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Chapter IV Procedure, Powers and Duties of Authorities

Sec. 11- Procedure and Powers of Conciliation Officers, Boards, Courts and Tribunals

Sec. 11 De Novo Enquiry – The Labour Court is to provide opportunity to the party to lead evidence rather than directing the employer to conduct de novo

¥4.1If in a reference, if the Labour Court instead of providing fresh opportunity to the parties to put forward

their respective contentions, directs the employer to conduct the enquiry de novo, the High Court in a Writ Petition there against by the workman, as in this case, can set aside such award and direct that the employer be given opportunity to prove the charges only before the Labour Court from the point of charge sheet by permitting the parties to lead evidence keeping open to them to plead all contentions.

Dilip Atmaram Rane v. Larsen & Toubro Ltd. & Anr., 2011 (131) FLR 178 : 2012 I LLJ 623 : 2011 III CLR 344 (Bom.HC) OOCJWP 2542 of 2010 dt. 19-1-2011

“Without entering into……….of the copy of this order. (Page: 179, Para: 4)

Sec. 11 Ex-parte Award – Due to default on the part of counsel can be restored Counsel – If defaulted in appearance the client cannot be put to suffer by ex-parte award which is to be restored Restoration – Of ex-parte award cannot be rejected by applying order IX Rule 13 if the cause was default on the part of counsel Order IX Rule 13 – Cannot be invoked for dismissing application for restoration of ex-parte award due to default on the part of counsel

¥4.2The ex-parte award made by the Labour Court in favour of the workman was attributed due to the

default on the part of a counsel appearing on behalf of employer for no obvious reason. The Labour Court dismissed the application of the employer under order IX Rule 13 r/w. Sec. 11 of I.D. Act. The employer challenged the same before the High Court which held that no client can be made to suffer for the fault of his advocate. There was no finding that there was a deliberate and conscious negligence of the employer to contest the proceedings. By setting aside the impugned award no grave prejudice was said to have been caused to the workmen and decision on merit cannot be given a go bye. Hence the High Court set aside the ex-parte order by which the application under order IX Rule 13 r/w. Sec. 11 of I.D. Act had been dismissed.

Genesis Printers v. Rati Ram Jatav Presiding Officers & Ors., 2011 (128) FLR 710 : 2011 III LLN 232 : 2010 IV LLN 755 (Del.HC) WP 61 of 1997 dt. 27-10-2010

“That an ex-parte……….pay of 30 days.” (Page: 711, Para: 2)

“In my opinion……….was dismissed.” (Page: 711, Para: 3)

Sec. 11 Evidence – Employer has to lead at the first available opportunity and not at his own convenience upto the stage when matter lies for decision before High Court

¥4.3The employer is not at liberty or has some independent right to make an application to lead evidence at

any time nor is any law laid down a proposition to that effect that he can lead evidence as and when it suits his convenience at any stage of the proceedings. Having not made such an application before the

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labour court to lead evidence the High Court rejected employer’s application for permission to lead evidence before High Court at the belated stage to prove the falsity or bogusness of the certificate towards the workman’s educational qualification while obtaining employment. The contention of the employer was rejected in this behalf.

Divisional Electrical Engineer (Operations), A.P. Transco Ltd., Guntur & Anr. v. Labour Court, Guntur & Anr., 2011 II CLR 760 (AP.HC) WP 24231 of 2001 dt. 14-3-2011

“”I am afraid……….to grant the same.” (Page: 768/769, Para: 25)

Sec. 11 Closing of Evidence – The tribunal can if the employer fails to lead evidence despite opportunities to substantiate his case Leading Evidence – The employer if fails despite opportunity before the tribunal closing of evidence cannot be called into question

¥4.4Despite providing many opportunities to the employer to lead evidence before the tribunal he failed to

lead any evidence to prove the misconduct of the workman. Hence the tribunal passed the order for closing the evidence of the Management. The employer sought to set aside this order on the ground that the persons who possessed the records and was dealing with the legal cases was absent because of some unavoidable domestic problem. The Tribunal rejected the application on the ground that no evidence was given to substantiate unavoidable domestic problem, eventually passing an award for reinstatement and back wages. High Court upheld the order of the Tribunal.

Vidhya Mandir Senior Secondary School, Faridabad through its Secretary v. Presiding Officer, Industrial Tribunal- cum-Labour Court-I,Faridabad & Anr., 2010 II CLR 585 (P&H.HC) CM 22885 of 2008 CWP 7601 of 2001 dt. 20- 5-2010

“I have heard counsel……….in accordance with law.” (Page: 588, Para: 8)

“The application for……….therefore, is upheld.” (Page: 589, Para: 9)

Sec. 11 Departmental Enquiry – Whether legal or not cannot be treated as a preliminary issue Preliminary Issue – Excludes – Whether Departmental Enquiry is legal or not

¥4.5Departmental Enquiry whether legal or not cannot be treated as a preliminary issue. Hence employer’s

application to treat it as a preliminary issue was rightly rejected by the Labour Court as there is no provision in the I.D. Act to direct Industrial Cour t to treat it as preliminary issue as per the law settled on this point.

Universal Glass v. Presiding Officer, Labour Court-II, U.P. & Anr., 2010 II CLR 640 (All.HC) WC 47659 of 2009 dt. 24-5-2010

“Reference may also be……….pronounced on those issues.” (Page: 643, Para: 16)

Sec. 11 Enquiry – Before tribunal if not concluded the documents from the workman can be entertained at any time beyond the preliminary stage of finding regarding fairness of enquiry Documents – Can be produced beyond the stage of a finding regarding fairness of enquiry in the tribunal by the workman

¥4.6The question is when the enquiry was pending in the Labour Court is it necessary for the workman to

produce the documents before holding preliminary issue as to whether the enquiry was fair and proper. The High Court held that the objection of the employer against permission given by the Labour Court to submit the documents at any stage of the enquiry cannot be faulted because the very material evidence on

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record refers to documents that could be produced before the tribunal and it does not specify as to what stage they are to be produced during the pendency of the enquiry. In this case the matters have not been concluded. Hence the Labour Court could rightly entertain the documents produced even beyond the preliminary stage.

J.K. Tyres & Industries Ltd., Vikrant Tyre Plant, Mysore v. C. Prashanth, 2010 II CLR 995 (Karn.HC) WP 3012 of 2009 dt. 23-7-2009

“The arguments advanced by……….by the Labour Court.” (Page: 996, Para: 8)

Sec. 11 Regularization – Advanced will not sustain if serious charges are pending for enquiry Employer – Has power to differ the regularization for a later date considering serious charges pending against the workman Illegal Gratification – Being a serious charge if the regularization was made without noticing it the employer is always empowered to differ the regularization to a later date

¥4.7The workman a junior operator was aggrieved by reason of altering the date of regularization from

1.10.2000 to 1.7.2002. His efforts to restore the date met with failure in the tribunal. He filed a petition there against before the High Court which upheld the modification in the date of regularization with due regard to pendency of serious charge of illegal gratification on which an enquiry was pending. The employer noticing the same modified the order of regularization as above. The High Court held the employer has power and authority to modify or correct such mistakes at any time which cannot be called into question and upheld the later date fixed in regularizing his post.

R. Selvaraju v. Chief General Manager (P&A) Neyeli Lignite Corporation Ltd., Neyveli, 2010 III CLR 438 (Mad.HC) WP 1465 of 2006 & WPMP 1657 of 2006, WP 27203 of 2007 & MP 2 of 2007 dt. 31-8-2010

“Normally while proving……….accordingly dismissed.” (Page: 441, Para: 11)

Sec. 11 Jurisdiction – Excludes – For disputes under M.E.P.S Act under I.D and MRTU Acts Labour Court – Under I.D and MRTU Acts have no jurisdiction to deal with disputes arising out of M.E.P.S Act

¥4.8Where the special Act of Employees of Private School (Conditions of Service) Regulation Act is

applicable, the jurisdiction of Labour Court under MRTU and PULP Act or Industrial Dispute Act is ousted.

Adarsha Shikshan Sanstha, Beed & Anr. v. Jaiprakash Ramvilas Lohia & Anr., 2010 (124) FLR 138 : 2009 III CLR 960 : 2010 (2) Mah.LJ 924 (Bom.HC) WP 4756 of 1996 dt. 14-10-2009

“After giving careful……….made absolute accordingly.” (Page: 140, Para: 7)

Sec. 11 Enquiry – Findings if held perverse the employer is to be given opportunity to let in evidence in the ordinary course Opportunity – The Labour Court cannot deny to the employer to let in evidence if the enquiry findings held perverse

¥4.9The Labour Court held that the conclusions of the enquiry officer were perverse. It set aside the dismissal

and reinstated the workman with back wages. The employer challenged the same in a writ petition. The High Court reversed the award and held that if the Labour Court finds the enquiry report was unjust and unfair it ought to have given an opportunity to the employer to let in evidence. But no opportunity was granted. Under the circumstances the procedure adopted by it regarding not merely the issue of punishment but even the findings of the enquiry officer were held untenable beyond its jurisdiction. The award of the Labour Court directing reinstatement with consequential benefits was set aside.

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Goodyear India Ltd. v. D.N. Trikha & Anr., 2010 III LLJ 476 : 2009 III CLR 1065 (P&H.HC) CWP 3586 of 1993 dt. 26-8-2009

“I have already……….for the management.” (Page: 484, Para: 15)

“The learned counsel……….such an exercise.” (Page: 484, Para: 16)

“All the above……….is set aside.” (Page: 486, Para: 18)

Sec. 11 Certificate of posting – As contemplated in Rule-18 is also to be resorted to before deciding the matter ex-parte Ex-parte award – Without validly serving notice/summons also resorting to the method prescribed under Rule-18 of the Act is not complied with – Is liable to be set aside Labour Court – Cannot pass an ex parte award without serving the notice/summons also by certificate of posting on the employer if refused

¥4.10 Employer was aggrieved by an ex parte award passed by the Labour Court against him and

dismissal of his application to set aside despite his plea that no notice was served on him to contest the claims before the Labour Court in terms of Rule 18 of the Act. Hence the present petition in which it was held that Rule-18 is not an empty formality. It contemplates that upon refusal to accept the notice, summons process or order served either personally or by registered letter the same is to be sent again under certificate of posting. In this case no such notice by certificate of posting was sent upon refusal to accept registered letter. In view of this it can be construed that the employer was not served with notice/summons validly in accordance with law. Hence he was prevented by sufficient cause to contest the matter. The ex parte award was set aside. Matter remanded to Labour Court to proceed in accordance with law.

