity of the
notices – Held, order of the Appellate Authority was quashed – Order dated 08.12.2000 has
not been quashed – When the order of the EPF
Authority has not been quashed, it cannot hold
an enquiry in respect of the same subject again
– Appellate Authority has to pass appropriate
order in view of order dated 09.10.2013 – Consequently, notices in question are quashed –
Appellate Authority is directed to consider the
matter in terms of order dated 09.10.2013 – Writ
petition is disposed of accordingly.
Paras 3 and 4
For petitioner: Mr. Naveed Ahmed, Advocate.
For respondent: Mrs. Sumangala A. Swamy,
Advocate.
IMPORTANT POINT
When the order of the EPF
Authority has not been quashed,
it cannot hold an enquiry in
of
the
same
subject
respect
again.
ORDER
Per S. ABDUL NAZEER, J:-—1. An order dated
8.12.2000 passed by the Assistant Provident Fund
Commissioner was challenged by the petitioner by
filing an Appeal No. 341(6)72001 before the Employees’ Provident Fund Appellate Tribunal. The
Tribunal by its order dated 13.4.2010 dismissed the
said appeal. The petitioner challenged the said order of the Tribunal in W.P. No. 18913 of 2010. This
Court by order dated 9.10.2013, set aside the order
of the Tribunal and remitted the matter for consideration afresh. Thereafter, the respondent herein
has issued notices at Annexures-A and B dated
27.6.2015 and 15.9.2014 calling upon the petitioner
to attend the enquiry. The petitioner has called in
question the validity of the said notices in this writ
petition.
2. I have heard the learned counsel for the parties.
85 — January, 2016
41
3. This Court in W.P.No.18913/2010 disposed of on
9.10.2013 has quashed the order of the Appellate
Tribunal dated 13.4.2010 and remitted the matter
for consideration afresh after extending reasonable
opportunity of hearing to the parties and to pass an
order recording reasons, findings and conclusions
and in the light of the observations made in the said
order. It is clear from this order that the order of the
original Authority dated 8.12.2000 passed under
Section 7A of the Employees Provident Fund and
Miscellaneous Provisions Act, 1952 has not been
quashed. It is obvious that the matter has been remitted to the Appellate Authority. When the order of
the original Authority has not been quashed, it cannot hold an enquiry in respect of the same subject
matter again. In my view, the Appellate Authority
has to pass appropriate orders in terms of the direction of this Court in W.P.No.18913/10 dated
9.10.2013.
4. Consequently, the notices at Annexures-A and B
are hereby quashed. The Appellate Authority is directed to consider the matter in terms of the order of
this Court in W.P. No. 18913/2010 dated 9.10.2013.
Writ petition is accordingly disposed of. No costs.
—————
2016 LLR 41
JHARKHAND HIGH COURT
Hon’ble Mr. H.C. Mishra, J.
Cr. M.P. No. 213/2008, D/–10-9-2015
Lafarge India Ltd. and Another
vs.
State of Jharkhand and Another
MINIMUM WAGES ACT, 1948 – Section 22A –
Cognizance of offence – Taken for offence under section 22-A of Act against petitioners—
However, there is no allegation against petitioners in the complaint that contractor’s employees
were employed in company of petitioner, in contravention of Contract Labour (Regulation and
Abolition) Act, 1970 – Since the allegations are
specifically against M/s. Torrent Pvt. Ltd. of not
maintaining the statutory registers – M/s, Torrent had its establishment in premises of petitioner’s M/s. Lafarge India Ltd. – Therefore no
offence can be said to be made out against the
petitioners – Moreover no reason whatsoever
disclosed in order impugned and order is nonspeaking order – Hence impugned order taking
cognizance against petitioner and criminal proceedings are quashed.
Para 6
For Petitioner: Mr. Ananda, Sen, Advocate.
Lafarge India Ltd. and Another vs. State of Jharkhand
42
For Opposite Parties: Mr. R.R. Mishra, A.P.P.
IMPORTANT POINTS
When there is no allegation
against M/s. Lafarge India
Ltd.,
cognizance of offence under section 22A of the Minimum Wages
Act, 1948, as taken by the Chief
Judicial Magistrate, against it,
is not sustainable.
Since the allegations are
specifically against M/s. Torrent
Industrial Security Ltd., of not
maintaining the statutory registers, no offence can be made
out against M/s. Lafarge
India
Ltd. only on the ground that M/s.
Torrent Industrial Security
Ltd.
had its establishment in the premises of M/s. Lafarge India Ltd.
JUDGMENT
H.C. MISHRA, J.—1. Heard learned counsel for the
petitioners and the learned counsel for the State.
2. The petitioners are aggrieved by the order dated 29.7.2002 passed by the learned Chief Judicial
Magistrate, Jamshedpur, in C/2 Case No. 1748 of
2002, whereby cognizance has been taken against
the petitioners for the offence under Section 22A of
the Minimum Wages Act. The petitioners have also
prayed for quashing the entire criminal proceeding
against the petitioners in the said case.
3. Petitioner No. 1 is the company namely, Lafarge
India Limited, Jamshedpur, through Krishna Kumar
Padhy, and the petitioner No. 2 is the Manager Personal in the said Company. It is stated in the official complaint filed by the opposite party No. 2 that
the inspection was made of M/s. Torrent Industrial
Security Pvt. Ltd., Jamshedpur, in the premises of
M/s Lafarge India Limited, Jojobera Cement Plant,
Jamshedpur, on 28.06.2002, and it was found that
certain statutory registers were not maintained by
M/s. Torrent Industrial Security Pvt. Ltd. On the
said official complaint in which the company M/s.
Lafarge India Limited, its officials as also the officials of M/s. Torrent Industrial Security Pvt. Ltd.,
Jamshedpur, were made the accused. On the basis
of the official complaint the cognizance has been
taken against the petitioners by the impugned order
dated 29.7.2002 passed by the learned Chief Judicial Magistrate, Jamshedpur, which has been challenged in the present case.
and Another
LLR
4. Learned counsel for the petitioners have submitted that whatsoever, allegations are there in the
complaint, they are against M/s. Torrent Industrial
Security Pvt. Ltd., and not against the petitioners
and accordingly, no offence can be said to be made
out against the petitioners, simply because M/s.
Torrent Industrial Security Pvt. Ltd., had its establishment in the premises of the M/s. Lafarge India
Limited, Jojobera Cement Plant, at Jamshedpur.
Learned counsel has also submitted that the impugned order passed by the learned Chief Judicial
Magistrate, Jamshedpur, is absolutely a non-speaking order without disclosing any reason as to why
the cognizance was taken against the petitioners.
Learned counsel accordingly, submitted that the
impugned order as also the entire criminal proceeding against the petitioners cannot be sustained in
the eyes of law.
5. Learned counsel for the State on the other hand
has opposed the prayer submitting that M/s. Torrent Industrial Security Pvt. Ltd., was a contractor
employed by M/s. Lafarge India Limited, Jojobera
Cement Plant, Jamshedpur, for the security purposes and the persons employed by M/s. Torrent
Industrial Security Pvt. Ltd., were not being paid the
minimum wages and they were not found to have
maintaining the required statutory registers. Learned
counsel accordingly, submitted that the petitioners
being the principal employer, are also liable for the
offence. However, the fact remains that there is no
allegation against the petitioners in the complaint
that the contractor’s employees were employed in
the petitioner Company in contravention of the provisions of Contract Labour (Regulation and Abolition) Act, 1970. Even learned counsel for the State
could not bring anything on record to show that
there is any allegation against the petitioners of any
contravention of the provisions of Contract Labour
(Regulation and Abolition) Act.
6. In the facts of this case, since the allegations are
specific against M/s. Torrent Industrial Security Pvt.
Ltd., of not maintaining the statutory registers, in my
considered view no offence can be said to be made
out against the petitioners.
7. This apart, I also find force in the submission of
the learned counsel for the petitioners that no reason whatsoever has been disclosed by the learned
Chief Judicial Magistrate, Jamshedpur, in the impugned order, for taking cognizance against the
petitioners for the offence under Section 22A of the
Minimum Wages Act, and the order is absolutely a
non speaking order, passed without application of
judicial mind.
8. Accordingly, the impugned order dated 29.7.2002
passed by the learned Chief Judicial Magistrate,
January, 2016 — 86
Siddhartha Misra and Another vs. State of Jharkhand
2016
Jamshedpur, in C/2 Case No. 1748 of 2002, so far
as it relates to the petitioners, as also the entire
criminal proceeding against the petitioners only, in
the said complaint case, are hereby, quashed. This
application is accordingly, allowed.
Application Allowed.
—————
43
In the absence of any plausible explanation regarding delay in
obtaining required sanction from
the higher authorities, delay is
not condonable.
JUDGMENT
2016 LLR 43
JHARKHAND HIGH COURT
Hon’ble Mr. Rongon Mukhopadhyay, J.
Cr. M.P. No. 453/2013, D/–6-8-2015
Siddhartha Misra and Another
vs.
State of Jharkhand
FACTORIES ACT, 1948 – Sections 92,
7A(2)
(c) and 106 – Jharkhand Factories Rules, 1950
– Rule 55A(2) – Cognizance – Taken by CJM
under section 92 of Act – While working in the
factory, the deceased Mukesh was suddenly hit
on head by a steel column and resultantly died
– Deceased was an employee of Contractor –
And in terms and conditions of work contract,
safety precautions, were to have been taken by
contractor himself – Liability is with the contactor – And owner has absolutely no liability concerning the employees of contractor – In terms
of contract, responsibilities, duties and liabilities of the contractor have been fixed with the
contractor – Moreover prosecution report itself
submitted beyond the period of limitation in
terms of section 106 of Act – Order taking cognizance has not considered it – Petitioners cannot be prosecuted – Entire criminal proceedings
including the order of cognizance quashed.
Para 9
For Petitioners: Mr. Delip Jerath, Advocate
For State: APP.
IMPORTANT POINTS
When the prosecution report
was submitted beyond the
prescribed limitation in terms of
section 106 of the Factories Act,
1948, the order taking cognizance
of the offence, having not considered that the application itself was time barred, the petitioners cannot be prosecuted.
87 — January, 2016
RONGON MUKHOPADHYAY, J.—1. In this application, the petitioners have prayed for quashing the
entire criminal proceeding in connection with F.A.
No. 01 of 2012 including the order dated 22.08.2012
passed by the learned C.J.M., Bokaro, whereby and
whereunder cognizance has been taken for the offence punishable under section 92 of the Factories
Act.
2. The prosecution story as would appear from the
prosecution report filed by the Factories Inspector,
Bokaro Circle No. 2, Bokaro, is that M/s. HPCL New
Depot Project, BIADA, Balidih, Bokaro is an unregistered factory, whose documents relating to the
registration have not been submitted in the office of
the Factories Inspector.
3. It has been stated that the construction work was
being carried out at the site by different agencies,
in which around 150 workers were engaged in construction of buildings and oil tanks. It has been alleged that on 3.4.2012, when work was being done
at the southern corner of under construction plant
by one Mukesh Kunwar Singh and Shri Pintu Kumar
Singh under the supervision of Shri Atul Kumar, Site
Engineer of M/s Ram Kripal Singh Construction Pvt.
Ltd., Mukesh Kunwar Singh was suddenly hit on
the head by a steel column and resultantly he died.
It has further been alleged that if there had been
proper invigilation by the Management and if the
worker had been stopped from going to the place
of accident, the incident might not have happened
and in such circumstance the Management has violated the directions as given in Section 7A(2)(c) of
the Factories Act, 1948 and is also violative of Rule
55A (2) of the Jharkhand Factories Rules, 1950.
4. Heard Mr. Delip Jerath, learned counsel for the
petitioners and learned APP for the State.
5. Learned counsel for the petitioners has submitted
that the Depot in question was not operational when
the incident had taken place, as such the provisions
of the Factories Act would not be applicable. It has
been submitted that on 5.12.2012 much after the incident, application has been made by the Company,
in which the petitioners are employed as Chief Regional Manager and Manager cum Project Incharge
for Registration & Grant of Licence. It has further
been submitted that the deceased Mukesh Kunwar
44
Siddhartha Misra and Another vs. State
Singh was an employee of M/s. Ram Kripal Singh
Construction Pvt. Ltd., which was in the process of
constructing the Depot. It has also been submitted
that since no manufacturing process was being carried out in the place of incident, the same as such
does not come within the definition of a ‘Factory’
and resultantly the Factories Act would not be applicable in such circumstances. Mr. Jerath, learned
counsel for the petitioners, has submitted that the licence was granted for construction of civil buildings
and sheds at HPCL Bokaro on 13.04.2007. He has
further submitted that as per the general terms and
conditions of the work contract, it has been specifically agreed upon that the owner has absolutely no
liability whatsoever concerning the employees of
the contractor. So far as the safety provisions are
concerned, the agreement specifies that it is the
contractor, who shall arrange for the safety provisions and shall also observe and abide by all fires
and safety regulations of the owner. In such circumstance, therefore, it has been submitted that
it is the contractor, who is responsible for the incident and the petitioners can never be considered to
be responsible for the incident. Mr. Jerath, learned
counsel for the petitioners, has submitted that the
incident had taken place on 3.4.2012 and admittedly it came to the knowledge of the complainant
on 4.4.2012 but the complaint was instituted on
22.08.2012, which is time barred under the provisions of Section 106 of the Factories Act.
6. Learned APP, on the other hand, has submitted
that on coming to know about the incident, the complainant had taken steps for according of sanction
by the authorities and only after the sanction for
prosecution was accorded vide Memo No. 1572 dated 14.08.2012, the complainant has lodged the case
on 22.08.2012 and in such circumstances sufficient
explanation has been enumerated by the complainant for the delay in instituting the complaint. It has
further been added that the petitioner No. 1 is the
occupier of the Factory and since the work was being carried on on behalf of M/s. HPCL, the occupier
or the petitioner No. 2, who was the Manager cum
Project Incharge could not be absolved from the liability of facing criminal prosecution.
7. Admittedly, the work at the site was being carried
out by M/s Ram Kripal Singh Construction Pvt. Ltd.
at the instance of M/s. HPCL. The petitioner No. 1
is the Chief Regional Manager of HPCL, Ranchi,
Retail Regional Office, whereas the petitioner No. 2
is the Manager cum Project Incharge, HPCL, Bokaro. The deceased was an employee of the contractor and in terms and conditions of the work contract,
the safety precautions, as has been enumerated
at clause 6.d were to have been taken by the con-
of Jharkhand
LLR
tractor himself. Clause 6.a. onwards deals with the
liability of the contractor for engaging or employing persons for the execution of work. It has been
categorically mentioned therein that the owner has
absolutely no liability whatsoever concerning the
employees of the contractor. In such circumstances,
responsibilities, duties and liabilities of the contractor have been fixed. So far as the question of limitation is concerned, it would be apt to refer to Section 106 of the Factories Act, 1948 which reads as
follows:—
106. Limitation of Prosecutions.—No Court
shall take cognizance of any offence punishable
under this Act unless complaint thereof is made
within three months of the date on which the alleged commission of the offence came to the
knowledge of an Inspector:
Provided that where the offence consists
of disobeying a written order made by an Inspector, complaint thereof may be made within
six months of the date on which the offence is
alleged to have been committed.
[Explanation.—For the purposes of this section—
(a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the
offence continues;
(b) Where for the performance of any act time is
granted or extended on an application made
by the occupier or manager of a factory, the
period of limitation shall be computed from
the date on which the time so granted or
extended expired.]
8. A perusal of the provision, as enumerated in Section 106 of the Act, puts a bar on the Court in taking cognizance if the complaint is made within three
months of the date on which the alleged commission of the offence came to the knowledge of an Inspector.
9. Admittedly, the prosecution report dated
22.08.2012 suggests that the complainant had
come to know about the incident on 4.4.2012 because as per his own showing the complaint was
to have been instituted by 3.7.2012. The complainant had filed the complaint with an explanation that
since the sanction was accorded by the Sanctioning Authority after the period for institution of the
complaint had expired, in such circumstances, the
delay had occurred. The order of sanction as contained in Memo No. 1572 dated 14.08.2012 reveals
that the application for sanction was made vide letter dated 19.6.2012, but nothing has been brought
on record with respect to any plausible explanation
regarding delay since the incident had come to the
January, 2016 — 88
Sri Sekhar Rudra vs. The Union of India & Ors.
2016
knowledge of the complainant on 4.4.2012 itself. In
such circumstances, the complainant cannot take a
plea that the delay in instituting the prosecution report should be condoned as the sanction for prosecution was given after the expiry of the period of
limitation prescribed under section 106 of the Factories Act. Apart from what has been stated above,
another noticeable factor would be that even though
the prosecution report was submitted on 22.08.2012
and cognizance was taken by the learned Chief
Judicial Magistrate, Bokaro on 22.08.2012 but the
same apparently seems to bear non application of
judicial mind as neither the said order indicates that
the delay has been condoned prior to taking cognizance nor the provisions of section 106 of the
Factories Act have been appreciated prior to taking
such cognizance. In such circumstances, when the
prosecution report itself has been submitted beyond
the prescribed period of limitation in terms of section 106 of the Factories Act, the order taking cognizance dated 22.08.2012 having not considered that
the application itself was time barred, the petitioners
cannot be prosecuted.
10. In such circumstances, there being merit in this
application, I allow the same and quash the entire
criminal proceedings in connection with F.A. No.
01 of 2012 including the order dated 22.08.2012
passed by the learned C.J.M., Bokaro, by which
cognizance has been taken under section 92 of the
Factories Act.
Application Allowed.
—————
2016 LLR 45
GAUHATI HIGH COURT
Hon’ble Mr. Harishikesh Roy, J.
W.P. (C) No. 5313/2008, D/–5-11-2015
Sri Sekhar Rudra
vs.
The Union of India & Ors.
A. TRANSFER – From one place to another –
When justified – Employee was holding a
transferable post – He was transferred from
Guwahati to Dumer in Bihar – Employee did
not report for duty at the place of transfer –
After conducting enquiry, holding him guilty
of major misconduct as per provisions of
the Standing Orders of the Company, his
services were dismissed – He raised an industrial dispute which was dismissed by the
Labour Court – He challenged the Award in
writ petition – Held, nature of misconduct of
89 — January, 2016
45
remaining absent from duty and defiance of
legitimate transfer order would not warrant
any lesser punishment for such delinquent
– Hence writ petition is dismissed being devoid of any merit.
Para 14
B. DISMISSAL – From service – When justified
– Workmen holding transferable post steadfastly refused to proceed to transferred
place – He played a belligerent attitude towards the transfer order – Remaining absent from duty for a long period of 4 years
is major misconduct – He was given fair opportunity to defend the charges – Refusal to
obey legitimate transfer order justifies punishment of dismissal.
Paras 13 and 14
For Petitioner: Mr. A. Dasgupta, Sr. Advocate &
Mr. K.M. Haloi, Advocate.
For respondent No. 3: Mr. S.N.
Sr.Advocate & Ms. S. Senapati, Advocate.
Sarma,
IMPORTANT POINTS
Transfer
of
an
employee,
holding transferable post, from
one place to another is justified.
Non-reporting for duty by
an
employee,
holding
transferable
post, is a major misconduct justifying punishment of dismissal
from service.
Dismissal from service of
an
employee on account of non-compliance of valid order of transfer is not
disproportionate
to
the misconduct.
Transfer of an employee, holding transferable post, from one
place to another is not
covered
under the term ‘victimisation’.
JUDGEMENT AND ORDER (ORAL)
HARISHKESH ROY, J.—1. Heard Mr. A. Dasgupta,
the learned Senior Counsel appearing for the petitioner. The management of the Oil India Limited (respondent No. 3) is represented by the learned senior Advicate Mr. S.N. Sarma.
2. The petitioner was a Grade-VIII Assistant in the
Pipeline Division of the Oil India Ltd. and the present matter relates to the disciplinary proceeding in
46
Sri Sekhar Rudra vs. The Union of India
pursuant to which, the delinquent was dismissed
from service through the order dated 21.7.2003
(Annexure-3). The resultant reference under Section
10 of the Industrial Disputes Act, 1947 (hereinafter
referred to as ‘the ID Act’) was answered against
the delinquent through the award dated 18.3.2008
(Annexure-7) rendered by the Central Government
Industrial Tribunal and all these decisions are challenged by the aggrieved employee.
3. Earlier the Grade-VIII Assistant was promoted
to the Grade-IX and was transferred but in order to
continue at Guwahati the petitioner had foregone
his promotion. That is how he continued to serve at
Guwahati without being moved to any of the other
transferable Pipeline Division of the Oil India Ltd.
But eventually the petitioner was transferred on
17.7.1998 to Dumer in Bihar and the said order was
opposed by the delinquent on the ground that a
settlement of 7.8.1990 (Exhibit-B) was in operation,
for retention of those employees, who had foregone
their promotions. But the management terminated
the settlement on 16.5.1998 (Exhibit-D) through due
notice, under Sub-Section (2) of Section 19 of the
ID Act and that is how the management took the
stand that the petitioner is not protected from transfer, under the terminated settlement of 7.8.1990
(Exhibit-B). Thus the delinquent was released from
Guwahati on 23.7.1998.
4. The aggrieved employee then raised Industrial
Dispute but when the conciliation attempt failed, he
expected reference of the dispute to the Industrial
Forum but the same was not allowed by the Government. At that stage, the employee filed the Civil
Rule No. 4406/98 to challenge the transfer order
dated 17.7.1998. However this Court noted that the
settlement of 7.8.1990 (Exhibit-B) was legally terminated by the management by issuing due notice under Section 19(2) of the ID Act and accordingly the
Court declined to interfere with the transfer order.
Thus the Writ Petition was dismissed on 11.9.1998
but with observation for consideration of the representation of the petitioner for a nearer place of posting.
5. But since no vacancy at nearby stations was
available, the petitioner’s representation for preferred posting was not considered and thus the
delinquent was expected to comply with the transfer order dated 17.7.1998. However the employee
failed to move to Dumer and thus a charge sheet
was issued against him on 11.5.1999 with two allegations, (i) he did not comply with the transfer order and (ii) he unauthorisedly remained absent from
duty.
6. The charge memo was then challenged by the
delinquent through a 2nd Writ Petition i.e. W.P. (C)
& Ors.
LLR
No. 2819/99 but this Court did not stay the transfer order but stayed the disciplinary proceeding.
Eventually on 18.7.2002, the case of the delinquent
came to be dismissed on merit. After dismissal of
the Writ Petition, the departmental proceeding was
then revived.
7. In the enquiry proceeding, the petitioner was assisted by a co-employee but neither side adduced
any witness and the charges were proved on the
basis of the documentary evidence. The Inquiry Officer, inter alia, took note of the transfer order, the
release order and also the judgments rendered by
the High Court and observed that transfer of the
petitioner to the Pipeline Division at Dumer is not a
case of victimization. The defiance of the delinquent
to comply with the transfer order and his absence
from duty for long 4 years was found to be an act of
gross indiscipline and accordingly the charges were
held to have been established through the enquiry
report given on 21.4.2003 (Annexure-1).
8. The delinquent gave a representation against
the finding of the Inquiry Officer but after due consideration, the disciplinary authority accepted the
enquiry report and decided to dismiss the delinquent
from service, by consider the gravity of misconduct, through the impugned order dated 21.7.2003
(Annexure-3).
9. When the delinquent raised an industrial dispute
against the dismissal order, the Central Government
referred the matter for adjudication under Section
10 of the ID Act on the following issue:
“Whether the action of the management of Oil
India Ltd., Pipeline H.Q., Guwahati in dismissing
the service of Sekhar Rudra w.e.f. 22/7/2003 is
justified? If not, what relief Sri Rudra is entitled
to and from whom?”
10. The Industrial Tribunal noted that the delinquent
was in a transferrable job but he defied the transfer
order for about 4 years and also remained absent
from duty and therefore he committed a major misconduct as per the Standing Order of the Company. The Presiding Officer noted that the delinquent
was afforded full opportunity during the domestic
inquiry and that findings were given on the basis
of evidence on record. The proportionality of the
punishment was also considered by the learned Tribunal and after due consideration it was held that
the delinquent was rightly dismissed from service.
Thus the reference was answered against the workman through the impugned award dated 18.3.2008
(Annexure-7).
11. The primary foundation for the petitioner’s challenge to the impugned award is based on the settlement agreement dated 7.8.1990 (Exhibit-B), which
January, 2016 — 90
2016
M/s. Assam Roofing Limited vs. Sri Munchi Rai & Anr.
envisaged retention of the employees at Guwahati,
who had foregone promotion at the relevant time.
Mr. A. Dasgupta, the learned counsel for the petitioner submits that the management should have
considered the clerical staff’s representation for preferred posting, even if the agreed settlement was
terminated under Section 19(2) of the ID Act.
12. However on the other hand, Mr. S.N. Sarma,
the learned senior counsel submits that the Ex- hibitB settlement of 7.8.1990 was not binding be- cause
the settlement was terminated through due process
on 16.5.1998 (Exhibit-D) and the counsel therefore
projects that when the transfer was or- dered on
17.7.1998, the petitioner was disentitled
to claim
protection from transfer. Since this Court refused to
interfere with the transfer order in both Writ
Proceedings, Mr. Sarma argues that there can be no
justification now for another view to be taken against
the transfer order.
13. The finding against the petitioner was based on
documentary evidence and they clearly show that
the delinquent did not comply with the transfer order for long four years and had agreed to move to
the transferred station, only after dismissal of his
2nd Writ Petition on 18.7.2002 by this Court. The
report furnished by the Inquiry Officer is perused by
this Court and I find there-from that the delinquent
was afforded a fair opportunity including the assistance of a friend, to defend the charges. Therefore
no infirmity is noticed with the finding given by the
Inquiry Officer against the delinquent.
14. Since the plea of disproportionate punishment
is also raised by the petitioner, this aspect is also
examined. But it is seen that the petitioner steadfastly refused to proceed to the transferred station
by defying the transfer order for about 4 years. As
the transfer order was not stayed by any Court, the
employee was duty bound to comply with the transfer order but until the dismissal of the W.P. (C) No.
2819/99 on 18.7.2002, the delinquent displayed a
belligerent attitude towards the transfer order dated 17.7.1998. Thus it is a clear case of defiance
of legitimate order by a transferable employee and
considering all aspects of the matter, I feel that the
nature of the misconduct of remaining absent from
duty and defiance of legitimate transfer order, would
not warrant any lesser punishment for such delinquent.
15. In view of above, the Writ Petition is found devoid of merit and the same is dismissed accordingly
by leaving the parties to bear their respective cost.
—————
91 — January, 2016
47
2016 LLR 47
GAUHATI HIGH COURT
Hon’ble Mr. Harishikesh Roy, J.
W.P. (C) No. 5021/2007, D/–2-11-2015
M/s. Assam Roofing Limited
vs.
Sri Munchi Rai & Anr.
A. DISMISSAL – From service – Justification
of – Workman engaged in night shift was
found sleeping during duty – He was issued charge-sheet – Enquiry was conducted – Workman accepted his guilt submitting
apology – Disciplinary Authority dismissed
him from service since in past he had also
committed such misconduct and apology
was granted to him – He raised an industrial
dispute – Labour Court held the enquiry fair
and proper – However, Labour Court found
the punishment of dismissal to be disproportionate, thereby awarding reinstatement
with 30% back-wages – Management challenged the Award by filing writ petition –
Held, manufacturing process in the factory
is fully automated – Such lapses will harm
the manufacturing process – Falling asleep
during duty can’t be treated lightly – Labour
Court has not considered past such lapses
and the law settled by the Apex Court that
where an employee is found to be sleeping
during duty, the punishment of dismissal
is not disproportionate – Hence, impugned
Award is set aside -Writ petition is allowed.
Paras 13 and 14
B. MISCONDUCT – Nature of – Sleeping during working hours by a workman can’t be
treated lightly since it is a grave and serious misconduct as held by Apex Court in
case ‘Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, (2005) 2 SCC 489.
For Petitioner: Mr. S.N. Sarma, Sr. Advocate & Mr.
S.C. Keyal, Advocate.
For Respondent No.: Mr. S. Das, Advocate.
IMPORTANT POINTS
Sleeping during duty hours by
a workman in the factory where
manufacturing process is
fully
automated should not be treated
lightly.
48
M/s. Assam Roofing Limited vs. Sri Munchi Rai
Punishment of dismissal is
not disproportionate for the misconduct of sleeping during duty
in the fachours by a workman
tory.
Sleeping during duty hours
is a grave and serious misconduct
since it may give way to any accident or cause any loss to other
workmen or to the property of the
company.
JUDGMENT AND ORDER (ORAL)
HARISHKESH ROY, J.—1. Heard Mr. S.N. Sarma,
the learned senior counsel appearing for the petitioner/management. Also heard Mr. S. Das, the
learned counsel appearing for the respondent No. 1
(workman).
2. The workman was dismissed from service on
5.7.1999 (Annexure-7) in pursuant to the finding of
the Inquiry Officer and since the conciliation attempt
failed, the Government framed a reference under
Section 10(1)(c) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘the ID Act’), on the following two points for adjudication by the Labour
Court:
(i) Whether the management of M/s. Kamakhya
Udyog (P) Ltd. is justified by dismissing Sri
Munchi Rai from his service with effect from
5/7/99?
(ii) If not, then the said workmen is entitled for
reinstatement with full back-wages and other
back benefit as per the rule or any other relief in lieu thereof?
3. The workman was engaged in the night shift duty
in the factory of M/s. Kamakhya Udyog (P) Ltd. (now
taken over by M/s. Assam Roofing Limited). The
duty of the workman in the manufacturing process
of PVC pipes was to operate the mixture machine,
to mix the powder and chemicals and to put the raw
materials in the machine in the automatic process.
But while discharging his night shift duty from 10
P.M. on 1.2.1999 to 6 A.M. of 2.2.1999, the workman was found to be fast asleep and accordingly
the charge memo was given to him on 13.2.1999
(Annexure-2) with the following 3 charges:
“CHARGE NO. 1: SLEEPING WHILE ON
DUTY: On 01.02.1999, you were performing duty
at Night Shift i.e. from 10 PM of 01.02.1999 to 6
AM of 02.02.1999. At around 2.10 AM you were
found to be fast asleep. Although you were entrusted to operate Cicinnati M/c on that shift, but
& Anr.
LLR
instead of performing your duty, you slept putting
your back on Kolsite M/c which was not operating at that time. Being an employee, you are responsible for the running the plant smoothly and
also for the safety and security of the property
of the company. However, you have found to be
asleep and you have thereby exposed everybody
to the danger and thereby you have violated the
Rules and Regulations of the Company. As such,
you are charged for sleeping while on duty.
CHARGE NO. 2: NEGLIGENT DISCHARGE
OF DUTY: On 01.02.1999, you were engaged
in Night Shift duty. At around 2:10 AM, Shri K.K.
Singh, Chowkidar found you fast asleep and your
attitude towards your duty shows that you do not
have any regards for the Rules and Regulations
of the Company and you have willfully neglected
your duty. Further, your act also exposed your
fellow workers to the danger for their life and
property and set up a bad example among the
others. As such, you are charged for negligent
discharge of duty.
CHARGE NO. 3: GROSS MISCONDUCT:
On 01.02.1999, you were engaged in Night
Shift duty. At around 2:10 AM, Shri K.K. Singh,
Chowkidar found you fast asleep and thereby
committed gross misconduct by violating the
Rules and Procedures of the Company.”
4. In his reply dated 22.2.1999, the workman contented that he was photographed by the chowkidar
with his eyes closed but he claimed that he was not
sleeping. However he requested for forgiveness
with the assurance that such mistake will not be repeated again.
5. Finding the response of the workman to be unsatisfactory, the management decided to conduct
a domestic enquiry and appointed an Inquiry Officer. The workman was intimated about the decision
through the management’s communication dated
6.3.1999 (Annexure-4). In this letter, the workman
was informed that he can seek assistance of a colleague during the inquiry proceeding and he will be
afforded all the opportunities to defend the charges.