Sri Sathya Sai Vidya Vihar v. Rati Ram, 2009 (123) FLR 585 : 2010 II LLJ 249 : 2009 IV LLN 791 : 2010 LLR 85 (Del.HC) WP(C) 11007 of 2005 dt. 2-4-2009

“It is apt……….A1/11732/2001.” (Page: 660, Para: 7)

“Continuing further, admittedly……….the same fails.” (Page: 661, Para: 11)

Sec. 11 Pleadings – If not supported by evidence the Labour Court has no reason to permit the workman to adduce additional evidence to the prejudice of employer Additional evidence – Not permissible not contained in the original pleadings of the workman Termination – Cannot be set aside by permitting additional evidence when the workman failed to substantiate the facts made in the original pleadings

¥4.11 When the workman in his pleadings never disclosed that his services were dispensed with by

retaining his juniors the Labour Court should not have permitted the workman to plead additional evidence for consideration. This has prejudiced the employer because he had no opportunity to rebut these allegations made in the additional evidence. High Court held the additional evidence raised by the workman has no relevance as it was not raised in the original pleadings. The pleadings were to the effect that the workman had completed 240 days of continuous service which was not proved. Instead of closing the matter Tribunal exceeded its jurisdiction by reinstating him with back wages even when the workman had admitted that he was gainfully employed in a sugar factory following his termination. Hence the award was quashed and set aside.

U.P. State Electricity Board, Lucknow v. Ramvir Singh & Ors., 2009 (121) FLR 902 : 2009 II CLR 282 : 2009 LLR 765 (All.HC) CMWP 4211 of 1997 dt. 6-4-2009

“Consequently, this Court……….of the workman.” (Page: 904, Para: 8)

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Sec.11 Restoration – Of an ex parte award cannot be rejected if the employer is a public body but with special cost to be imposed on the officers of the public body Public body – If involved leading to ex parte award seeking to restore must meet the special cost recoverable from the callous officers of that body Special cost – Could be imposed before restoration of an ex parte award if the errant party is a public body though the carelessness on its part does not entitle it to get the relief of restoration

¥4.12 The Advocate appearing to the Nagarpalika was appointed as a judge of the fast track court. This

information was made available to the Nagarpalika. But it ignored to make alternative arrangements to defend itself in the proceedings leading to an ex parte award. The Labour Court refused to restore the award. The Nagarpalika challenged the rejection in a writ petition in which it was held that where the Nagarpalika exhibited sheer carelessness as well as pathetic insensitivity, the original proceeding could be restored only because it is a public body and hence it is just and proper that the matter is to be decided afresh to balance the equities. Restoring the matter to the Labour Court, the High Court directed to pay special cost of Rs. 17,500 to the workmen to be recovered from the officers of Nagarpalika personally after ascertaining their responsibility.

Rajula Nagarpalika v. Pankajkumar Pratapari Chuhan, 2009 II CLR 566 (Guj.HC) SCA 14703 of 2007 dt. 6-8- 2008

“As observed hereinabove……….escape the consequences.” (Page: 568, Para: 10)

“This Court is……….preferably before 31.2.2009.” (Page: 568, Para: 12)

Sec. 11 Restoration application – In an ex parte award cannot be rejected on the ground of lack of justifiable cause if the award lacked merit for failure even to consider preliminary issues Ex-parte award – Requires restoration if even preliminary issues were not considered on merit Labour Court – If failed to consider the material on record on merit then the ex parte award restorable Writ petition – Maintainable against rejection of restoration application

¥4.13 An ex parte award was passed against the employer and the restoration application filed by him was

rejected by the Labour Court on the ground of non availability of justifiable cause. Hence the present petition in which it is held that the Labour Court failed to consider the material on record including the preliminary issues as together whether employee was or was not a workman or whether he had resigned. The ex parte award was made without considering the materials on merit. The contention that ex parte award cannot be challenged as it had become operative is unsustainable. Hence, both award and the order of rejection of restoration application were set aside and matter was remanded for fresh disposal on merit.

Blue Star Ltd. v. S. Kalyan Krishnan, 2009 (122) FLR 719 : 2009 II CLR 623 (Guj.HC) SCA 8991 of 2007 dt. 7-10- 2008

“The impugned order……….and set aside.” (Page: 727, Para: 23)

Sec. 11 Final award – Fairness of enquiry to be decided as a preliminary issue is permitted to be challenged in the final award with due regard to the decision in the case of Cooper Engineering Limited Reasons – For the decision is material without which matter is liable to be remitted back Labour Court – If fails to scrutinize the material evidence recorded before the enquiry officer the dismissal of the workman is to be set aside

¥4.14 The High Court permitted the workmen’s union to challenge the 1st part of the award in the final

award relying on the judgment of Cooper Engineering Limited v. Shri P. P. Mundhe 1975(31)FLR 188(S.C.) and proceeded to hold that the Labour Court failed to adduce cogent reasons for its decision

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and failed to scrutinize all the material evidence recorded before Enquiry Officer and where there is no material to indicate that the Labour Court had applied its mind to the issues raised, it had not exercised jurisdiction vested in it and therefore the said award upholding the dismissal of the workmen was set aside and matter was remitted back for fresh decision.

General Mazdoor Sabha v. Exon Laboratories Pvt. Ltd., 2009 (123) FLR 400 : 2009 III CLR 91 (Bom.HC) CAJWP 2766 of 2009 dt. 8-6-2009

“It is apparent……….and disposed of.” (Page: 402, Para: 5)

Sec. 11 Service of notice – If improper being made to incorrect address the ex parte award will be set aside Employer – If not served with the notice on correct address assumption of the service by Labour court cannot be held valid and justified Ex parte award – In the absence of proper valid service of notice on the employer is liable to be set aside

¥4.15 Where the employer was not served with the notice on his correct address as could be seen from the

records, the assumption of service by the Labour Court cannot be held as valid and justified in terms of Rule.18 of the Industrial Disputes Rules. Hence the ex parte award passed by the Labour Court against the employer cannot be sustained. Hence the High Court set aside the award and the matter was remanded back to Labour Court for fresh disposal.

Pro Interactive Service (India) Ltd. v. Government of NCT of Delhi & Anr., 2009 (123) FLR 722 (Del.HC) WP(C) 9218 of 2006 & CM 13042 of 2008 dt. 1-4-2009

“Coming back to……….Malaviya Nagar, New Delhi.” (Page: 724, Para: 11)

“A perusal of……….I. D. Act.” (Page” 724, Para: 12)

“I, accordingly hold……….the petitioner/management.” (Page: 724, Para: 13)

Sec. 11 Claim/ rejoinder statement – Though silent about the co-workers the Labour Court cannot shut the door to the workman for summoning them as witnesses to prove his continuous employment Summoning of witnesses – The Labour Court cannot refuse even if the names were not mentioned in Claim/ rejoinder statement if the examination of co-workers was indispensable Delaying the process – If the cause of preferring application for summoning the witnesses of co-workers then there is reason for refusing the application

¥4.16 The services of a workman were terminated. He challenged the same before Labour Court. During

the initial stages of the proceedings the workman had filed application for summoning three co- employees as witnesses to prove his continuous employment with the employer. The Labour court rejected his request because he had not mentioned about the co-workers either in the claim statement or in the rejoinder statement or while giving evidence. The same was challenged in writ petition. The High Court held that the evidence was necessary to prove continuous service and the nature of work. It is not for delaying the process of adjudication. The Labour Court was unable to show also that substantial prejudice would be caused to the employer if the co-employees are summoned. Hence the order was set aside and directions were given to summon them as witnesses permitting the workman to examine them in accordance with law.

G. Sethuraman v. Presiding Officer, Central Government Industrial Tribunal & Labour Court, Chennai & Anr., 2009 II LLJ 374 : 2009 II LLN 524 (Mad.HC) WP 4944 of 2001 dt. 28-8-2008

“Sufficient reasons have……….named by him.” (Page: 377, Para: 16)

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Sec. 11 Industrial Court – Having decided the revision cannot review its own order even though it is erroneous Review – Of one’s own order by industrial court holding its earlier order was erroneous is void and illegal Erroneous Order – Notwithstanding the industrial court cannot recall its own order and review it Recall – Erroneous order notwithstanding the industrial court is precluded to and review the same

¥4.17 Workman was chargesheeted in respect of theft of 8 tyres which had taken place in the establishment

and after domestic enquiry he was dismissed from service. In complaint filed by the workman alleging unfair labour practice the Labour Court directed the workman to be reinstated with full back wages. A revision before industrial court was initially allowed remanding the matter to the labour court but subsequently the same was recalled on reconsideration of record that the contention of workman that he was not given opportunity for cross examination was not proper and whereas in fact sufficient opportunity was given. According to the court it was through an inadvertence it failed to note this and set aside its own earlier order of revision and allowed the review. High court held that an erroneous order/judgement is no ground for review of the same and hence it set aside the order of review. It held that earlier order of remand was correct and hence it was restored with direction to the Labour Court to decide the complaint finally on merit.

Executive Engineer & Ors. v. Vasant Nattuji Kosare & Anr., 2009 (4) BCR 653 (Bom.HC) WP 3349 of 2001 dt. 8- 6-2009

“The review of the order……….order in revision.” (Page: 654, Para: 3)

“It is observed……….its own order.” (Page: 657, Para: 9)

“I need not refer……….no order as to cost.” (Page: 657, Para: 10)

Sec. 11 Preliminary issue – It cannot be said that the judgement in the case of D.P. Maheshwari has laid down any principle as such D.P.Maheshwari – The judgement by the Supreme Court cannot be said has laid down any principle governing the preliminary issue as to maintainability Maintainability of the dispute – Could be one of the preliminary issues to be validly decided in the face of S.C judgement in the case of D.P.Maheshwari

¥4.18 Though the judgement of Supreme Court in the case of D.P. Maheshwari (1983 II LLJ 425) had held

that the Tribunals and Courts should eschew threshold part adjudication as preliminary issue, it cannot be said that the judgement had laid down any principle as such. Hence no exception can be taken if a judicial review of the preliminary objection of the very maintainability of a dispute as to the status of workman was decided first to save time and expenditure of the parties and the ordeal of proving their case on merits. In this case the High Court upheld the order of the tribunal on the preliminary issue of very maintainability of the dispute.