6. During the inquiry, the workmen admitted to have
fallen asleep during duty hours and declined to adduce any defence evidence while the management
produced one witness (K.K. Singh) to prove the
charges. When a guilty finding was recorded by the
Inquiry Officer on 30.4.1999, the 2nd show cause
notice was issued on 10.6.1999, proposing to dismiss the workman. But finding no mitigating circumstances for a lesser punishment, the punishment
of dismissal was ordered against the workman on
5.7.1999 (Annexure-7) by the disciplinary authority.
January, 2016 — 92
2016
M/s. Assam Roofing Limited vs. Sri Munchi Rai & Anr.
7. The learned Labour Court adjudicated the Reference Case No. 2/2000 and examined the Exhibits 1
& 2, which showed similar lapses of sleeping during
duty hours by the workman. The photographs (Exhibits 5 & 6) confirmed that the workman was sleeping during shift duty. The learned Labour Court also
noted that the workman had pleaded guilty through
Exhibit 7 and had prayed earlier for mercy. Thus the
negligence of the workman of sleeping during shift
duty was found to be established. However the punishment of dismissal for such charge was found to
be disproportionate and on that basis, reinstatement
with 30% back-wages with continuity of service was
ordered by the learned Labour Court, through the
impugned award dated 18.12.2004 (Annexure-11)
and this verdict is challenged by the management
in the present case.
8. Mr. S.N. Sarma, the learned senior counsel submits that the basis for the verdict on the disproportionality of the punishment, was the Apex Court’s
decision in Colour-Chem Ltd. v. A.L. Alaspurkar, reported in (1998) 3 SCC 192 but the senior counsel
argues that this decision is not an authority for the
proposition that in a case where employee is found
to be asleep during duty hours, the penalty of dismissal despite his past record, is disproportionate to
the act of misconduct. In support of his contention,
Mr. Sarma refers to Bharat Forge Co. Ltd. v. Uttam
Manohar Nakate reported in (2005) 2 SCC 489:
2005 LLR 210 (SC).
9.1. On the other hand Mr. S. Das, the learned
counsel for the workman submits that sleeping on
duty can at best be a minor misconduct and such
lapses do not warrant the punishment of dismissal.
9.2. The learned counsel for the workman further
argues that this workman had fallen asleep during
the tea break and not during the duty hours and
therefore there was no justification for drawing up
any disciplinary proceeding against the respondent
workman.
10. The pleaded case of the workman before the
Labour Court was that he was not negligent in discharge of his duties during the shift duty during the
night of 1.2.1999 and that he did not commit any
misconduct. But what is glaring here is that the
workman never pleaded that he fell asleep during
off duty hours (tea break). Moreover both letters of
the workman dated 22.2.1999 (Annexure-3) and the
one dated 9.3.1999 (Annexure-5) indicate that the
charges were admitted and the workman prayed for
leniency by assuring that, such mistake shall not be
repeated in future. Therefore the new plea sought
to be raised first time in the High Court by the workman’s lawyer, of lapses occurring during tea break,
93 — January, 2016
93
can’t now be accepted, as this was never the pleaded case of the workman in the Labour Court.
11. In so far as the plea of proportionality of the
punishment is concerned, the learned Labour Court
relied on Colour-Chem Ltd. (Supra) to declare that
when a workman fall asleep during duty hours, the
punishment of dismissal is disproportionate. But
the Apex Court in its subsequent decision in Bharat
Forge Co. Ltd. (Supra) clearly pointed out that
the punishment of dismissal for a workman found
asleep during duty hours is not disproportionate to
the act of misconduct.
12. The workman here was punished earlier for
similar misconducts of falling asleep during the duty
hours and therefore it was not his first lapse. The
learned Labour Court noted that on two earlier occasions, the workman was punished for similar negligence of duty when the workman was posted on
night shift duties and on both occasions, he was leniently punished with strict warning. In fact for the
past misconduct, the workman was kept under observation for three months as can be gathered from
the management’s letter dated 9.1.1999 (Annexure-1). But even during the period of observation,
the workman was found to have committed same
lapses during the shift duty hours on the night of
1.2.1999 and thus he appears to be an incorrigible
employee.
13. It must also be noted here that the manufacturing process in the factory is fully automated and the
workers are required to responsibly perform their
duties in their respective positions, in the continuous manufacturing process. Thus there is no scope
of negligence by any workman, assigned with any
specific responsibilities, in the continuous manufacturing process, since such lapses will harm the
manufacturing process and the other workmen
engaged in shift duties. Falling asleep during duty
hours in such continuous operation, can’t in my view
be treated lightly, as such workmen are expected to
ensure uninterrupted manufacturing in the automated factory. Moreover the concerned workman was
punished earlier for similar lapses and was under
observation at the relevant time.
14. However only because of the decision in ColourChem Ltd. (Supra), the learned Labour Court considered the punishment to be disproportionate and
on that basis, the reference was answered against
the management and reinstatement of the workman
was ordered. But in Bharat Forge Co. Ltd. (Supra),
the Apex Court categorically observed that ColourChem Ltd. is not an authority for the proposition that
in a case where an employee is found to be sleeping during duty hours, the punishment of dismissal
50
Udho Ram vs. Industrial Tribunal-cum- Labour Court, Shimla
is disproportionate to the act of misconduct. Thus
the past similar lapses of the workman and the
fact that he was dealt leniently earlier by ordering
the workman to be kept under observation, should
have been taken into account by the learned Labour Court to determine the proportionality of punishment. But this was not done and the reference
was answered on the basis of the verdict of ColourChem Ltd. (Supra), which was disapproved by the
Apex Court itself, in its later decision in Bharat
Forge Co. Ltd. (Supra).
15. In this case as the reinstatement order of the
Labour Court was challenged by the management,
the workman is receiving his wages under Section
17B of the ID Act since 2007. Moreover by now he
has also attained the age of superannuation.
16. In view of above, the impugned award dated
18.12.2004 (Annexure-11) in the Reference Case
No. 2/2000 is held to be unsustainable and thus the
decision of the learned Labour Court is set aside
and quashed. Consequently the dismissal of the
workman is found to be justified and the Industrial
Reference is answered accordingly. With this order,
the Writ Petition stands allowed in the manner indicated. No cost.
—————
2016 LLR 50
HIMACHAL PRADESH HIGH COURT
Hon’ble Mr. Sureshwar Thakur, J.
CWP No. 4438/2013, D/–1-7-2015
Udho Ram
vs.
Industrial Tribunal-cum- Labour Court,
Shimla & Anr.
INDUSTRIAL DISPUTES ACT, 1947 – Section
10(1) – Back-wages – Justification of – Workman
was awarded reinstatement without back-wages
by the Labour Court – He filed writ petition challenging the Award, claiming back-wages also
– Held, evidentiary material on record portrays
that workman was not gainfully employed since
his illegal termination/retrenchment – Hence, it
was incumbent upon the Labour Court to Award
50% back-wages from the date of his illegal termination till his reinstatement in service – Management has not even rebutted the plea of the
workman of being not gainfully employed in
its written statement – No issue was framed by
the Labour Court in this respect, consequently
no finding could be returned – Since, industrial
& Anr.
LLR
dispute has not been vitiated with the vice of
staleness, as applied by the Management, saying that the relief of back-wages is unaffordable
to the workman, gets emaciated – Workman is
entitled to 50% back-wages – Management is directed to make the payment of 50% back-wages
to the workman within six weeks from the date
of receipt of copy of this judgment – Writ petition stands disposed of.
Paras 1 to 5
For Petitioner : Ms. Sunita Sharma, Advocate.
For respondent No. 2: Mr. Hamender Chandel,
Advocate.
IMPORTANT POINTS
If the Management has not rebutted the plea of the workman,
in his statement of claim, of being not gainfully employed in its
written statement, the workman
would be entitled to back-wages
in addition to reinstatement if
his termination from service is
held illegal by the Labour Court.
Since,
industrial
dispute
has
not been vitiated with the
vice
of staleness, as pleaded by the
Management, the saying that the
relief of back-wages is unaffordable to the workman, gets emaciated.
ORAL JUDGMENT
SURESHWAR THAKUR, J.—1. The instant petition is directed against the impugned award of
31.5.2011, rendered by the Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla, whereby it,
while answering the hereinafter extracted reference
in favour of the workman determined that given its
findings qua the workman/petitioner having come
to be illegally retrenched or disengaged by the respondent No. 2, he be reinstated or reengaged in
service.
“Whether the termination of services of Shri
Udho Ram S/o Shri Govind Ram workman by
the Commissioner, Municipal Corporation Shimla, H.P w.e.f 19.1.1999 without complying the
provisions of the Industrial Disputes Act, 1947 is
proper and justified? If not, what relief of service
benefits the above aggrieved workman is entitled
to?”
January, 2016 — 94
2016
Udho Ram vs. Industrial Tribunal-cum- Labour Court, Shimla & Anr.
2. The relief of reinstatement of the petitioner in
service by the respondent concerned, was ordered
with the benefit of seniority to be computed from the
date of his illegal termination. However, the learned
Industrial Tribunal-cum-Labour Court, Shimla omitted to grant back-wages to the petitioner herein.
The petitioner herein is aggrieved by the omission
on the part of the Industrial Tribunal-cum-Labour
Court concerned to award him back-wages from
the date of his illegal retrenchment/termination from
service at the instance of the respondent No. 2 till
his reengagement in service. The said portion of the
award rendered by the learned Industrial Tribunalcum-Labour Court Shimla, stands impugned before
this Court at the instance of the petitioner/workman
herein.
3. It is settled law that the relief of back-wages
would only be affordable to the workman on his
retrenchment/disengagement from service having
been concluded to be illegal, besides in the event
of material existing on record portraying that since
his illegal retrenchment/disengagement from service
till his reinstatement in service at the instance of the
respondent concerned in pursuance to an executable order rendered by the Court/Forum concerned,
he was not gainfully employed. The evidentiary material on record which portrays the factum of the
petitioner herein being not gainfully employed since
his illegal retrenchment/termination till his reinstatement in service at the instance of the respondent
concerned in pursuance to the impugned award
comprised in Annexure P-1, is comprised in the
testimony of petitioner in his examination in chief.
The veracity of the statement of the petitioner comprised in his examination-in-chief while unfolding
the factum of his having remained not gainfully employed from the period of his illegal retrenchment/
disengagement from service till his reinstatement in
service, has not been concerted to be shred apart
or shattered by the learned counsel for the respondent, by proceeding to put an apposite suggestion
partying, its contest to the said fact. Consequently,
omission on the part of the respondents to concert
to repudiate or tear apart the veracity of the deposition of the petitioner in his examination in chief
unearthing the factum of his having remained not
gainfully employed since his illegal termination/disengagement from service by the respondent No. 2
till his reinstatement in service imputes/lends credibility to it, besides leads to the sequel that the respondents acquiesce to the factum of the petitioner
having not remained gainfully employed since his
illegal retrenchment/disengagement in service, till
his reinstatement in service, at the instance of the
95 — January, 2016
51
respondent No. 2 in pursuance to the impugned
award comprised in Annexure P-1. Consequently,
with hence ample proof emanating qua the factum
of the petitioner having remained not gainfully employed since his illegal retrenchment/disengagement from service till his reinstatement in service,
it was incumbent upon the Presiding judge, Industrial Tribunal-cum-Labour Court, Shimla to proceed
to award back-wages in the quantum of 50% from
the date of his illegal retrenchment/disengagement
from service till his reinstatement in service at the
instance of the respondent No. 2 in pursuance to
Annexure P-1. However his having omitted to do so
has sequelled perpetration of injustice upon the petitioner, which hence necessitates its being undone.
4. The learned counsel for the respondent No. 2
has with vehemence contended before this Court
that the belated raising of the industrial dispute at
the instance of the petitioner/workman ought to
preclude this Court to determine back-wages. However, the said submission succumbs in the face of
the learned counsel for the respondent aforesaid
having not pleaded the said fact in its response to
the claim instituted by the petitioner/workman before the Industrial Tribunal-cum-Labour Court. The
aforesaid omission sequelled non-framing of an apposite issue qua it, obviously no findings could be
returned thereupon. The effect thereof is that the
respondents hence acquiesce to the factum of the
industrial dispute raised at the instance of the petitioner/workman being not vitiated with staleness.
As such, his contention before this Court that with
hence the industrial dispute being vitiated with the
vice of staleness the relief of back-wages is unaffordable to the petitioner, gets emaciated.
5. Consequently, the impugned award is interfered
with, to the extent that its omitting to award backwages to the petitioner in the quantum of 50% from
the date of his illegal retrenchment/disengagement
till his reinstatement in service is quashed and set
aside. The respondents are directed to hence defray 50% of the back-wages to the petitioner from
the date of his illegal retrenchment/disengagement
till his re-engagement in service within a period of
six weeks from the date of receipt of copy of this
judgment.
In view of above, the present petition stands disposed of, as also, the pending applications, if any.
—————
52
Swapan Kumar Bankura vs. Union of India and Others
2016 LLR 52
CALCUTTA HIGH COURT
Hon’ble Mr. Pranab Kumar Chattopadhyay, J.
Hon’ble Mr. Sudip Ahluwalia, J.
A.S.T. No. 5/2015 and C.A.N. No. 1723/2015,
D/–27-3-2015
LLR
Enquiry under section 7A of
Funds
the Employees’ Provident
and Miscellaneous Provisions Act,
1952, is to be deemed to be judicial proceedings.
In the absence of specific al-
Swapan Kumar Bankura
vs.
Union of India and Others
EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Section 7A(2) – Enquiry conducted under – Nature
of – Deemed to be judicial proceeding – No disciplinary action can be taken against the delinquent for taking any decision under section 7A
of the Act unless it is alleged that the delinquent
took any decision pursuant to corrupt motive or
an improper or illegal motive to oblige someone
or to take revenge on someone – In absence of
specific allegation regarding discharge of judicial/quasi judicial function of an officer pursuant
to corrupt or improper motive, no disciplinary
action can be initiated – Perusal of charge-sheet
– No corrupt motive or improper motive has
been alleged against the officer while discharging his function under section 7A of the Act –
No misconduct has been committed by the delinquent officer – Charge-sheet quashed alongwith the subsequent proceedings – Authorities
directed to allow the officer to resume his duty
forthwith and grant all admissible consequential
service benefits.
Paras 7 to 9 and 15 to 20
For Petitioner: Mr. Kishore Dutta, Mr. Swapan Banerjee, Mr. Asok Chakraborty and Mr. Barun Chatterjee, Advocates.
For Respondents: Mr. Partha Sarathi Bose and
Mr. Shiv Chandra Prasad, Advocates.
IMPORTANT POINTS
No disciplinary action can be
taken against an official of the
Employees’ Provident Fund Organisation for taking any decision under section 7A of the Act unless
it is alleged that the delinquent
took any decision pursuant to
corrupt motive or an improper or
illegal motive to oblige someone
or to take revenge on someone.
legation regarding discharge of
judicial/quasi-judicial
function
of an officer pursuant to corrupt
or improper motive, no action can
be initiated.
JUDGMENT
PRANAB KUMAR CHATTOPADHYAY.—1. The
petitioner herein filed the original application before
the Central Administrative Tribunal, Calcutta Bench
in O.A. 350/01632/2014 challenging the validity and/
or legality of the disciplinary proceedings by issuing
the charge sheet and ultimately the second show
cause notice was issued proposing to remove the
petitioner from service. The said application could
not be decided by an appropriate Division Bench of
the learned Tribunal on account of non-availability
of a judicial member. This Court by the earlier order dated 8th January, 2015 decided to adjudicate
the grievances of the petitioner raised before the
learned Tribunal on merits so that the interests of
the petitioner are not affected for non-availability of
the appropriate Division Bench of the learned Tribunal. Accordingly, parties were granted liberty to file
affidavits in the matter. Today, the matter has been
listed for final hearing.
2. Mr. Kishore Dutta, learned advocate representing the petitioner submits that the disciplinary proceedings could not have been initiated against the
petitioner by issuing the charge sheet wherein it
was alleged that the petitioner herein initiated and
concluded the enquiry under Section 7A of E.P.F
& M.P. Act, 1952 by exercising powers beyond his
jurisdiction.
3. The three charges levelled against the petitioner
herein are virtually identical in nature wherein the
only allegation has been levelled against the said
petitioner that while conducting the enquiry under
sub-section (1) of Section 7A of the E.P.F & M.P.
Act, 1952, which is deemed to be a judicial proceedings, said petitioner exercised powers beyond
his jurisdiction.
4. Mr. Dutta also submits that the petitioner herein
conducted the enquiry proceedings in exercise of
judicial power vested under the statute and while
discharging the aforesaid functions if any erroneous
January, 2016 — 96
2016
Swapan Kumar Bankura vs. Union of India and Others
order was passed by the petitioner, then the authorities concerned should approach the superior legal
forum to upset the same instead of initiating disciplinary proceedings against the petitioner.
5. An enquiry conducted by the petitioner herein under Section 7A(1) of the Act should be deemed to
be a judicial proceedings.
6. Sub-section (2) of Section 7A of the E.P.F & M.P.
Act, 1952 is set out hereunder:
“The officer conducting the inquiry under subsection (1) shall, for the purposes of such inquiry
have the same powers as are vested in a court
under the Code of Civil Procedure, 1908 (5 of
1908), for trying a suit in respect of the following
matters, namely:—
(a) enforcing the attendance of any person or
examining him on oath;
(b) requiring the discovery and production of
documents;
(c) receiving evidence on affidavit;
(d) issuing commissions for the examination of
witnesses,
and any such inquiry shall be deemed to be
a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196 of the Indian Penal Code (45 of 1960).”
(Emphasis supplied)
7. There is no dispute that the enquiry conducted
by the petitioner herein under Section 7A(2) shall
be deemed to be a judicial proceeding and therefore, no disciplinary action can be initiated against
the petitioner for taking any decision under Section
7A of E.P.F & M.P. Act, 1952, unless it is alleged
that the petitioner took any decision pursuant to
corrupt motive or an improper and illegal motive to
oblige someone or to take revenge on someone.
8. In the present case, it was never alleged that the
petitioner herein took any decision pursuant to corrupt motive or an improper motive to oblige someone or in order to take revenge on someone. If any
erroneous order has been passed by the petitioner
while discharging judicial function then the concerned authority should apply before the appropriate
superior legal forum for correcting such decision.
9. In the instant case, however, we find that the petitioner himself initiated proceedings under Section
7C of the said Act, which is still pending. Therefore,
it cannot be said that the petitioner herein actedpursuant to any corrupt motive or an improper motive
to oblige someone or to take revenge on someone.
10. Mr. Dutta relies on a decision of the Hon’ble Supreme Court in the case of Union of India & Another
vs. R.K. Desai, 1993 SCC (L&S) 318. The principles
97 — January, 2016
53
decided by the Hon’ble Supreme Court in the aforesaid case are very much applicable in the facts of
the present case.
11. Mr. Partha Sarathi Bose, learned advocate
representing the respondent authorities submits that
the proceedings can be initiated against the delinquent officer and charge sheet has already been
issued by the competent authority.
12. Mr. Bose relies on a decision of the Hon’ble
Supreme Court in the case of Union of India &
Others v. K.K. Dhawan, 1993 (66) FLR 443 (SC):
(1991-93) SCLJ 445. The aforesaid decision, in our
opinion, is not at all applicable in the facts of the
present case.
13. In the aforesaid decision Hon’ble Supreme
Court specifically held that the Government is not
precluded from taking any decision for violation of
the conduct rules even with regard to exercise of
quasi-judicial powers. The disciplinary action has
not been taken in this case against the petitioner by
issuing the charge sheet for violation of any conduct
rules.
14. Mr. Bose also relies on another decision of
the Hon’ble Supreme Court in the case of State
of West Bengal & Others v. Samar Kumar Sarkar,
2009 (122) FLR 659 (SC). The aforesaid decision
has also no manner of application in the facts of the
present case since the legality of any departmental proceedings in relation to an officer discharging
judicial/quasi-judicial function was not considered by
the Hon’ble Supreme Court in the aforesaid decision.
15. In the present case, undisputedly the petitioner
herein conducted an enquiry under Section 7A of
the said Act and exercised powers in a proceedings
which should be deemed to be a judicial proceedings under Section 7A(2) of the Act, 1952. We are
of the opinion that if the petitioner even assuming
exercised his powers beyond his jurisdiction, then
the same cannot be a ground for initiation of disciplinary proceedings specially when we find that the
said petitioner himself initiated a proceeding under Section 7(C) of the Act.
16. In absence of specific allegation regarding discharge of judicial/quasi judicial function of an officer
pursuant to corrupt or improper motive, no disciplinary action can be initiated, as has been decided by
the Hon’ble Supreme Court in the case Union of India & Another v. R. K. Desai (supra).
17. In the present case, going through the charge
sheet we are satisfied that no corrupt motive or improper motive has been alleged against the petitioner while discharging his function under Section 7A
of the Act.
54
United India Insurance Co. Ltd. vs. Dashrath Singh
18. Therefore, we are of the opinion that no misconduct has been committed by the petitioner in the
present case.
19. For the aforementioned reasons, we hold that
the respondent authorities should not have initiated
any disciplinary proceedings against the petitioner
in absence of any specific allegation of misconduct
as we are satisfied that the petitioner herein exercised his judicial function under section 7A of the
Act without any corrupt or improper motive.
20. Accordingly, we quash the impugned charge
sheet dated 21st April, 2011 and all steps taken by
the authorities in relation to the disciplinary proceedings initiated on the basis of the aforesaid charge
sheet including the second show cause notice as
well as the final order dated 9th December, 2014,
which has not yet been served on the said petitioner. The respondent authorities are directed to allow
the petitioner to resume his duty forthwith and grant
all admissible consequential service benefits.
21. Needless to mention that the original application is not required to be placed before the Division Bench of the learned Tribunal hereinafter in
view of the order dated 5th January, 2015 passed
by the said learned Tribunal since we have already
set aside the aforesaid order dated 5th January,
2015 passed in the original application being O.A.
350/01632/2014 and quashed the entire disciplinary
proceedings initiated on the basis of the impugned
charge sheet dated 21st April, 2011.
With the above observations and directions, we dispose of the writ petition as well as the connected
application without awarding any costs.
22. Let a photostat plain copy of this order duly
countersigned by the Assistant Registrar (Court) be
handed over to the learned advocate appearing for
the parties on usual undertaking.
Petition disposed Of.
—————
and Another
LLR
(b) will be applicable – Monthly income calculated as Rs. 4000 p.m. – Commissioner
has passed Award of Rs. 4,83,984 alongwith 12% simple annual interest on it from
28.5.2009 to date of payment – No modification required in Award in this appeal – Appeal dismissed.
Para 7
B. EMPLOYEES’ COMPENSATION ACT, 1923
– Section 30 – Appeal – There was a delay
of 17 days in lodging FIR – This is not any
substantial question of law – Tractor was
registered for agricultural purpose but used
at the time of accident for transportation of
goods – Also not a substantial question of
law.
Paras 3 & 4
For Appellant: Mr. Inderjeet Singh, Advocate.
For Respondents: Mr. Bhanu Prakash, Advocate.
IMPORTANT POINTS
Delay of 17 days in
lodging
FIR would not have any substantial
question of law while deciding
compensation under the Employees’
Compensation Act, 1923 in favour
of a driver who had suffered permanent injuries in an accident.
When Medical Board has opined
that the driver of the offending
vehicle had received serious
injuries because of which he will
not be able to walk any more, estimating his permanent
disability as 80%, the Commissioner has
rightly presumed that the driver
has suffered from 100% permanent
disability for the purpose of
calculation of compensation claim.
2016 LLR 54
RAJASTHAN HIGH COURT
Hon’ble Mr. Atul Kumar Jain, J.
S.B. C.M.A. No. 216/2014, D/–30-1-2015
United India Insurance Co. Ltd.
vs.
Dashrath Singh and Another
A. EMPLOYEES’ COMPENSATION ACT, 1923
– Sections 30, 4(a) and (b) – Permanent total disablement – Case relating to 100%
permanent total disablement – Section 4(1)
JUDGMENT
ATUL KUMAR JAIN, J.—1. Section 4(1)(a) of the
Employee’s Compensation Act, 1923 (herein after
referred as the Act of 1923)reads as under—
Subject to the provisions of this act, the
amount of compensation shall be as follows,
namely:—
(a) Where death results from the injury-an
amount equal to 50% of the monthly wages
of the deceased (employee) multiplied by relevant factor or an amount of One Lac Twenty
January, 2016 — 98
2016
M/s. Shiv Harbal Research Laboratory vs. Assistant P.F. Commissioner
Thousand Rupees Only (1,20,000), whichever is more.
(b) Where permanent total disablement results
from the injury-an amount equal to 60% of
the monthly wages of the injured (employee)
multiplied by the relevant factor or an amount
of One Lac Forty Thousand Rupees Only
(1,40,000), whichever is more.
Provided that the Central Government may, by
notification in the Official Gazette from time to
time, enhance the amount of compensation mentioned in Clauses (a) and (b).
Case in hand is a case relating to permanent total
disablement and so the section 4(l)(b) will be applicable. I have heard final arguments in this appeal
with the help of the files of learned Councel of the
parties.
2. Present case relates to the permanent total disablement of driver on Tractor No. RJ-14-RA-7552.
Medical board has opined that the driver Dashrath
Singh had received serious injuries because of
which he will not be able to walk any more and
his Permanent total disablement was estimated
as 80%. After perusal of the evidence, the Commissioner (E.C. Act), Jaipur District I in Claim No.
E.C.C.N.F. 162/2012 on 30.10.13 has decided that
the because of the injuries of Dashrath Singh, it can
be presumed that he is suffering from 100% permanent total disablement. This estimation has been
challenged in this appeal by the Insurance Company but I am not convinced with the arguments of the
appellant because a driver who will not be able to
walk for the rest of his life, shall be presumed to be
suffering from 100% permanent total disablement.
My view gets support from Pratap Narain Singh Deo
v. Shrinivas Sabata and another. 1976 (32) FLR 92
(SC)
3. Thus the first point raised in this appeal by the
appellant deserves no favour from this Court.
It has also been argued by the appellant that there
was a delay of 17 days in the lodging of the FIR.
This argument does not relate to any substantial
question of law. Hence deserves rejection.
4. It has also been argued that the tractor was registered for agriculture purposes but it was used at
the time of accident, for transportation of goods.
This question also cannot be called a substantial
question of law so it will not be considered in this
appeal.
5. Next point raised by the appellant is regarding the monthly income of Dashrath Singh which
has been calculated as Rs. 4000 per month by the
Commissioner.
99 — January, 2016
55
6. I have perused the evidence in this regard. Calculation of monthly income also appears to be correct and hence does not deserve any modification
looking to the minimum wages payable now to
skilled workman.
7. The Commissioner has passed an award of
Rs. 4,83,984 along with 12% simple annual interest
on it from 28.5.2009 to the date of payment. This
award does not deserve any modification in this appeal and hence this appeal being bereft of any force
deserves dismissal which is hereby dismissed along
with the stay application.
Copy of the order be sent to the Commissioner
(E.G. Act), Jaipur District I, Jaipur by registered post
immediately.
Appeal Dismissed.
—————
2016 LLR 55
SUPREME COURT OF INDIA
Hon’ble Mr. Altamas Kabir, J.
Hon’ble Mr. Cyriac Joseph, J.
C.A. No. 3001/2010 arising out of SLP(C ) No.
13320/2008, D/–5-4-2010
M/s. Shiv Harbal Research Laboratory
vs.
Assistant P.F. Commissioner
EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Sections
7A, 7-I, 7-O and 14B – Condition of pre-deposit
for entertaining appeal by Tribunal – Legality of
– EPF Appellate Tribunal directed the appellant
to deposit 50% of the damages imposed under
section 14B of the Act – Appellant challenged
that order by filing writ petition – Learned Single Judge chose not to interfere with the order
of the Tribunal – Appellant filed SLP before the
Supreme Court where the appellant was directed
to deposit 25% of the damages imposed at the
time of admission – Held, there is no such provision under the Act that pre-deposit is mandatory in respect of filing appeal against the order
of the EPF Authority under section 14B of the
Act imposing damages – Section 7-O of the Act
makes specific reference only to orders, passed
in terms of section 7A of the Act that no appeal
shall be entertained unless 75% of the amount
determined by EPF Authority under section 7A
of the Act is deposited, provided the EPF Tribunal may waive or reduce the amount by using
its discretion giving reasons in writing thereto
– Appeal to be filed under section 7-I of the Act
M/s. Shiv Harbal Research Laboratory vs. Assistant
56
against orders passed under section 14B of the
Act is only within such time and with such fees,
as may be prescribed and no part of determined
amount under section 14B of the Act is required
to be deposited – Hence, appeal is allowed –
25% amount already deposited shall suffice the
purpose.
Paras 3 to 5
P.F. Commissioner
LLR
directing the petitioner therein to deposit 50% of the
damages imposed under Section 14B of the Em-
IMPORTANT POINTS
There is no such provision
under the Employees’
Provident
Funds and Miscellaneous Provisions
Act, 1952 and the Scheme framed
thereunder that pre-deposit is
mandatory in respect of filing of
appeal against the order of the
EPF Authority under section 14B
of the Act imposing damages.
Section 7-O of the Act
makes
specific reference only to orders,
passed in terms of section 7A
of the Act that no appeal shall
be entertained unless 75% of the
amount determined by EPF Authority under section 7A of the Act
is deposited, provided the EPF
Tribunal may waive or reduce the
amount by using its discretion
giving reasons in writing
thereto.
Appeal to be filed under
sec-
tion 7-I of the Act against
orders passed under section 14B of
the Act is only within such time
and with such fees, as may be
prescribed and no part of determined amount under section 14B of
the Act is required to be deposited.
ORDER
1. ALTAMAS KABIR, J.—Leave granted.
This appeal is directed against the judgment and
order dated 21st February, 2008, passed by the
Nagpur Bench of the Bombay High Court in LPA
No. 252 of 2007, choosing not to interfere with the
discretion exercised by the Learned Single Judge
January, 2016 — 100
ployees’ Provident Funds and Miscellaneous Provisions Act, 1952. The appellant herein challenged
the said order on the ground that there was no provision in the aforesaid Act by which such a
direction could have been given by the High Court.
While is- suing notice on 7th July, 2008 on the
special leave petition we had directed the appellant
to deposit 25% of the amount instead of 50% as
directed by the Tribunal as well as by the High
Court. It may
be indicated that the appeal filed
by the appellant is still pending before the
Appellate Tribunal.
2. On behalf of the respondent, the Assistant
Provi- dent Fund Commissioner, it has been
contended that since the Tribunal as well as the
High Court
had exercised a discretionary
jurisdiction, the same should not be interfered with
by this Court. Learned counsel for the respondent
contended that although there was no statutory
provision similar to Section 7-O of the Act in
respect of a challenge to an or- der under Section
14B, the intention of the Legisla- ture would have
to be taken into consideration and since, provident
fund was a first charge, the prin- ciples of Section
7-O should also be read into the provision of
Section 14B of the above Act. In sup- port of his
submissions learned counsel referred to decision
of this Court in the case of Organo Chemi- cal
Industries and Anr. v. Union of India and Ors., AIR
1979 SC 1803, and a decision of the Andhra
Pradesh High Court in the case of M/s. Sarvaraya
Textiles Ltd. v. The Commissioner, Employees’
Provident Fund Commission, Hyderabad and Ors.,
2002 Lab IC 1212: 2002 LLR (SN) 97. Learned
counsel urged that in both the cases what had
been sought to be emphasized was the fact that
the im- position of damages is indicated to be a
warning to the employees not to commit a breach
of statutory requirements of Section 6, but at the
same time it is meant to provide compensation or
redress to the beneficiaries. It was also observed
that there
is nothing in the Section to show that
the damages imposed must bear relationship to
the loss which
is caused to the beneficiaries
under the Scheme. Learned counsel urged that
having regard to the above, the order of the
learned Appellate Tribunal directing deposit of 50%
of the damages imposed as a condition for stay,
as upheld by the High Court, did not warrant any
interference.