Chairperson, Krishna District Lorry Owners Mutually Aided Co-operative Stores Ltd., Governorpet, Vijayawada v. Y. China Sambasiva Rao & Anr., 2009 II LLJ 298 : 2008 (119) FLR 338 : 2008 LIC 3772 (AP.HC) WP 4743 & 4744 of 2007 dt. 23-4-2008

“It is true that……….cannot be sustained.” (Page: 300, Para: 10)

Sec. 11 Interim Relief – Once ordered by the Labour Court following remand from High Court the same cannot be challenged

¥4.19 The workman was dismissed for forgery and falsification of accounts and misappropriation of

money. His application for Interim Relief before the Labour Court was rejected. In a petition against the

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same before the High Court the matter was remanded for reconsideration after going into all the evidence an ascertaining the existence of a prima facie case for interim relief. The Tribunal thereupon granted the relief. The employer resisted the same in a petition on the ground of want of jurisdiction and legality of the dispute. Dismissing the petition the High Court held that in the back drop of the remand the order made for interim relief cannot be assailed. This is because the order for interim relief does not conclusively decide the controversy relating to jurisdiction in favor of the workman. Order of the tribunal was upheld.

Garden Reach Ship Builders & Engineers Ltd. v. Second Labour Court & Ors., 2009 IV LLJ 475 : 2009 II CLR 500 (Cal.HC) CWJASWP 10380 of 2007 dt. 18-3-2009

“It is also not necessary……….of the respondent-employee.” (Page: 481, Para: 33)

“In the peculiar……….materials on record.” (Page: 481, Para: 34)

Sec. 11 Cross Examination – If opportunity is not afforded the resultant award is liable to be set aside Reasonable opportunity – Of cross examination to plead and prove the workman’s case is not afforded the resultant award is liable to be set aside Award – By closing evidence for want of appearance of parties for cross examination is liable to be set aside on the ground of lack of reasonable opportunity to plead and prove the case

¥4.20 The daily waged employee contested his termination before the Labour Court. He submitted an

affidavit in examination-in-chief. However due to personal reasons he could not present himself for cross examination by his employer regarding his claim of working 240 days. From the employer’s side though the claim was contested by affidavit no materials produced for cross examination. The Labour Court therefore closed the evidence from both sides and dismissed the reference. The High Court, in the circumstances, remanded the matter after quashing and setting aside the award to the Labour Court for fresh disposal on the ground that the workman was not afforded with reasonable opportunity to plead and prove his case by cross examination.

Bhag Chand v. J.L.C. & Anr., 2009 (120) FLR 200 (Raj.HC) SBCWP 70 of 2006 dt. 12-11-2008

“From the perusal……….29th January, 2005.” (Page: 201, Para: 3)

“From the material……….examination as well.” (Page: 201, Para: 4)

“Accordingly, the petition……….No costs.” (Page: 201, Para: 5)

Sec. 11 Delay and Laches – Of 10 years in challenging the ex-parte award is fatal Ex-parte award – Cannot be challenged after a period of 10 years without sufficient cause

¥4.21 The employer terminated the services of 11 workmen in violation of Section 25-F, 25-G and 25-H.

The Labour Court passed an ex-parte award in favour of the workmen as the employer remained absent even after notices were issued to him. After 10 years the employer filed a petition challenging the award. No affidavit of any responsible officer was filed for explaining the delay. The High Court held that as no sufficient cause was found for the inordinate delay and the availability of the alternative remedy of filing an application for setting aside the ex- parte award will persuade the court to dismiss the petition.

Deputy Executive Engineer & Anr. v. Surabhai Motibhai Chavda, 2009 LIC 270 : 2008 I CLR 740 (Guj.HC) SCA 2740 of 2008 SCA 2750 of 2008 WSCA 2741 of 2008 dt. 15-2-2008

“In view of the……….to the respondents.” (Page: 280, Para: 13)

“The petitioner is……….group of petitions.” (Page: 280, Para: 14)

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Sec. 11 Preliminary Issue – Regarding maintainability of reference can be taken up with all other issues at the time of final adjudication

¥4.22 A dispute was raised and referred for adjudication by the union as to whether the benefits of revised

pay scale according to the demand letter of the TOMCO Employees Union, not being given to the workmen of the then Tata Oil Mills Company, now M/s Hindustan Lever Ltd. was proper. The employer raised the preliminary objection of maintainability. The tribunal rejected the said application on the ground that it could be heard and decided at the time of final adjudication. The High Court upheld the same.

M/s. Hindustan Lever Ltd. v. State of Jharkhand & Ors., 2008 (119) FLR 35 (Jhar.HC) WP(L) 7256 of 2006 dt. 8-7- 2008

“I have heard……….there is no infirmity.”(Page: 37, Para: 13)

Sec. 11 Labour Court – In exercise of its power it is bound to inform the court procedure to the parties not represented by the qualified advocates and ignorant of rules of procedure Rules and procedures – Of courts are to be made aware of to the ignorant litigants not represented by the advocates

¥4.23 Where the parties are not well conversant with the procedure of the Court and are not represented

by the qualified advocates, it is the duty of the Court to inform them about the procedure or exercise its power under the rules where it is necessary and expedient in the interest of justice.

Chairman, District Board, Bulandshahar & Anr. v. Labour Court-II, Ghaziabad & Anr., 2008 II CLR 343 : 2008 II LLN 825 (All.HC) CMWP 34966 of 2001 dt. 10-12-2007

“It may be……….interest of justice.” (Page: 345, Para: 7)

Sec.11 Industrial Court – Under MRTU and PULP Act has no jurisdiction to examine the issue of justifiability of either lock out or strike Labour Court – Under I.D.Act has the jurisdiction to examine the justifiability of lock out or strike but not under MRTU and Pulp Act Justifibility of Strike – Industrial Court under MRTU and PULP Act has no power to examine

¥4.24 In a complaint of Unfair Labour Practice, Industrial Court has no authority to examine the issue of

justifiability of either lock out or strike. Theref ore it is beyond its jurisdiction.

Devidayal Rolling Mills & Anr. v. Engineering Workers Union & Anr., 2008 (2) BCR 9 : 2008 (4) Mah.LJ 607 (Bom.HC) WP 5387 of 1996 with WP 190 of 1998 with WP 2037 of 1997 dt. 15-1-2008

“There can be……….effect from 21/4/1992.” (Page: 13, Para: 6)

“It is thus………of Modistone Ltd. (supra)” (Page: 14, Para: 7)

“The evidence brought……….a substitute workman.” (Page: 15, Para: 11)

“Even otherwise when……….and set aside.” (Page: 16, Para: 12)

Sec. 11 Rebuttal Evidence – Need not be led if the evidence produced by a particular party does not bind the interest of the other party

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¥4.25 The question is that is it necessary to a third party to lead a rebuttal evidence even when the evidence produced by a particular party is not reliable. In this case an erroneous employer- employee relationship was established by way of an identity card by the Labour Court against a third party. The High Court held that if the evidence produced by a particular party does not bind the interest of the other party then such other party is not required to lead any rebuttal evidence because against the interest of such other party the evidence led by the first party would not be binding.

Baba Ramdev Pasti Bhandar through Partners v. Gabhabhai Amarbhai Parmar, 2008 (117) FLR 815 : 2008 II CLR 188 (Guj.HC) SCA 7721 of 2000 dt. 23-8-2007

“……….I am shocked and surprised……….would not be binding.” (Page: 817, Para: 9)

Sec. 11 Ex-parte award – For want of appearance of employer cannot be set aside on the plea that the Labour Court did not fix a date for pronouncing the award Pronouncing the award – Without notice to the employer in an ex parte award is an irregularity but not a nullity Nullity – Excludes – An ex parte award for announcing of which no date is fixed with notice to employer Irregularity – Includes – An ex parte award for announcing of which no date is fixed with notice to employer

¥4.26 The workman, on reporting back for duty after leave of more than a month, was not allowed to join

duty and his dispute was referred to the tribunal. On the day of the final hearing, the employer failed to appear. The tribunal therefore fixed 3rd June, 1989 for ex parte hearing of the case. The employer remained absent yet again. The tribunal made an order reserving the award after closing the evidence given by the workman but did not fix any date for pronouncing the award. The tribunal rejected the employer’s petition for an adjournment. The High Court upheld the Labour Court’s decision refusing to grant an adjournment as non-mentioning of date for pronouncing an award is not considered as an award made without notice to the employer; it is not a nullity but just an irregularity. Normally in s uch cases no rehearing is called for except setting aside the award. But in this case even that also does not arise, employer having been taken no exception by asserting his rights or by reason of a fact situation.

Swaika Vanaspati Products Ltd. & Anr. v. State of West Bengal & Ors., 2008 (117) FLR 166 : 2008 LIC 350 : 2008 I CLR 803 : 2008 LLR 279 (Cal.HC) CWPJASCO 12268 of 1991 with CAN 5158 of 2006 & 4832 of 2007 dt. 9-7- 2007

The question is what……….June 3rd, 1989 remained.” (Page: 172, Para: 17)

Sec. 11 Preliminary issue – Application by employer after the evidence of the workman was closed to decide the same issue as a preliminary issue is prejudicial to workman Leading Evidence – Once completed by the workman after closure of evidence the application of the employer to treat the same issue has preliminary is prejudicial to the workman Stage – For raising preliminary issue must be before the start of evidence and not after its closure

¥4.27 The employer made an application after the close of evidence of workman for deciding some issues

raised by them as preliminary issues. The tribunal rejected the application. The High Court upholding the rejection held that once the evidence of one of the parties to the dispute has come on the record and closed, the application to decide the same issue as preliminary issue would seriously prejudice the case of the party which has already closed or given the evidence. Therefore, such an application to frame preliminary issue at such a stage smacks of malafides. Hence the petition by employer was dismissed.

M/s. Bhargava Bhushan Press, Varanasi & Anr. v. Industrial Tribunal-I, Allahabad & Anr., 2008 LIC 4160 (All.HC) CMWP 32849 of 2008 dt. 11-7-2008

“From perusal of..........such an application.” (Page: 4162, Para: 7)

“Therefore the employer……….by a party.” (Page: 4162, Para: 8)

11

Sec.11 Preliminary issue – The dictum enunciated by Apex Court in D.P. Maheshwari’s case prevails in the field D.P. Maheshwari – Judgement is a leading case for the Labour Court to take into consideration while deciding the preliminary issues Workman – Or not is to be decided among all other issues – Not as a preliminary issue

¥4.28 In a dispute, Labour Court treated issue no. 3 regarding the validity of the two enquiries as a

preliminary issue and the management did not raise any objection nor did it press to treat issue no.1 regarding whether the employee was a ‘workman’ or not as a preliminary issue but after lapse of eight years from the date of reference filed an application to treat the issue no.1 as a preliminary issue. The same was challenged in writ petition by the workman. It was observed that the action of the management was aimed at just to drag the matter to incur inordinate delay in deciding the dispute for its own advantage. The Labour Court ought to have rejected subsequent application and proceeded to adjudicate all the issues together. The award was accordingly set aside with direction to consider all issues together.

Ram Avtar v. M/s. Delhi Flour Mills Co. Ltd., 2008 LIC 860 (Del.HC) WP 5260 of 2006 dt. 7-11-2007

“In view of……….its own advantage.” (Page: 862, Para: 15)

Sec.11 Revision Application – Against denial of back wages – forum of Industrial Court is to be exhausted – direct writ not maintainable Writ Petition – Direct not maintainable before exhausting the remedy of revision u/s44 of MRTU&PULP Act

¥4.29 Where the revision application u/s. 44 of MRTU & PULP Act for denial of back wages is not filed

before the Industrial Court, the writ petition reagitating for the same cannot be maintained.

Hindustan Computers Ltd. v. Miss Natty Rose Pesso, 2008 I CLR 926 : 2008 (4) Mah.LJ 669 : 2008 (4) BCR 839 (Bom.HC) ASWP 1346 of 1997 with WP 3457 of 1997 dt. 26-2-2008

“I am in……….void ab initio.” (Page: 930, Para: 8)

“As the petition……….the Trial Court.” (Page: 930, Para: 9)

Sec. 11 Averments – Made by employer in the written statement cannot be treated as legal evidence without corroboration Written Statement – Averments made therein are not legal proof unless substantiated with proof Legal evidence – Excludes – Averments made in written statement in the absence of substantiation

¥4.30 Averments made by the employer in the written statement cannot be treated as legal evidence and

such pleadings are required to be proved and substantiated by the party by producing and proving necessary evidence in support of them.

Agriculture Produce Market Committee v. Bhanderi Dhirubhai Narashibhai, 2008 II LLJ 396 : 2008 (117) FLR 819 : 2008 II CLR 595 : 2008 LLR (Sum) 782 (Guj.HC) SCA 29369 of 2007 dt. 30-11-2007

“Pleadings made by……….place of evidence.” (Page: 397, Para: 4)

Sec. 11 Order of the reference – Is liable to be set aside – If the reply given by the employer is not taken into consideration

¥4.31 If the employer did not receive the notice for conciliation, a reference made on the basis of failure

report is invalid and accordingly in this case as the employer contended before the High Court that no notice was given to him to the satisfaction of the court, the reference made was set aside and the matter was reminded to conciliation officer for fresh conciliation according to law.

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Excel Crop. Care Ltd. v. State of Gujarat & Anr., 2008 III CLR 744 (Guj.HC) SCA 2558 & 2562 of 2008 dt. 19-9- 2008

“Heard learned counsel ……….as to costs.” (Page: 747, Para: 11)

Sec. 11 Conciliation Officer – Cannot issue Pendency certificate in consonance with Sec-10 (1B) read with Rule 12-A (3) of state Act Without conducting the investigation and recording his satisfaction regarding the existence of the dispute Pendency certificate – As provided by the state Act cannot be issued by the Conciliation Officer – Without conducting the investigation and satisfaction regarding the existence of the dispute

¥4.32 Issuance of the pendency certificate by the conciliation officer u/s. 10(1B) of the West Bengal

Amendment Act was challenged in the present petition. High Court held that the investigation contemplated in Rule 12-A of the West Bengal Industrial Disputes Rules, 1958 provides that the conciliation officer should be satisfied that an industrial dispute exists and he cannot issue the certificate in consonance with Sec. 10(1B) read with Rule 12-A(3) without conducting the investigation and recording his satisfaction regarding the existence of the dispute.

C.E.S.C. Ltd. v. State of west Bengal & Ors., 2008 III LLJ 251 : 2008 (118) FLR 253 : 2008 II CLR 383 (Cal.HC) CWJ (OS) WP 113 of 2007 dt. 22-1-2008

“In the light ……….shall stand quashed” (Page: 264, Para: 54)

Sec.11 Labour Court – Should provide reasonable opportunity to the employer to prove the legality of the enquiry and fairness of findings of the enquiry officer when requested to set aside the ex-parte award Ex-parte Award – Against the employer cannot sustain if the request for reconsideration/restoration is rejected for proving legality of enquiry and fairness of the findings of enquiry officer

¥4.33 The Labour Court gave an ex-parte award in favour of the workman against the bank holding that

the enquiry conducted by the bank was not legal and valid and the findings given by the enquiry officer was baseless and perverse. These twin findings were challenged by the bank before the High Court. It was held that though the bank has not taken sufficient care to remain present before the Labour Court when matter was transferred from Rajkot to Ahmadabad, it cannot be denied reasonable opportunity of hearing. The refusal to grant such opportunity is opposed to the principles of natural justice. The orders of the Labour Court were set aside and the matter was remanded to return a finding on the twin issues under challenge.

State Bank of Saurashtra v. Rashmikant G. Dave, 2008 III LLJ 813 : 2008 (118) FLR 70 : 2008 II CLR 1037 : 2008 LLR 922 (Guj.HC) SCA 510 of 2008 dt. 4-3-2008

“Therefore order passed……….before this Court.” (Page: 818, Para: 24)

Sec. 2(a), 10(4), 11 Territorial jurisdiction – Exists where the employer exercise effective control having an establishment Establishment – Existence with effective control is the primary requirement for exercise of territorial jurisdiction Tribunal – Once reference is made it cannot disown jurisdiction on the ground of lack of power to the Appropriate Government to make a reference Reference – Maintainable when it is made by Appropriate Government at the place where head office is situated

¥4.34 Tribunal refused to adjudicate the reference made by the Delhi Administration on the ground that

the workman was serving at Bhopal at the time of his termination and not at Delhi and hence it lacked jurisdiction. Upon challenge the High Court held that the Tribunal cannot reject a reference once made on the ground of lack of jurisdiction besides it is a settled proposition of law that the jurisdiction arises at the place where the employer is exercising effective control and in that view of the matter Delhi is the

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head office of the National Seeds Corporation Ltd. and in the absence to show any evidence that NSCL has a separate establishment at Bhopal, it cannot be said that the dispute has arisen at Bhopal. Hence the order of Tribunal cannot be sustained and set aside and quashed.

Mahipal Singh v. Presiding Officer, Industrial Tribunal-III & Ors., 2010 (126) FLR 604 (Del.HC) WP 3802 of 1998 dt. 11-5-2010

“There is merit in the……….to it on that ground.” (Page: 606, Para: 9)

Sec. 2(b) & 11 Award – Excludes – An order made by the court sans merit for alleged absence of the workman raising dispute on the date of hearing being not a determination Sec. 2(b) – Excludes – An order made by the court sans merit for alleged absence of the workman raising dispute on the date of hearing being not a determination Reference – Dismissal for absence on the date of hearing will not clothe the order with the essential features of an award being not in the nature of determination Determination – Excludes – A dismissal of reference for want of presence of the workman to prosecute on the date of hearing

¥4.35 Despite the consistent presence of the workman in all other previous days, the labour court

proceeded to dismiss the claim merely because on the day when the matter was on board the workman was absent. The labour court also dismissed the restoration application on the ground of delay. The writ petition there against was allowed. The court held that the decision of the labour court under the circumstances cannot be regarded as an award as defined u/s. 2(b) of the Act. There was no determination of an industrial dispute. The order of the labour court was set aside. Matter restored to the file of the labour court for fresh hearing.

Rajman Shrikrishna Morya v. Marshal Security Pvt. Ltd., 2011 II LLJ 9 : 2010 III CLR 633 : 2011 LLR 25 (Bom.HC) CAJWP 8682 of 2009 dt. 6-9-2010

“In my opinion, the order……….of an industrial dispute.” (Page: 10, Para: 4)

Sec. 2 (b), 11 Award – Unsustainable if passed in the name of dead person Dead Person – The award cannot be passed in his name without bringing the heirs into record Heirs – Are to be impleaded by amending the reference if the workman dies in the course of the proceedings without which the award is unsustainable

¥4.36 The issue is whether an award passed in the name of a dead person is sustainable. In this case the

award was passed without the heirs being brought on record. The High Court in view of this held that the award in the name of a dead person is inconceivable. If an application to bring the heirs on record was allowed the Trial Court should have amended the reference proceeding and cause title and issued notices to the heirs. Having not done so, this has resulted in serious miscarriage of justice because the heirs of the workman did not have the opportunity to contest the proceedings which went ex-parte against them. An award could not be corrected after it was passed and hence the title of the award cannot be corrected. Hence matter was remanded to bring the heirs on record by allowing amendment, giving opportunity to the parties and to decide the reference on merit and pass afresh award.

Harish s/o Himmatbhai Thaker, Nagpur v. D. Vijaykumar, 2011 III CLR 323 : 2012 (1) Mah.LJ 736 (Bom.HC) WP 1323 of 2011 dt. 29-7-2011

“Having heard the learned counsel……….passed against them.” (Page: 324, Para: 6)

Sec. 11 and 2(j) Industry – If employer fails to prove that it is, there is no defence to safeguard his position

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Gainful employment – In the absence of proof 50% back wages payable

¥4.37 Where there is no evidence placed on the record by the employer to prove that they are not an “Industry” u/s. 2(j) of the Act, the Labour Court r ightly rejected their defense and in the absence of any finding whether the workman was gainfully employed, 50% back wages was granted.

Varanasi Development Authority, Varanasi, through its Secretary v. Presiding Officer, Labour Court, Varanasi & Anr., 2008 III CLR 609 (All.HC) CMWP 5345 of 2002 dt. 25-9-2008

“Accordingly the view……….the appointment continued.” (Page: 609, Para: 9)

“Accordingly, I find……….the said amount.” (Page: 609, Para: 10)

Sec. 2 (k), 11 & 12 Conciliation – Cannot be entered if the conciliation officer prima facie finds that there is no industrial dispute in existence Industrial Dispute – Means a dispute connected with the terms of employment or the condition of service of labour between employer and workman among others, the basis for conciliation Employee Stock Option Scheme (ESOS) – Does not constitute an industrial dispute being not connected with terms of employment or the condition of service

¥4.38 Only a dispute that is connected amongst others with the terms of employment and or the condition

of service of labour between employer and workman amongst others falls within the expression industrial dispute. When viewed in this prism, the question is whether the conciliation officer with reference to Sec. 11 read with Sec. 12 of the Act can refuse at the threshold itself to enter into conciliation of a dispute such as refusal of employer to grant Stock Option Scheme (ESOS) to workmen on the ground that such a demand does not fall under terms of employment or condition of service and hence not an industrial dispute. The Court upheld the decision of the conciliation officer because their demand did not prima facie partake of an industrial dispute. The power exercised by the conciliation officer even in such cases is administrative and cannot be termed as quasi judicial or judicial.