3. Having heard learned counsel for the respective
parties, we are unable to accept the submissions
made on behalf of the respondent, having regard
to the fact that had it been the intention of the
legis- lature to also include the principles
101 — January, 2016
incorporated in Section 7-O of the above Act, the
same would have been indicated in the provision
relating to filing of
2016
Elkachenu Kistamma and Another vs. United India Insurance Co. Ltd. and Another
appeals against such orders. Section 7-O makes
specific reference to orders passed in terms of Section 7A where it has been laid down that no appeal
by the employer shall be entertained unless he has
deposited 75% of the amount due from him as determined by an officer referred to in Section 7A. The
proviso to Section 7-O, however, grants the Tribunal discretion for reasons to be recorded in writing, to waive or reduce the amount to be deposited
under the said Section. There is no such provision
as far as Section 14B is concerned.
4. Apart from the above, the provision for preferring an appeal in respect of an order under Section
14B is contained in Section 7-I of the above Act
which provides for appeals to the Tribunal, inter alia
against orders passed under Section 14-B. Subsection (2) of Section 7-I indicates that every appeal
under sub-section (1) shall be filed in such form and
manner, within such time and be accompanied by
such fees, as may be prescribed. There is nothing
to indicate that any part of the amount awarded under Section 14B was required to be deposited at the
time of filing of the appeal.
5. When specific provision has been made with regard to appeals under Section 7A and under Section 7-O, a definite provision has been indicated for
deposit of 75% of the awarded amount and there is
no such provision in Section 7-I, we cannot read the
principles of Section 7-O into the provisions of Section 7-I in relation to appeals under section 14B of
the above Act.
6. The decisions cited by learned counsel appearing
for the respondent are not of any help to the case
of the respondent, Assistant Provident Fund Commissioner in the context of this case.
7. We, therefore, allow the appeal and confirm our
order dated 7th July, 2008. We are informed that
the said amount of 25% has been duly deposited
in the Tribunal. As directed in our order of 7th July,
2008, the amount deposited is to be kept in a short
term fixed deposit, which is to be renewed until the
disposal of the pending appeal. The said order shall
continue till the disposal of the appeal by the Tribunal.
—————
57
2016 LLR 57
SUPREME COURT OF INDIA
Hon’ble Mr. MB. Lokur, J.
Hon’ble Mr. R. Banumathi, J.
C.A.J. Civil Appeal No. 3392/2015, D/–7-4-2015
Elkachenu Kistamma and Another
vs.
United India Insurance Co. Ltd. and Another
EMPLOYEES’ COMPENSATION ACT, 1923 – Section 30 – Compensation – Deceased Husband of
claimant/appellant No. 1 was working as a driver
with respondent No. 2 in a rice mill – On direction by employer, the deceased had to obey the
orders of employer to replace the fuse in the
transformer – And he received an electric shock
and died on spot – Hence, the Commissioner’
Workmen’s Compensation rightly awarded the
compensation.
Paras 5 and 6
For Petitioners: Mr. S. Udaya Kuar Sagar, Ms.
Bina Madhavan, Ms.Akanksha Mehra, Ms. Srivdya
K. Kaimal, Ms. Shrinjan Khosla, Ms. Swati Vellodi
and Mr. Laksh Puri, Advocates.
For Respondents: Mr. R.N. Poddar, AOR and
Mr. S.K. Ray, Advocate.
IMPORTANT POINT
while
obeyAn
employee,
ing the order of the employer
for performing such a job which
is not part of
his duty, if met
with an accident and
suffered
permanent injury(s) or died, his
legal heirs/dependants are entitled to claim and get compensation
under the Employees’ Compensation
Act, 1923.
JUDGMENT
M.B. LOKUR.—1. Delay condoned.
Leave granted.
The husband of Appellant No. 1 was working as a
driver with Respondent No. 2 in a rice mill.
Some electrical problem arose in the rice mill due to
the burning of a fuse in the transformer. It appears
that the husband of Appellant No. 1 was asked by
the employer to look into the matter and see if the
fuse could be replaced. While the husband of Appellant No. 1 was obeying the orders of his employJanuary, 2016 — 100
58
Indian Express Ltd. vs. P.P. Kothari and Others
er, he suffered an electric shock, fell down from the
transformer and died on the spot.
In view of the death of the husband of Appellant
No. 1, a claim was made to the Commissioner for
Workmen’s Compensation and Assistant Commissioner of Labour-I, Hyderabad. The Commissioner,
by an order dated 16th July, 2009, awarded total
compensation of Rs. 4,17,586 to the appellants.
2. Feeling aggrieved by this award, the Insurance
Company (Respondent No. 1) preferred an appeal
before the Andhra Pradesh High Court being Civil
Misc. Appeal No. 1130 of 2009.
By an order dated 29th November, 2010, the High
Court took the view that it was not part of the duties
of the husband of Appellant No. 1 to repair the electrical fault. Therefore, as per the Rules the appellants were not entitled to any compensation.
3. We have looked into the case papers and find
that the husband of Appellant No. 1 being an employee of Respondent No. 2 had no option but to
obey the orders passed by his employer and since
the electrical fuse had got burnt and the rice mill appeared to have conic to a stand-still, ho was asked
to replace the fuse.
4. It is pointed out by learned Counsel for the appellants that this is not the first time the fuse had
got burnt and there were earlier instances also and
usually the employees including the husband of Appellant No. 1 were asked to replace the fuse, particularly since the linesman whose duty was to change
the fuse was located several kilometers away. It is
under these circumstances that the husband of Appellant No. 1 obeyed the orders given by his employer (Respondent No. 2) and attempted to change
the fuse in the transformer.
Unfortunately, some mishap occurred as a result of
which the husband of Appellant No. 1 received an
electric shock and died on the spot.
5. Looking to the facts and circumstances of the
case including the fact that the husband of Appellant No. 1 was asked to replace the fuse only by his
employer, we are of the opinion that the High Court
ought not to have gone into strict technicalities of
the matter and ought to have looked at the claim of
the appellants a little more sympathetically.
6. Under the circumstances, we set aside the order
passed by the High Court and restore the award
made by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I,
Hyderabad.
7. Learned Counsel for Respondent No. 1 states
that the awarded amount has been deposited with
the Commissioner. The appellants are at liberty to
withdraw the amount deposited with the Commis-
LLR
sioner. If any interest has accrued on the amount,
that interest should also be paid to the appellants.
8. We make it clear that the awarded amount will be
in addition to any other amount that has been received by the Appellants from the employer or from
any other source as a result of the accident.
Accordingly, the appeal is allowed.
Appeal Allowed.
—————
2016 LLR 58
BOMBAY HIGH COURT
Hon’ble Mr. A.S. Chandurkar, J.
W.P. No. 1470/1998, D/–15-6-2015
Indian Express Ltd.
vs.
P.P. Kothari and Others
INDUSTRIAL ADJUDICATION – Burden of proof
of a plea – Is initially on party who sets up it – In
view of this, an employee in order to discharge
his burden to prove employer-employee relationship – Has to lead positive evidence – And after
that, the employer would lead his evidence to
rebut the assertions made by employee – Test
for determining the relationship given.
Para 8
For Petitioner: Mr. R.B Puranik, Advocate.
For Respondents: S.M. Bhagde, AGP
IMPORTANT POINTS
In ‘industrial adjudication’,
burden of proof of a plea is initially on the
party who sets up
it.
Workman,
in
order
to
discharge his burden to prove
employer-employee
relationship, has to first lead
positive
evidence.
After
recording
of
positive evidence of the workman, the
employer would leave his evidence
to rebut the
assertions made by
the employee.
While adjudicating the issue
of employer-employee relationship,
the Labour Court is required
to
January, 2016 — 102
2016
Indian Express Ltd. vs. P.P. Kothari and Others
consider various factors including (a) who is appointing authority; (b) who is the pay
master;
(c) who can dismiss; (d) how long
alternative service lasts; (e) the
extent of control and supervision;
(f) the nature of job e.g. whether it is professional or skilled
work; (g) nature of establishment
and (h) right to reject.
JUDGMENT
A.S. CHANDURKAR, J.—1. By the present writ
petition the Award dated 28.02.1996 passed by the
learned Judge of the Labour Court, Akola in reference proceedings under Section 17(2) of the Working Journalists and Other Newspaper Employees
(Conditions of Service) and Miscellaneous Provisions Act, 1955 (for short the said Act) is under
challenge by the petitioner. During pendency of the
writ petition the original applicant-claimant expired
and his legal representatives have been brought on
record.
According to the original applicant, he was initially
working as a Part Time Correspondent with Indian
Express Newspaper (Bombay) Private Limited. According to the applicant, he was supplying news
item for being published in daily “Indian Express”
and daily “Loksatta”. This arrangement between
the parties however, came to be terminated on
31.07.1980. Thereafter, on 21.08.1980 the predecessor of the petitioners engaged the original applicant as a stringer on linage basis. Accordingly,
agreement between the parties came to be entered
into. The original applicant, accepted terms and
conditions as prescribed. Subsequently, the original
applicant on 02.06.1998 filed an application under
the provisions of section 17 of the said Act claiming
the remuneration for the period from 01.10.1979 onwards till 31.05.1988 in terms of the Palekar Award.
Interest on said amount was also claimed. The
present petitioners filed their written statement taking the stand that there was no relationship of employer and employee between the parties and that
the petitioners were not liable to pay any amount as
claimed by the original applicant. The proceedings
were referred to the Labour Court under the provisions of Section 17(2) of the said Act in terms of
reference made by the State Government. The original applicant examined himself while the petitioners also examined one witness. Ultimately, award
was passed by the Labour Court and the petitioners
were directed to pay various amount to the original
applicant as arrears along with interest. The said
103 — January, 2016
59
award is subject-matter of challenge in the present
writ petition.
2. Shri R.B. Puranik, the learned counsel appearing for the petitioner submitted that the learned
Judge of the Labour Court erred in granting relief
in the proceedings filed by the original applicant.
According to him, there was no relationship of employer and employee between the parties. Though
the burden to prove such relationship was on the
original applicant, the Labour Court wrongly shifted
said burden on the petitioners. It was then submitted that there was no positive evidence on record
to show that the principal avocation of the original
applicant was newspaper journalism. In absence of
such evidence, no relief could have been granted to
the applicant. The learned counsel referred to various provisions of the said Act and submitted that
the Labour Court had erred in granting relief to the
original applicant in absence of various jurisdictional
aspects. In support of his submissions the learned
counsel placed reliance on the following decisions.
(i) Indian Banks Association v. Workmen of
Syndicate Bank and others, 2001 (88) FLR
1097: 2001 LLR 412 (SC).
(ii) Ram Singh v. Union Territory, Chandigarh
and others, (2004) 1 SCC 126: 2004 LLR 47
(SC).
(iii) Ahmednagar Zilla S.D.V. & P. Sangh Ltd.
and another v. State of Maharashtra and others, (2004) 1 SCC 133
(iv) Workmen of Nilgiri Co-op. Mtk. v. State of
Tamil Nadu & Ors., 2004 (101) FLR 137:
2004 LLR 351 (SC).
(v) Indian Petrochemicals Corpn. Ltd. v. Manilal
Bhanabhai Vasava, 2004 (101) FLR 747
(Guj).
(vi) National Aluminium Company Limited and
others v. Ananta Kishore Rout and others,
2014 (142) FLR 643 (SC).
(vii) Balwant Rai Saluja & Anr. v. AIR India Ltd.
& Ors., 2014 (143) FLR 1: 2014 LLR 1009
(SC).
(viii) The Management of Express Newspapers
Ltd. v. B. Somayajulu and others, 1963 (7)
FLR 246 (SC).
3. Though the legal representatives of the respondent No. 1 have been duly served, they have
chosen not to contest the proceedings. Shri S.M.
Bhagde, learned AGP has appeared for the respondent No. 2.
4. With the assistance of the learned counsel, I
have gone through the documents filed on record.
The appointment of the petitioner as stringer on
60
Indian Express Ltd. vs. P.P. Kothari and Others
21.08.1980 is not in dispute. The principal grounds
on which the award of the Labour Court is under
challenge are that there was absence of relationship of employer and employee between the parties and that the principal avocation of the original
applicant was not journalism. If the pleadings of
the parties are perused, this specific stand have
been raised by the present petitioners in the written
statement filed before the Labour Court.
5. Before the Labour Court, the applicant had examined himself on oath in which he stated that he
had not been paid salary of Part Time Reporter as
per the Palekar Award. In his deposition, he had
not made any positive statement that his principal
avocation was newspaper journalism. In his crossexamination it was stated that he also did business as well as politics for earning. He however,
denied the suggestion that journalism was not his
main profession. He admitted the document dated
21.08.1980 entered into between the parties.
The petitioners examined their Senior Personnel
Manager in support of their defence. The said witness stated that he had no control over the working
of the applicant nor did he had any fixed working
hours. It was specifically stated that journalism was
not the principal avocation of the applicant.
6. The Labour Court on consideration of aforesaid
evidence observed that as the applicant had denied
the suggestion that newspaper journalism was not
his principal avocation the burden shifted on the
petitioners. It further held that as the earlier agreement between the parties came to be terminated
on 31.07.1980 it was clear that the applicant was
a Part Time Correspondent with the petitioners. Accordingly, it was held that there was a relationship
of employer and employee between the parties. On
that basis the claim of the applicant was allowed
and relief was granted to the original applicant.
7. At this stage, it is necessary to refer to the judgment of the Supreme Court in the Management of
Express Newspaper Limited (supra). While considering the expression “Working Journalists” as defined by provisions of Section 2(d) of the said Act
prior to its amendment, it was held that the object
of said provision was to make it clear that the employees specified in said clause were journalists
and nothing more. In para 8 of the report it has
been observed thus:
“In other words, the position is that whenever
an employee working in the newspaper establishment claims the status of a working journalist he has to establish first that he is a journalist,
and then that journalism is his principal avocation and he has been employed as such jour-
LLR
nalist. In proving the fact that he is a journalist,
the employees specified in the latter clause need
not prove anything more than this that they fall
under one or the other category specified in the
said clause. But that only proves their status as
journalist; they have still further to show that their
principal avocation is that of a journalist and that
they have been employed as such by the newspaper establishment in question.”
After the definition was amended and Section 2(f)
was incorporated, the requirement of a working journalist being a person whose principal avocation was
of a journalist was retained.
In the present case, as noted above except for the
statement in the statement of claim that journalism
was the principal avocation of the applicant, there is
no positive evidence led on record by the applicant
in that regard. In his examination-in-chief the applicant did not state anything about newspaper journalism being his principal avocation. On the contrary, in
the cross-examination he admitted that he also did
business and politics for earning. In the light of the
law as laid down referred to aforesaid it cannot be
said that in terms of provisions of Section 2(f) of the
said Act, the applicant had proved that journalism
was his principal avocation. It is to be noted that the
jurisdiction under the provisions of Section 17(1) of
the said Act can only be invoked by a working journalist as defined by Section 2(f) of the said Act.
8. In so far as, the relationship of employer and employee is concerned, in Workmen of Nilgiri Cooperative Marketing (supra) various tests have been laid
down for determining such relationship. In para 38
of aforesaid decision it has been observed thus:
“The control test and the organization test,
therefore, are not the only factors which can be
said to be decisive. With a view to elicit the answer, the court is required to consider several
factors which would have a bearing on the result:
(a) who is appointing authority; (b) who is the
pay master; (c) who can dismiss; (d) how long
alternative service lasts; (e) the extent of control
and supervision; (f) the nature of the job, e.g.
whether, it is professional or skilled work; (g) nature of establishment; (h) right to reject.
Similarly, in a recent decision in Balwant Rai Saluja
(supra) the Supreme Court has reiterated aforesaid
law by referring to the aspect of administrative control. It was further held that such burden was required to be discharged by the person who claimed
existence of such relationship.
9. In the light of aforesaid law if the facts of the
present case are considered, it is clear that the two
vital jurisdictional aspects regarding relationship of
January, 2016 — 104
2016
Delhi Transport Corporation vs. Bir Singh
employer and employee between the parties and
the principal avocation of the applicant being newspaper journalism are not satisfied by the original
applicant. Burden to prove both these aspects was
on the applicant but the evidence led by him can in
no manner lead to the conclusion that such burden
was duly discharged in accordance with law. On
the contrary, there is no evidence on record to indicate journalism as the principal avocation of the
applicant. The learned Judge of the Labour Court
by holding that the burden to prove principal avocation of the applicant shifted on the present petitioners completely misdirected itself in that regard.
In absence of any basic material to show that newspaper journalism was the principal avocation of the
applicant, such burden could not have been shifted
on the petitioners. Similarly, the material on record
does not satisfy the requirements of proving the relationship of employer and employee between the
parties in the light of the law laid down in Workmen
of Nilgiri Co-op. (supra).
10. As the applicant had invoked the provisions
of Section 17(1) of the said Act for seeking relief,
it was necessary for the applicant to discharge the
burden placed on him and to satisfy both the jurisdictional aspects. It is in that background that the
material on record has been examined only for the
purposes of being satisfied that the jurisdiction of
the Labour Court had been rightly invoked under
Section 17(2) of the said Act and not for the purposes of re-appreciating the same. Absence of such
jurisdictional aspects therefore, disentitle the original
applicant for any relief whatsoever.
11. In view of the aforesaid discussion, the following
order is passed:
(i) The award dated 28.02.1996 passed by the
learned Presiding Officer, Labour Court, Akola is set aside. The application filed by the
original applicant under Section 17(1) stands
rejected.
(ii) The petitioners are entitled to receive the
amounts deposited by them pursuant to various interim orders passed in this writ petition.
Similarly, in terms of order dated 07.12.2010
passed in Contempt Petition No. 193/2004,
the petitioners are also entitled to receive
back the amount of interest that was paid by
them in execution proceedings.
(iii) Rule is made absolute in aforesaid terms. No
order as to costs.
Ordered Accordingly.
—————
105 — January, 2016
61
2016 LLR 61
DELHI HIGH COURT
Hon’ble Mr. Pradeep Nandrajog, J.
Hon’ble Ms. Mukta Gupta, J.
L.P.A. No. 49/2015, D/–18-8-2015
Delhi Transport Corporation
vs.
Bir Singh
INDUSTRIAL DISPUTES ACT, 1947 – Section
33(2) (b) – Approval – Removal of respondentworkman after enquiry – For absenting from
duty unathorisedly and without permission –
Approval of denied by Tribunal – However on
remand approval allowed – However, habitual
absence can be deduced even from period of
absence – And merely because the leave period
is finally adjusted the same would not amount
to a sanctioned leave – In view of fact that the
respondent-workman was absent from duty
from 17.4.1993 to 9.6.1993 – Disciplinary authority was fully justified in directing removal from
service.
Paras 4 and 5
For Appellant: Ms. Avinash Ahlawat and Ms. Latika
Chaudhary, Advocates.
For Respondent: Mr. Ravindra S. Garia.
IMPORTANT POINTS
Removal of an employee, being
habitual absentee, after conducting proper enquiry, is justified.
When an employee absents himself from duty without sanctioned
leave, employer may conclude that
the employee is habitually negligent in duties and lacks interest
in the employer’s work.
Treating absence as leave
without pay after passing an
order of termination, that is, for
the purpose of maintaining correct record of service, would not
amount to a sanctioned leave.
JUDGMENT
MS. MUKTA GUPTA, J.—1. The respondent Bir
Singh was employed as Sweeper-Cleaner in the
Delhi Transport Corporation (in short the DTC)
62
Delhi Transport Corporation vs. Bir Singh
and subsequently as Conductor on April 22, 1983.
Since he absented from duty from April 17, 1993
to June 09, 1993 without prior permission/intimation of the competent authority he was declared as
absconded on April 28, 1993. A charge sheet was
issued to Bir Singh as to why disciplinary action be
not taken wherein besides the allegation of absenting from duty from April 17, 1993 to June 09, 1993
unauthorizedly without permission from competent
officer or information, it was also noted that the past
record of Bir Singh showed that he was habitual of
committing this type of irregularity and not taking
interest in the work of DTC. The reply sent by Bir
Singh was not found to be satisfactory by the DTC
and thus an enquiry was conducted. On the charges having been proved a show cause notice dated
June 23, 1994 was issued as to why Bir Singh be
not removed from the service of the DTC to which
Bir Singh filed no reply within the stipulated time.
However a belated representation was filed stating
that he had filed a leave application but the same
was not taken into consideration in the enquiry proceedings. Finally vide order dated August 16, 1994
Bir Singh was removed from service. An application
was filed by the DTC under Section 33(2)(b) of the
Industrial Disputes Act 1947 (in short the ID Act)
for approval of its action which application was dismissed by the Tribunal on July 23, 2003.
Aggrieved by the order dated July 23, 2003 the
DTC preferred a writ petition being W.P. (C) No.
8871/2004 wherein this Court set aside the order
of the Industrial Tribunal and remanded the matter
back for consideration afresh. On remand the approval petition was allowed vide order dated January 05, 2012 and it was held that the penalty of
dismissal from service on Bir Singh was justified.
Aggrieved by the order dated January 05, 2012 Bir
Singh filed a writ petition being which was allowed
by the learned Single Judge by the impugned order
dated September 16, 2014 directing his reinstatement in service with continuity and 50% back-wages. Hence the present appeal by the DTC.
2. The primary reason why the learned Single Judge
set aside the punishment of removal from service
was that Bir Singh remained absent from duty only
from April 17, 1993 to June 09, 1993 for which he
had given explanation and submitted medical documents. As per the medical documents from April 17,
1993 to May 24, 1993 Bir Singh was sick and thereafter his wife fell sick from May 26, 1993 to June
09, 1993. The leave was duly sanctioned for whole
period though without pay and as the leave was
sanctioned by the respondent there was no justification to remove him from the service. It was held that
the decision of the Supreme Court in Delhi Trans-
LLR
port Corporation v. Sardar Singh, 2004 (102) FLR
1031 (SC): 2004 (22) AIC 457: 2004 LLR 953 (SC)
had no application to the facts of the present case.
3. In Sardar Singh (supra) the Supreme Court referring to the relevant paras of the Standing Orders
of the DTC held that mere making of an application
after or even before absence from work does not
in any way assist the employee concerned and the
requirement is to obtain the leave in advance. The
relevant portion of the report notes:
“7. In all these cases almost the whole period
of absence was without sanctioned leave. Mere
making of an application after or even before
absence from work does not in any way assist
the employee concerned. The requirement is obtaining leave in advance. In all these cases the
absence was without obtaining leave in advance.
The relevant paras of the Standing Orders read
as follows:
“4. Absence without permission.—(i) An employee shall not absent himself from his duties
without having first obtained the permission from
the authority or the competent officer except in
the case of sudden illness. In the case of sudden illness he shall send intimation to the office
immediately. If the illness lasts or is expected to
last for more than 3 days at a time, applications
for leave should be duly accompanied by a medical certificate, from a registered medical practitioner or the Medical Officer of DTS. In no case
shall an employee leave station without prior permission.
(ii) Habitual absence without permission or
sanction of leave and any continuous absence
without such leave for more than 10 days shall
render the employee liable to be treated as an
absconder resulting in the termination of his service with the organisation.
19. General provisions.—Without prejudice to
the provisions of the foregoing Standing Orders,
the following acts of commission and omission
shall be treated as misconduct:
(a)-(g) ***
(h) Habitual negligence of duties and lack of
interest in the authority’s work.”
8. Clause 15 of the Regulations so far as relevant reads as follows:
“(2) Discipline.—The following penalties may,
for misconduct or for a good and sufficient reason be imposed upon an employee of the Delhi
Road Transport Authority:
(i)-(v) ***
January, 2016 — 106
2016
Delhi Transport Corporation vs. Ranbir Singh
(vi) Removal from the service of the Delhi
Road Transport Authority.
(vii) Dismissal from the service of the Delhi
Road Transport Authority.
***”
9. When an employee absents himself from
duty, even without sanctioned leave for a very
long period, it prima facie shows lack of interest in work. Para 19(h) of the Standing Orders
as quoted above, relates to habitual negligence
of duties and lack of interest in the authority’s
work. When an employee absents himself from
duty without sanctioned leave, the authority can,
on the basis of the record, come to a conclusion
about the employee being habitually negligent
in duties and an exhibited lack of interest in the
employer’s work. Ample material was produced
before the Tribunal in each case to show as to
how the employees concerned were remaining
absent for long periods which affects the work of
the employer and the employee concerned was
required at least to bring some material on record to show as to how his absence was on the
basis of sanctioned leave and as to how there
was no negligence. Habitual absence is a factor
which establishes lack of interest in work. There
cannot be any sweeping generalisation. But at
the same time some telltale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.
10. Great emphasis was laid by learned counsel for the respondent employee on the absence
being treated as leave without pay. As was observed by this Court in State of M.P. v. Harihar Gopal, (1969) 3 SLR 274 (SC) by a three
Judge Bench of this Court, even when an order
is passed for treating absence as leave without
pay after passing an order of termination, that is,
for the purpose of maintaining correct record of
service. The charge in that case was, as in the
present case, absence without obtaining leave in
advance. The conduct of the employees in this
case is nothing but irresponsible in the extreme
and can hardly be justified. The charge in this
case was misconduct by absence. In view of the
governing Standing Orders unauthorised leave
can be treated as misconduct.
11. Conclusions regarding negligence and lack
of interest can be arrived at by looking into the
period of absence, more particularly, when same
is unauthorised. Burden is on the employee
who claims that there was no negligence and/or
lack of interest to establish it by placing relevant
materials. Clause (ii) of para 4 of the Standing
Orders shows the seriousness attached to ha107 — January, 2016
10
7
bitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception
made is in case of sudden illness. There also
conditions are stipulated, non-observance of
which renders the absence unauthorised.”
4. It is thus amply clear from the judgment that habitual absence can be deduced even from the period of absence and merely because the leave period
is finally adjusted the same would not amount to a
sanctioned leave. The Court is required to look into
whether the employee was negligent and lacked
interest in the work for which the burden is on the
employee who claims that there was no negligence
or lack of interest. Even in case of sudden illness
conditions are stipulated and non-observance of the
same renders the absence unauthorized.
5. Considering the fact that Bir Singh was absent
from duties from April 17, 1993 to June 09, 1993
and even without going into the aspect of past record of Bir Singh where he was repeatedly given
warnings, suspended, reprimanded and punished by
way of stoppage of increment for being absent for
the reason the claim of Bir Singh is that past record
was not supplied to him, the disciplinary authority
was fully justified in directing removal from service
of Bir Singh for his unauthorized absence from duty
with effect from April 17, 1993 to June 09, 1993.
6. Consequently the impugned order dated September 16, 2014 is set aside and the order passed by
the Tribunal is restored.
Ordered Accordingly.
—————
2016 LLR 63
DELHI HIGH COURT
Hon’ble Mr. Sunil Gaur, J.
W.P. (C) 16065/2004 and W.P. (C) 16346/2004,
D/–19-11-2015
Delhi Transport Corporation
vs.
Ranbir Singh
A. INDUSTRIAL DISPUTES ACT, 1947 – Section
33(2)(b) – Effect of rejection of application –
Workman was a conductor – He was caught
by checking staff to have issued tickets of
less denominations to passengers – Checking staff did not record the statements of
concerned passengers – On the report of
checking staff, enquiry was conducted –
Workman was held guilty of the charges
– He was removed from service – Management moved an application under section
64
Delhi Transport Corporation vs. Ranbir Singh
33(2)(b) of the Act which was dismissed
by the trial court since the checking staff
had not recorded the crucial evidence of
passengers – Consequently, the workman
was awarded reinstatement with 50% backwages.
Paras 1, 2 and 6
B. ENQUIRY – Effect of its vitiation by Labour
Court – Held, if enquiry finding is vitiated
by the Labour Court, the workman would be
entitled to reinstatement with back-wages.
Para 6
C. BACK-WAGES – Justification of – Workman
admitted that he owns just two bighas of
agricultural land from which his earning is
Rs. 25,000 p.a. – Held, awarding 50% backwages is fully justified.
Para 11
D. MISCONDUCT – Collecting full fare and issuing tickets of less denomination is a serious misconduct justifying punishment of removal/dismissal from service since zero tolerance is to be shown to dishonest conduct
of the employees as observed by Supreme
Court in case Subhash Chander v. Presiding Officer, Labour Court, 2013 SCC online
Delhi 1275.
Para 10
For Petitioner: Mr. Manish Garg & Mr. Hitesh
Kumar, Advocates.
For Respondent: Mohd. Taiyab Khan, Advocate.
IMPORTANT POINTS
If application filed by the
Management under section 33(2)(b)
of the Industrial Disputes Act,
1947, is rejected by the trial
court, the workman will be entitled to reinstatement with backwages.
If enquiry finding is vitiated
by the Labour Court, the
workman
would be entitled to reinstatement with back-wages.
Keeping in view the fact that
the workman had admitted that he
owns just two bighas of
agricultural land from which his earning
is Rs. 25,000 p.a., awarding 50%
back-wages is fully justified.
Collecting full fare and
issuing tickets of less denomination
LLR
is a serious misconduct
since
zero tolerance is to be shown to
dishonest conduct of the employees as observed by Supreme Court
in case Subhash Chander v. Presiding Officer, Labour Court, 2013
SCC online Delhi 1275.
Misconduct
of
dishonesty,
committed by a workman, would
justify punishment of removal/
dismissal of the workman from
service.
JUDGMENT
MR. SUNIL GAUR, J.—1. In the above captioned
first petition, the challenge is to impugned order of
13th September, 2002, vide which it has been held
that the departmental inquiry initiated against respondent stood vitiated. Vide impugned order of 3rd
March, 2003, petitioner’s application under Section
33(2)(b) of The Industrial Disputes Act, 1947 stands
rejected by the trial court while holding that the alleged misconduct does not stand proved.
2. In the above captioned second petition, challenge
is to the impugned Award of 16th July, 2003, which
directs reinstatement of respondent with 50% of
back-wages.
3. With the consent of learned counsel for parties,
the above captioned two petitions were taken up for
hearing together, as the challenge to impugned orders in the above captioned two petitions is on identical ground and so, by this common judgment, the
above captioned two petitions are being disposed
of.
4. The factual matrix of this case, as highlighted
during the course of hearing, is that respondent
was appointed as Conductor by petitioner in August, 1983 and in January, 1994 respondent was
on duty in petitioner’s bus from Delhi to Jammu and
on the way, four passengers had boarded the bus
and respondent had purportedly collected the fare
from the said passengers but had issued the tickets
of less denominations and it was so detected by the
check staff near Samba.
5. A departmental inquiry was conducted by Shri
Sushil Jacob. In the inquiry proceedings, Transport
Inspector- Hari Singh deposed about this incident
and Assistant Transport Inspector-Ranbir Singh
had also deposed in support of the charges framed
against respondent. The Inquiry Officer held that the
charges stood proved against respondent. Acting
upon the Inquiry Report, penalty of removal from
January, 2016 — 108
2016
Delhi Transport Corporation vs. Ranbir Singh
service was inflicted upon respondent. The statutory
appeal preferred by respondent was dismissed and
thereafter, petitioner had raised an industrial dispute
regarding the illegality of removal from service and
before the trial court, the Inquiry Officer as well as
the Transport Inspector – Hari Singh had deposed.
Trial court vide impugned order of 13th September,
2002 held that the checking staff had not recorded
the name and statements of passengers from whom
the respondent had collected the full fare but had issued tickets of lesser denominations and the inquiry
stood vitiated for lack of legal evidence.
6. Vide impugned order of 3rd March, 2003, it was
held that the misconduct attributed to respondent
does not stand proved due to lack of evidence of
the passengers, which was crucial to prove the
charges against respondent. Thus, petitioner’s application seeking approval of the penalty of removal
from service was rejected by the trial court vide impugned Award of 16th July, 2003. It has been held
that due to non-approval of respondent’s removal
from service, the domestic inquiry stood vitiated and
hence, reinstatement of respondent with 50% backwages has been ordered.