Associated Cement Staff Union, Mumbai v. State of Maharashtra & Ors., 2009 (122) FLR 140 : 2009 II LLN 374 : 2009 I CLR 1043 : 2009 (3) Mah.LJ 915 (Bom.DB) OOCJWP 1310 of 2008 dt. 15-12-2008

“……….The expression……….conciliation proceedings.” (Page: 145, Para: 10)

Sec. 2(s) &11 Preliminary Issue – Whether complainants were workmen or not is to be decided first Branch Managers – Of the Bank whether workmen or not should be taken as a preliminary issue Workmen – Whether the Branch Managers of the Bank are or not should be decided first as a preliminary issue

¥4.39 The issue involved is that whether the Industrial Court is justified in rejecting the contention of the

employer that the maintainability of the complaint due to the contentious issue that the complainants were not workmen may be taken up as a preliminary issue. In this case the complainants were Branch Managers of the Bank. The employer had placed material on record in the form of their salary slips and relied upon the duties discharged by them as Branch Managers. The employer’s prayer was to consider this contentious issue that they were not workmen within the meaning of Sec. 2(s). The Industrial Court held that this issue will be taken up with all other issues together. The Single Judge also upheld the same. Setting aside both the orders, the Division Bench held that since the jurisdiction of Industrial Court hinges on a decision as to the status of the complainants it should have addressed this issue first as a preliminary issue because if it is held ultimately they were not workmen the sequitur would be that complaints are not maintainable. Hence the Industrial Court was directed to decide this preliminary issue first.

15

Nashik Merchants’ Co-op. Bank Ltd. & Anr. v. Madhukar Bhaurao Hingmire & Anr., 2011 (131) FLR 441 : 2012 II LLJ 139 : : 2013 (136) FLR 730 : 2011 III CLR 192 : 2013 LLR 364 : 2012 (1) BCR 643 : 2011 (6) Mah.LJ 567 (Bom.DB) LPA 62 & 85 of 2011 in WP 6682 & 6672 of 2010 with CA 81 of 2011 dt. 16-8-2011

“……….Having heard the……….before the Industrial Court.” (Page: 443, Para: 6)

Sec. 11 & 2(rr) Recovery of amount – paid to the workman against back wages cannot be recovered upon setting aside the award by filing application in the tribunal Industrial Disputes Act – contain no provision for recovery of amount paid to a workman by filing an application in the tribunal Security bond – If obtained by the High Court against release of back wages the remedy to the employer is to enforce the security and not application before the tribunal

¥4.40 The award for reinstatement and back wages was challenged by the employer.The High Court

directed to deposit an amount of ̀ 20791 and allowed the workman to withdraw the same upon giving a security bond. The workman withdrew the amount giving security of his house property. The award was set aside by the High Court. Consequent upon this the employer proceeded to recover the amount paid to the workman. His application was rejected by the tribunal on the ground that there are no provisions for recovery in the Industrial Disputes Act. The High Court held that the only remedy is to enforce the security bond and there is no proviso in the Industrial Disputes Act to entertain a separate application before the tribunal for recovery of amount paid to the workman.

Haryana State Co-operative Supply & Marketing Federation Ltd. Chandigarh v. Labour Court U.T., Chandigarh & Anr., 2010 II LLJ 345 (P&H.HC) CWP 5358 of 1987 dt. 20-8-2009

“In a case where there……….therefore, perfectly justified.” (Page: 346, Para: 3)

Sec. 2A and 11 Enquiry –Where opportunity to participate was provided to the workman with many adjournments at his request it cannot be held as not fair and proper Adjournment – If granted at regular interval at the behest of the workman the ex parte decision cannot be assailed on that ground for holding the enquiry not fair and proper Ex parte enquiry – Cannot be assailed on the ground enquiry was not fair and proper when workman was provided with opportunity with many adjournments at his behest

¥4.41 A workman was dismissed after an ex parte enquiry on certain charges of misconduct and he

challenged the same u/s. 2A of the Act on the preliminary ground that the enquiry was not proper and fair for not providing him enough opportunity. Hence evidence was led before it. The Labour Court found that only one charge was proved. It therefore set aside the dismissal and reinstated him with all consequential benefits. Hence the present petition by the employer in which it was held that, where the workman was given enough opportunity to participate in the enquiry by granting many adjournments at his request the findings of the Labour Court on preliminary issue that the enquiry was not fair and proper being ex parte cannot be sustained. And hence subsequent findings were also erroneous. The High Court therefore holding the enquiry fair and proper set aside the award and remitted back the matter to Labour Court for fresh disposal.

Management of Nandha Gas Agency (represented by its Proprietor) Trichy v. (1) Presiding Officer, Labour Court, Tiruchirapalli (2) N. Shanmugam, 2009 (123) FLR 305 : 2009 III LLN 470 (Mad.HC) WP 5866 of 2000 & WMP 35368 of 2000 dt. 26-6-2009

“From the above……….required under law.” (Page: 308, Para: 8)

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Sec. 11 Preliminary Issue – Such decision is in the exclusive discretion of the Tribunal over which High Court has no scope to interfere with Contract Labour – Whether contractor terminated their service putting at naught the reference made for regularization need not be decided as a preliminary issue Reference – Once made should be answered on merit

¥4.42 The employer by an application requested the Tribunal to decide the preliminary issue in the

reference qua the contractor that the reference be dismissed for the reason that the contractor had already terminated the services of the Contract Labour giving no scope for the Tribunal to adjudicate the issue of regularizing their services by the principal employer. The application was rejected for the reason that the reference once made is to be answered on merits and the preliminary issue will therefore be decided with all other issues. The petition there against was dismissed by the High Court since it is the sole discretion of the Tribunal to decide any point of law as a preliminary issue or otherwise over which the High Court has little scope to interfere in a writ petition, after all it was held that the employer was not in any way adversely affected if this issue was heard with all issues together.

Indian Petrochemicals Corporation Ltd. v. General Secretary, IPCL Karmachari Mandal, Vadodara, 2009 I LLJ 873 : 2009 (121) FLR 792 : 2008 LIC 2774 (Guj.HC) SCA 20826 of 2006 dt. 19-3-2008

“In the light of the observations……….is not contrary to law.” (Page: 880, Para: 13)

Sec. 11 & Sec. 12(3) Work Norms – Set under a settlement if not adhered to dismissal in terms of standing order after an enquiry will be proper Settlement – U/s. 12(3) if not adhered to – the dismissal of workmen in terms of standing order after an enquiry is proper Dismissal – For not adhering to work norms as settled u/s. 12(3) is proper in terms of standing order after an enquiry

¥4.43 A settlement u/s. 12(3) was arrived at to fix work norms fallowing which a time study was conducted

by the Coimbatore Productivity Council fixing revised work norms. All the workmen adhered to the same except the two. Following proper enquiry they were dismissed. The Labour Court upheld the same but the Single Judge set aside the award holding that the revised norms were not communicated to the delinquent workmen. The Division Bench reversed the same and upheld the award because the workmen in their reply to show cause had stated that the norms were not proper. They had therefore had the knowledge and all others are also giving the output as per norms. Reappreciation of Labour Court’s findings by the Single Judge was therefore unsustainable.

Management of Lakshmi Card Clothing Mfg. Co. Ltd. v. M. Ramu & Ors., 2009 I LLN 371 : 2009 I CLR 205 : 2009 LLR 366 (Mad.DB) WP 2250 of 2005 dt. 8-12-2008

“We are of……….correctly done.” (Page: 374/375, Para: 18)

“In an considered……….liable to be set aside.” (Page: 375, Para: 21)

Sec. 11 and 17 A Ex parte award – Due to employer’s own fault – remedy is restoration application not writ petition Restoration Application – Against ex parte award is proper not writ petition Writ petition – No maintainable where the alternative remedy of filing restoration application is available

¥4.44 Where the effective alternative remedy of filing restoration application was available to the employer

for the ex parte award passed against him due to his own absence, the writ petition against the same cannot be entertained.

17

Medical Officer & Anr. v. Naranbhai Dharmabhai Prajapati, 2008 I CLR 727 (Guj.HC) SCA 1007 of 2008 dt. 25- 1-2008

“Therefore whatever material……….to be rejected.” (Page: 731, Para: 7)

“In this case……….Constitution of India.” (Page: 734, Para: 9)

“The approach, attitude……….cannot be entertained.” (Page: 736, Para: 11)

“Therefore in view……….of the matter.” (Page: 740, Para: 17)

Sec. 11, 18 &25 F Necessary Party – If not impleaded before Labour Court the award is not binding Impleadment – As necessary party if absent the award cannot be fastened Award – Cannot be fastened without making the party a necessary and relevant one

¥4.45 State Government gave permission to run Child Advisory Centre to a trust and paid grant-in- aid. In

order to run the centre the trust appointed an Advisor with the approval of the State Government. However, the said Centre was unilaterally closed down by the trust and the services of the workman came to an end. The workman raised a dispute and the reference was answered in his favour holding the State Government and the trust to pay the back wages jointly and severally. The State Government contested the award before High Court, among others on the ground that it was not at all made a necessary and relevant party before the Labour Court and the workman never made any claim before the Labour Court against the State Government. The direction given by the Labour Court to rope it in was held without jurisdiction. The award to make payment of back wages was set aside qua the State Government.

State of Gujarat v. Presiding Officer & Ors., 2010 (125) FLR 481 : 2009 LIC 3511 : 2010 I CLR 602 (Guj.HC) SCA 9750 of 2000 dt. 18-6-2009

“It clearly emerges……….petitioner-State Government.” (Page: 484, Para: 9)

“The concerned workman……….respondent No-2-Trust.” (Page: 484, Para: 10)

“Thus, the said direction………No order as to costs.” (Page: 485, Para: 13)

Sec. 25F & 11 Pleadings – Being the foundation of a case mere cross examination is not sufficient Cross Examination – Is not a substitute for the pleadings

¥4.46 The employer has not brought forward in his pleading before tribunal any violation of statutory

rules or Art. 14 and 16(1) of the Constitution and also that the employee was not a workman in his establishment and not worked continuously as a typist. The single judge upheld the award of the tribunal reinstating him with full back wages for violation of Sec. 25F. The plea raised before him as aforesaid was dismissed for the reason that it was raised for the first time. The Division Bench dismissed the challenge against the order of the single judge for the reason that except cross examining on the above matter the employer did not plead specifically on these points and hence without pleadings before tribunal no evidence could build up a case inasmuch as pleadings are considered to be the foundation of a case.