7. At the hearing, learned counsel for petitioner had
assailed the impugned order by contending that the
sufficiency of evidence is not required to be gone
into and there was no justification for the trial court
to have disbelieved Transport Inspector, who had
deposed before the trial court. It was asserted that
for not examining the passengers, the Transport
Inspector- Hari Singh had given a plausible answer
of respondent threatening the passengers not to
depose and so, in such a situation it cannot be
said that the principles of natural justice have been
violated or the inquiry has been vitiated. To contend so, reliance was placed upon Apex Court’s
decision in State of Haryana v. Rattan Singh, 1977
(2) SCC 491 and decisions of Coordinate Benches
of this Court in Vikram Kumar v. Delhi Transport
Corporation, 2015 SCC online Del 10880 and Subhash Chander v. Presiding Officer Labour Court,
2013 SCC online Del 1275. Lastly, it was submitted that it has come on record that respondent was
having some land and so, trial court was not
justified in granting 50% of the back-wages. Thus,
quashing of the impugned order and restoration of
penalty order was sought by petitioner.
8. Learned counsel for respondent had supported
the impugned order and submitted that petitioner
had ten years of service and there was no adverse
entry in his service record and that the charge levelled against respondent is baseless and does not
stand proved at all and the trial court has rightly
held that neither the misconduct stands proved nor
109 — January, 2016
10
9
the inquiry was fairly conducted and so, both these
petitions deserve dismissal.
9. Upon hearing and on perusal of the impugned
orders, material on record and the decisions cited,
I find that Transport Inspector-Hari Singh in his
evidence has stated that respondent did not permit
him to record the statement of passengers. To say
the least, Transport Inspector-Hari Singh did not require any permission from respondent to record the
statements of passengers. In the absence of crucial
evidence of passengers, the misconduct alleged
against respondent does not stand proved. Trial
court has rightly declined approval to the removal
of respondent from service. In the absence of legal
evidence, the inquiry stood vitiated. Reliance placed
by petitioner’s counsel upon Apex Court’s decision
in State of Haryana v. Rattan Singh (supra) does
not advance the case of petitioner because in the
said decision, it has been declared that in domestic inquiry, strict and sophisticated rules of evidence
under the Indian Evidence Act are not applicable.
However, the crucial evidence to prove the charge
has to be led.
10. In the instant case, petitioner has failed to get
the preliminary evidence of passengers recorded.
In Vikram Kumar (supra), not only the statements
of passengers were recorded but even the said
statement was got signed by the Transport Inspector. In Subhash Chander (supra), it has been held
that zero tolerance is to be shown to dishonest conduct of the employees. There is no doubt about it
but there has to be basic and preliminary evidence
to prove the charge of misconduct. So far as quantum of sentence is concerned, decision in Subhash
Chander (supra) would apply but not to a case like
the instant one, which lacks evidence.
11. It is true that the initial burden is on the employee to prove that he was not gainfully employed during period in question. In the instant case, learned
counsel for respondent, on instructions from respondent who is present in the Court, apprised this Court
that respondent owns just two bighas of land in Gohana (Haryana) and is merely earning Rs. 25,000
per annum from the agricultural land and has two
handicapped children to support and there is no
other source of income. In such a situation, awarding of 50% of the back-wages is fully justified. In the
considered opinion of this Court, impugned orders
do not suffer from any irrationality nor disclose any
palpable error. Finding no substance in the above
captioned two petitions, they are dismissed, while
leaving the parties to bear their own costs.
—————
Delhi Transport Corporation vs. Gulab Singh
66
2016 LLR 66
DELHI HIGH COURT
Hon’ble Ms. Sunita Gupta, J.
W.P. (C) 1521/2012, D/–24-11-2015
Delhi Transport Corporation
vs.
Gulab Singh
A. MISCONDUCT – Unauthorised absent –
When would not justify removal from service
– Workman availed excessive leave say 63
days in the year 1990; 81 days in 1991 and
129 days in 1992 – He was issued chargesheet for remaining unauthorisedly absent
from 22.11.1992 to 03.12.1992 without prior
information or permission – Enquiry was
conducted – He was found guilty of the misconduct – He was removed from service
– He raised an industrial dispute – Labour
Court awarded reinstatement with full backwages holding the enquiry not conducted
in accordance with the principles of natural
justice – Management challenged the Award
in writ petition – High Court set aside the
Award remanding the matter back to the
Labour Court to pass a fresh judgment
in accordance with the decision of the
Supreme Court in DTC v. Sardar Singh,
(2004) 7 SCC 574 – Management examined
two witnesses – Workman also led his evidence – Labour Court held that the Management has proved the charges – Holding
further that the quantum of punishment of
removal from service is disproportionate, awarded reinstatement with 50% backwages – Management again challenged the
Award in writ petition – At the stage of admission, the advocate of the petitioner confined his prayer to the extent of back-wages
only.
Paras 3 to 5
B. BACK-WAGES – Justification of – Workman
was awarded reinstatement with 50% backwages – Management challenged the Award
in writ petition but confined its prayer to
the extent of back-wages only – Workman
had specifically averred in his affidavit in
evidence that he remained unemployed
throughout after his termination – Management did not deny this fact – Due to unemployment not only the workman but his
entire family suffers grave adversities – Employer is to plead and prove that workman
was gainfully employed – Denial of backwags would amount to indirectly punishing
LLR
the employee and rewarding the employer
– Since the Management has not disproved
the testimony of the workman remaining unemployed, awarding back-wages is justified.
Paras 6 to 8
C. CONSTITUTION OF INDIA, 1950 – Article
226 – In exercise of its writ jurisdiction, the
Court is not to intervene unless the petitioner could prove that the record and material
evidence adduced before the Labour Court
was insufficient or inadequate or order suffers from any perversity or there is any error of law which is required to be corrected
by a writ of certiorari.
Para 8
For Petitioner: Mr. J.S. Bhasin, Advocate.
For Respondent: Mr. M. Hussain, Advocate.
IMPORTANT POINTS
Unauthorised absence being a
grave and serious misconduct,
if
proved, may attract punishment of
removal or dismissal from service.
Management
may
lead
its
evidence to prove the charges
against the workman before the
Industrial Adjudicator, when the
enquiry finding is held to be improper, with the permission of
the Court
Granting back-wages is justified if the workman had specifically averred in his pleadings
and affidavit in evidence that he
remained
unemployed
throughout
after his termination and the
Management did not specifically
deny this fact since due to unemployment not only the workman but
his entire family suffers grave
adversities and denial of backwages would amount to indirectly
punishing the employee and rewarding the employer.
If the employer specifically
has pleaded and proved that workman was gainfully employed, denial
of back-wages is justified.
January, 2016 — 110
2016
Delhi Transport Corporation vs. Gulab Singh
In exercise of
its writ
jurisdiction, the Court is not
to intervene in the Award unless
the petitioner could prove that
the record and material evidence
adduced before the Labour Court
were insufficient or inadequate or
order/Award suffers from any perversity or mere is any error of
law which is required to be
corrected by a writ of certiorari.
JUDGMENT
SUNITA GUPTA, J.—1. The challenge in this writ
petition under Articles 226 and 227 of the Constitution is for setting aside the impugned award dated
07.04.2011 passed by POLC – VII, Karkardooma
Courts, Delhi in ID No. 382/98/2010.
2. The brief facts as borne out from the record is
that the respondent (hereinafter referred to as ‘the
workman’) was appointed as driver with effect from
02.09.1998 with the petitioner (hereinafter referred
to as ‘the corporation’). He availed excessive leaves
during the period 1989 to 1993 for the period ranging 63 days in the year 1990, 81 days in the year
1991 and 129 days in the year 1992. He was cautioned in the year 1990 for remaining absent from
his duties for 14 days and for which a punishment
was also awarded for reduction in one increment.
The workman was issued charge-sheet dated
19.03.1993 for remaining unauthorizedly absent with
effect from 22.11.1992 to 03.12.1992 without any
prior information and permission of the competent
authority thus amounting to misconduct under para
4(ii) and (M) of the Standing Orders governing the
conduct of DTC Employees. An enquiry was conducted against the workman. On conclusion of enquiry the Enquiry Officer gave findings against the
workman. A show cause notice dated 05.07.1993
was issued to the workman on the basis of enquiry
findings and past record of the workman. He was
removed from the service of the corporation vide
letter dated 23.08.1993. After the matter failed before the Conciliation Officer, the same was referred
by the Secretary (Labour) State Govt. vide order
dated 10.08.1998 and thereafter, the respondent
filed statement of claim before the Labour Court
stating therein that he fell sick on account of typhoid
with effect from 22.11.1992 as such applications
for leave were sent to depot manager from time to
time. He remained under treatment in government
hospital. The medical certificate and fitness certificate was submitted at the time of joining duties. He
was directed to be examined by the medical officer
111 — January, 2016
67
of the corporation and on receipt of the report of the
medical officer for his sickness and fitness he was
allowed to resume duties. The enquiry conducted
against the workman was not in accordance with
the principles of natural justice. The corporation
did not properly consider the case of the workman
and removed him from service without getting the
reply of the show-cause memo and the removal is
illegal and unsustainable in law. The corporation
filed its written statement on 3.6.1999 claiming that
the workman was removed from service of the corporation after holding a proper and valid enquiry.
Reference was answered in favour of the workman
on 22.1.2001 by holding that services of the workman had been terminated illegally by the corporation
and he was directed to be reinstated with continuity
of service and full back-wages. The management
challenged the award dated 22.01.2001 by filing writ
petition being W.P. (C) No. 1267/2002. Vide order
dated 6.4.2005, the award was set aside and the
matter was remanded back for passing fresh order
in the light of the judgment passed by the Hon’ble
Supreme Court in DTC v. Sardar Singh, (2004) 7
SCC 574: 2004 LLR 953 (SC). Thereafter, the corporation examined two witnesses. The workman
also filed his affidavit. Vide order dated 30.3.2011
it was held that the corporation has been able to
prove misconduct on the part of the workman for
remaining absent from duties unauthorizedly from
22.11.1992 to 03.12.1992 and lack of interest in the
working of the corporation. However, while deciding the quantum of punishment, vide award dated
07.04.2011 it was observed that the punishment of
the removal from job is harsh and disproportionate
to the misconduct proved against the workman as
such he was directed to be reinstated to his job with
the rider that he shall be entitled to half of the backwages for the period he has not worked with the
management and he was entitled to all other consequential benefits. Feeling aggrieved, the present
writ petition has been filed by the corporation challenging the award dated 7.4.2011.
3. Learned counsel for the petitioner – corporation submits that the charge-sheet was submitted to the workman for remaining unauthorizedly
absent during the period 22.11.1992 to 03.12.1992.
At the time of submitting the charge-sheet itself
it was made clear to the workman that his past
record will also be considered. Reference was made
to the above record for submitting that although the
workman was appointed as a driver on 02.09.1988,
however, immediately thereafter he availed excessive leaves from the period 1989 to 1993 for the
period ranging 63 days in the year 1990 and 81
days in the year 1991 and 129 days leave in the
11
2
Delhi Transport Corporation vs. Gulab Singh
year 1992 for which punishment was imposed upon
him by cautioning him and reducing one increment,
but he did not improve his conduct and again remained unauthorizedly absent during the year 1992.
Even the Labour Court found that the unauthorized
absence of the workman to join duties tantamount
to misconduct yet it was held that he was entitled
to reinstatement in service with 50% back-wages.
Thus, the punishment of removal from service was
not disproportionate to the misconduct and, therefore, the impugned order suffers from infirmity and
deserves to be set aside. Reliance was placed on
DTC v. Sardar Singh (supra); L&T Komatsu Ltd. v.
N. Udayakumar, (2008) 1 SCC 224: 2008 LLR 113
(SC) and a judgment delivered by this Court in Delhi Transport Corporation v. Shri Om Dutt, [W.P.(C)
No. 3602/2010, decided on 14.8.2015].
4. Learned counsel for the respondent – workman,
on the other hand, submits that the workman was
compelled to take leave on account of his illness.
Immediately after recovery at the time of joining of
duties, he filed medical certificate as well as fitness
certificate. He was also examined by the medical board constituted by the corporation and it was
only on receipt of their report he was allowed to join
duties. His leave was treated as without pay as
such it was not a case of unauthorized absence.
Reference was also made to the award dated
22.1.2001 passed by the learned Presiding Officer,
Labour Court No. VII, Delhi whereby it was held
that the workman was not guilty of any misconduct
accordingly he was ordered to be reinstated with
full back-wages. After the writ petition was filed
by the petitioner corporation and the matter was
remanded back to the Labour Court, vide award
dated 7.4.2011 the punishment of removal from job
was considered to be highly disproportionate to the
misconduct and as such the workman was ordered
to be reinstated with 50% of the back-wages. It is
further submitted that pursuant to this award the
respondent – workman was reinstated in service.
As such when the writ petition was filed, the counsel for the petitioner – corporation pressed the writ
petition only regarding back-wages awarded to the
respondent. There is no infirmity in this part of the
award passed by the Labour Court which calls for
any interference as such the petition is liable to be
dismissed.
5. Although the writ petition was filed challenging the award dated 07.04.2011 vide which the
respondent – workman was directed to be reinstated in service with 50% back-wages, however, at
the stage of admission of writ petition itself, learned
counsel for the petitioner – corporation confined his
prayer to the grant of back-wages only. Therefore,
LLR
the only question left for consideration in this writ
petition is as to whether awarding of 50% backwages to the workman is illegal or not.
6. A perusal of record reveals that the respondent –
workman has specifically averred in his affidavit that
after termination of his services he remained unemployed. There is no denial of this fact by the the petitioner – corporation. The order granting reinstatement to the workman is now not under challenge
in this writ petition since the workman has already
been reinstated. The factum of his reinstatement in
the services implies that the workman is to be put in
the same position in which he would have been but
for the action taken by the corporation – employer.
Such issue was considered at great length by the
Hon’ble Supreme Court in Deepali Gundu Surwase
v Kranti Junior Adhyapak Mahavidyalaya (D.Ed.)
and Ors., (2013) 10 SCC 324 wherein the Hon’ble
Supreme Court referred to various earlier judgments
on the issue and observed as under:—
“17. The very idea of restoring an employee
to the position which he held before dismissal
or removal or termination of service implies that
the employee will be put in the same position in
which he would have been but for the illegal action taken by the employer. The injury suffered
by a person, who is dismissed or removed or is
otherwise terminated from service cannot easily
be measured in terms of money. With the passing of an order which has the effect of severing
the employer employee relationship, the latter’s
source of income gets dried up. Not only the
concerned employee, but his entire family suffers grave adversities. They are deprived of the
source of sustenance. The children are deprived
of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other
acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken
by the employer. The reinstatement of such an
employee, which is preceded by a finding of the
competent judicial/quasi judicial body or Court
that the action taken by the employer is ultra
vires the relevant statutory provisions or the principles of natural justice, entitles the employee to
claim full back-wages. If the employer wants to
deny back-wages to the employee or contest his
entitlement to get consequential benefits, then it
is for him/her to specifically plead and prove that
during the intervening period the employee was
gainfully employed and was getting the same
emoluments. Denial of back-wages to an employee, who has suffered due to an illegal act of
January, 2016 — 112
2016
Delhi Transport Corporation vs. Gulab Singh
the employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving him of the obligation to pay
back-wages including the emoluments.
18. A somewhat similar issue was considered
by a three Judge Bench in Hindustan Tin Works
Pvt. Ltd. v. Employees of Hindustan Tin Works
Pvt. Ltd. (supra) in the context of termination of
services of 56 employees by way of retrenchment due to alleged non-availability of the raw
material necessary for utilization of full installed
capacity by the petitioner. The dispute raised by
the employees resulted in award of reinstatement
with full back-wages. This Court examined the issue at length and held:
“It is no more open to debate that in the
field of industrial jurisprudence a declaration
can be given that the termination of service
is bad and the workman continues to be in
service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine
of mitigation of damages does not haunt in
this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to
be invalid. It would mean that the employer
has taken away illegally the right to work of
the workman contrary to the relevant law or
in breach of contract and simultaneously deprived the workman of his earnings. If thus
the employer is found to be in the wrong as a
result of which the workman is directed to be
reinstated, the employer could not shirk his
responsibility of paying the wages which the
workman has been deprived of by the illegal
or invalid action of the employer. Speaking
realistically, where termination of service is
questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an
awesome factor that he may not survive
to see the day when relief is granted. More
so in our system where the law’s proverbial
delay has become stupefying. If after such
a protracted time and energy consuming litigation during which period the workman just
sustains himself, ultimately he is to be told
that though he will be reinstated, he will be
denied the back-wages which would be due
to him, the workman would be subjected to
a sort of penalty for no fault of his and it is
wholly undeserved. Ordinarily, therefore, a
workman whose service has been illegally
113 — January, 2016
11
3
terminated would be entitled to full backwages except to the extent he was gainfully
employed during the enforced idleness. That
is the normal rule. Any other view would be
a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination
is motivated as in this case viz. to resist the
workmen’s demand for revision of wages, the
termination may well amount to unfair labour
practice. In such circumstances reinstatement
being the normal rule, it should be followed
with full back-wages. Articles 41 and 43 of
the Constitution would assist us in reaching a
just conclusion in this respect. By a suitable
legislation, to wit, the U.P. Industrial Disputes
Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the
statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the
assigned work and earn their livelihood, were
kept away therefrom. On top of it they were
forced to litigation upto the Apex Court now
they are being told that something less than
full back-wages should be awarded to them.
If the services were not terminated the workmen ordinarily would have continued to work
and would have earned their wages. When it
was held that the termination of services was
neither proper nor justified, it would not only
show that the workmen were always willing to
serve but if they rendered service they would
legitimately be entitled to the wages for the
same. If the workmen were always ready to
work but they were kept away therefrom on
account of an invalid act of the employer,
there is no justification for not awarding them
full back-wages which were very legitimately
due to them.
In the very nature of things there cannot be a
strait-jacket formula for awarding relief of backwages. All relevant considerations will enter the
verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full
back-wages would be the normal rule and the
party objecting to it must establish the circumstances necessitating departure. At that stage
the Tribunal will exercise its discretion keeping
in view all the relevant circumstances. But the
discretion must be exercised in a judicial and
judicious manner. The reason for exercising discretion must be cogent and convincing and must
appear on the face of the record. When it is said
that something is to be done within the discretion
70
Delhi Transport Corporation vs. Gulab Singh
of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular.”
(emphasis supplied) After enunciating the abovenoted principles, this Court took cognizance of
the appellant’s plea that the company is suffering
loss and, therefore, the workmen should make
some sacrifice and modified the award of full
back-wages by directing that the workmen shall
be entitled to 75% of the back-wages.
19. Another three Judge Bench considered the
same issue in Surendra Kumar Verma (supra):
“Plain common sense dictates that the removal of an order terminating the services
of workmen must ordinarily lead to the reinstatement of the services of the workmen. It
is as if the order has never been, and so it
must ordinarily lead to back-wages too. But
there may be exceptional circumstances
which make it impossible or wholly inequitable vis-à-vis the employer and workmen
to direct reinstatement with full back-wages.
For instance, the industry might have closed
down or might be in severe financial doldrums; the workmen concerned might have
secured better or other employment elsewhere and so on. In such situations, there
is a vestige of discretion left in the court to
make appropriate consequential orders. The
court may deny the relief of reinstatement
where reinstatement is impossible because
the industry has closed down. The court may
deny the relief of award of full back-wages
where that would place an impossible burden
on the employer. In such and other exceptional cases the court may mould the relief,
but, ordinarily the relief to be awarded must
be reinstatement with full back-wages. That
relief must be awarded where no special impediment in the way of awarding the relief
is clearly shown. True, occasional hardship
may be caused to an employer but we must
remember that, more often than not, comparatively far greater hardship is certain to be
caused to the workmen if the relief is denied
than to the employer if the relief is granted.”
(emphasis supplied)
20. The principle laid down in Hindustan Tin
Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra) was reiterated in P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (2001) 2 SCC
54. That case makes an interesting reading. The
respondent had worked as helper for 11 months
LLR
and 18 days. The termination of his service
was declared by Labour Court, Chandigarh as
retrenchment and was invalidated on the ground
of non-compliance of Section 25F of the Industrial Disputes Act, 1947. As a corollary, the
Labour Court held that the respondent was
entitled to reinstatement with continuity of service. However, only 60% back-wages were
awarded. The learned Single Judge of the Punjab and Haryana High Court did not find any
error apparent in the award of the Labour Court
but ordered payment of full back-wages. The
two Judge Bench of this Court noted the guiding
principle laid down in the case of Hindustan Tin
Works Private Limited and observed:
“While it is true that in the event of failure in compliance with Section 25F read with
Section 25(b) of the Industrial Disputes Act,
1947 in the normal course of events the Tribunal is supposed to award the back-wages in
its entirety but the discretion is left with the
Tribunal in the matter of grant of back-wages
and it is this discretion, which in Hindustan Tin
Works (P) Ltd. case this Court has stat- ed
must be exercised in a judicial and judicious manner depending upon the facts and
circumstances of each case. While, however,
recording the guiding principle for the grant of
relief of back-wages this Court in Hindustan
case, itself reduced the back-wages to 75%,
the reason being the contextual facts and circumstances of the case under consideration.
The Labour Court being the final court of facts
came to a conclusion that payment of 60% wages would comply with the requirement of law.
The finding of perversity or being erroneous or
not in accordance with law shall have to be recorded with reasons in order to assail the finding
of the Tribunal or the Labour Court. It is not for
the High Court to go into the factual aspects of
the matter and there is an existing limitation on
the High Court to that effect. In the event, however the finding of fact is based on any misappreciation of evidence, that would be deemed to
be an error of law which can be corrected by a
writ of certiorari. The law is well settled to the effect that finding of the Labour Court cannot be
challenged in a proceeding in a writ of certiorari
on the ground that the relevant and material evidence adduced before the Labour Court was insufficient or inadequate though, however, perversity of the order would warrant intervention of the
High Court. The observation, as above, stands
well settled since the decision of this Court in
January, 2016 — 114
2016
Delhi Transport Corporation vs. Gulab Singh
Syed Yakoob v. K.S. Radhakrishnan AIR 1964
SC 477.
Payment of back-wages having a discretionary element involved in it has to be dealt with, in
the facts and circumstances of each case and no
straight-jacket formula can be evolved, though,
however, there is statutory sanction to direct payment of back-wages in its entirety. As regards
the decision of this Court in Hindustan Tin Works
(P) Ltd. be it noted that though broad guidelines,
as regards payment of back-wages, have been
laid down by this Court but having regard to the
peculiar facts of the matter, this Court directed
payment of 75% back-wages only.
The issue as raised in the matter of back-wages has been dealt with by the Labour Court in
the manner as above having regard to the facts
and circumstances of the matter in the issue,
upon exercise of its discretion and obviously in a
manner which cannot but be judicious in nature.
In the event, however, the High Court’s interference is sought for, there exists an obligation on
the part of the High Court to record in the judgment, the reasoning before however denouncing a judgment of an inferior Tribunal, in the absence of which, the judgment in our view cannot
stand the scrutiny of otherwise being reasonable.
There ought to be available in the judgment itself
a finding about the perversity or the erroneous
approach of the Labour Court and it is only upon
recording therewith the High Court has the authority to interfere. Unfortunately, the High Court
did not feel it expedient to record any reason far
less any appreciable reason before denouncing
the judgment.”
7. After taking note of various other decisions rendered in Hindustan Motors Ltd. v. Tapan Kumar
Bhattacharya, (2002) 6 SCC 41: 2002 LLR 925
(SC); Indian Railway Construction Co. Ltd. v. Ajay
Kumar, (2003) 4 SCC 579; M.P. State Electricity
Board v. Jarina Bae, (2003) 6 SCC 141: 2003 LLR
848 (SC); Kendriya Vidyalaya Sangathan v. S.C.
Sharma, (2005) 2 SCC 363: 2005 LLR 275 (SC);
General Manager, Haryana Roadways v. Rudhan
Singh, (2005) 5 SCC 591: 2005 LLR 849 (SC) 3;
U.P. State Brassware Corporation Ltd. v. Uday
Narain Pandey, (2006) 1 SCC 479: 2006 LLR 214;
The Depot Manager, A.P.S.R.T.C. v. P. Jayaram
Reddy, (2009) 2 SCC 681: 2009 LLR 239 (SC) 1;
Novartis India Ltd. v. State of West Bengal and others, (2009) 3 SCC 124: 2009 LLR 113 (SC); Metropolitan Transport Corporation v. V. Venkatesan,
(2009) 9 SCC 601; Jagbir Singh v. Haryana State
Agriculture Marketing Board and another, (2009)
15 SCC 327: 2009 LLR 966 (SC), the proposition
115 — January, 2016
71
which can be culled out from the aforesaid decisions was summarised as under:
“(i) In cases of wrongful termination of service,
reinstatement with continuity of service and
back-wages is the normal rule.
(ii) The aforesaid rule is subject to the rider that
while deciding the issue of back-wages, the
adjudicating authority or the Court may take
into consideration the length of service of the
employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of
the employer and similar other factors.
(iii) Ordinarily, an employee or workman whose
services are terminated and who is desirous
of getting back-wages is required to either
plead or at least make a statement before
the adjudicating authority or the Court of first
instance that he/she was not gainfully employed or was employed on lesser wages. If
the employer wants to avoid payment of full
back-wages, then it has to plead and also
lead cogent evidence to prove that the employee/workman was gainfully employed and
was getting wages equal to the wages he/
she was drawing prior to the termination of
service. This is so because it is settled law
that the burden of proof of the existence of a
particular fact lies on the person who makes
a positive averments about its existence. It
is always easier to prove a positive fact than
to prove a negative fact. Therefore, once the
employee shows that he was not employed,
the onus lies on the employer to specifically
plead and prove that the employee was gainfully employed and was getting the same or
substantially similar emoluments.
(iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11A of the Industrial Disputes Act, 1947
and finds that even though the enquiry held
against the employee/workman is consistent
with the rules of natural justice and/or certified standing orders, if any, but holds that
the punishment was disproportionate to the
misconduct found proved, then it will have
the discretion not to award full back-wages.
However, if the Labour Court/Industrial Tribunal finds that the employee or workman
is not at all guilty of any misconduct or that
the employer had foisted a false charge, then
there will be ample justification for award of
full back-wages.
(v) The cases in which the competent Court or
Tribunal finds that the employer has acted
72
Mani Lal vs. Matchless Industries of India
in gross violation of the statutory provisions
and/or the principles of natural justice or is
guilty of victimizing the employee or workman, then the concerned Court or Tribunal
will be fully justified in directing payment of
full back-wages. In such cases, the superior
Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour
Court, etc., merely because there is a possibility of forming a different opinion on the
entitlement of the employee/workman to get
full back-wages or the employer’s obligation
to pay the same. The Courts must always be
kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is
the employer and sufferer is the employee/
workman and there is no justification to give
premium to the employer of his wrongdoings
by relieving him of the burden to pay to the
employee/workman his dues in the form of
full back-wages.
(vi) In a number of cases, the superior Courts
have interfered with the award of the primary
adjudicatory authority on the premise that finalization of litigation has taken long time
ignoring that in majority of cases the parties
are not responsible for such delays. Lack of
infrastructure and manpower is the principal
cause for delay in the disposal of cases. For
this the litigants cannot be blamed or penalised. It would amount to grave injustice to an
employee or workman if he is denied backwages simply because there is long lapse of
time between the termination of his service
and finality given to the order of reinstatement. The Courts should bear in mind that in
most of these cases, the employer is in an
advantageous position vis-à-vis the employee or workman. He can avail the services of
best legal brain for prolonging the agony of
the sufferer, i.e., the employee or workman,
who can ill afford the luxury of spending money on a lawyer with certain amount of fame.
Therefore, in such cases it would be prudent
to adopt the course suggested in Hindustan
Tin Works Private Limited v. Employees of
Hindustan Tin Works Private Limited (supra).
(vii) The observation made in J.K. Synthetics Ltd.
(supra) that on reinstatement the employee/
workman cannot claim continuity of service
as of right is contrary to the ratio of the judgments of three Judge Benches referred to
hereinabove and cannot be treated as good
law. This part of the judgment is also against
LLR
the very concept of reinstatement of an employee/workman.”
8. In view of the aforesaid judgments, coupled
with the fact that the findings of the Labour Court
regarding reinstatement of the workman is now no
more under challenge in this writ petition and the
testimony of the workman that during the entire
period he remained unemployed which goes unrebutted and unchallenged coupled with the fact that
the Labour Court itself has granted only 50% of the
back-wages, in exercise of its writ jurisdiction under
Article 226 of the Constitution, this Court is not to
intervene unless the petitioner could prove that the
record and material evidence adduced before the
Labour Court was insufficient or inadequate or the
order suffers from any perversity or there is any
error of law which is required to be corrected by a
writ of certiorari. The judgments relied upon by the
learned counsel for the petitioner does not help the
petitioner corporation particularly when the findings
regarding reinstatement is not pressed in this writ
petition. That being so, the impugned award does
not call for any interference.
9. The writ petition is accordingly dismissed leaving
the parties to bear their own costs.
The petition stands disposed of accordingly.
Trial Court record be sent back forthwith.
—————
2016 LLR 72
DELHI HIGH COURT
Hon’ble Ms. Sunita Gupta, J.
WP(C) 2314/2012, D/–18-11-2015
Mani Lal
vs.
Matchless Industries of India
A. ENQUIRY – When fair and proper – Effect
of – Workman was issued charge-sheet
for slowing down the production – Enquiry
was conducted – Workman was held guilty
of the charges – He was terminated from
service – He raised an industrial dispute
– Labour Court held the enquiry to be fair
and proper, observing that that Enquiry Officer neither misconducted himself nor the
enquiry had been concluded in violation
of principles of natural justice – Since enquiry was found fair and proper, the Labour
Court rejected the claim of the workman after recording evidence of both the parties –
Workman filed writ petition challenging the
Award passed by the Labour Court – Held,
January, 2016 — 72
Mani Lal vs. Matchless Industries of India
2016
workman confined the challenge only to the
disproportionality of the punishsment – Evidence on record reveals that enquiry has
been conducted by following principles of
natural justice – Hence, interference in the
enquiry is not called for to substitute the
finding already concluded by the disciplinary authority and confirmed by the Labour
Court.
Para 13
B. PUNISHSMENT – When not disproportionate to the misconduct – Go-slow is a serious misconduct – Hence, punishment of
dismissal from service cannot be treated as
exaggerated or disproportionate.
Para 14
C. MISCONDUCT – Meaning of – Dictionary
meaning is ‘impropr behaviour’ i.e., intentional wrong doing or deliberate violation of
a rule of standard behaviour – Any conduct
by an employee, inconsistent with the faithful discharge of his duties towards his employer, would be a misconduct – Reduced
production, refusal to give the agreed output, deliberately working slow, not completing the job in a proper time, is a breach of
duty – It is dishonesty – Workman is guilty
of intentional omission of duty – It is a
grave misconduct justifying dismissal or
discharge.
Paras 16 and 20
D. CONSTITUTION OF INDIA, 1950 – Article
226/227 – Scope of judicial review in the
matter of punishment is extremely restricted – Unless it could be shown that punishment, as imposed, is such as to shock the
conscious of the court or that no person of
ordinary prudence would come to such conclusion or it is ex facie arbitrary, the Court
will not interfere.
Para 29
For Petitioner: Mr. Sanjay Ghose and Ms. Pratistha
Vij, Advocates alongwith the petitioner in person.
For Respondent: Mr. V.K. Diwan and Mr. Lalit
Kumar, Advocates.
IMPORTANT POINTS
When the evidence on record
reveals, that domestic enquiry,
by an Enquiry Officer, appointed
by the Disciplinary Authority of
the employer, has been conducted
by adhering to the principles of
natural justice, interference by
the Court, in the enquiry finding,
73 — January, 2016
73
is not called for to
substitute
the finding already concluded.
Punishment of dismissal from
service
cannot
be
treated as
exaggerated
or
disproportionate when the misconduct of ‘goslow’ has been proved against the
workman by conducting a fair and
proper enquiry.
Meaning of the word
‘misconduct’, on the basis of dictionary
meaning, is ‘impropr behaviour’
i.e., intentional wrong doing or
deliberate violation of a rule of
standard behaviour.
Any conduct by an employee,
inconsistent with the faithful
discharge of his duties towards
his employer, would be a misconduct.
Reduced production, refusal
to give the agreed output, deliberately working slow, not completing the job in a scheduled
time, is a breach of duty, dishonesty and a grave and serious
misconduct justifying dismissal or
discharge from service.
Scope
of
judicial
review
in the matter of punishment is
extremely restricted.
Judicial review, to reassess
the disproportionality of punishment, is not called for unless it
could be shown that punishment, as
imposed, is such as to shock the
conscious of the court or that no
person of ordinary prudence would
come to such conclusion or it is
ex-facie arbitrary.
JUDGMENT
SUNITA GUPTA, J.—1. The challenge in this writ
petition under Articles 226 and 227 of the Constitution of India is to the order dated 28.03.2008 whereby the preliminary issue regarding enquiry was decided in favour of the respondent and award dated
15.01.2011 passed by the learned Presiding Officer,
Labour Court, Kakardooma Courts, Delhi in ID No.
74
Mani Lal vs. Matchless Industries of India
46/2010 (new) 368/2011 (old) whereby termination
of services of the petitioner was held to be legal
and justified.
2. The petitioner (hereinafter referred as to ‘the
workman’) was working as helper with the respondent (hereinafter referred to as ‘the management’) since the year 1987. He was suspended on
10.08.1999 and thereafter his services were terminated with effect from 21.05.2000. An industrial
dispute was raised by him. The Secretary (Labour),
Government of NCT of Delhi vide its order number
F.24 (4666)/2000-Lab./2907 – 11 dated 02.02.2001
referred the industrial dispute to the Labour Court
with the following terms of reference:
“Whether the services of Mani Lal have been
terminated illegally and, or unjustifiably by the
management, and if so, what relief is he entitled
and what directions are necessary in this respect?”
3. Thereafter the workman filed its claim alleging inter alia that he joined the management in the year
1987 as helper and his last drawn salary was Rs.
2348 per month. Although he was performing his
duties as a skilled worker, yet the management
was paying his salary for the post of labour. When
he demanded the wages as per his work, the management got annoyed and issued a show cause
notice dated 14.07.1999 levelling false allegations
of slowing down the production. He (the workman)
submitted his reply on 22.07.1999. The management suspended him with effect from 10.08.1999
and issued him charge-sheet dated 13.08.1999. An
enquiry was conducted by the management without
following the principles of natural justice and after
conclusion of enquiry his services were terminated
with effect from 21.05.2000. It was further alleged
that the production of an unskilled person depends
on the performance of a skilled worker. As he was
getting salary only of an unskilled person, therefore, the management cannot level allegations of
less production against the workman. Besides taking work of a skilled person and paying salary of an
unskilled worker amounts to unfair labour practices.
The punishment imposed by the management does
not commensurate with the alleged misconduct. The
workman has been without employment since the
date of termination of services as such he prayed
for reinstatement in service with full back-wages.
4. The claim of the workman was contested by the
management on the ground that the workman was
causing losses to the management by resorting to
„go slow tactics’ despite advices given to him. As
such a charge-sheet was served upon the workman and an enquiry was conducted. He was suspended vide letter dated 10.08.1999 and a charge-
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sheet dated 13.08.1999 was issued. After submission of enquiry report by the Inquiry Officer, the
services of the workman were terminated with effect
from 21.05.2000 after considering his reply dated
14.02.2000. The punishment imposed upon the
workman is not disproportionate to the misconduct
committed by the workman. He was appointed as a
Labour i.e. unskilled workman and was being paid
for that work. No work of skilled labour was being
taken from him.
5. On the pleadings of the parties, following issues
were framed:
“(1) Whether the management conducted a fair
and proper enquiry against the claimant, if
so, to what effect?
(2) As per the terms of reference.”
6. Issue No. 1 was treated as a preliminary issue.
The workman examined himself whereas the management examined Mr Nishant S. Diwan – Enquiry
Officer who proved his affidavit and documents as
Ex.MW1/1 to Ex.MW1/10. The enquiry issue was
decided in favour of the management and against
the workman vide order dated 28.03.2008 and it
was held that the same was based on unchallenged
testimony of witnesses and unrebutted record and,
therefore, it cannot be called perverse or based on
no evidence. The Enquiry Officer neither mis-conducted himself nor the enquiry had been concluded
in violation of principles of natural justice. As regards issue No. 2, learned Labour Court observed
that in view of the evidence and material on record
and the decision on issue No. 1 in favour of the
management and against the workman coupled with
the allegations of misconduct of “go slow tactics”
levelled by the management against the workman,
it cannot be said that the punishment of dismissal of
service of the workman was disproportionate to the
misconduct committed by the workman. As such,
the workman was not entitled to get any relief.
7. Feeling aggrieved, the present writ petition has
been filed by the workman seeking quashing of the
impugned order dated 28.03.2008 vide which the
enquiry was held to be fair and proper and the impugned award dated 15.01.2011 passed by the Labour Court vide which the termination was held to
be proportionate to the misconduct committed by
the workman. It was further prayed that the management be directed to reinstate him or in the alternative pay compensation for illegal termination.
8. As per record when the writ petition was taken up
for consideration on 20.04.2012, the learned counsel for the petitioner – workman confined the challenge only to the punishment awarded to him by the
respondent – management stating that the punishJanuary, 2016 — 74
2016
Mani Lal vs. Matchless Industries of India
ment of dismissal from service was shockingly disproportionate to the misconduct found to have been
committed by him, as such, notice of the writ petition was issued to the respondent – management
only to the extent of punishment.
9. It is submitted by Mr. Sanjay Ghose, learned
counsel for the petitioner – workman that the punishment imposed upon the workman is shockingly
disproportionate to the charge levelled against him.
The petitioner had an unblemished record of thirteen
years of service. There was no history of past misconduct; even no warning was given to him at any
point of time. No evidence was led by the management to prove the actual loss or closure of industry
on account of the alleged allegations. The very fact
that the punishment imposed upon the workman is
shockingly disproportionate is reflective of the fact
that it was a case of victimization and adoption of
unfair labour practices. Reliance was placed on
Colour Chem Ltd. v A.L. Alaspurkar & Ors., (1998)
3 SCC 192.
10. Mr V.K. Diwan, learned counsel for the respondent – management, on the other hand, urged that
the dismissal of the workman indulging in slowing
down the work and adopting “go slow tactics” cannot be said to be disproportionate to the misconduct proved against the workman which warrants
interference. Reliance was placed on Fancy Corporation Ltd. v. Girdhari Mangru Yadav, 2007 (113)
FLR 953; Carona Sahu Company Ltd. v. Mansoor
Ahmed Noormiya & Ors., 1997 LLR 534 and P.J.
Gangadaran v. Second Additional Labour Court,
1997, LLR 245. Reliance was also placed on Hawa
Singh v. Union of India & Ors., 2005 (106) FLR 402
(Del) in support of the submissions that for proved
misconduct the punishment awarded to the workman is not exaggerated. The other applicable judgments relied upon by the counsel for the respondent
– management are North West Karnataka Road
Transport Corporation, Hubli v. K.S. Ranghuathappa, 2003 LLR 803. It is further submitted by learned
counsel for the respondent – management that the
Labour Court does not sit in appeal over the orders
of management passed on the basis of a domestic
enquiry. The Labour Court is not to interfere with the
quantum of punishment unless the same is found to
be grossly excessive. Reliance in this regard was
placed on Depot Manager, APSRTC, Karim Nagar
– I Depot v. Mohd. Ghani & Anr., 2007 (115) FLR
745 and G.B. Gupta v. G.M. (Operation) SBI, New
Delhi, 2007 (115) FLR 647.
11. The petitioner alongwith one Munna Lal were
charge-sheeted on the allegations of misconduct of
resorting to ‘go-slow’ tactics. Having found the explanation to be unsatisfactory, the management de75 — January, 2016
75
cided to conduct an enquiry. One Mr Rajesh Vaid
was initially appointed as an enquiry officer, however, on the objections raised by the workman for
change of that enquiry officer, Mr. Nishant S. Diwan
was appointed as an enquiry officer. A perusal of
enquiry proceedings goes to show that in order to
substantiate the charge against the workman, Mr
Suman Kumar Gandhiok, partner of the management appeared before the enquiry officer and explained the duties of the charge-sheeted workman
by stating that their duties were to clean the tank.
Their job was to take out the rims from one tank and
to put them in the next tank. They were required to
take out the rims of the tank on completion of 25
minutes but the workman used to do so in 35 minutes whereby chemicals, nickel and electricity was
wasted and loss of production in labour incurred.
According to the calculations of the witness, if the
rims were kept in the tank for extra period of five
minutes in that case it would cause loss @ Rs. 4.50
on a pair of small rim and Rs. 7.50 on a pair of big
rim. Because of this reason, the company suffered
huge losses and certificate of Chartered Accountant
was placed on record to prove the said allegations.
The witness further stated that the chemicals used
by them were of superior quality and the management’s supplier also advised them to keep the rims
for plating only for 25 minutes. However, because
of ‘go-slow’ tactics, the management suffered huge
losses and were superseded by the competitive
factories. He further stated that before the chargesheets, letters dated 14.03.1999 and 31.07.1999
were sent to the charge-sheeted employee to mend
their policy of ‘go slow’ and not to cause loss in production but the workman did not give up their ‘goslow’ policy despite repeated requests causing loss
to production. He further stated that ‘go-slow’ tactics
resorted to by the workman was a misconduct. The
record reveals that despite opportunities given, the
witness was not cross examined by the workman.
12. Mr. Jagmohan, factory in-charge was also examined and he also deposed that due to the policy
adopted by the workmen, the factory suffered huge
losses. There was also loss of nickel, a precious
item, chemicals and loss of per day production. Besides this, it also caused excess expenses on electricity and labour.
13. The management also produced the entire record of production in order to show that during the
month of September, 1998 to December, 1998 and
January, 1999 the workmen were taking lot of rims
from the cleaning tanks in 30 minutes. However,
in the month of May, 1998 to August, 1998 they
resorted to ‘go-slow’ and took out lot of rims in 35
minutes’ time. As per the enquiry report in spite of
76
Mani Lal vs. Matchless Industries of India
opportunities granted to the workman he did not
choose to cross examine the witnesses. Not only
that, the workman did not lead any evidence to
rebut the allegations as such the enquiry officer held the workman guilty of the charges. The
Labour Court vide a detailed order dated 28.03.2008
observed that despite participating in the enquiry,
the workman neither cross examined the management’s witnesses nor proved his contention.
Moreover, no plea of victimization or unfair labour
practices was ever whispered. As such, the issue
regarding the fairness of inquiry was decided in favour of the management and against the workman.
14. By relying upon Fancy Corporation Ltd.
‘(supra) and Carona Sahu Company Ltd. (supra),
vide award dated 15.01.2011 it was held that the
workman could not establish that there was no ‘go
slow’ tactics adopted by him. ‘Go-slow’ is a serious misconduct and punishment of dismissal from
service cannot be treated as exaggerated or disproportionate. Accordingly, the workman was held not
entitled to get any relief.
15. The first question for consideration is as to
whether the act of the workman in indulging in ‘goslow practice’, is mis-conduct or not.
16. The expression ‘misconduct’ has not been
defined either in the Industrial Disputes Act, 1947
or in the Industrial Employment (Standing Orders)
Act, 1946. The dictionary meaning of the word misconduct is ‘improper behaviour’; intentional wrong
doing or deliberate violation of a rule of standard of
behaviour. In so far as the relationship of industrial
employment is concerned, a workman has certain
express or implied obligations towards his employer.
Any conduct on the part of an employee inconsistent with the faithful discharge of his duties towards
his employer would be a misconduct. Any breach
of the express or implied duties of an employee towards his employer, therefore, unless it be of trifling
natures would constitute an act of misconduct. In
industrial law, the word ‘misconduct’ has acquired a
specific connotation. It cannot mean inefficiency or
slackness. It is something far more positive and certainly deliberate. The charge of ‘misconduct’ therefore is a charge of some positive act or of conduct
which would be quite incompatible with the express
and implied terms of relationship of the employee
with the employer. What is misconduct will naturally depend the circumstances of each case. In any
case the act of misconduct must have some relation
with the employee’s duties to the employer. In other
words, there must be some rational connection of
the employment of the employee with the employer.
If the act complained of is found to have some relationship to the affairs of the establishment, having
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a tendency to affect or disturb the peace and good
order of the establishment or be subversive of discipline in any direct or proximate sense, such act
would amount to misconduct. Conversely, if the act
complained of has no relation to his duties towards
his employer, it would not be an act of misconduct
towards his employer.
17. Hon’ble Supreme Court in the case of State of
Punjab and Ors. v. Ram Singh Ex. Constable reported in (1992) 3 SCR 634, had an occasion to
consider what a misconduct means. It has been
held that the word misconduct though not capable
of precise definition, its reflection receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature
of the duty. It may involve moral turpitude, it must
be improper or wrong behaviour, unlawful behavior,
wilful in character, forbidden act, a transgression
of established and definite rule of action or code of
conduct but not mere error of judgment carelessness or negligence in performance of the duty; the
act complained of bears forbidden quality or character. Its ambit has to be construed with reference to
the subject matter and the context wherein the term
occurs, regard being had to the scope of the statute
and the public purpose it seeks to serve.
18. What is misconduct will naturally depend upon
the circumstances of each case. When there are
standing orders, there would be no difficulty because they define misconduct. In the absence of
the Standing Orders, however, the question will
have to be dealt with reasonably and in accordance
with commonsense. As to what acts can be treated
as acts of misconduct, therefore, would depend on
the facts and circumstances of each case. The expression ‘misconduct’ covers a large area of human
conduct. Misconduct spreads over a wide and hazy
spectrum of industrial activity, the most seriously
subversive conducts rendering an employee wholly
unfit for employment to mere technical default are
covered thereby. To some extent, misconduct is a
civil crime which is visited with civil and pecuniary
consequences.
19. Go-Slow - Slow-down or go-slow, whether as
a concerted action by the workmen or by an individual workman, in reducing production is a breach
of duty and has been condemned as misconduct in
industrial adjudication. An employee who deliberately works slowly and thereby curtails production
or does not complete a job in proper time, is guilty
of intentional omission of duty, which would constitute misconduct. It is a serious misconduct as it is
an insidious method of undermining the stability of a
concern. For while delaying production and thereby
reducing output, workmen claim to have
remained
January, 2016 — 120
2016
Mani Lal vs. Matchless Industries of India
employed and thus to be entitled to full wages. Goslow may be indulged in by an individual workman
either in one section or different sections or in one
shift or both shifts effecting the output in varying
degrees and to different extent depending upon the
nature of the product and the productive process.
Misconduct of go-slow may entail twofold consequences viz., discharge or dismissal from service
and deduction of wages. In either case, it is necessary that the factum of go-slow and/or extent of the
loss of production on account of it, is disputed, there
should be a proper enquiry on the charges which
furnish particulars of go-slow and loss of production
on that account.
20. Therefore, reduced production, refusal to give
the agreed output, deliberately working slow, not
completing the job in a proper time, is a breach of
duty. It is a crude device to defy the norms of work.
It is dishonesty, in as much as, the workman claim
wages for the work which he has not done, and
claims full wages for the reduced out put. The workmen is guilty of intentional omission of duty. It has
been condemned as misconduct in Industrial adjudication. It is not a case of inefficiency or slackness.
It is a positive act. It is quite incompatible with the
express and implied terms of relationship of master and servant. That is the edifice of contract of
employment. It need not be specifically mentioned
in the contract of employment or in the standing
orders. Standing orders lists the acts and omissions
which shall be treated as a misconduct and it is not
exhaustive. It is not possible to provide every type
of misconduct in the standing orders. At the same
time, an employer cannot fish-out some conduct as
misconduct and punish the workman even though
the alleged misconduct could not be comprehended
in any of the enumerated misconduct. Therefore,
not performing the stipulated work deliberately and
not giving the agreed out put for which wages are
paid and received constitute a grave misconduct
and is one of the most pernicious practices that
harm the industry than the total cessation of work.
21. In the case of Bharat Sugar Mills Ltd. v. Jai
Singh & Ors. reported in 1961 (3) FLR 371 while
dealing with the misconduct of go-slow, it was
observed as under:
“...go-slow which is a picturesque description
of deliberate delaying of production by workmen
pretending to be engaged in the factory is one
of the most pernicious practices that discontented or disgrunted workmen some time resort to.
It would not be far wrong to call this dishonest,
for while thus delaying production and thereby
reducing the output, the workmen claim to have
remained employed and thus to be entitled to full
121 — January, 2016
77
wages. Apart from this also, “go slow” is likely
to be much more harmful than total cessation of
work by strike. For, while during a strike much
of the machinery can be fully turned off during
the “go slow” the machinery is kept going on a
reduced speed which is often extremely damaging to machinery parts. For all these reasons “go
slow” has always been considered a serious type
of misconduct.
22. Reference may also be made to a judgment rendered by Bombay High Court in Sonaba
Baburao Dalvi v. Factory Manager, Raja Bahadur
Motilal Mills Ltd., 2000 (84) FLR 941: 2000 LLR 510
(Bom), where it was observed as under:
“If from the evidence and material on record in
the enquiry which is confirmed as fair and proper
the only conclusion which can be drawn is that
the production given by the petitioner was lower
than the production given by the others and it
was less than 8500 ends. It cannot be said that
there was absolutely no material to show that the
production given by the petitioner was lower than
the production given by the others. The petitioner
has not denied or refuted the figures of production produced by the respondent company before
the Enquiry Officer. The net result which we have
to see is the figures of the low production on the
record of the enquiry. Therefore, High Court held
that the respondent company was justified in dismissing the petitioner from employment.”
23. Similar view was taken in Fancy Corporation
(supra); Carona Sahu (supra) and P.J. Gangadaran
(supra).
24. In view of the aforesaid decisions coupled with
the oral and documentary evidence led by the
respondent – management, it had proved that the
petitioner – workman was guilty of misconduct by
resorting to tactics of ‘go-slow’.
25. The fact that the workman was guilty of misconduct has not even been challenged by the workman
as at the stage of admission of writ petition, counsel
for the petitioner workman confined the challenge to
the extent of punishment only. Therefore, the only
question left for consideration is as to whether the
punishment of dismissal of service is shockingly
disproportionate to the misconduct committed by
the workman.
26. The concept of the term “shockingly disproportionate” is very much known and familiar to Industrial Jurisprudence. The Apex Court in the case of
Hind Construction and Engineering Co. Ltd. v. Their
Workmen case reported in AIR 1965 SC 917, while
dealing with the issue regarding punishment has
observed as under:
12
2
Mani Lal vs. Matchless Industries of India
“6... The Tribunal is not required to consider
the propriety or adequacy of the punishment or
whether it is excessive or too severe. But, where
the punishment is shockingly disproportionate regard being had to be particular conduct and the
past record or is such, as no reasonable employer would ever impose in like circumstances, the
Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice.”
27. What can be culled out from the aforesaid decisions is that the misconduct of ‘go-slow’ is more
punishable act than that of resorting to strike and
punishment of dismissal would be proper when the
misconduct of ‘go-slow’ is proved. While imposing
such punishment, the employer cannot be accused
of unreasonableness or of revengefulness if he proposes punishment of dismissal for such conduct.
The doctrine of proportionality invoked by Mr. Sanjay Ghose, counsel for the petitioner – workman is
not available to the petitioner – workman for seeking modification or substitution of the penalty of
dismissal from service because the charges found
proved against the petitioner are extremely graver.
Despite repeated letters sent to him to mend his
ways, he did not improve thereby causing loss to
chemicals, electricity, labour and ultimately affecting
the production. Therefore, the penalty of removal
from service cannot be described as shockingly disproportionate or wholly unreasonable.
28. Colour Chem Ltd. (supra) relied upon by counsel for the petitioner – workman is quite distinguishable. In that case, punishment of dismissal on the
ground that workmen were sleeping at duty was
held to be disproportionate.
29. It is trite law that where a departmental enquiry
is held to be fair and proper and the findings of the
enquiry officer are also held to be legal, proper and
not perverse, the Management is invested with the
discretion to impose appropriate punishment keeping in view the magnitude and gravity of misconduct. The scope of judicial review in the matter of
punishment is extremely restricted. Unless it could
be shown that punishment imposed upon the delinquent employee is such as to shock the conscious
of the Court or that no person of ordinary prudence
would come to such conclusion and it is ex facie arbitrary, the Court will not interfere.
30. Dealing with the Court’s power to interfere with
the punishment imposed upon the delinquent employee, in G.V. Triveni Prasad v. Syndicate Bank
And Ors. (2007) II LLJ 685 (AP), it was observed
as under:—
“22. The Court’s power to interfere with the
punishment imposed on the delinquent em-
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ployee has become subject-matter of scrutiny in
large number of cases. The terms and phrases
like arbitrary, unreasonable, unconscionable
and shockingly disproportionate are often used
by the advocates representing the delinquent
employees who seek intervention of the Court
for invalidation of the order of punishment. The
doctrine of proportionality and Wednesbury rule
have also been pressed into service for persuading the Courts to interfere with the employers’
prerogative to punish the employee. But, the
Courts have to constantly remain guard against
adopting a populist approach in such matters
and refrain from interfering with the punishment imposed by the employer on a delinquent
employee. The power of judicial review in such
cases should be exercised with great care and
circumspection. Only in exceptional cases, the
Court may interfere with the punishment, if it is
convinced that the same is wholly arbitrary or
shockingly disproportionate to the misconduct
found proved. For determining this, the Court has
to take into consideration the factors like length
of service of the delinquent, the nature of duties
assigned to him, sensitive nature of his posting
and job requirement, performance norms, if any
laid down by the employer, the nature of charges
found proved, the past conduct of the employee
and the punishment, if any, imposed earlier. The
Court has also to keep in mind the paramount
requirement of maintaining discipline in the services and the larger public interest.
23. In Ranjit Thakur v. Union of India, 1988
Crl LJ 158, the Supreme Court invoked the doctrine of proportionality for quashing the order of
punishment because the same was found to be
shockingly disproportionate to the misconduct
found proved against the appellant. The proposition laid down in that case reads as under:
Judicial review generally speaking, is not
directed against a decision, but is directed
against the “decision-making process”. The
question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-martial. But the sentence
has to suit the offence and the offender. It
should not be vindictive or unduly harsh.
It should not be so disproportionate to the
offence as to shock the conscience and
amount in itself to conclusive evidence of
bias. The doctrine of proportionality, as part
of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the
Court-martial, if the decision of the Court
January, 2016 — 122
2016
Mani Lal vs. Matchless Industries of India
even as to sentence is an outrageous defiance of logic, then the sentence would not
be immune from correction. Irrationality and
perversity are recognized grounds of judicial
review.
24. In Union of India v. G. Ganayutham, (2000)
11 LLJ 648 SC, the doctrine of proportionality
was considered along with Wednesbury rule and
the following propositions were laid down:
(1) To judge the validity of any administrative
order or statutory discretion, normally the
Wednesbury test is to be applied to find out if
the decision was illegal or suffered from procedural improprieties or was one which no
sensible decision-maker could, on the material before him and within the framework of the
law, have arrived at. The Court would consider whether relevant matters had not been
taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court
would also consider whether the decision
was absurd or perverse. The Court would not
however go into the correctness of the choice
made by the administrator amongst the various alternatives open to him. Nor could the
Court substitute its decision to that of the administrator. This is the Wednesbury test.
(2) The Court would not interfere with the administrator’s decision unless it was illegal or
suffered from procedural impropriety or was
irrational - in the sense that it was in outrageous defiance of logic or moral standards.
The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These
are the CCSU principles.
(3) (a) As per Bugdaycay, Brind and Smith as long
as the Convention is not incorporated into
English Law, the English Courts merely exercise a secondary judgment to find out if the
decision-maker could have, on the material
before him, arrived at the primary judgment
in the manner he has done.
(3) (b) If the Convention is incorporated in England
making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is
disproportionate or excessive or is not based
upon a fair balancing of the fundamental
freedom and the need for the restriction
thereupon.
(4) (a) The position in our country, in administrative law, where no fundamental freedoms as
123 — January, 2016
12
3
aforesaid are involved, is that the Courts/Tribunals will only play a secondary role while
the primary judgment as to reasonableness
will remain with the executive or administrative authority. The secondary judgment of
the Court is to be based on Wednesbury and
CCSU principles as stated by Lord Greene
and Lord Diplock respectively to find if the
executive or administrative authority has reasonably arrived at his decision as the primary
authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply
the principle of “proportionality” and assume
a primary role, is left open, to be decided in
an appropriate case where such action is alleged to offend fundamental freedoms. It will
be then necessary to decide whether the
Courts will have a primary role only if the
freedoms under Articles 19, 21 etc., are involved and not for Article 14.
25. In Om Kumar v. Union of India (2001) 2
SCC 386, the Supreme Court considered the applicability of the doctrine of ‘Proportionality’ in the
context of Article 14 of the Constitution, referred
to the judgments in Ranjit Thakur v. Union of
India (supra), B.C. Chaturvedi v. Union of India
and held:
(1) In this context, we shall only refer to these
cases. In Ranjit Thakur v. Union of India, this
Court referred to “proportionality” in the quantum of punishment but the Court observed
that the punishment was “shockingly” disproportionate to the misconduct proved. In B.C.
Chaturvedi v. Union of India, this Court stated that the Court will not interfere unless the
punishment awarded was one which shocked
the conscience of the Court. Even then, the
Court would remit the matter back to the authority and would not normally substitute one
punishment for the other. However, in rare
situations, the Court could award an alternative penalty. It was also so stated in Ganayutham’s case (supra).”
xxx ...
27. In Director General, RPF v. Ch. Sai Babu,
(2003) 1 SCR 729 the Supreme Court reiterated
that the High Court should not ordinarily interfere
with the discretion exercised by the disciplinary
authority in the matter of imposition of punishment and observed:
“Normally, the punishment imposed by a
disciplinary authority should not be disturbed
80
Mani Lal vs. Matchless Industries of India
by the High Court or a Tribunal except in appropriate cases that too only after reaching
a conclusion that the punishment imposed is
grossly or shockingly disproportionate, after
examining all the relevant factors including
the nature of the charges proved, the past
conduct, penalty imposed earlier, the nature
of duties assigned having due regard to their
sensitiveness, exactness expected and discipline required to be maintained, and the
department/establishment in which the delinquent person concerned works.”
28. In V. Ramana v. A.P. SRTC, (2005) III LLJ
723 SC, the Supreme Court approved the view
expressed by the Full Bench of this Court in
the matter of imposition of punishment and observed:
“The common thread running through in
all these decisions is that the Court should
not interfere with the administrator’s decision
unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was
in defiance of logic or moral standards. In
view of what has been stated in Wednesbury
case (1948) 1 KB 223 the Court would not go
into the correctness of the choice made by
the administrator open to him and the Court
should not substitute its decision for that of
the administrator. The scope of judicial review is limited to the deficiency in decisionmaking process and not the decision.”
31. Similar view was taken in Fancy Corporation
Ltd. (supra), where it was observed as under:
“26. Courts below have also failed to appreciate that they were required only to judicially review the action of the petitioner and not to sit as
Court of appeal over the action of the petitioner.
It is also trite law that where a departmental enquiry is held to be fair and proper and the findings of the enquiry officer are also held to be
legal, proper and not perverse, the Management
is invested with the discretion to impose appropriate punishment keeping in view the magnitude
and gravity of misconduct. In this connection the
petitioner rightly referred to the observation of
the Apex Court in the case of B.C. Chaturvedi v.
Union of India, reading as under:
Judicial review is not an appeal from a decision but a review of the manner in which the
decision is made. Power of judicial review is
meant to ensure that the individual receives fair
treatment, and not to ensure that the conclusion
which the authority reaches is necessarily correct in the eyes of the Court. When an enquiry
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is conducted on charges of misconduct by a
public servant, the Court/Tribunal is concerned
to determine whether the enquiry was held by a
competent authority or whether rules of natural
justice are complied with. When the findings and
conclusions are based on some evidence, the
authority entrusted with the power to hold inquiry
has jurisdiction, power and authority to reach a
finding of fact or conclusion.
The Court/Tribunal in its power of Judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own
independent findings on the evidence.
A review of the above legal position would establish that the disciplinary authority and on Appeal the Appellate Authority being fact finding
authorities have exclusive power to consider the
evidence with a view to maintain discipline. They
are invested with the discretion to impose appropriate punishment keeping in view the magnitude
or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty.
If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal.”
32. In G.B. Gupta (supra) while referring to scope
of judicial review in the matter of punishment, reference was made to State of Gujarat v. Anand Acharya alias Bharat Kumar Sadhu, (2007) 9 SCC 310,
where the Apex Court has held;—
“The well-settled proposition of law that a court
sitting in judicial review against the quantum of
punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty is not in dispute. However, if the
punishment imposed by the disciplinary authority
or the appellate authority shocks the conscience
of the court, then the Court would appropriately
mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may
make an exception in rare cases and impose
appropriate punishment with cogent reasons in
support thereof”.
33. Keeping in view the ratio of the aforesaid judgments, it cannot be said that the punishment imposed upon the petitioner does not commensurate
to the charges levelled against him. That being so,
there is no warrant for interference in the award
passed by the Labour Court. The petition is accordingly dismissed, however, with no order as to costs.
—————
January, 2016 — 124
Munirudin Vajirudin Kazi vs. Municipal Commissioner and Others
2016
2016 LLR 81
ORDER
GUJARAT HIGH COURT
Hon’ble Mr. Vipul M. Pancholi, J.
S.C.A. No. 17973/2014, D/24-9-2015
Munirudin Vajirudin Kazi
vs.
Municipal Commissioner and Others
PAYMENT OF GRATUITY ACT, 1972 – Section
4(6) – Forfeiture of gratuity – When petitioner
was serving as driver in Fire Station and on duty
of Fire Station – Narcotic Squad caught him with
brown sugar – FIR filed and he was convicted
for offence punishable under NDPS Act – Involving moral turpitude committed when he was on
duty – His services terminated for said offence –
Hence the respondent Corporation is entitled to
forfeit the amount of gratuity under section 4(6)
of Act – No illegality is committed by respondent.
Paras 10 & 11
For Petitioner: Mr. G.K. Rathod and Mr. Mukesh H.
Rathod, Advocates.
For Respondent: Ms. Megha Chitaliya, AGP and
Mr. H.S. Munshaw, Advocate.
MPORTANT POINTS
Payment of gratuity forfeited by the employer is
justified
since the workman has committed a
criminal offence under NDPS Act,
being a moral turpitude committed
when on duty, at the time of termination of his services.
Criminal
Offence
committed
by
a workman, under NDPS Act, is a
moral turpitude.
An employer is having a right
to forfeit the gratuity of an
employee under section 4(6) of
the Payment of Gratuity Act, 1972
at the time of termination of his
services on account of
misconduct of moral turpitude committed
by the workman,
after
conducting domestic enquiry and holding
the workman guilty of the said
offence.
125 — January, 2016
12
5
VIPUL M. PANCHOLI, J.—1. By way of this petition
which is filed under Articles 226 and 227 of Constitution of India, the petitioner seeks to challenge
the order dated /10/12 passed by the appellate authority-respondent No. 3 herein in Appeal No. 25 of
2012.
2. Heard learned advocate Mr. Mukesh Rathod for
the petitioner, learned advocate Mr. H.S. Munshaw
for respondent No. 1 and learned AGP Ms. Megha
Chitaliya for respondent No. 2.
3. Learned advocate for the petitioner submitted
that the petitioner was working as driver in the fire
station of respondent-Municipal Corporation since
15.3.1971. He was caught with Narcotics by the
Narcotic squad on 26.5.1997 during the checking.
Therefore, the criminal proceedings were initiated
against him. The respondent-Municipal Corporation
suspended the petitioner from service on 8.7.1997
in view of the aforesaid criminal proceedings initiated against the petitioner. Thereafter, the respondent-corporation issued the charge-sheet to the
petitioner. However, no departmental proceedings
were initiated against the petitioner.