Executive Engineer, Haryana State Agricultural Marketing Board, New Grain Market, Karnal v. Sachin & Anr., 2011 II LLN 625 : 2011 III LLJ 657 : 2011 (129) FLR 71 (P&H.DB) LPA 1117 of 2010 dt. 14-10-2010

“The learned Single Judge……….in the Writ Jurisdiction.” (Page: 627, Para: 3)

“When the facts of the……….date of his termination.” (Page: 628, Para: 5)

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Sec. 25-F & 11 UPC Letters – Are alone providing opportunity to explain unauthorized absence not sufficient for termination of a permanent worker without enquiry Termination – Unsustainable if the basis of providing opportunity to explain the unauthorized absence was only on UPC letter without proper enquiry Enquiry – If not held the permanent workman cannot be terminated merely on the basis of some letters sent through UPC to his residence

¥4.47 Services of a permanent workman were put to an end because he was on unauthorized leave. The

Writ Court held that the workman had put in 16 years of long service so he cannot be dismissed on the basis of mere three letters sent under postal certificate when no memo or enquiry was set up for unauthorized absenteeism. Hence the Writ Court held the termination illegal and ordered reinstatement with continuity in service.

Shiv Kumar v. Hansita, 2010 (127) FLR 260 : 2011 LLR 13 (Del.HC) WP 19713 of 2005 dt. 17-5-2010

“It is a settled legal……….an Industrial Dispute.” (Page: 263, Para: 9)

“Hence, the totality……….illegality or perversity.” (Page: 263, Para: 10)

Sec. 25F & 11 Adverse Inference – Can be drawn against the employer if he fails to produce the summoned record regarding continuous service Summoned Record – If not produced by the employer then an adverse inference can be drawn against the employer regarding continuous service Continuous Service – Cannot be negated once the employer fails in producing the muster roll summoned by the court upon workman deposing on this point Deposition – Of the workman stating continuous service shifts the onus upon the employer to rebut failing which by not producing the summoned records results in adverse inference against him

¥4.48 When the workman deposes before the labour court that he had continuously worked from July 15,

1991 to March 31, 2000 it is for the employer to rebut the same by producing the record summoned. In this case the employer admitted that he had not brought the muster roll of June 1994 and August 1994 to February 1995 despite summoning and he would not be able to produce in future also. The labour court hence drew an adverse inference against the employer and held that the workman had worked continuously for more than 240 days. Termination without complying Sec. 25F was therefore illegal. It awarded 50% of back wages from the date of his termination to the date of his death to his widow. The High Court upheld the same.

Divisional Forest Officer, Bhiwani v. Smt. Chameli & Ors., 2011 II LLJ 494 : 2010 (127) FLR 1093 : 2011 I CLR 47 : 2011 LLR 206 (P&H.HC) CWP 9059 of 2010 dt. 30-6-2010

“While appreciating the above……….as already noticed.” (Page: 496, Para: 4)

Sec. 11 and 25FFF Secured creditor – Cannot seek to delete his name from the proceedings before the Labour Court Labour Court – Can decline the application of the Secured creditor for deletion of his name from the proceedings Securitization Act – The secured creditor can proceed with in which Labour Court cannot prevent quantification of the amount from the borrower company Dues of the workmen – Ranks pari passu with that of secured creditors

¥4.49 The question is in the matters of recovery of dues upon closure of a company what are the inter se

rights between workmen on the one hand and the creditor company on the other. The second question is whether the secured creditor can be prohibited from exercising the power under the Securitization Act by the Labour Court. Thirdly can a Labour Court decline the creditor to delete as a party. Answering

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these questions the High Court held that the secured creditor cannot appropriate full amount of the sale proceeds totally ignoring the claim of the workers dues in case the workmen were unable to recover their dues from the property of the company. The secured creditor can only appropriate a part of the sale proceeds keeping in view the pari passu charge and share of the workmen. In this sphere the Labour Court cannot prohibit the secured creditor from exercising the powers conferred under the Securitization Act. However the secured creditor cannot seek to delete its name as a party if the Labour Court in its discretion declines to delete the name of secured creditor.

Union Bank of India v. General Workers Union & Ors., 2009 II CLR 772 (Guj.HC) SCA 7150 of 2008 dt. 4-12- 2008

“The aforesaid proviso……….accordance with law.’ (Page: 778, Para: 10)

“However in case……….the Company-employer.” (Page: 779, Para: 12)

“If the exact……….deletion as party.” (Page: 780, Para: 14)

“However the aforesaid……….to the litigation.” (Page: 780, Para: 15) Sec. 33C(2) & 11 Preliminary Issue – The labour court should shun to frame in the wake of observation made in the judgment made in D.P. Maheshwari by the Apex Court Territorial Jurisdiction – Whether could be ousted by agreement and if not the jurisdiction of the court in a preliminary issue what should constitute All Issues – Should be decided together as per settled law

¥4.50 The workman a pilot filed an application u/s. 33C(2) for computation of dues in terms of the

agreement with his employer in the labour court at Delhi. The labour court set out two issues including territorial jurisdiction as preliminary and proceed ed to decide the same and yet not determined it and instead directed trial. The employer challenged the same. The High Court held that the approach suffered from procedural irregularities, because the agreement made in Mumbai puts the jurisdiction on the Mumbai courts besides the employer was carrying on business in Mumbai, agreement signed in Mumbai, salary paid from Mumbai and hence Mumbai must also possess jurisdiction in addition to Delhi. The labour court at Delhi should have examined these issues instead of limiting the jurisdiction to one court. Further the appropriating government whether central or state was also an issue which the court failed to frame thereby there is a legal infirmity in the procedure. The judgement in the case of D.P. Maheshwari limits the power of the court to frame preliminary issues. The High Court remanding the matter directed to answer all issues together.

Go Airlines (India) Pvt. Ltd. v. Manmohan Sharma & Ors., 2011 II LLJ 57 : 2010 III CLR 686 (Del.HC) WP 2587 of 2010 dt. 28-9-2010

“The enquiry in these……….issue of maintainability.” (Page: 62, Para: 15)

Sec. 33-C (2) & 11 Belated application- For amendment after a period of 12 years not maintainable Amendment of written Statement- The labour Court could not have kept for a period of 12 years without action

¥4.51 The workman filed an application under Sec. 33-C (2) of the Act for recovery of certain dues payable

under various awards and provisions of law. He sought to amend the application to furnish additional information but was resisted by the employer as it was not supported by an affidavit. An affidavit was filed later but the labour court rejected the same but kept the matter pending including the application for amendment. After twelve years the workman filed another application for amendment as was filed earlier. The labour court dismissed the same being filed at a belated stage. Upon challenge the High Court even while upholding the rejection held that, labour court has erred in not deciding the earlier

20

application to amend the original application hence to decide it within fifteen days and dispose the matter u/s. 33-C (2) of the Act within three months.

Ganpat K. Sanade v. Managing Director, Nasik Sahakari Sakhar Karkhana Ltd., 2008 (1) BCR 453 : 2008 (4) AIR (Bom.HC) 291 (Bom.HC) WP 5231 of 1997 dt. 24-7-2007

“The facts giving rise……….application at Exhibit34.” (Page: 453, Para: 2)

“Rule 16-A of the……….must be rejected.” (Page: 454, Para: 4)

“In the present case……….for all these years.” (Page: 454, Para: 5)

Sec. 6N of U.P. Industrial Disputes Act & Sec.11 Burden of Proof – On the Workman to prove his case as to nature of employment and his period of employment without which burden cannot be shifted on the employer Affidavit – Of workman to prove the nature and period of work is insufficient to prove his case and on this basis burden cannot be shifted on the employer Employer – Cannot be put the burden to prove the nature and period of employment unless the initial burden of the workman on these issues are proved in addition to affidavit by the workman

¥4.52 Workman contended that he was a seasonal employee and was illegally not permitted to work by the

employer. Except an affidavit no other documents were produced by him to prove his nature and period of employment. Yet the labour court gave an award in favour of the workman. It is a settled position of law that burden is upon the workman to prove his case and unless it was proved the burden cannot be shifted upon the employer. Only filing an affidavit will not substitute these requirements. Hence the Labour Court has committed an error by shifting the burden of proof upon the employer regarding the period of employment and denial of work. The award was set aside and matter remitted back to decide according to law.

M/s. Modi Sugar Mills (A Unit of Modi Industries Ltd., Modi Nagar), Ghaziabad v. Labour Court (II), Uttar Pradesh, Ghaziabad & Ors., 2010 LIC 2234 (All.HC) CMWP 3180 of 2005 dt. 9-11-2009

“While considering the……….the Labour Court.” (Page: 2240, Para: 10)

Sec. 11, 2(k) & Industrial Disputes (West Bengal) Rules, 1958- Rule 20(D) Proper Party – The labour court can add but cannot give any relief against it for the reason that no dispute was raised by the workman Necessary Party – The labour court can not only at but also give relief against it Addition of a Party – Is permitted under Rule 20(D) of I.D. West Bengal Rules, 1958 by the labour court Agreement – Though came to an end the company receiving professional services can be made a proper party in the dispute between the employer and workman but with no obligation to give any relief

¥4.53 A dispute was raised for discontinuation of the services of the workman a sales promotion

representative engaged by Jagatjit Industries Ltd. as the agreement entered with Glaxo Smithkline Consumer Health Care Ltd. for professional services in the sale of two brands by JIL came to an end. The agreement did not postulate taking over of any workmen of JIL by Glaxo. The workmen made an application to add the purchaser of company i.e. Glaxo Smithkline Consumer Health Care Ltd., which was allowed. The same was challenged by the added party since the workman was not its employee. The High Court held that since the labour court has added it not as a necessary party but only as a proper party it is not impermissible under sub-clause 2 of Rule 20(D) of West Bengal Industrial Disputes Rule, 1958. Such addition as a proper party does not require that the workman should necessarily raise a dispute against it. Viewed in this angle it is impermissible to the labour court to contemplate grant of any relief against such party since no dispute was raised against it and hence it is only a proper party with no prejudice caused to it. Hence petition dismissed.