4. Learned advocate for the petitioner, thereafter,
submitted that the Sessions Court passed an order on 17.12.1998 in Criminal Case No. 172 of
1997, whereby the petitioner was convicted for the
offences punishable under N.D.P.S. Act. It is contended by learned advocate for the petitioner that
the respondent-Corporation, without holding any
departmental inquiry, only on the basis of the order
passed in criminal case, straightaway issued second show cause notice to which the petitioner gave
the reply. However, without considering the same,
the respondent-Corporation dismissed the petitioner
from service with effect from 27.10.1999.
5. At this stage, learned advocate Mr. Rathod
appearing for the petitioner submitted that the petitioner filed an Application No. 818 of 2011 under the
provisions of the Payment of Gratuity Act before the
respondent No. 2-Controlling Authority wherein he
has claimed the amount of gratuity of Rs. 87,000.
The respondent No. 2-Controlling Authority, by an
order dated 16.4.2012 passed in Application No.
818 of 2011, directed the respondent-Corporation
to pay an amount of Rs. 77,970 towards gratuity to
the petitioner with interest @10% from 28.10.1999.
Against the said order passed by respondent No. 2Controlling Authority, the respondent-Corporation
filed Appeal No. 25 of 2012 under the provisions of
the Payment of Gratuity Act before the respondent
No. 3-appellate authority. The respondent No. 3-appellate authority by an order dated 10/10/12 allowed
82
Munirudin Vajirudin Kazi vs. Municipal Commissioner
the said appeal and thereby quashed and set aside
the order passed by the respondent No. 2-Controlling Authority.
6. Learned advocate Mr. Rathod appearing for the
petitioner mainly contended that the order passed
by the appellate authority is illegal, perverse and,
therefore, the same be quashed and set aside. It is
contended that the petitioner has not committed any
misconduct by which the respondent-Corporation
has suffered any loss in terms of money or otherwise. The appellate authority ought to have considered the fact that the petitioner has served with the
respondent Corporation for 29 years and, therefore,
he is entitled for the amount of gratuity. In fact, the
Controlling Authority has rightly directed the respondent-Corporation to pay the amount of gratuity to
the petitioner with interest. However, the appellate
authority has wrongly placed reliance upon the provision contained in Section 4(6) of the Payment of
Gratuity Act. Learned advocate, therefore, contended that though the respondent-Corporation issued
the charge-sheet, full fledged departmental inquiry
was not held against the petitioner and only on
the basis of the order of conviction passed by the
Sessions Court, the petitioner has been dismissed
from the service. He, therefore, requested that the
impugned order passed by the appellate authorityrespondent No. 3 be quashed and set aside and
thereby respondent-Corporation be directed to pay
the amount of gratuity as per the order passed by
the Controlling Authority.
7. On the other hand, learned advocate appearing
for the respondent-Corporation mainly contended
that no illegality is committed by the appellate authority and the appellate authority has rightly relied
upon provision contained in Section 4(6) of the Payment of Gratuity Act. The Sessions Court has convicted the petitioner and, therefore, the respondentCorporation has rightly dismissed the petitioner on
the basis of the order of conviction passed by the
competent Court. It is further contended that this
petition is filed after a period of more than two years
and, therefore, there is a delay in filing the present
petition and on this ground also, this petition be dismissed.
8. I have considered the arguments advanced on
behalf of learned advocates for the parties. I have
also gone through the material produced on record.
From the record, it is revealed that the petitioner
was caught by the Narcotic Squad during checking
and, therefore, FIR came to be registered against
him before the Odhav Police Station under Section
8(c) and 22 of N.D.P.S. Act and he was arrested.
The respondent-Corporation, therefore, passed an
order on 8.7.1997 by which the petitioner was sus-
and Others
LLR
pended. The respondent-Corporation also issued
the chargesheet on 22.9.1997 to the petitioner.
However, criminal case was pending before the
Sessions Court against the petitioner and therefore
departmental inquiry was not initiated against him
and was kept pending. In the meantime, the Sessions Court passed an order on 17.12.1998 and
convicted the petitioner for the offence punishable
under Section 8(c) read with Section 22 of N.D.P.S.
Act and he was sentenced to suffer rigorous imprisonment for a term of 10 years and fine of Rs.1 lac
was also imposed. After considering the seriousness of the case, the respondent-Corporation issued the second show cause notice to the petitioner
to which the petitioner gave reply and after considering the material on record, the respondent-Corporation passed an order on 27.10.1999 by which the
petitioner has been dismissed from service. Thereafter, the petitioner filed an application before the
Controlling Authority that the direction be given to
the respondent-Corporation to pay the outstanding
amount of gratuity to the petitioner with interest. The
Controlling Authority passed an order in favour of
the petitioner and direction was given to the respondent-Corporation to pay Rs. 77,970 with 10% interest. However, the said order was challenged before
the appellate authority of the respondent-Corporation. The appellate authority has mainly placed reliance upon the provision contained in Section 4(6)
of the Payment of Gratuity Act and thereby allowed
the appeal filed by the respondent-Corporation.
9. Section 4(6) of the Payment of Gratuity Act provides that:
“4(6) Notwithstanding anything contained in
subsection (1),—
(a) the gratuity of an employee, whose services have been terminated for any act, wilful
omission or negligence causing any damage
or loss to, or destruction of, property belonging to the employer shall be forfeited to the
extent of the damage or loss so caused;
(b) the gratuity payable to an employee [may be
wholly or partially forfeited](i) if the services of such employee have
been terminated for his riotous or disorderly conduct or any other act of violence
on his part, or
(ii) if the services of such employee have
been terminated for any act which constitutes an offence involving moral turpitude,
provided that such offence is committed
by him in the course of his employment.”
10. From the aforesaid provision, it is clear that the
gratuity payable to an employee can be forfeited by
January, 2016 — 126
2016
Munirudin Vajirudin Kazi vs. Municipal Commissioner and Others
the employer if the services of the employee have
been terminated for any act which constitutes an offence involving moral turpitude. When such offence
is committed by an employee in the course of his
employment.
11. In the present case, the appellate authority has
specifically observed that when the petitioner was
serving as driver in the fire station and when he was
on duty at Odhav Fire Station, the Narcotic Squad
carried out the raid and the petitioner was caught
with brown sugar. For the said incident, FIR was
filed and Sessions Court convicted the petitioner for
the offence punishable under the NDPS Act. The
127 — January, 2016
12
7
appellate court has, therefore, held that the said offence involving moral turpitude has been committed
by the petitioner when he was on duty. Thus, when
the services of the petitioner have been terminated
for the said offence, the respondent-Corporation is
entitled to forfeit the amount of gratuity under the
provision of Section 4(6) of the Act. Thus, in the
facts of the present case, I am of the opinion that
no illegality is committed by respondent No. 3-appellate authority while passing the impugned order
and, therefore, the present petition deserves to be
dismissed and is accordingly it is dismissed.
Petition Dismissed.
—————
84
Jagdish Lal Gambhir vs. Punjab National Bank
2016 LLR 84
SHORT NOTE CODE 1
SUPREME COURT OF INDIA
Hon’ble Mr. Madan B. Lokur, J.
Hon’ble Mr. R.K. Agrawal, J.
C.A. No. 6975/2009, D/–6-10-2015
Jagdish Lal Gambhir
vs.
Punjab National Bank & Ors.
A. DISMISSAL – Justification of – Petitioner
being Bank Officer was issued charge-sheet
for deliberately flouting the Bank norms
thereby accommodating some parties by
putting huge funds of the bank at stake –
Enquiry was conducted – Charges were
proved against the petitioner – He was dismissed from service since he had failed to
discharge his duties with utmost integrity,
honest devotion and diligence – He filed writ
petition challenging the order of dismissal,
which was dismissed by the learned Single
Judge – Writ appeal filed by him could not
succeed – Petitioner filed appeal challenging the judgments of Division Bench and
learned Single Judge – Held, no reason to
interfere with the impugned judgments has
& Ors.
LLR
been placed before the court – Hence, appeal is dismissed.
B. CHARGE-SHEET – Who can issue – Petitioner was Assistant General Manager
(AGM) in Hindustan Commercial Bank Ltd.
(HCBL) which was amalgamated in Punjab
National Bank (PNB) – Employees of HCBL
were transferred to PNB – Charge-sheet
was issued by Assistant General Manager
of PNB being disciplinary authority – Petitioner challenged his competency since petitioner was AGM in HCBL – Learned Single
Judge observed that, as per amalgamation
Scheme, PNB was entitled to classify and
categorise the employees of HCBL – Accordingly, petitioner was placed as a ScaleIII Officer in PNB – Post of AGM in PNB is of
higher rank than that Scale-II Officer in PNB
– Hence, charge-sheet issued by a competent authority – Contention of the petitioner
stands rejected.
C. ENQUIRY REPORT – Effect of non-supply of
copy thereof to the delinquent employee –
Petitioner has not challenged the merits of
the enquiry at any stage or the punishment
awarded to him – It establishes that petitioner was not prejudiced by the failure to supJanuary, 2016 — 128
Delhi Transport Corporation vs. Anant Ram
2016
ply a copy of the Enquiry Report – Hence,
non-supply of copy of enquiry report is not
fatal.
IMPORTANT POINTS
Dismissal from service of a
bank officer is justified for deliberately flouting the Bank norms
thereby accommodating some parties
by putting huge funds of the bank
at stake which proves that he had
failed to discharge his
duties
with utmost integrity, honest devotion and diligence.
Assistnat
General
Manager,
being disciplinary authority in
Punjab National Bank is competent
to issue a charge-sheet to ScaleIII Officer in PNB who was earlier
in Hindustan Commercial Bank Ltd.
as Assistant General Manager since
as per amalgamation Scheme, PNB
was entitled to classify and categorise the employees of HCBL and
Post of AGM in PNB is of higher
rank than that of Scale-III Officer in PNB.
Non-supply of copy of enquiry
report is not fatal to the enquiry proceedings if the delinquent
employee has not been prejudiced
by it.
—————
2016 LLR 85
SHORT NOTE CODE 2
DELHI HIGH COURT
Hon’ble Ms. Sunita Gupta, J.
W.P.(C ) 8472/2010 & CM 18019/2014, D/–16-10-2015
Delhi Transport Corporation
vs.
Anant Ram
A. ENQUIRY – When liable to be vitiated –
Workman was a Bus Conductor – He was
charge-sheeted for not issuing tickets to the
129 — January, 2016
85
passengers after collecting fare while bus was
intercepted by the checking staff – He
participated in the enquiry proceedings –
He requested for certain documents but
only few were supplied – He was issued
show cause notice for filing reply within
10 days
– He was removed from service even
before expiry of ten days – Appeal filed by
him be- fore General Manager did not
succeed – He raised an industrial dispute
– Labour Court held the enquiry, as
conducted, was not fair and proper since
no opportunity was given to the workman
to bring his evidence –
There was
violation of principles of natural justice
since copy of enquiry report was not
supplied to him – Workman was awarded
re- instatement without back-wages –
Petitioner challenged the Award in writ
petition – Held, since the workman has not
been given fair and proper opportunity to
produce his de- fence evidence in enquiry
proceedings, the violation of principles of
natural justice has been proved, making
the enquiry liable to be set aside – Hence,
enquiry proceedings are set aside.
B. TERMINATION – From services – When
not justified – Management examined
three witnesses – Workman did not lead
rebut- tal evidence – Management failed to
prove the misconduct since original unpunched tickets were not filed, charge
against him was that he did not issue
tickets after col- lecting fare from
passengers whereas cash was found
short instead of being excess – Shortage
of cash casts a suspicion on the
Management version – Neither passengers
nor any independent evidence has been
produced by the Management to prove the
charge except statements of raiding party
– Consequently, the termination of
services of the workman is not justified.
C. CONSTITUTION OF INDIA, 1950 – Article
226 – Writ Court does not sit in appeal
over the findings returned by the
Domestic In- quiry Tribunal or Industrial
Adjudicator – An Award can be set aside
only if it is based on no evidence or
contrary to any substantive law or it is in
violation of principles of natu- ral justice.
For Petitioner: Mr. Sarfaraz Khan and Mr. Ataur
Rahman, Advocates.
For Respondent: Dr. M.Y. Khan, Advocate.
January, 2016 — 130
Gokaldas Trading Co. vs. Regional Director,
86
IMPORTANT POINTS
If a workman is not given
fair and proper opportunity to
produce his defence evidence in
enquiry proceedings, it amounts to
violation of principles of natural
justice, making the enquiry liable
to be set aside.
Management would be deemed
to have failed to prove the misconduct if the original relevant
documents are not produced in the
enquiry proceedings or there is
suspension in the correctness of
the version of the employer or
related witnesses are not examined or no independent evidence
is produced to corroborate the
evidence of the main witness.
Termination of services of
a
workman is not justified if the
Management fails to prove the
charges against the workman by
leading cogent evidence.
Writ Court does not sit in
appeal over the findings returned
by the Domestic Inquiry, Tribunal
or Industrial Adjudicator.
An Award can be set aside
only if it is based on no
evidence or contrary to any substantive law or it is in violation of
principles of natural justice.
—————
2016 LLR 86
SHORT NOTE CODE 3
GUJARAT HIGH COURT
Hon’ble Mr. Vipul M. Pancholi, J.
ESI Corporation
LLR
vita, tomato catch-up, food items, etc. – ESI
Authority considered the air-conditioner
for use as cold storage for preserving food
items – ESI Authority made the provisions
of the ESI Act applicable upon the appellant
taking the preserving of articles as manufacturing process under section 2(k) of the
Factories Act, employing 15 persons with
the aid of power, the ESI Authority treated
the establishment of the appellant as a factory under section 2(12) of the ESI Act, demanding Rs. 62,278 for the period from
01.03.1983 to 31.03.1988 – Appellant challenged the order of the ESI Authority before
the Employees’ Insurance Court by moving
an application which was dismissed – Appellant moved appeal against the order of
the El Court – Held, evidence on record reveals that no material was kept in the cabin of the Manager – There was a separate
room for storing the material – Material can
be kept for a few days without refrigerator
– Appellant was trader and used to keep
the material for 10-15 days only – There is
nothing on record to show that air-conditioner was used for 24 hours – Hence, the
impugned order being on the basis of mere
presumption of the EI Court is not sustainable – Appeal is allowed.
B. FACTORIES ACT, 1948 – Section 2(k) –
Clause – VI – Manufacturing process – Coldstorage – Air-conditioner being used in the
cabin of a Manager only for few work- ing
hours cannot be presumed to be used as
cold storage when no item was kept in the
Manager’s room for the purpose – Use of
airconditioner is not covered under the
definition of ‘manufacturing process’.
For Appellant: Mr. Dipen Desai and Ms. Vyom K.
Jhaveri Advocates.
For Respondent: Mr. Hemant S. Shah, Advocate.
FANo. 2522/1994, D/–17-10-2015
IMPORTANT POINTS
Gokaldas Trading Co.
vs.
Regional Director, ESI Corporation
Use of air-conditioner in
the cabin of the Manager of the
establishment only for working
hours cannot bring the establishment under the definition of ‘factory’ under section 2(12) of the
Employees’ State Insurance Act,
1948.
A. EMPLOYES’ STATE INSURANCE ACT, 1948
– Section 2(12) – Factory – An Air Conditioner was used in the Manager’s Room of
the appellant – Appellant is engaged in the
business of trading in chocolates, bourn131 — January, 2016
2016
K.L. Chhabra vs. Assistant General Manager, Punjab
If an air-conditioner, installed in the room of the
Manager which was used during working hours, it cannot be presumed
to be used as cold-storage falling under the definion of ‘manufacturing process’ under section
2(k)(vi) of the Employees’
State
Insurance Act, 1948.
Provisions of Employees’ State
Insurance Act, 1948 are applicable
to an establishment,
having 10
or more employees
for wages, on
any day of the preceding twelve
months, involved in manufacturing
process with the aid of power.
Provisions of Employees’ State
Insurance Act, 1948 are applicable
to an establishment,
having 20
or more employees
for wages, on
any day of the preceding twelve
months, involved in manufacturing
process without the aid of power.
—————
2016 LLR 87
SHORT NOTE CODE 4
DELHI HIGH COURT
Hon’ble Mr. Pradeep Nandrajog, J.
Hon’ble Ms. Mukta Gupta, J.
LPA 868/2013, D/-21.07.2015
K.L. Chhabra
vs.
Assistant General Manager, Punjab
National Bank
A. DISMISSAL – From Service – When justified – Charge against the appellant was that
he embezzled the amount by not making
payment to the customer despite debiting
his account on the basis of withdrawal slip
– After conducting domestic enquiry, holding the appellant guilty of the misconduct,
his services were dismissed – Departmental
appeal moved by him failed – He raised an
industrial dispute – Industrial Tribunal held
the enquiry as just, fair and legal – However, the punishment of dismissal was substituted with removal from service with super-
87
annuation benefits – Bank filed writ petition
challenging the order passed by the Tribunal – Learned Single Judge allowed the writ
petition by setting aside the order of the
Tribunal – Workman filed writ appeal – Held,
appellant has failed to rebut the evidence of
the witnesses of the Bank – Evidence produced by the Bank witnesses are sufficient
to prove the charges constituting misconduct of embezzlement – Writ appeal, having
no merit, is dismissed.
B. CONSTITUTION OF INDIA, 1950 – Article
226 – Scope of – It is not the scope of the
Writ Court to re-appreciate the evidence –
Interference by the Writ Court is maintainable only if any error apparent on the face
of record is shown by the appellant in the
impugned order – If court below has passed
an order without jurisdiction or it has acted
in excess of its jurisdiction – Appellant has
not pointed out such a ground – Hence, writ
appeal is dismissed.
For Appellant: In person.
For Respondent: Mr. Jagat Arora, Advocate.
IMPORTANT POINTS
Workman would not succeed
if
he does not rebut or fails to rebut the evidence produced by the
Management against him before the
Labour Court/Industrial Tribunal.
Scope of interference by
the
writ court under Article 226
of
the Constitution of India is limited only to the extent of correcting errors of jurisdiction
committed by the lower courts
or
Tribunal or if they have acted
without jurisdiction or in excess
of it.
Review petition is maintainable only if the writ petitioner is able to establish any error
apparent on the face of record or
produces any additional evidence.
2015 III CLR 140
—————
January, 2016 — 130
88
Punjab National Bank, rep. by Zonal Manager, Calicut vs. Labour Court, Kozhikode and Ors.
2016 LLR 88
SHORT NOTE CODE 5
KERALA HIGH COURT
Hon‘ble Mr. K. Vinod Chandran, J.
W.P. (C) No. 4606/2006 (W), D/–10-4-2015
Punjab National Bank, rep. by Zonal Manager,
Calicut
vs.
Labour Court, Kozhikode and Ors.
A. INDUSTRIAL DISPUTES ACT, 1947 – Section 11A – Discretionary power of Industrial
Adjudicator – When its use is not proper
– Bank employee was found guilty of the
charges of misappropriation of funds in the
domestic enquiry – He was dismissed from
service – Labour Court held the enquiry fair
and proper – However, it substituted the
punishsment of dismissal into reinstatement
without back-wages – Employer challenged
the Award – Held, since the grave and serious charges of making fraudulent entries
in the bank ledger, leading to huge loss to
the Bank, were proved against the employee, observing the punishsment of dismissal
shocking disproportionate by the Labour
Court by exercising its power under section
11A of the Act, only keeping in view the fact
that employee was physically handicapped,
is a misplaced sympathy against the delinquent employee – Even admittedly, the employee was earlier too proceeded against,
on charges of misappropriation and was demoted.
B. DISMISSAL – From service of a Bank employee – When justified – Employee committed misappropriation of funds, Charge-sheet
was issued to him – Enquiry was held – He
was held guilty of the charges – He was
dismissed from service – Labour Court, exercising its power under section 11A of the
Industrial Disputes Act, 1947, set aside the
order of dismissal, awarding reinstatement
without back-wages – Employer challenged
the Award in writ petition – Held, evidence
led by the Management remains unshaken
in cross-examination – Even no suggestion
exists as to the veracity of the same – Since
the charges are grave and serious, converting punishment of dismissal into forfeiture
of entire back-wages, seniority and directing
reinstatement is not appropriate – Hence,
impugned Award is set aside Order of dismissal passed by the employer is justified.
LLR
C. ENQUIRY – Standard of evidence – Enquiry
held by the Labour Court was found to be
proper but it found that there was dearth
of evidence to find that the charges were
proved in the domestic enquiry – Management was permitted to adduce evidence
– Witnesses were examined by the Management – Labour Court found the worker
responsible for making fictitious entries in
the bank books for personal gains – However, the Labour Court found that there
was no evidence to indicate that the worker
prevailed upon the customer – Bank has
not initiated any criminal action against the
worker – Held, non-filing of criminal complaint or making a searching investigation
against the workman by the employer does
not mean that the workman did not make
fraudulent entries in the bank ledgers which
have been proved by cogent evidence – In
banking industry, each and every employee
is expected to maintain absolute integrity
and impeccable honesty since Bank deals
with the money of general public, the deviation of one employee could lead to huge
loss to the Bank – Hence, in domestic enquiry to apply the standard of proof applicable in criminal trial is not essential.
For Petitioner: Mr. M.P. Sreekrisnnan and Mrs.
Shahna Karthikeyan, Advocates.
For Respondent No. 1: Mr. T.J. Michael, Government Pleader.
For Respondent No. 2: Mr. A. Jayasankar and Mr.
Manu Govind, Advocates.
IMPORTANT POINTS
When the grave and serious
charges of making fraudulent
entries in the bank ledger, leading to huge loss to the Bank, are
proved against the employee, observing the punishsment of dismissal shocking disproportionate
by the Labour Court by exercising its power under section
11A
of the Act, only keeping in view
the fact that employee was physically handicapped, is a misplaced
sympathy against the delinquent
employee, not permitted in law.
January, 2016 — 132
Prabhakar vs. Joint Director, Sericulture Department, and Another
2016
When
the
charge
of
misap-
propriation of funds is proved
against a bank employee, the punishment of dismissal from services
is justified.
If the evidence led by the
Management remains unshaken in
cross-examination or if no suggestion is given as to challenge the
veracity of the same, the
charges would stand proved against the
delinquent employee.
Where the charges are grave
and serious, touching loss of
confidence of the Management of
the Bank, converting the
punishment of dismissal into forfeiture
of entire back-wages, seniority
and directing reinstatement is not
appropriate.
Non-filing
of
criminal
complaint or making a searching
investigation against the delinquent employee by the employer
does not mean that the delinquent
employee did not make fraudulent entries in the bank
ledgers
which have been proved by
cogent
evidence.
In banking industry, each
and every employee is expected
to maintain absolute integrity
and impechable honesty since Bank
deals with the money of
general
public, the deviation of one
employee could lead to huge loss to
the Bank.
In domestic enquiry to
apply
the standard of proof, applicable
in criminal trial is not
essential.
2015 II LLR 435
—————
133 — January, 2016
89
2016 LLR 89
SHORT NOTE CODE 6
SUPREME COURT OF INDIA
Hon’ble Mr. A.K. Sikri, J.
Hon’ble Mr. Rohinton Fali Nariman, J.
Sp. L.P. No. 27080/2015, D/–7-9-2015
Prabhakar
vs.
Joint Director, Sericulture Department
and Another
A. INDUSTRIAL DISPUTES ACT, 1947 – Section 10(1) – Reference – Satisfaction of existence of an industrial dispute or satisfaction
that an industrial dispute is apprehended –
A condition precedent to the order of reference – Appropriate Government must also
be satisfied that person whose dispute is
being referred is a workman – Dispute not
between an employer and his workman, not
an industrial dispute – Can justifiably be
refused to be referred – Order of reference
open to judicial review if it is shown that the
appropriate Government had no material before it or had not applied its mind to material before it – Refusal to refer a dispute can
be challenged if it is shown that industrial
dispute exists or is apprehended – A reference will be subject to judicial review also
where no dispute exists or is apprehended.
B. INDUSTRIAL DISPUTES ACT, 1947 – Section 10(1)— Limitation Act, 1963 – No period
of limitation prescribed under the 1947 Act
– Limitation Act not applicable to proceeding under the 1947 Act – Appropriate Government required to keep in mind whether
dispute is still existing or claim has become
stale.
C. INDUSTRIAL DISPUTES ACT, 1947 – Section
2(k) – Industrial dispute – Cannot be said to
exist unless demand is made by the workman and it has been rejected by the employer.
D. INDUSTRIAL DISPUTES ACT, 1947 – Sections 10(1) and 2(k) – Limitation Act, 1963
– Reference – No limitation fixed to raise
an industrial dispute – Workman required
to show that there is a dispute in presenti
– If workman can give satisfactory explanation for laches and delays and demonstrate
that circumstances disclosed that issue is
still alive – Delay would not come in his way
– Else presumption would be that he has
90
Hindustan Lever Ltd., Orai Unit vs. Presiding Officer, Industrial Tribunal, Kanpur and Others
waived his right or acquiesced to the act of
the other and issue has become stale – Appropriate Government may refuse to refer a
stale issue or Labour Court may also hold
that there is no industrial dispute – Very
stale claims should not be generally encouraged or allowed.
For Petitioner: Mr. Sharanagouda Patil and Ms.
Supreeta Patil, Advocates.
IMPORTANT POINTS
Satisfaction of existence of
an industrial dispute or satisfaction that an industrial dispute is
apprehended is a condition precedent to the order of reference by
the appropriate Government.
Appropriate
Government
must
also
be
satisfied that
person
whose dispute is being referred
is a workman.
Dispute not between an employer and his workman, is not an
industrial dispute and can justifiably be refused to be referred.
LLR
If workman cannot give satisfactory explanation for laches and
delays, presumption would be that
he has waived his right or acquiesced to the act of other and issue has become stale.
Appropriate
Government may
refuse to refer a stale issue
or
Labour Court may also hold
that
there is no industrial dispute.
While making reference of a
dispute, the appropriate Government is to keep in mind as to
whether dispute is still existing
or claim has become stale.
An
industrial
dispute cannot
be said to exist unless demand
made by the workman and it has
been rejected by the employer.
be generally
or
Very stale encouraged
claims should
lowed.
is
alnot
2015 (147) FLR 341
—————
An order of reference is open
to judicial review if it is shown
that the appropriate
Government
had no material before it or had
not applied its mind to material
before it.
Refusal to refer a dispute
can be challenged if it is
shown
that industrial dispute exists or
is apprehended.
A reference will be subject
to judicial review also where
no
dispute exists or is apprehended.
Limitation Act is not
applicable to proceeding under the Industrial Disputes Act, 1947.
If workman can give satisfactory explanation for laches and
delays and demonstrate that circumstances disclosed
that
issue
is still alive, delay would not
come in his way.
2016 LLR 90
SHORT NOTE CODE 7
ALLAHABAD HIGH COURT
Hon’ble Mr. Dr. D.Y. Chandrachud, C.J.
Hon’ble Mr. Dilip Gupta, J.
Hon’ble Mr. Yashwant Varma, J.
C. Misc. W.P. No. 13031/2004, D/–28-8-2015
Hindustan Lever Ltd., Orai Unit
vs.
Presiding Officer, Industrial Tribunal,
Kanpur and Others
INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 – Sections 10, 1(3), 3, 4, 10A,
12A, 13B and 2A – Amendment in Model Standing Orders – Questions referred for adjudication
by Full Bench – Whether amendments made in
Model Standing Orders become automatically
applicable to Certified Standing Orders without
any amendment to the Standing Orders of the
establishment finally certified under section 10
of the Industrial Employment (Standing Orders)
January, 2016 — 134
Act, 1946 – Full Bench answered the question
135 — January, 2016
2016
Majhola Distillery and Chemical Works, Pilibhit vs. Presiding Officer, Labour Court, Bareilly, and Others
by holding that amendments made in Model
Standing Orders do not automatically apply to
the Standing Orders of the establishment, which
have been finally certified under section 10 of
Act, 1946 – And any modification of Certified
Standing Orders can be made in accordance
with procedure which is prescribed in section
10(2) of the Act – Industrial Employment (Standing Orders); Act, 1946 – Sections 1(3), 3, 4, 10,
10A, 12A, 13B, 2A and 10(2).
For Petitioner: Mr. Sudhir Chandra, Mr. Rahul
Mishra and Mr. Sandeep Prabhakar, Advocate.
For Respondents: Mr. C.B. Yadav, Addl. Advocate General, Mr. Shashank Shekhar Singh, Addl.
C.S.C., Dr. Y.K. Srivastava, S.C. and Mr. Akhilesh
Mishra, Advocate.
IMPORTANT POINTS
Amendments made in the
Model
Standing Orders do not
automatically apply to the standing orders of the establishment which
unhave been finally certified
der section 10 of the Industrial
Employment
(Standing
Orders)
Act, 1946.
Any modification of the certified Standing Orders can be
made
in accordance with the procedure
which is prescribed in section
10(2) of the Industrial Employment
(Standing Orders) Act, 1946.
2015 (147) FLR 416
91
by Labour Court, respondent No. 5 moved application under section 6H(1) for his reinstatement
and for recovery of back-wages – Award passed
directing reinstatement and full back wages –
Dy. L.C. directed for recovery of same – Award
has to be implemented – Dy. L.C. has jurisdiction to deal with matter under section 6H(1) of
Act – All controversies whether raised or not between the parties in respect of implementation
of the Award stood settled/decided – Petitioner
could not raise objection in those proceedings
and it would stop it in law in raising it by means
of these proceedings on principle of constructive res judicata – He had the opportunity to
raise all objections – Now he cannot be permitted to contest proceedings at this stage – Hence
no force in any of the submissions of petitioner
– Petition is dismissed.
For Petitioner: Mr. Vrindavan Mishra & Mr.
Virendra Mishra, Advocates.
For Respondents: C.S.C., Mr. B.N. Singh & Mr.
Devendra Pratap Singh, Advocates.
IMPORTANT POINTS
The employer is having full
opportunity to raise objections,
if any, in the regular proceedings before the Industrial Adjudicator and failure on his part
to raise such objection(s) would
estop it in law in raising such
objections in recovery proceedings
on the principle of constructive
res-judicata and against the public policy.
—————
2016 LLR 91
SHORT NOTE CODE 8
ALLAHABAD HIGH COURT
Hon'ble Mr. Pankaj Mithal, J.
C. Misc. W.P. No. 39279/2014, D/–27-7-2015
Majhola Distillery and Chemical Works, Pilibhit
vs.
Presiding Officer, Labour Court, Bareilly,
and Others
U.P. INDUSTRIAL DISPUTES ACT, 1947 – Section 6H(1) – Recovery citation – Order passed by
Dy. Labour Commissioner under section 6H(1)
of Act – In order to implement the award passed
An Award passed under
Industrial Disputes Act, 1947 has
to
be implemented by the authorities
of the appropriate Government, in
the manner prescribed under the
Act and not by any other procedure.
It does not lie in the mouth
of an employer to contend the DLC
(appropriate Government) has no
jurisdiction to deal with the matter under the provisions of the
Industrial Disputes Act, 1947.
2015 (147) FLR 224
—————
January, 2016 — 136
92
Deelip Manga Chaudhary vs. M.D., Maharashtra State Co-Operative Marketing Federation Ltd., & Another LLR
2016 LLR 92
SHORT NOTE CODE 9
2016 LLR 92
SHORT NOTE CODE 10
BOMBAY HIGH COURT
BOMBAY HIGH COURT
Hon’ble Mr. R.V.Ghuge, J.
Hon’ble Mr Ravindra V. Ghuge, J.
W.P. No. 7237/2014, D/–8-9-2015
W.P. No. 93/2014, D/–25-6-2015
Deelip Manga Chaudhary
vs.
Managing Director, Maharashtra State CoOperative Marketing Federation Ltd.,
and Another
Vivekanand Rugnalaya, Latur
vs.
Ganga
PAYMENT OF WAGES ACT, 1936 – Section 2(vi)
– Subsistence allowance – Industrial Disputes
Act, 1947 – Section 2(rr) – Wages – Deduction
from subsistence allowance –Respondent employer has deducted money from the suspension/subsistence allowance under various heads
like P.F., Union contribution, repayment of P.F.
loan instalments, profession tax, Co-operative
Society loan deductions, etc. – Suspension/subsistence allowance would not be ‘wages’ – Deductions carried out by Management is legally
impermissible.
For Petitioner: Mr. Shrikant S. Patil, Advocate.
For Respondents: Mr. D.N.
Suryawanshi,
Advocate.
IMPORTANT POINTS
Subsistence allowance payable
to a workman, who is under
suspension and pending disciplinary
proceedings, would not amount to
wages.
Deduction towards provident
fund contribution, union contribution, repayment of P.F. loan instalments, profession tax, cooperative society loan deductions,
etc. by the Management from the
subsistence allowance is legally
impermissible.
2015 (147) FLR 557
—————
INDUSTRIAL
EMPLOYMENT
(STANDING
ORDERS) ACT, 1946 – S.O. 25(1)(c), 25(3), 25(l)
(d) and 25(5) – Payment of Wages Act, 1936 –
Section 7 – Industrial Disputes (Bombay) Rules,
1957 – Industrial Disputes Act, 1947 – Punishment of suspension – It is clear that punishment of suspension for period exceeding 4 days
– Can be imposed by Manager on a workman
– Who is guilty of misconduct under Standing
Order 25(1)(c) – And no enquiry under the MSO
is required while awarding the said punishment
– A domestic enquiry as contemplated under
S.O. 25(3) is not mandatory for awarding punishment of suspension for period not exceeding
4 days – In the light of this, the impugned order by Industrial Court, setting aside the order
of suspension of complainant for three days, is
perverse, erroneous – And therefore quashed.
For Petitioner: Mr. S.V. Natu, Advocate.
For Respondent: Mr. K.M. Nagarkar, Advocate.
IMPORTANT POINTS
When the punishment of suspension for a period not
exceeding 4 days can be
imposed by
the Manger upon a workman who is
found guilty of misconduct as per
provisions of the Certified Standing Orders of the employer, no
enquiry is required while imposing such a punishment.
Punishment of suspension which
results in loss of pay, shall not
be deemed to be a deduction
from
wages in view of explanation II
below section 7 of the Payment of
Wages Act, 1936.
2015 (147) FLR 234
—————
137 — January, 2016
2016
Christopher Minj vs. Andaman and Nicobar Administration, and Others
2016 LLR 93
SHORT NOTE CODE 11
93
2016 LLR 93
SHORT NOTE CODE 12
BOMBAY HIGH COURT
CALCUTTA HIGH COURT
Hon’ble Mr. Ravindra V. Ghuge, J.
Hon’ble Mr. Soumen Sen, J.
Hon’ble Mr. Arijit Banerjee, J
W.P. No. 229/2014, D/–23-6-2015
M.A. No. 4/2015, D/–6-7-2015
District Women and Child Welfare Officer, Beed
vs.
Sunita Arun Barbade, Shramik Trade Union
Centre, Bashirganj, Beed
INDUSTRIAL DISPUTES ACT, 1947 – Section
25B – Oral termination of respondent – Set aside
by Labour Court and directed the petitioner to
reinstate the respondent on post on which she
has worked as “daily wage cook” – Except affidavit there was no evidence before the Labour
Court to conclude that respondent has established continuance in employment as required
under section 25B of Act – In petition, beyond
an affidavit, the documentary evidence filed assumes importance – Hence impugned judgment
passed by Labour Court is quashed and set
aside – And reference proceedings are remitted
back to Labour Court to decide afresh – However, petitioner shall pay Rs. 5,000 p.m. to respondent during pendency of reference proceeding
before Labour Court.
For State: Mr. Y.M. Kshirsagar, Advocate.
For Respondent: Mr. Pradeep L. Shahane, Advocate.
IMPORTANT POINTS
Mere statement in an affidavit
cannot be a substitute for the
documentary evidence to establish
the right of the litigant.
Continuance
in
employment
as
required under section 25B of the
Industrial Disputes Act,
1947,
cannot be decided only on the basis of affidavit.
Beyond an affidavit the documentary evidence assumes importance, since documents will speak
louder than words.
Christopher Minj
vs.
Andaman and Nicobar Administration,
and Others
A. INDUSTRIAL DISPUTES ACT, 1947 – Sections 2(oo), (bb) and 25F – Retrenchment –
Termination – Award of Labour Court – Each
appointment of appellant would constitute a
separate contract of employment for a specific period – And the service would stand
terminated ipso facto on expiry of such period – In which, section 2(oo), (bb) would
be attracted – And termination of service of
such appellant would not be retrenchment
– Appellant’s service was not seasonal in
nature – Appointment letter not produced
before Labour Court by respondent – Hence
the Award of Labour Court on basis of evidence, apparently cannot be faulted – Single
Judge should not have interfered with such
Award of Labour Court.
B. CONSTITUTION OF INDIA, 1950 – Article
226 – Judicial review – Scope of – Judicial
review is not concerned with merits of decision – It is concerned only with decision
making process – To ensure that Labour
Court/Tribunal does not transgress its jurisdiction – Not as a Court of appeal.
C. EVIDENCE ACT, 1872 – Section 114 (iii)(g) –
Adverse inference – In case trial evidence is
withheld by party – Court may draw adverse
inference.
For Appellants: Mr. Gopala Binnu Kumar and Mr.
Santosh Kumar Mandal, Advocates.
IMPORTANT POINTS
Each
appointment
of
an
employee on expiry of the
duration of previous one, for a specific period, would constitute a
separate contract of employment.
2015 (147) FLR 241
—————
Service
appointed for
of
an
employee
a specific period
January, 2016 — 138
94
Management of Suraj Cinema vs. Presiding Officer, (Labour Court No. 7) and Others
would stand terminated ipso facto
on expiry of that specific period.
Termination of such an employee appointed for a specific
period would not be retrenchment.
LLR
C. INDUSTRIAL DISPUTES ACT, 1947 – Section 10(4) – Requires that when Appropriate Government has referred and specified
points of dispute Labour Court shall confine
its adjudication to such points – Issue of
settlement of dispute was neither referred
to nor included in main issue.
Provision of section 2(oo)(bb)
of the Industrial Disputes Act,
1947 would be attracted in
such
cases, making the termination of
services of the employee neither
retrenchment nor illegal.
Judicial review is not concerned with the merits of the decision but it is concerned only
with the decision-making process.
The High Court, while exercising its power of judicial
review, ought not to substitute its
own decision in place of decision
arrived at by the Court or Tribunal inferior to it.
2015 (147) FLR 245
—————
2016 LLR 94
SHORT NOTE CODE 13
DELHI HIGH COURT
Hon’ble Mrs. Deepa Sharma, J.
W.P. (C) No. 5163/2002, D/–16-4-2015
Management of Suraj Cinema
vs.
Presiding Officer, (Labour Court No. 7)
and Others
A. CONSTITUTION OF INDIA, 1950— Article 226
– Interferences – Award made by Labour
Court – Challenged – There is total absence
of application of mind by Labour Court on
real issue between parties – Findings are
based on conjectures and presumption of
facts, neither raised by parties nor referred
for adjudication – Award of Labour Court,
thus suffers with patent illegality on the face
of it and is hereby set aside.
B. CONSTITUTION OF INDIA, 1950 – Article 226
– Writ – Jurisdiction to issue a writ of certiorari – Is a supervisory jurisdiction—Writ
Court cannot act as an Appellate Court.
139 — January, 2016
For Petitioner: Mr. Ashok Kashyap and Mr. Anand
Prakash, Advocates.
For Respondents: Mr. Ripu Adlakha, Advocate.
IMPORTANT POINTS
It is total absence of application of mind by the
Labour
Court if the real issue between
the parties has not been even
touched or discussed.
The findings of the Labour
Court are based on conjectures and
presumption of facts, if the same
are neither raised by the parties
nor referred for adjudication.
The Award passed by the
Labour Court without considering the
real issue between the parties,
would be having patent illegality
on the face of it and
liable to
be set aside.
If a finding of fact is based
on no evidence that would be
regarded as an error of law which
can be corrected by a writ of
certiorari.
Writ Court cannot act as
an
Appellate Court since jurisdiction
to issue a writ of certiorari under Article 226 of the Constitution of India is a supervisory
one.
Labour
Court
has
to
confine
its adjudication to such points
which have been referred for adjudication and matters incidental
thereto.
2015 (147) FLR 253
—————
2016
Indian Navigation Co. vs. Workers Through Engineering Workers Lal Jhanda Union
2016 LLR 95
SHORT NOTE CODE 14
DELHI HIGH COURT
DELHI HIGH COURT
Hon’ble Mr Pradeep Nandrajog, J.
Hon’ble Ms. Mukta Gupta, J.
Hon’ble Mr. Pradeep Nandrajog, J.
Hon’ble Mr. Mukta Gupta, J
L.P.A. No. 49/2012, D/–7-7-2015
L.P.A. No. 102/2013, D/–27-7-2015
Indian Navigation Co.
vs.
Workers Through Engineering Workers Lal
Jhanda Union
Rajesh Kumar Gandhi
vs.
Shriram Institute For Industrial Research
AWARD – Claim of increment, uniforms, shoes
and HRA – Industrial Tribunal has not decided
the real issue – Which it had to decide – That is
“whether the appellant had means or capacity to
pay the increment amount and what was current
prevailing wages in establishments of like kind”
– It was duty of Tribunal to determine the wages
on the principle of industry-cum- region – Hence
impugned order is set aside – And matter is remanded to learned Industrial Tribunal for adjudication afresh.
For Appellant: Mr. Sanjoy Ghosh, Advocate.
For Respondent: Mr. H.K. Chaturvedi, Advocate.
IMPORTANT POINTS
While deciding demand of
the
workmen in respect of
increment,
uniforms, shoes, etc. the Industrial Adjudicator has to consider as to whether the employer has
means or capacity to pay for such
demands and what was current prevailing wages in the establishments of like kind.
An Industrial Adjudicator is
having a duty to determine the
wages on principle of industrycum-region.
2015 (147) FLR 376
—————
95
2016 LLR 95
SHORT NOTE CODE 15
A. INDUSTRIAL DISPUTES ACT, 1947 – Sections 2(oo)(bb) and 25F – Retrenchment –
Dismissal from service as penalty – Cannot
be held as retrenchment – And therefore
section 25F would not be apply.
B. TERMINATION – Principal of natural justice – non supply of copy of enquiry report
– Where copy of enquiry report is not supplied to employee – Court should direct to
supply copy of enquiry report to employee
– And employee could establish prejudice
caused to him – Matter rightly remanded to
decide the prejudice caused to employee.
For Appellant: In person.
For Respondent: Mr. Rupesh Kumar, A.R.
IMPORTANT POINTS
Section 25F of the Industrial
Disputes Act, 1947 would
concededly apply if it is a case of retrenchment.
If the case is one of
dismissal from service on account
of a penalty levied, it is not
a case of retrenchment attracting
application of section 25F of the
Act.
If due to non-supply of
copy
of the enquiry report, the delinquent employee has suffered any
prejudice or not is a matter of
evidence to be decided by the Industrial
Adjudicator
attracting
remand of the case back to
the
Industrial Adjudicator for deciding it afresh.
2015 (147) FLR 380
—————
January, 2016 — 140
Oriental Insurance Co. Ltd. and Others vs. Md. Rafiqul Islam
96
2016 LLR 96
SHORT NOTE CODE 16
and Others
GAUHATI HIGH COURT
GAUHATI HIGH COURT
Hon’ble Mr. Chaudhury, J.
Hon’ble Mr. N. Chaudhury, J.
M.F.A. No. 56/2008, D/–14-5-2015
M.F.A. No. 83/2008, D/–26-5-2015
Numaligarh Refinery Ltd. and Another
vs.
Commissioner, Workmen’s Compensation-CumAssistant Labour Commissioner, Golaghat,
and Others
Oriental Insurance Co. Ltd. and Others
vs.
Md. Rafiqul Islam and Others
WORKMEN’S COMPENSATION ACT, 1923 – Section 4 and 3 – Compensation – Actual income –
Consideration of – Accident had taken place on
20.9.2003 – At that time there was an Explanation-II under section 4 (1) of Act— Under clause
(b) Rs. 4,000 was, later on, substituted for Rs.
2,000 by amendment w.e.f. 8.12.2000 only – If
the income is less than Rs. 4,000 after 8.12.2000
– In that event the W.C. Commissioner is to consider the actual income only and not Rs. 4,000
– Once such a calculation is made, in that event
the amount of compensation shall also automatically come down.
For Parties: Mr. S.N. Sarma, Mr. S. Choudhury,
Mr. A. Sarma, Mr. C.P. Talukdar and Mr. N. Sarma,
Advocates.
IMPORTANT POINTS
The
consequent interpretation of Explanation II under section 4(1) of the Employees’ Compensation Act, 1923 is that if
the income of the
injured/deeased in less than Rs. 4000, after
8.12.2000, in that event the Employees’ Compensation Commissioner
is to consider the actual income
only and not Rs. 4000.
The provision is specific and
it only provides the maximum limit of the monthly wage of a workman.
The provision is specific and
monthit does not provide for a
ly wage to a fixed amount of Rs.
4000.
2015 (147) FLR 257
—————
141 — January, 2016
LLR
2016 LLR 96
SHORT NOTE CODE 17
WORKMEN’S COMPENSATION ACT, 1923 – Sections 4(1)(c)(ii) and 11 – Compensation – Claimant had sustained injuries while in the course of
employment – Claim filed before the Commissioner W.C. allowed and awarded compensation
as medical advice of Doctor – Presuming that
workman was entitled to get salary of Rs. 3,000
p.m. and that he had lost earning capacity of
20% – Award challenged by insurance company
under section 11 of Act, the Insurance company
could have opted for getting the workman examined by different authorities – Appellant Insurance Company not having taken recourse to
provision of section 11 for medical examination
– Finding arrived at by W.C. Commissioner –
Cannot be interfered with.
For Appellants: Mr. A. Ahmed, Advocate.
IMPORTANT POINTS
Challenge to an award of compensation, to a claimant who had
received injuries on the basis of
advice of Doctor that the claimant had lost earning capacity of
20%, by the Insurance Company, is
not sustainable since the insurer
could have opted for getting the
workman examined by different authorities but it failed to take
such a recourse legally available
to it.
An opinion given by an experienced Medical Officer, if not
contradicted by cogent
evidence,
the same would stand having full
force.
2015 (147) FLR 259
—————
Central Coalfields Ltd., Ranchi vs. Chaman Kumar
2016
2016 LLR 97
SHORT NOTE CODE 18
97
2016 LLR 97
SHORT NOTE CODE 19
JHARKHAND HIGH COURT
KARNATAKA HIGH COURT
Hon’ble Mr Shree Chandrashekhar, J.
Hon’ble Mr. N.K. Patil, J.
Hon’ble Mrs. Rathnakala, J.
W.P. (L) No. 6205/2014, D/–7-7-2015
MFA No. 11110/2011 (ESI), D/–6-8-2015
Central Coalfields Ltd., Ranchi
vs.
Chaman Kumar
TERMINATION – Enquiry – Enquiry report does
not disclose a specific finding that charges
have been proved – Hence, the Industrial Tribunal rightly interfered with award – Respondentworkman was not made accused in criminal
case in which a final form was finally submitted – Considering the gravity of charge found
proved – Penalty of termination from service
was not warranted— Conclusion reached at by
the Industrial Tribunal is correct— And therefore, in exercise of power under Article 226, no
interference made.
For Petitioner: Mr. A.K. Das, Advocate.
IMPORTANT POINTS
If the enquiry report does
not disclose a specific finding that
charges have been proved against
the delinquent employee, interference with the order of the Disciplinary Authority, terminating the
services of the delinquent employee, by the Industrial Tribunal is
justified.
No doubt, the test in the departmental proceeding is preponderance of probability, but a mere
possibility cannot be sufficient to
hold the charge as proved against
the delinquent employee.
2015 (147) FLR 372
—————
Mazagon Dock Ltd.
vs.
Regional Director, ESI Corporation, Bangalore
and Others
EMPLOYEES’ STATE INSURANCE ACT, 1948
– Sections 75 and 82(2) – Application under
section 75 – Dismissed by Labour Court – Application under section 75 filed questioning the
correctness or otherwise of determination and
consequential demand of damages and interest
– At the time of determination of levy of damages, no notice issued to respondents 2 to 20 to
have their say in the matter – If at all any damages are be levied, then, the appellant as well as
the contractors are liable to pay equally – This
aspect of matter has not been properly looked
into by Regional Director ESIC, while determining the levy of damages or by Labour Court-cum
ESI Court – Hence, the Court issued appropriate
direction to reconsider the matter only in so far
as it relates to levy of damages.
For Appellant: Mr. S. Ganesh Shenoy, Advocate
For Respondent: Mr. V. Narasimha Holia, Advocates.
IMPORTANT POINTS
Since no notice was issued to
the principal employer and contractor while levying damages
by
the Regional Director, ESIC, to
have their say in
the
matter,
levy of damages is not justified.
Since the levy of damages
in
the absence of issuing any notice to the effected parties
is
not justified, it is appropriate
to remand the matter back to the
ESI Authority to reconsider it
and decide it afresh after hearing the parties as per provisions
of law.
2015 (147) FLR 275
January, 2016 — 140
—————
141 — January, 2016
98
President, Mangalodayam Handloom Weavers’ Co-Operative Society vs. R. Sudha and Others
2016 LLR 98
SHORT NOTE CODE 20
KERALA HIGH COURT
Hon’ble Mr. K.V. Chandran, J.
W.P.(C) No. 17030/2009 (W), D/–27-1-2015
President, Mangalodayam Handloom Weavers’
Co-Operative Society
vs.
R. Sudha and Others
A. INDUSTRIAL DISPUTES ACT, 1947 – Section 2(s) – Secretary – Subordinate to President under Society Byelaws – Acting under
supervision of President – Secretary could
not be said to be a supervisory staff.
B. AWARD – A preliminary order, which sets
aside an enquiry – Could be challenged
along with the Final Award.
For Petitioner: Mr. N.D. Premachandran, Mr. D.
Ajithkumar and Mr. Laliza T.Y, Advocates.
For Respondents: Mr. Gopakumar R. Thaliyal,
Mr. P.R. Prateesh and Mr. N.P. Prajeesh,
Advocates.
IMPORTANT POINTS
Secretary of a Society cannot
be said to be a supervisory staff
if he is subordinate to President
under Society Byelaws.
When the President of the
Society has overall powers of administration including
power of
appointment of employees, power
to proceed against the employees,
to suspend and impose punishment
or penalty, the Secretary would
be counted as subordinate staff.
Such a Secretary of the Society being conferred with the power to sue, for and on behalf
of
the Society, is not at all relevant, to decide the question of
the Secretary’s
entitlement
to
be considered as a workman under
Industrial Disputes Act, 1947.
Settled law is that an undesignation
due importance to a
of the employee or the nature
assigned and the class to
he belongs, would not be
to be given.
LLR
which
proper
It is trite that a
preliminary order, which sets aside
an
enquiry, could be challenged along
with the final Award but that is
not to say that an order passed
in an application made for adducing evidence, could be left for
challenging with the final Award.
If an application made for
adducing evidence is dismissed by
the Labour Court and such an order is not challenged before the
High Court, it would attain finality and while challenging final
Award, such an order cannot be
challenged.
2015 (147) FLR 279
—————
2016 LLR 98
SHORT NOTE CODE 21
MADHYA PRADESH HIGH COURT
Hon’ble Mr. Sujoy Paul, J.
W.P. Nos. 5132, 1734, 1900, 1899, 1777 and 1741/2012,
D/–15-7-2015
Narayan Das
vs.
State of M.P. and Others
A. INDUSTRIAL DISPUTES ACT, 1947 – Sections 25N, 25F, 25G and 25H – Termination –
Interfered with by Labour Court by award –
On ground of not following the requirement
of section 25F of Act – However, action of
department is in accordance with provisions
of Act – If they are following the requirement of section 25F – It cannot be said that
it amounts to unfair labour practice – And
the respondents are required to ensure that
no retrenchment takes place on violation of
section 25G read with Rule 76 of Rules – In
the circumstances, petitioner is directed to
submit a representation along with seniority list, which will be decided before implementing the impugned order terminating the
service.
January, 2016 — 142
Tyagi Jeevanandam Kattidam Matrum vs. State of Tamil Nadu
2016
B. Industrial Disputes Act, 1947 – Section
25F(a) and (b) and 25F(C) – Notice – One
month’s notice as per section 25F(a) – Fulfils the requirement of section 25F(a) and
(b) – If on expiry of period petitioners’ services are terminated – Without paying retrenchment compensation – Interference
can be made – Clause (c) of section 25F is
directory – Violation of sub-clause (c) Will
not render the impugned notice as illegal.
C. INDUSTRIAL DISPUTES ACT, 1947 – Section 25N and 25L – Scope of –Section 25N
is applicable to workman employed in any
“industrial establishment” to which Chapter
VB applies
For Petitioners: Mr. K.N. Gupta and Mr. M.S.
Rana, Advocates.
For Respondents/State: Mrs. Sangeeta Pachori,
G.A.
IMPORTANT POINTS
If the action of the
department is in accordance with the
provisions of the Industrial Disputes Act, 1947 including section
25F of the Act, it cannot be said
that it amounts to unfair labour
practice.
The provisions of sections
25G and 25-H are applicable to
workmen, whether or not they have
completed 240 days of service.
of
workmen
If
services
are
terminated
without
paying
retrenchment
compensation,
it
would be illegal.
Notice by employer directing
retrenched employees to collect
retrenchment compensation from Divisional Office but employees fail
to do so, it would establish that
employer has made sufficient compliance of Clause (b) of section
25F of the Act.
Violation of sub-clause (c)
of section 25F of the Act
will
143 — January, 2016
99
not render the impugned notice as
illegal.
2015 (147) FLR 290
—————
2016 LLR 99
SHORT NOTE CODE 22
MADRAS HIGH COURT
Hon’ble Mr. Satish K. Agnihotri, J.
Hon’ble Mr. M. Venugopal, J.
W.A. No. 777/2015 and M.P. Nos. 1 and 2/2015,
D/–16-6-2015
Tyagi Jeevanandam Kattidam Matrum
vs.
State of Tamil Nadu
TRADE UNIONS – Constitution of India, 1950
– Article 226 – Impugned order – Passed by
learned Single Judge – Government letter dated 31.10.2008 shows that the application forms
have to be submitted by each workman directly to Labour Officer – Not through the trade
Unions – Clause 3-7 of the Letter cannot be read
and understood as giving right to Trade Union
to collect application forms, to fill up the same
on behalf of workman and to submit the same to
Labour Officer – Hence, in absence of express
permission from the Government, to permit the
“Trade Union” to receive application forms, to
fill up the same and to submit to 3rd respondent
Labour Officer, etc.—This Court cannot accede
to the plea of appellant to permit them to do the
same.
For Appellant: Mr. S. Ayyathurai, Advocate.
For Respondents: Mr. P.S. Sivashanmugasundaram, Advocate.
IMPORTANT POINTS
In the absence of express
permission from Government, to
permit the ‘Trade Union’ to
receive application forms, to fill
up the same and submit to
Labour
Officer etc., is not appropriate
since the concerned letter of the
Government shows that the application forms have to be submitted
by each workman directly to the
Labour Officer.
M/S. Gulf Oil Corporation Ltd. vs. Manoj
100
There
is no
‘Common Law
Right’ on a Trade Union to
represent its members, whether for
purposes of collective bargaining
or in respect of an individual
grievance redressal of its members.
Kumar Sahu
LLR
or one flowing from a pre-existing
right.
The difference between a preexisting right or benefit on one
hand and the right or benefit,
which is considered just and fair,
on the other hand, is vital.
2015 (147) FLR 295
—————
2016 LLR 100
SHORT NOTE CODE 23
ORISSA HIGH COURT
Hon’ble Mr. C.R. Dash, J.
W.P. (C) Nos. 35, 1795 and 1799/2013, D/–10-7-2015
M/S. Gulf Oil Corporation Ltd.
vs.
Manoj Kumar Sahu
INDUSTRIAL DISPUTES ACT, 1947 – Section
33C(2) – Claim under – Opposite party workman had prayed to determine his dues relating
to salary etc, against the employer management
on the basis of award passed by Labour Court
– However the Labour Court should have disposed of the proceeding without Leaving anything to be done by Management by computing
the entire claims Labour Court has not done this
– Has committed an error – Therefore the matter
is liable to be remanded back.
For Petitioner: Mr. Narendra Kumar Mishra,
Mr. N.K. Mishra, Mr. D.K Pani, Mr. A.K. Roy and
Mr. A. Mishra, Advocates.
For Opp. Party: Mr. Ramanath Acharya, Mr. Basudev Barik and Mr. P.M. Rao, Advocates.
IMPORTANT POINTS
While passing an Award, the
Labour Court should dispose of
the proceedings not leaving anything to be done by Management,
particularly computation of all
amounts of entire claim.
The benefit sought to be
enforced under section 33C(2) of the
Industrial Disputes Act, 1947, is
necessarily a pre-existing benefit
Pre-existing right or benefit
falls within the jurisdiction
of
the Labour Court exercising power
under section 33C(2) of the Act
while the right or benefit considered just and fair does not.
When the Award passed is confined only to the reinstatement
without stating anything more as
to the back-wages, hence such relief must be deemed to have been
denied.
2015 (147) FLR 312
—————
2016 LLR 100
SHORT NOTE CODE 24
PATNA HIGH COURT
Hon’ble Mr. Rakesh Kumar, J.
C.W.J. Case No. 533/2015, D/–26-8-2015
Mahadeo Singh College, Bhagalpur
vs.
Union of India and Other
Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952 – Sections 7A – Constitution of India, 1950 – Article 226 – Order under
section 7A – Passed by Assistant P.F. Commissioner – And held that the provisions under
the Act were applicable in respect of petitionercollege and an assessment order was passed –
Order challenged in writ petition and prayed for
its quashing – Fact remains, that the order under challenge, is appealable under the EPF Act
itself – And exercise of power under Article 226
of Constitution of India is discretanary powerBut in view of peculiar facts and circumstances
– This Court is refraining from exercising its writ
jurisdiction.
For Petitioner: Mr. Chitranjan Sinha and Mr. Manish Kumar, Advocates.
January, 2016 — 144
Cimmco Birla Ltd. vs. Mahendra Singh and Others
2016
For State: AC to SC -26.
For EPFO: Prashant Sinha.
For University: Ms Mallika Majumdar, Advocate.
For SBI: KK. Sinha, Advocate.
For Intervenor 1st set: Bindhyachal Singh.
For Intervenor 2nd set: Rajesh Ranjan.
IMPORTANT POINTS
Where there is statutory remedy of filing an appeal against
the order of the EPF Authority
under the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952,
Writ Court may put a self-imposed
restriction in exercising its jurisdiction to decide a question
regarding applicability of the Act
upon an employer.
No doubt exercise of power
under Article 226 of the
Constitution of India is discretionary
power but refraining from exercising such power is justified when
statutory remedy of appeal under
the EPF&MP Act is available.
2015 (147) FLR 304
—————
2016 LLR 101
SHORT NOTE CODE 25
RAJASTHAN HIGH COURT
Hon’ble Mr. Ajay Rastogi, J.
Hon’ble Mr. J.K. Ranka, J.
D.B.S.A. (Writ) No. 508/2014, D/–14-5-2015
Cimmco Birla Ltd.
vs.
Mahendra Singh and Others
INDUSTRIAL DISPUTES ACT, 1947 – Section
25F – Retrenchment – Compensation – In lieu
of reinstatement – Award of Labour Court, holding retrenchment is in violation of section 25F
– Learned Single Judge affirmed the award and
awarded lumpsum compensation of Rs. 1,50,000
in lieu of reinstatement – In view of facts and
guidelines as laid down by Apex Court which
is just and proper – Impugned order passed by
Single Judge therefore, not required any interference.
145 — January, 2016
101
For Petitioner: Mr. G.K. Garg & Mrs. Anita Agarwal, Advocates.
For Respondents: Mr. Y.P. Sharma, Advocate.
IMPORTANT POINTS
Awarding lumpsum compensation
in lieu of reinstatement
keeping
in view grievance of the workman
pending for the last 28 years
in
view of facts and guidelines as
laid down by the Apex Court, is
just and proper.
Awarding
interest
if
the
amount of compensation is not paid
within the stipulated time as per
order of the Court, is justified.
—————
2016 LLR 101
SHORT NOTE CODE 26
RAJASTHAN HIGH COURT
Hon’ble Mr. Atul Kumar Jain, J. (V.J.)
National Insurance Co. Ltd.
vs.
Bhebha Ram and Another
A. WORKMEN’S COMPENSATION ACT, 1923
– Sections 3, and 4 – Award – Passed by
Commissioner W.C. awarding Rs. 2,12,824
as compensation, in favour of claimant/respondent No. 1 – And enhanced rate of interest in case of default in timely payment of
compensation made by Insurance Company
– Commissioner was well within its powers
to impose such enhanced rate of interest
– Committed no error – No interference required with – Award, is, therefore, upheld.
B. INSURANCE – Insurance company has levelled charges of breach of policy against
the owner of tractor in this case – However,
insurance policy was neither given to the insured nor it was exhibited during course of
hearing before Commissioner – Insurance
company cannot be allowed to play the
game of hide and seek – Hence, this Court
cannot take a liberal view in favour of Insurance Company.
For Appellant: Mr. Raj Sharma & Ms. Arti Gotyal,
Advocates.
Sh. Hari Prakash vs. Sh. Vipin Kumar Aggarwal
102
For Respondent: Mr. Manoj Sharma & Mr. Pramod
Kumar Gaur, Advocates.
IMPORTANT POINTS
Awarding enhanced rate of interest upon the amount of compensation awarded with interest if
the awarded amount with interest,
not paid
within
the
stipulated time by the insurer/insurance
company, of the vehicle, is well
within its powers to impose such
enhanced rate of interest.
The Insurance Company is
liable to pay compensation to an
employee of a registered owner of
the tractor if met with an accident while working on a thresher attached with the tractor, in
the absence of any document as a
part of the insurance policy or
any term and condition of the insurance policy has been proved
contrary during the recording of
arguments.
2015 (147) FLR 337
—————
2016 LLR 102
SHORT NOTE CODE 27
DELHI HIGH COURT
Hon’ble Ms. Sunita Gupta, J.
W.P.(C) 7446/2011, D/–30-10-2015
Sh. Hari Prakash
vs.
Sh. Vipin Kumar Aggarwal & Anr.
A. ABANDONMENT – When presumption by
Management is justified –Averment of the
workman was that he was employed since
01.10.1987 – On 01.12.2007, his services
were terminated without assigning any reason – His wages for November 2007 were
not paid – Management did not reply to his
demand notice – He was jobless since the
date of his termination – Management controverted the allegations of the workman
stating that he himself submitted resignation earlier which was not accepted – He
was fully involved in solving his family
& Anr.
LLR
problem – He himself is absent unauthorisedly – He is not reporting for duty despite
repeated letters sent to him – On order of
court, he resumed duty on 4.8.2008 and after that he did not turn up – Labour Court
dismissed his claim – He challenged the
Award by filing writ petition – Held, since
workman did not resume duty despite various letters sent to him by the Management,
it proves that he himself was not interested
in the employment of the Management – In
such circumstances, there was no question
of issuing any show cause notice or initiating any enquiry against the workman – Writ
petition is dismissed.
B. CONSTITUTION OF INDIA, 1950 – Article 226
– Writ Court cannot undertake the exercise
of liberally re-appreciating the evidence,
drawing conclusion of its own on pure
questions of fact – Finding of fact-finding
authority cannot be interfered when they are
based upon some material relevant for the
purpose or even on the ground that there is
yet another view which can reasonably and
possibly be taken.
For Petitioner: Mr. Ashok Thaval and Mr. Vishal
Chaudhary, Advocates.,
For Respondent: Mr. V.K. Tandon, Advocate.