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Glaxo Smithkline Consumer Health Care Ltd. v. Second Labour Court & Ors., 2011 III LLJ 400 : 2011 (129) FLR 37 : 2011 I CLR 496 (Cal.HC) CWJAWP 13303 of 2006 with CAN 1292 of 2008 dt. 24-12-2010

“In this writ petition……….the employees of JIL.” (Page: 401, Para: 1)

“I accept the submission……….to the writ petitioner.” (Page: 406, Para: 16)

Sec. 11 & Art. 226 Disregard – To High Court orders leading to non prosecution of the case will render the employer to face dismissal of his second writ petition on identical grounds Writ Petition – Second – On identical grounds filed following non prosecution of the earlier one will result in dismissal due to a conduct disregard of the orders of the court Discretion – The High Court under Art. 226 though tenable will be reluctant to exercise if the earlier petition on identical grounds was not prosecuted showing disregard to the orders of the court

¥4.54 The employer filed a writ petition challenging the award. The same was allowed provided the

employer deposited 50% of back wages and one month’s period was also allowed further to him to make the deposit. Despite this concession the employer failed to comply with the orders leading to dismissal of the petition for want of prosecution. His appeal was also dismissed. The employer once again filed a fresh writ petition on identical grounds. The employer prayed that he would deposit the back wages with necessary bank guarantees this time. But dismissing the petition the High Court held the employer’s conduct indicating disregard to its orders dissuade it to exercise its discretion even if a fresh petition could be tenable. Because if the employer fails to deposit again and makes an appeal at the interim stage the dismissal of the petition for prosecution and again a new petition so on and so forth will go on ad- infinitum.

Dalal Brothers Freight Forwarders Pvt. Ltd. v. Transport & Dock Workers Union & Ors., 2009 (5) BCR 445 (Bom.HC) WP 2670 of 2008 dt. 10-2-2009

“The petitioner……….ad-infinitum.” (Page: 446, Para: 8)

Sec.11, Rule-28. Rule 28 of ID (Central) Rules 1957– Permits only correction of certain clerical, arithmetical or unintentional mistake but not alteration modification or addition to the award Award – Once reached finality is only amenable for rectification of clerical, arithmetical or unintentional mistake under Rule 28 but not alteration, modification or addition Mistake – If unintentional can be corrected under Rule 28 of ID Central Rules 1957 but not alteration, modification or addition to an award reaching finality

¥4.55 The Labour Court assumed jurisdiction on the ground that the evidence furnished by the workmen

as to the number of workmen in the employment of the factory were less than 100. It made an award granting pay scale, leave encashment etc. The award had reached finality. The employer sought correction of certain errors crept into the award as to number of workmen in employment by a petition before the High Court. It allowed the petition. The Labour Court thereafter disregarding the finality reached of the award tried to disturb the award by allowing the parties to file documents, and to record evidence etc. The workmen challenged the same as illegal before the High Court. Allowing the petition the Court held that the Labour Court has no power to go beyond the ambit of Rule 28 of ID(Central) Rules, 1957 or Sec. 152 of Code of Civil Procedure i.e. except correcting any clerical mistake or error arising from an accidental slip or omission in any award it/he issues. The basis of this provision is found in the maxim “Actus Curiae Neminem Gravabit” i.e. an act of Court shall prejudice no man. Hence an unintentional mistake which may prejudice the cause of any party must be rectified. But the award cannot be modified, altered or added except within the ambit of Rule 28.

Hind Filters Employees Union v. Factory Manager, Hind Filters Ltd. & Ors., 2011 IV LLJ 772 : 2011 (130) FLR 675 (MP.DB) WP 824 of 2011 dt. 11-5-2011

22

“Since W.P.No. 2375/2006……….was originally made.” (Page: 776, Para: 17)

“In view of the aforesaid……….procedure and not beyond it.” (Page: 777, Para: 18)

Sec. 11(3) Workman – Cannot call the deponent of employer who had sworn in an affidavit for cross-examination until his/ her own evidence was first proved Deponent of Employer – Who had sworn in an affidavit cannot be called for cross-examination until his/ her own evidence was first proved Cross-examination – Of employers witness sworn in an affidavit cannot precede examination of the workman and his witnesses to prove his claim

¥4.56 Workman who claims that she was in the service of the employer has to first prove her point by

recording her own evidence and her witnesses. Before this stage she cannot call the deponent of employer who had sworn in an affidavit that the claimant had not worked with him, for cross-examination. This is because the affidavit of the employer was merely in reply for furnishing the records called for by the workman. It is not as an evidence. The High Court dismissed the Writ petition challenging the decision of the Labour Court for not allowing the request of workman to first cross-examine the deponent without exhausting her primary evidence to establish her claim.

Shakuntala Jagdish Ghengat v. Municipal Corporation, Jalgaon through its Commissioner, 2011 (2) BCR 114 : 2010 (127) FLR 714 : 2011 (2) Mah.LJ 32 (Bom.HC) WP 7724 to 7726, 8294 of 2009 dt. 15-9-2010

“I have perused the……….the present petitioner.” (Page: 116, Para: 14)

“Moreover, it is……….called as a witness.” (Page: 117, Para: 15)

“Besides that the………..in such scenario.” (Page: 117, Para: 16)

Sec. 11(3) and 2(b) Written statement – For amendment or reason therefore – The Labour Court cannot refuse further opportunity if the employer fails to appear on the appointed date Ex parte award – Not sustainable if the written statement and rejoinder affidavit of employer was rejected on the ground of non appearance of employer on the date fixed for hearing the amendment to W.S. Recall application – Is to be entertained against ex parte award if the cause thereof was non appearance of employer on the appointed date for the first time Labour Court – Cannot reject the written statement and rejoinder affidavit once taken on record on the ground of non appearance of employer on the date fixed for the first time

¥4.57 The employer gave written statement and submitted rejoinder affidavit against the claim of the

workman. Later employer sought amendment to the written statement. On the date fixed employer’s representative did not appear. The Labour Court provided no further opportunity at all. The recall application was also rejected. On challenge the High court set aside the ex parte award and held that once a written statement and rejoinder affidavit had been taken on record the same could not have been rejected on the ground of non appearance. Even otherwise there is provision for enforcing attendance. The ex parte award suffers from a manifest error since it held the averment of workman remained unrebutted. However instead of quashing and setting aside the award it modified the same by interfering with only back wages for the reason that the workman was already reinstated 14 years ago by an interim order of the court, which requires no alteration.

State of U.P. & Anr. v. Presiding Officer, Labour Court & Ors., 2009 (123) FLR 1049 : 2009 III CLR 590 (All.HC) CMWP 9157 of 1995 dt. 11-9-2009

“In my view……….Industrial disputes Rules.” (Page: 1050, Para: 6)

“Consequently, the Labour……….be set aside.” (Page: 1050, Para: 7)

23

“However, the Court……….at this stage.” (Page: 1050, Para: 8)

Sec. 11 Cross Examination – If not made despite opportunity being given after closure of management’s evidence the workman cannot thereafter allege lack of opportunity

¥4.58 The Labour Court closed the management’s evidence but the workman failed to cross examine some

of the witnesses even after a period of one year. He made no application for recalling these witnesses for cross examination even after a period of one year. The evidence of the management witnesses remained conclusive and unrebutted. The Labour Court upheld the dismissal as the misconduct stood proved. The High Court held that the workman has no case to plead that proper opportunity was not given to cross examine the witnesses of the management in the given facts and circumstances of the case. He has also failed to lead any evidence in support of his case in this regard.

Asharfi Lal v. Management of Delhi Cloth Mills, 2010 IV LLN 814 : 2011 II LLJ 629 : 2011 LLR 118 (Del.HC) WP(C) 6652 of 2008 dt 19-11-2010

“Perusal of record……….petitioner is rejected.” (Page 817, Para: 11)

Sec. 2(s) &11 Res judicata – Becomes a decision of High Court deciding the status of employee as a workman not supervisor in a proceeding before tribunal as a preliminary issue Workman – Once status is decided by the High Court the tribunal has no jurisdiction to decide the same once again as a preliminary issue Preliminary Issue – To decide the status of workman by the tribunal is hit by the doctrine of res judicata once the same issue having been decided by the High Court High Court – Once decides the status of workman it operates as res judicata for taking a similar decision in the proceedings before tribunal has a preliminary issue

¥4.59 In this case the employer steadfastly took the issue to the High Court in writ petitions stating that the

reference made by the Government was without jurisdiction for the reason that employee was a supervisor. The High Court at the persistent insistence of the employer decided the same in favour of the employee and later directed the parties to approach the forum under I.D. Act for a decision on the reference. The tribunal took up the issue of the status of the workman as a preliminary issue. The workman resisted the same holding that the decision falls squarely under the doctrine of constructive res judicata. The tribunal interpreted this dictum as if a freehand is given by the High Court to decide this as a preliminary issue. The workman challenged the same before High Court. The High Court held that once the issue of workman was addressed and decided in earlier proceedings by the High Court it becomes a res judicata. That decision, the employer cannot now disown but it is binding on him. Hence it is not open to the tribunal to decide the status of employee as a workman or not in its preliminary enquiry once again.

Mohmed Yunusuddin Shaikh, Nagpur v. Manganese Ore (India) Ltd. Nagpur, through General Manager & Ors., 2008 III LLJ 94 : 2008 II CLR 96 : 2008 (3) BCR 71 (Bom.HC) WP 3396 of 2007 dt. 25-1-2008

“This Court is……….binding on it.” (Page: 99, Para: 29)

“Rule is therefore……….withdraw the same.” (Page: 100, Para: 35)

Sec. 11 Cross Examination – Cannot be deferred until all the witnesses are examined in proceedings before the Tribunal since the proceedings do not partake a proceeding akin to criminal proceedings Code of Criminal Procedure – Excludes – Proceedings before the Tribunal so far as deferment of cross examination is concerned

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Evidence Act – Section 138 is applicable for examination in chief and cross examination of witnesses Deferment of Cross examination – Until all witnesses are examined is foreign to the procedure prescribed for adjudication before the Tribunal

¥4.60 The Labour Court rejected the employer’s application for deferment of cross-examination of the first

witness of the Union after his examination in chief until all the witnesses whom the Union intended to depose, are first examined, on the ground that the normal rule of examination as provided u/s. 138 of Evidence Act ought to be applied in a proceeding before the Tribunal. The employer contended that Sec. 231 and 242 of the Criminal Procedure Code, 1973 confer discretionary power to permit cross- examination of any witness to be deferred until any other witness is examined for further cross- examination. The High Court dismissed the petition by holding that the principle of taking evidence as laid down under the law of Evidence is applicable in a proceeding before the Tribunal and the Code of Criminal Procedure cannot be implanted in an industrial adjudication.