IMPORTANT POINTS
If a workman neither
resumes
duty despite receiving
letters
from the Management nor gives any
cogent explanation thereto, presumption drawn by the Management
that the workman is not interested in their employment is reasonable.
When the workman remains
absent unauthorisedly despite repeated letters sent to him at his
correct address, drawing presumption that he himself has abandoned
the job is justified even without
conducting any domestic enquiry.
Writ Court cannot undertake
the exercise of liberally re-appreciating the evidence, drawing conclusion of its own on pure
questions of fact.
January, 2016 — 146
2016
Vadodara Mahanagar Seva Sadan vs. Maha Gujarat Industrial Employees Union & 3 Ors.
Finding of fact-finding authority cannot be interfered by
the High Court under writ jurisdiction when the same are based
upon some material relevant for
the purpose or even on the ground
that there is yet another view
which can reasonably and possibly
be taken.
—————
2016 LLR 103
SHORT NOTE CODE 28
DELHLHIGH COURT
Hon’ble Mr. Sunita Gupta, J.
W.P.(C) 1113/2015, D/–12-10-2015
Shri Shailender Kumar
vs.
The Secretary (Labour) & Anr.
A. TERRITORIAL JURISDICTION – Situs of
last work-place – Workman was lastly performing duty at Gautam Budh Nagar (UP)
– Initially he performed duty at Delhi – His
services were illegally terminated from U.P.
when he raised demand for increase in salary – Demand notice, sent by him, was not
responded by the Management – He raised
an industrial dispute in Delhi – Management
raised objection that Delhi Courts have no
jurisdiction to try the case – Labour Court
concluded that Courts at Delhi have no jurisdiction since the alleged termination of
services of the workman was effected from
Noida (UP) – Rest of the issues were not
decided – Claim of the workman was dismissed for want of territorial jurisdiction –
Workman challenged the Award in writ petition – Held, admittedly the Management had
closed its factory at Delhi – Thus, situs of
employment was at Noida – Cause of action
substantially arose at Noida – Hence, courts
at Delhi cannot be vested with territorial jurisdiction on the allegations that intial appointment of the workman was at Delhi or
that PF etc. was being deposited in Delhi or
even the Head Office of the Management is
in Delhi – Impugned Award has no illegality,
perversity or infirmity – Writ petition is dismissed.
B. CONSTITUTION OF INDIA, 1950 – Article 226
– In the absence of any illegality, perversity
147 — January, 2016
103
or infirmity in the Award passed by the Labour Court, interference of the Writ Court is
not called for.
For Petitioner: Mr. Javed Khan, Advocate.
For Respondent No. 1: Mr. Pankaj Sinha and
Mr. Nipun Grover, Advocates.
For Respondent No. 2: Mr. Sanjay Ghose,
Advocate.
IMPORTANT POINTS
Territorial jurisdiction to
try an industrial dispute vests
in the Courts at the place where
the workman lastly worked
i.e.,
from where his services were terminated since the cause of action
substantially arose at last working place.
Courts at Delhi cannot be
vested with territorial jurisdiction on the allegations that intial appointment of the workman
was at Delhi or that PF etc. was
being deposited in Delhi or even
the Head Office of the Management
is in Delhi.
In the absence of any
ille-
perversity
or infirmity
gality,
in the Award passed by the Labour Court, interference by the
Writ Court under
Article 226 of
the Constitution of India, is not
warranted.
—————
2016 LLR 103
SHORT NOTE CODE 29
GUJARAT HIGH COURT
Hon’ble Mr. N.V. Anjaria, J.
S.C.A. No. 1579/2015, D/–27-3-2015
Vadodara Mahanagar Seva Sadan
vs.
Maha Gujarat Industrial Employees
Union & 3 Ors.
INDUSTRIAL DISPUTES ACT, 1947 – Section
36(4) – Representation through advocate – Ob-
jected – Advocate filed vakalatnama on
behalf
January, 2016 — 148
Asim Chowdhury vs. Swagatam Tours and Travels
104
of employer – Union Representative raised objection by filing an application – Industrial Tribunal decided the objection in favour of the Workmen/Union – Employer challenged the order of
the Industrial Tribunal before the High Court –
Held, law on this point is well settled that unless
the workman is not represented through a legal
practitioner or advocate, the employer has no legal right to make his representation through an
advocate or a legal practitioner without the consent of the workman or Union – Since the Office
bearer of the Union representing the workman
is not an advocate or legal practitioner, Industrial Tribunal has rightly allowed the objection by
refusing the employer’s representation through
an advocate – Hence, writ petition stands dismissed.
For Petitioner: Mr. Niral R. Mehta, Advocate.
For Respondent No. 1: Mr. T.R. Mishra, Advocate.
IMPORTANT POINTS
As per settled position of
law in view of provisions of section 36(4) of the Industrial Disputes Act, 1947, unless the workman is not represented through a
legal practitioner or
advocate,
the employer has no legal right
to make his representation through
an advocate or a legal practitioner without the consent of the
workman or Union.
An office bearer of the Union,
may be having experience in dealing with labour matters, representing the workman, cannot be
treated as a legal practitioner
for the purpose of allowing the
employer to represent his case
through an advocate or a legal
practitioner in view of provisions
of section 36(4) of the Industrial Disputes Act, 1947.
(P) Ltd.
DELHI HIGH COURT
Hon’ble Mr. Pradeep Nandrajog, J.
Hon’ble Ms. Mukta Gupta, J.
LPA No. 35/2015, D/–16-7-2015
Asim Chowdhury
vs.
Swagatam Tours and Travels (P) Ltd.
A. EMPLOYER-EMPLOYEE RELATIONSHIP –
Onus of proof upon workman – Appellant/
workman failed to prove that he is employee of the employer by way of documentary
evidence – Management denied his employment – Salary-cum-Attendance Register, PF
Register, Bonus Register were not having
the name of the workman – Labour Court
dismissed the claim of the workman – Writ
petition filed by the workman failed -Workman filed writ appeal – Held, onus of establishing the relationship of employer-employee is on the employee – Though documents
i.e. demand notice, postal receipts and letter
addressed to Management have been exhibited but their reference is not there in his affidavit by way of evidence, hence such documents would stand not proved before the
Labour Court – If the employer pleads that
the employee was employed by somebody
else but fails to prove the same, it does not
mean that assertion by the employee to the
contrary must be held to be proved by default – Workman did not make any suggestion to the witness of the Management that
records of attendance and salary, etc. were
incorrect – Hence, the same stand proved –
Appeal is dismissed.
B. CONSTITUTION OF INDIA, 1950 – Article
226 – Jurisdiction – It is trite that an Industrial Fora is obliged to consider all relevant
evidence and any omission to do so would
amount to an irregularity in the exercise
of its power justifying interference by Writ
Court.
—————
For Appellant: Mr. S. Mukherjee, Advocate.
For Respondent: Mr. Vijay Jaiswal, Advocate.
149 — January, 2016
LLR
2016 LLR 104
SHORT NOTE CODE 30
M/s. G.D. Engineering Works vs. Arvind Kumar
2016
IMPORTANT POINTS
Onus
of
establishing
rela-
tionship of employer-employee
on the employee.
Documents
though
exhibited
is
by
the workman but if their reference is not there in affidavit by
way of evidence, the same would
stand not proved before the Labour Court.
If
the
employer
pleads
that
the
employee
was
employed
by
somebody else but fails to
prove
the same, it does not mean that
assertion by
the
employee
to
the contrary must be held to be
proved by default.
If
the
workman
has
not
made
any suggestion to the witness of
the Management that records of
attendance and salary etc. exhibited by him were incorrect, the
same would stand proved.
Absence of name of the workman from the salary-cum-Attendance
Register, PF Register, Bonus Register, etc., proved the Management is sufficient to prove that
the workman was not employed by
the Management.
It
is
trite
that
an
Indus-
trial Fora is obliged to
consider all relevant evidence and any
omission to do so would amount to
an irregularity in the exercise
of its power justifying interference by Writ Court in setting
aside the impugned award.
2015 (III) CLR 371
—————
105
2016 LLR 105
SHORT NOTE CODE 31
DELHI HIGH COURT
Hon’ble Ms. Sunita Gupta, J.
W.P. (C) 474/2014 & CM No. 932/2014, D/–9-10-2015
M/s. G.D. Engineering Works
vs.
Arvind Kumar
A. BURDEN OF PROOF – Upon a party who
sets up a plea – Workman claimed that
his services were illegally terminated on
01.06.2006 -Management asserted
that
the workman settled all his accounts on
31.03.2004 and left the, services on his own
– Workman raised an industrial dispute after
5 years in August 2009 – Labour Court held
the termination illegal awarding lumpsum
compensation of Rs. 2.00 lacs – Management challenged the Award in writ petition
– Held, workman failed to prove his working with the Management upto 01.06.2006
by way of any documentary evidence –
The onus was upon the workman to prove
his assertion that he was in working till
01.06.2006 – Burden of proving a fact rests
on party who substantially asserts the affirmative of the issue and not upon the party
who denies it, for a negative does not admit
of direct and simple proof – Finding of Labour Court cannot sustain being improper –
Writ petition is allowed – Impugned Award
is set aside.
B. PAST CONDUCT OF THE WORKMAN –
Effect of – Workman challenged illegal termination of his services – Management inter alia asserted that the workman settled
all his accounts on 31.03.2004 and left the
services on his own – Labour Court held
the termination illegal – Management filed
writ petition against the award, inter alia on
the ground that Labour Court has not considered the fact that the workman was of
a litigant nature – He had raised industrial
disputes against his previous employers
but could not succeed – Held Management
has placed on record the copies of the industrial disputes raised by the workman
against his two of the previous employers
which did not succeed – It proves that the
workman is in the habit of raising industrial
dispute against the Management wherever
worked – It proves mala fide on the part of
January, 2016 — 150
Randhir Singh vs. D.T.C. & Ors.
106
the workman making him not entitled to any
relief.
C. CONSTITUTION OF INDIA, 1950 – Articles
226/227 – High Court does not sit as a Court
of appeal over the award of inferior court –
Writ Court can interfere in the finding of the
lower court only if it is shown that certain
important facts on record have not been
considered which were material for determination of the real issues between the parties
and not otherwise.
For Petitioner: Mr. L.K. Passi, Advocate.
For Respondent: Mr. R.K. Bachchan, Advocate.
IMPORTANT POINTS
Burden of proving a fact
rests on the party who
substantially asserts the affirmative of
the issue and not upon the party who denies it, for a negative
does not admit of direct and simple proof.
When
the
Management
denies
the relationship of employer-employee with the workman who has
initiated litigation against the
Management, the burden to prove
such a relationship is primarily
upon the workman and not upon the
Management.
Past litigation on the part
of the employee against his
previous employer(s) proves that he
is of litigant nature.
Writ Court does not sit as a
Court of appeal over the Award of
inferior court.
The Writ Court can
interfere
in the finding of the lower court
only if it is shown that certain
important facts on
record
have
not been considered which were
material for determination of the
real issues between the parties.
—————
151 — January, 2016
LLR
2016 LLR 106
SHORT NOTE CODE 32
DELHI HIGH COURT
Hon’ble Mr. Sunil Gaur, J.
W.P. (C) 571l/2002 with W.P.(C) 1683/2002 and
W.P. (C) 20015/2005 & CM APPLN. 12955/2005,
D/–15-10-2015
Randhir Singh
vs.
D.T.C. & Ors.
A. MISCONDUCT – When stands proved –
Workman abused and assaulted the Cashier
of DTC – Enquiry was conducted – Evidence
of Cashier was recorded – Workman did not
participate in the enquiry – He was held
guilty of the charges – He was removed
from service – An application under – Section 33(2)(b) of the Industrial Disputes Act,
1947, was moved – Industrial Tribunal declined the approval on the ground that there
is no corroboration to evidence of cashier
from any independent source and so, his
evidence was not reliable for want of medical evidence – Management approached the
High Court by filing writ petition – Held, in
domestic enquiry misconduct is proved on
the yardstick of preponderance of probability and not on the yardstick of criminal trial
of proving it beyond reasonable doubt – It
is settled legal position that the evidence
of material witness, unless shown to be unworthy of reliance, ought to be accepted –
Hence, impugned order is set aside – Writ
petition is allowed.
B. NOTICE – When taken to be served – Notice of enquiry was sent through Registered
A.D. but the acknowledgement card was not
available on the record – Industrial Tribunal
held that notice is not to be taken as served
since Acknowledgement Due card is not
available – However, the ld. Single Judge,
while allowing writ petition, observed that
notice for next date of hearing was sent
through registered post on correct address
– Presumption of service of notice arises –
Workman himself avoided to attend the enquiry till the decision of the Criminal case –
Non-availability of A.D. Card on the case file
is not fatal to the compliance of principles
of natural justice – Hence, the finding of the
Labour Court reversed.
R.N. Rattan vs. Oriental Bank of Commerce & Anr.
2016
For Petitioner: Mr. Manish Kumar Vikkey, Advocate.
For Respondents (DTC): Ms. Charul Sarin and Mr.
Ajitesh K. Kir, Advocates.
IMPORTANT POINTS
In domestic enquiry misconduct is proved on the
yardstick
of preponderance of
probability
and not on the yardstick of criminal trial of proving it beyond
reasonable doubt.
It is settled legal position that the evidence of
material witness, unless shown to be
unworthy of reliance, ought to be
accepted.
When
a
notice
was
sent
through registered post on correct
address, as per settled legal position, a presumpton of service
of notice arises.
Only
non-availability
of
A.D.
card in respect of notice by registered post on the case file
is
not fatal to the compliance of
principles of natural justice.
—————
2016 LLR 107
SHORT NOTE CODE 33
DELHI HIGH COURT
Hon’ble Mr. Pradeep Nandrajog, J.
Hon’ble Ms. Mukta Gupta, J.
LPA 418/2011, D/–19-10-2015
R.N. Rattan
vs.
Oriental Bank of Commerce & Anr.
A. INDUSTRIAL ADJUDICATION – Effect of
non-supply of documents) demanded by the
delinquent employee – Certain documents
were demanded by the delinquent employee
by moving an application before the Enquiry Officer – Out of which some documents
were not supplied being not traceable and
non-relevancy – Employee was held guilty
of the charges – He was dismissed from
service – His departmental appeal was dis-
107
missed – While disposing of writ petition
filed by the employee, it is held that appellant, neither in response to enquiry report
submitted to the disciplinary authority nor
in the appeal, raised the issue of any prejudice caused to him by non-supply of documents nor any prejudice caused to him, is
observed on the basis of documents on
the case file – Settled law is that mere non
supply of documents is not enough to the
established allegation by the delinquent
employee – Prejudiced caused has to be
shown – Merely because statutory auditors
during inspection did not point out any illegality does not mean that there was no illegality – Since non supply of documents has
not caused any prejudice to the appellant,
his such a contention is not sustainable.
B. INDUSTRIAL ADJUDICATION – When a plea
that impugned order is cryptic one is not
sustainable – Whether appellate authority applied its mind if it has concurred with
the view taken by the disciplinary authority? – Held, records reveal that appeal was
forwarded to the appellate authority with
the comments against each paragraphs by
the legal department – Considering appeal
and parawise comments, appellate authority rejected the appeal – A lengthy appellate
order need not be penned in administrative
matters – Concurring with the view taken by
the disciplinary authority, in such circumstances, suffice it to note that appellate has
duly applied its mind – Impugned order is
appropriate and not a cryptic one.
C. PUNISHMENT – Proportionality of penalty –
Held, merely because no loss was caused
to the Bank by the irregularities and illegalities committed by the delinquent employee does not mean that his acts of blatant
abuse of power and misuse of authority be
overlooked – In banking industry, utmost
good faith, due diligence and probabity is
warranted at every level, particularly by a
Branch Manager – Any deviation would obviously attract a lack of confidence by the
employer in the employee – Hence, dismissal of the appellant from service is not disproportionate.
For Appellant: Mr. R.M. Bagai and Ms. Damini
Khaira, Advocates.
For Respondents: Mr. Jagat Arora and Mr. Rajat
Arora, Advocates.
January, 2016 — 150
108
Usha Dawar vs. Mgt. of Lady Harding Medical College & Smt. Sucheta Kriplani Hospital, Medical Supdt.
IMPORTANT POINTS
Mere non supply of
documents
is not fatal to the enquiry
proceedings or findings unless any
prejudice caused to the delinquent
employee is established.
Merely because statutory auditors during inspection did
not
point out any illegality does not
mean that the illegality detacted
later on is not effective.
A lengthy appellate order
need not be penned in administrative matters.
Concurring with the view taken by the disciplinary authority,
considering the parawise comments
given to each para of the
appeal
by the Legal Department, by
the
appellate authority, suffice it to
note that appellate authority has
duly applied its mind and
order
passed is not a cryptic one.
Merely because no loss was
caused to the Bank by the
irregularities and illegalities committed by the delinquent employee
does not mean that his acts
of
blatant abuse of power and misuse
of authority be overlooked.
In banking industry, utmost
good faith, due diligence and
probability is warranted at every
level, particularly by a Branch
Manager.
Any deviation, in maintaining
utmost good faith, due
diligence
and probability, would obviously attract a lack of confidence by
the employer in the employee
in
Banking industry.
Punishment of dismissal from
service of a Branch Manager of
a
Bank who has lost confidence of
the Bank Management due to irregularities and illegalities commit-
LLR
ted by him while performing his
duty, is not disproportionate to
the gravity of misconduct.
—————
2016 LLR 108
SHORT NOTE CODE 34
DELHI HIGH COURT
Hon’ble Mr. Pradeep Nandrajob, J.
Hon’ble Mr. Mukta Gupta, J.
LPA 688/2013, D/-21-7-2015
Usha Dawar
vs.
Management of Lady Harding Medical College &
Smt. Sucheta Kriplani Hospital through Medical
Superintendent
A. INDUSTRIAL DISPUTES ACT, 1947 – Section
25F – When its compliance is not required
– Appellant was appointed on ad hoc basis
for 3 months from 04.08.1986 – Which was
further extended for 6 months – His services
were terminated on 08.02.1988 without any
notice or assigning any reason – She raised
an industrial dispute – Central Government
Industrial Tribunal awarded reinstatement
with full back wages holding that her services were terminated due to her involvement
in a case without conducting any enquiry,
violating the principles of natural justice –
Single Judge set aside the impurgned order in the writ petition filed by the Management – Appellant has challenged the order
of the learned Single Judge in writ appeal –
Held, if termination order does not cast any
stigma, the same can not be faulted merely
because the opposite party in judicial proceedings replying to the case states the
reason for termination that the appellant remained absent from duty on account of her
being kept in juridical custody for 14 days
– Since appellant was appointed for a fixed
term, her termination order is under section 2(oo)(bb) of the Act which does not require compliance of Section 25F of the Act
– An employer is not under any obligation
to keep the post vacant waiting outcome of
the criminal proceedings whereas the workman was appointed to meet emergent work
of the business of the Management – Hence,
writ appeal is dismissed.
January, 2016 — 152
Sh. Anup Kumar Gupta vs. Sh. Surender Singh
2016
B. TERMINATION – When not to be retrenchment – Workman was engaged for a fixed
term – Her services were liable to be terminated at the discretion of the
Management
– She was issued a simple termination letter, terminating her services – She raised
an industrial dispute – Writ appellate Court
held, services of a workman are terminated
for non-renewal of contract or as per terms
and conditions stipulated in the contract of
employment, the same is not retrenchment
since such a termination of services is covered under section 2(oo)(bb) of the Industrial Disputes Act which does not require
compliance of Section 25F of the Act.
For Appellant: Mahesh Srivastava, Mr. Ashok
Kumar Sharma, Mr. Vaibhav M. Srivastava, Advocates.
For Respondent: Mr. R. V Sinha, Mr. A.S. Singh,
Advocates.
IMPORTANT POINTS
If termination order does not
cast any stigma, the same can not
be faulted merely because the opposite party in judicial proceedings replying to the case states
the reason for termination that
the appellant/workman remained absent from duty on account of her
being kept in juridical custody
for 14 days.
When an employee is appointed
for a fixed term, order of termination of his/her services, without stigma, is covered under section 2(oo)(bb) of the Industrial
Disputes Act, 1947 which does not
require compliance of Section 25F
of the Act.
An employer is not
under any
obligation to keep the post vacant waiting outcome of the criminal proceedings when the workman
was appointed to meet
emergent
work of the business of the Management.
Termination of services of
a
workman would not be covered
un153 — January, 2016
109
der the term ‘retrenchment’ when
his/her fixed term appointment was
terminated by issuing a simple
letter invoking terms and conditions as stipulated in her appointment letter.
2015 (III) CLR 120
—————
2016 LLR 109
SHORT NOTE CODE 35
DELHI HIGH COURT
Hon’ble Ms. Sunita Gupta, J.
W.P. (C) No. 7082/2015, D/–3-9-2015
Sh. Anup Kumar Gupta
vs.
Sh. Surender Singh
EX-PARTE AWARD – When not liable to be set
aside – Court notice was not received by the addressee/petitioner – Notice was affixed at the
site of the employer – An ex-parte Award was
passed by the Labour Court against the petitioner – Recovery notice was served upon the
petitioner - Petitioner moved an application for
setting aside the ex-parte Award inter-alia taking
a plea that he has no relationship of employer
employee or otherwise with the workman since
he was not proprietor of M/s. Universal Electronics, the employer of the workman – Labour
Court dismissed the application – Petitioner filed
writ petition seeking remedy – Held, no witness
to affixation was on record – However, petitioner never denied that he met with the process
server or did not receive the summons – Nor
such a plea was taken in the application filed
for setting aside ex-parte Award – Advocate for
the petitioner has admitted that recovery notice
was received by the petitioner on the same address on which the summons were sent to M/s.
Universal Electronics – Even if the petitioner
had no concern with M/s. Universal Electronics,
he could have appeared before the court and
informed that he had no concern with the firm
or there was no relationship of employer and
employee between him and the respondent – He
did not do so – Hence, order of Labour Court
does not suffer from an error of jurisdiction or
from breach of principles of natural justice –
Petition is dismissed accordingly.
State of Haryana & Ors. vs.
110
For Petitioner: Mr. F.K. Jha, Advocate.
For Respondent: None.
Ashok Kumar
LLR
2016 LLR 110
SHORT NOTE CODE 38
DELHI HIGH COURT
Hon’ble Ms. Sunita Gupta, J.
IMPORTANT POINTS
An
ex-parte
Award
W.P.(C) No. 3326/2012, D/–2-9-2015
is
not
liable
to
be
set
aside
if
the Court notice sent was not
received by the addressee/petitioner and the same was affixed/
pasted at the site of the employer/addressee.
When
the
employer/petitioner
never denied that/he met with the
process server or did not receive
the summons, nor he took such a
plea in the application filed for
setting aside ex-parte Award, it
would establish that the petitioner/employer was having full knowledge about the case/court notice.
Taking
or
not
taking
pho-
tograph of pasting of notice
on
the site of employer or recording
statement of any witness in this
respect is not necessary if the
circumstances justify the same.
If
the
Advocate
for
the
petitioner has admitted that
recovery notice was received by the
petitioner on the same address
on which the summons were sent
to the employer,
M/s.
Universal Electronics, it reveals that
petitioner is
having relations
with the employer’s firm.
If
the
petitioner
had
no
concern with the employer, M/s.
Universal Electronics, he could
have appeared before
the
court
and informed that he had no concern with the firm or there was no
relationship
of
employer
and
employee
between
him
and
the
respondent but he did not do so,
hence Award passed against the
petitioner is not liable to be
set aside.
State of Haryana & Ors.
vs.
Ashok Kumar
A. TERRITORIAL JURISDICTION – Court at the
place where the workman was working, from
where his services were terminated – Not at
the place of head office or principal office of
the employer – Workman was employed by
the employer having its office at Delhi – He
worked at Delhi – His termination took place
at Delhi – Hence, the Labour Court at Delhi
has territorial jurisdiction to try and entertain the dispute since entire cause of action
had arisen at Delhi – Mere approaching Punjab and Haryana High Court at Chandigarh
where the employer is having its principal
office or direction issued to approach the
Labour Court cannot be said that the workman was estopped from approaching the
Labour Court at Delhi.
B. INDUSTRIAL ADJUDICATION – Effect of
non-production of records – Muster roll is
prepared by the Management – It is the material document to prove the date of joining,
working days, payment of wages etc. – It is
the best evidence in possession of the Management – Adverse inference is liable to be
drawn against the Management if relevant
attendance records is not produced by the
Management.
C. INDUSTRIAL DISPUTES ACT, 1947 – Section
25F – Effect of its non-compliance – While
terminating the services of a workman, if
the Management fails to make compliance
of section 25-F of the Act by issuing any
notice or paying notice pay in lieu thereof,
it would tentamount to retrenchment under
section 2(oo) of the Act i.e. an illegal termination, attracting reinstatement with back
wages, continuity of service, etc.
For petitioner: Mr. Vikram Saini, Advocate.
For Respondent: None.
—————
January, 2016 — 154
2016
M/s. Shree Ji Sarees through its Proprietor Sh. Pankaj Jain vs. Ved Prakash Sharma
IMPORTANT POINTS
Territorial jurisdiction of
the Labour Court/Industrial Tribunal is at the place where the
workman
was working, from where
his services were terminated and
not at the place of head office or
principal office of the employer.
Mere approaching Punjab and
Haryana High Court at
Chandigarh
by the workman where the employer
is having its principal office or
direction issued by the High Court
to approach the Labour Court cannot be said that the workman was
estopped from approaching the Labour Court at Delhi when his services were terminated at Delhi.
Adverse inference is liable
to be drawn by the Labour Court
against the Management if relevant attendance records are
not
produced by the Management since
such material documents are only
in the possession of the Management.
While terminating the services of a workman, if the
Management fails to make compliance
of section 25F of the Industrial Disputes Act, 1947, by issuing
any notice or paying notice pay
in lieu thereof, it would tentamount to retrenchment under section
2(oo) of the Act i.e., an illegal
termination, attracting reinstatement/with back wages, continuity
of service, etc.
—————
155 — January, 2016
111
2016 LLR 111
SHORT NOTE CODE 37
DELHI HIGH COURT
Hon’ble Mr. V.P. Vaish, J.
W.P.(C) 7267/2012, D/– 21-5-2015
M/s. Shree Ji Sarees through its Proprietor
Sh. Pankaj Jain
vs.
Ved Prakash Sharma
A. EMPLOYER-EMPLOYEE RELATIONSHIP –
When would not be existing – Workman has
claimed that he was appointed as Recovery
Officer on a salary of Rs. 4,500 per month
plus 1% commission on sales of
employer
– His services were terminated without notice or pay in lieu thereto and retrenchment
compensation – Employer denied his allegations stating that he was never employed
since he was Ferriwala – He was paid commission on the basis of sale price of the material as and when he brought any customer
and he was also doing such jobs for others
– Workman produced certain documents in
evidence but the same were photocopies to
which the employer denied their authenticity – Labour Court held the workman to be
employee of the employer, awarding a lumsum compensation of Rs. 1.00 lac – Employer challenged the award in writ petition
– Held, the documents were placed only at
the time of evidence – Originals of the same
were never produced – Appointment letter
on the letter head of employer if not admitted to be signed by the employer would be
treated as not proved – Only photo copies
of documents cannot be admissible in evidence – Books of accounts and other documents were never summoned from the employer – Workman failed to prove the documents in evidence – Where the employeremployee relationship is denied, the duty
primarily rests on the person so asserting
to give positive evidence in his favour and
discharge his initial burden – After that only
the burden would shift upon the management to counter the claims since it is always
easier to prove positive fact than a negative
– Workman has filed his claims containing misleading and inaccurate statements
which amount to an abuse of process of the
Court – Accordingly, the workman was not
employee of the Management – Hence, the
112
M/s. Shree Ji Sarees through its Proprietor Sh. Pankaj Jain vs. Ved Prakash Sharma
writ petition is allowed – Impugned award is
set aside.
B. ADMISSION OF DOCUMENTS – When not
legally valid – Photocopies without production of original thereof before the court at
the time of admission/denial and evidence,
would not be admissible in evidence, if the
opposite party has denied their genuiness.
C. CONSTITUTION OF INDIA – Article 226
and 227 – Obligation of parties – While approaching a Court of enquiry such as High
Court, invoking its extra ordinary jurisdiction, the parties should come not only with
clean hands but also with clean mind, clean
heart and clean objective – Undoubtedly, the
Courts have to weigh interest of justice visa-vis the private interest -Petition containing
inaccurate statements amounts to an abuse
of process of court.
For Petitioner: Mr. Vivekanand, Advocate.
For Respondent: Mr. Anurag Vashistha, Advocate.
IMPORTANT POINTS
When
the
documents
were
placed only at the time of
evidence without originals thereof,
the same are not to be taken as
proved.
An appointment letter
on
the
letter head of employer if not
admitted to be signed by the employer would be treated as not
Only photo copies of docuproved.
LLR
the time of admission/denial
and
evidence, would not be admissible
in evidence, if the opposite party has denied their genuiness.
Where the employer-employee
relationship is denied, the
duty
primarily rests on the person
(workman) so asserting to give
positive evidence in his favour,
discharge his initial burden since
only after that the burden would
shift upon the
management
to
counter the claims
of the workman since it is always easier to
prove positive fact than a negative.
Claims containing misleading
and inaccurate statements would
amount to
an
abuse of process
of the Court, liable to be dismissed.
While approaching a Court of
equiry such as High Court under
Articles 226 and 227 of the
Constitution of India, invoking its
extra ordinary jurisdiction, the
parties should come not only with
clean hands but also with clean
mind, clean heart and clean objective since undoubtedly, the
Courts have to weigh interest of
justice vis-a-vis the private interest.
A petition containing inaccurate statements amounts to an
abuse of process of court liable
to be dismissed.
ments without production of original thereof before the court
at
—————

January, 2016 — 156
January 2016
That Hero MotoCorp's promoter
Pawan Munjal emerged as the
highest paid director among the
top listed private companies,
taking home a pay packet of
nearly Rs.44 crore last fiscal.
That Accenture, IT consulting and services
firm, said it wants to grow the number of
woman employees in the company to 40 per
cent, globally, by 2017.
That Tamil Nadu was the leading State in
employment generation in the country,
generating as much as 15.2 per cent
country's manufacturing sector jobs during
2012-13, according to an analysis done by
Assocham.
That Manjula Vaghela
who was earning Rs.5
per day is now heads a
cleaners' cooperative
with 400 members that
provides cleaning and
housekeeping services to
45 institutions and societies in Gujarat.
That the top brass of Nifty companies, on an
average, earned 170 times what an average
staff member earned in these companies in
financial year 2015.
That the Employees' Provident Fund
Organisation has estimated higher
incremental deposits at Rs.1.15 lakh crore in
2015-16, against the earlier projection of
Rs.1 lakh crore.
That Pune lands Abhishek
Pant, a final-year computer
science student of IIT
Kharagpur, who has bagged a
job with a Rs.2 crore annual
package, including stock
options, at Google.
That IT and services body
Nasscom expects that
hiring by IT companies
would be about 2,75,000
during the current year as
stated by its Chairman
BVR Mohan Reddy at Hyderabad.
That Employees' Provident Fund Organisation
(EPFO) as a subscriber base is of over 5 crore
workers with a corpus of Rs.6 lakh crore.
That Jawaharlal Nehru University, Delhi
reported the maximum number of sexual
harassment cases at 51.
That Lucknow boy
Ashutosh Agarwal, a
final-year computer
science student of IIT
Patna, has bagged a
plum job with an annual
package of Rs.1.8 crore
at Google Inc.
That the BJP government is considering a
proposal to increase the maternity leave for
working women from the existing 12 weeks to
26 weeks.
That according to the study by IIMAhmedabad, the total emoluments of a 'general
helper', the lowest-ranked employee in
government, is Rs.22,579, more than twice that
of his peer in the private sector.
That the 95 directors belonging to 34 private
sector firms in the Nifty, 11 had remuneration in
excess of 400 times the median average staff
pay.
That the Delhi Assembly has
approved a whopping 400 per cent
hike in the basic salary of MLAs
and Ministers who are from Aam
Aadmi (common man) Party.