Bengal Chamber of Commerce & Industry & Ors. V. State of West Bengal & Ors., 2010 II CLR 800 (Cal.HC) WP 17418 (W) of 2009 dt. 10-3-2010

“Under the provisions……….in the manner prayed for.” (Page: 801, Para: 7)

“In my opinion,……….contrary to pleadings.” (Page: 801, Para: 8)

Sec. 11A Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen

Sec. 11 A Charges – If the charges are not specific or definite the penalty imposed by the disciplinary authority will not sustain

¥4.61 No workmen can be expected to furnish his replies in defence of the charges which are not specific or

definite giving details of the incident forming the basis of the charge and no enquiry can be sustained on vague charges. In this case the allegations were that the Branch Manager has sanctioned loans to large number of customers but in fact did not disburse the entire loan amount. A portion of the amount was only deposited in borrowers account and the balance was misappropriated. No details or loan account or names of borrowers, amounts of loan sanctioned and actually disbursed and amount misappropriated have been mentioned. Hence the Supreme Court upheld the order of Single Judge directing reinstatement of the employee with continuity of service protecting seniority. The grant of Rs. 1.5 lacs was however as compensation, set aside. The Supreme Court therefore reversed the order of Division Bench which had misdirected itself in remanding the matter to the disciplinary authority to reconsider the matter.

Anil Gilurker v. Bilaspur Raipur Kshetria Gramin Bank & Anr., 2011 (131) FLR 369 : 2012 II LLJ 20 : 2011 LIC 4621 : 2011 LLR 1121 (S.C.2J) CA 7864, 7865 of 2011 (arising out of SLP (C) 33088, 33089 of 2010) dt. 15-9- 2011

“A plain reading of the charges and the statement of imputations reproduced above would show that only vague allegations were made against the Appellant that he had sanctioned loans to a large number of brick manufacturing units by committing irregularities, but did not disburse the entire loan amount to the borrowers and while a portion of the loan amount was deposited in the account of the borrowers, the balance was misappropriated by him and others. The details of the loan accounts or the names of the borrowers have not been mentioned in the charges. The amounts of loan which were sanctioned and the amounts which were actually disbursed to the borrowers and the amounts alleged to have been misappropriated by the Appellant have not been mentioned.” (Page: 372, Para: 7)

“We also find that along with the charge-sheet dated 31.01.1989 no statement of imputations giving the particulars of the loan accounts or the names of the borrowers, the amounts of loans sanctioned, disbursed and misappropriated were furnished to the Appellant, and yet the disciplinary authority has called upon the Appellant to submit his

25

written defence statement in reply to the charges. We fail to appreciate how the Appellant could have submitted his written statement in defence in respect of the charges and how a fair enquiry could be held unless he was furnished with the particulars of the loan accounts or the names of the borrowers, the amounts of loan sanctioned, the amounts actually disbursed and the amounts misappropriated were also furnished in the charge-sheet.” (Page: 372, Para: 8)

“This position of law has been reiterated in the recent case of Union of India and Ors. v. Gyan Chand Chattar (supra) and in Para 35 of the judgment as reported in the SCC, this Court has observed that the law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice and the charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges.” (Page: 373, Para: 10)

Sec. 11 A Disciplinary Proceeding – Once concluded with imposition of penalty it will survive the acquittal in the Criminal Proceedings Criminal Proceeding – Even if the workman is acquitted it will have no effect on the concluded disciplinary proceeding Loss of Confidence – Excludes – To go into the proportionality of punishment

¥4.62 The Bank clerk was charged with fraudulent withdrawal of ` 6,000 from a dormant account by

converting into operative account through an imposter. He was dismissed after an enquiry. He did not challenge his dismissal for a period of four years. Meanwhile the Criminal case was concluded in his acquittal. Once acquitted, he challenged his dismissal unsuccessfully upto the Single Judge but could succeed before Division Bench. The Supreme Court set aside the order of Division Bench which had acted as if an Appellate Court and held that subsequent acquittal in Criminal case will not in any way render a previously concluded disciplinary proceeding invalid nor affect the validity of the finding of guilt or consequential punishment, the standard of proof being different. The Courts cannot go into the proportionality whether the punishment was shockingly excessive or disproportionate to the proved misconduct if the employer bank has lost confidence in the workman.

State Bank of Bikaner & Jaipur v. Nemichand Nalwaya, 2011 III LLJ 13 : 2011 (129) FLR 937 : 2011 LIC 2162 : 2011 LLR 634 : 2011 (4) SCC 584 : 2011 (1) SCC (L&S) 721 : 2011 AIR (SC) 1931 : 2011 (4) Mah.LJ 510 (S.C.2J) CA 5861 of 2007 dt. 1-3-2011

“It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations, (vide B.C. Chaturvedi v. Union of India MANU/SC/0118/1996 : 1995 (6) SCC 749, Union of India v. G. Gunayuthan MANU/SC/0834/1997 : 1997 (7) SCC 463, and Bank of India v. Degala Suryanarayana MANU/SC/0399/1999 : 1999 (5) SCC 762, High Court of Judicature at Bombay v. Shahsi Kant S Patil 2001 (1) SCC 416).” (Page: 15, Para: 6)

“When a court is considering whether punishment of 'termination from service' imposed upon a bank employee is shockingly excessive or disproportionate to the gravity of the proved misconduct, the loss of confidence in the employee will be an important and relevant factor. When an unknown person comes to the bank and claims to be the account-holder of a long inoperative account, and a bank employee, who does not know such person, instructs his colleague to transfer the account from "dormant" to "operative" category (contrary to instructions regulating dormant accounts) without any kind of verification, and accepts the money withdrawal form from such person, gets a token and collects the amount on behalf of such person for the purpose of handing it over to such person, he in effect enables such unknown person to withdraw the amount contrary to the banking procedures; and ultimately, if it transpires that the person who claimed to be account holder was an imposter, the bank can not be found fault with if

26

it says that it has lost confidence in the employee concerned. A Bank is justified in contending that not only employees who are dishonest, but those who are guilty of gross negligence, are not fit to continue in its service.” (Page: 15, Para: 7)

“The fact that the criminal court subsequently acquitted the Respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him.” (Page: 16, Para: 10)

Sec. 11 A De Novo enquiry – Excludes – Conducting enquiry on the basis of charge sheet issued earlier Charge sheet – De novo enquiry starts with issuance of fresh charge sheet

¥4.63 If a competent Court quashes the punishment and directs to conduct an enquiry de novo, then the

proceedings had to be properly revived from the stage to the issuance of the charge sheet and the disciplinary authority should pass some positive order on the basis of material in record. If initial action is not in consonance with Law, subsequent proceeding would not sanctify the same. In other words if the foundation is removed, the superstructure falls. In other words it is not permissible for the employer, in cases of de novo enquiry, to proceed on the basis of the charge sheet issued earlier. Hence the question of initiating a fresh enquiry without giving a fresh charge sheet could not arise.

Chairman-cum-M.D., Coal India Ltd. & Ors. v. Ananta Saha & Ors., 2011 III LLJ 165 : 2011 (129) FLR 787 : 2011 LIC 2592 : 2011 LLR 673 : 2011 (5) SCC 142 : 2011 (1) SCC (L&S) 750 (S.C.2J) CA 2958 of 2011 dt. 6-4-2011

“The High Court had given liberty to the Appellants to hold denovo enquiry, meaning thereby that the entire earlier proceedings including the charge sheet issued earlier stood quashed. In such a fact situation, it was not permissible for the Appellants to proceed on the basis of the charge sheet issued earlier. In view thereof, the question of initiating a fresh enquiry without giving a fresh charge sheet could not arise.” (Page: 173, Para: 26)

“The aforesaid order reveals that the OSD had prepared the note which has merely been signed by the CMD, ECL. The proposal has been signed by the CMD, ECL in a routine manner and there is nothing on record to show that he had put his signature after applying his mind. Therefore, it cannot be held in strict legal sense that the proceedings had been properly revived even from the stage subsequent to the issuance of the charge sheet. The law requires that the disciplinary authority should pass some positive order taking into consideration the material on record.” (Page: 173, Para: 28)

“It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.” (Page: 173, Para: 30)

Sec. 11 A Malus Animus – Heavy burden lies on the person alleging to prove with sufficient material

¥4.64 In cases of de novo enquiry if employee alleges in a Writ petition bias, prejudice or mala fide in

issuing a charge sheet for inflicting major penalty on the basis of previous report the Supreme Court held that a heavy burden is cast on the person alleging it to prove with sufficient material, the malus animus. Mere general statements will not be sufficient. In this case such allegation of pre-determined mind only to punish the employee could not be established by the material on record because the fact that the enquiry officer have consistently found the delinquent guilty of committing serious misconduct. The finding of

27

Division Bench of malice was set aside. In this case the CMD of ECL which is a subsidiary concern of CIL, was held competent to proceed with de novo enquiry.

Chairman-cum-M.D., Coal India Ltd. & Ors. v. Ananta Saha & Ors., 2011 III LLJ 165 : 2011 (129) FLR 787 : 2011 LIC 2592 : 2011 LLR 673 : 2011 (5) SCC 142 : 2011 (1) SCC (L&S) 750 (S.C.2J) CA 2958 of 2011 dt. 6-4-2011

“In respect of the allegation of bias/prejudice/malafide, ground No. 9 has been taken by the delinquent in his writ petition before the High Court, which reads as under:

For that the charge sheet was recommended with pre-determination of inflicting punishment of major penalty for which it can be proved by the remarks of the authority concerned on the situation report dated 29.6.1991 and as such, the sanctity and integrity of the proceedings are lost.

The delinquent could not point out any material on record to substantiate the said averment.” (Page: 174, Para: 33)

“The issue of "malus animus" was considered by this Court in Tara Chand Khatri v. Municipal Corporation of Delhi and Ors. MANU/SC/0549/1976 : AIR 1977 SC 567, wherein it was held that the Court would be justified in refusing to carry on an investigation into the allegation of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition and the burden of establishing mala fides lies very heavily on the person who alleges it and that there must be sufficient material to establish malus animus.” (Page: 174, Para: 34)

“We could not find any material on record on the basis of which the High Court could be justified in recording a finding of fact that disciplinary proceedings had been initiated against the delinquent with pre-determined mind only to punish him. In view of the fact that inquiry officers have consistently found the delinquent guilty of committing a serious misconduct, such an observation was totally unwarranted, particularly in view of the fact that there is nothing on record to substantiate such an averment made by the delinquent.” (Page: 175, Para: 40)

Sec. 11 A Back wages – The workman is not entitled upon direction to conduct de novo enquiry except reinstatement De novo enquiry – Entitles reinstatement only but no back wages Reinstatement – Excludes – Back wages in cases of de novo enquiry till its conclusion

¥4.65 The entitlement to get back wages is independent of the entitlement for reinstatement. Even if the

delinquent is reinstated by virtue of a de novo enquiry, it would not automatically make him entitled for back wages because it is independent of reinstatement. In such cases the only entitlement the delinquent gets is reinstatement but the employer can hold a fresh enquiry and pending this proceeding the workman can be put under suspension on payment of subsistence allowance till the conclusion of enquiry. All other entitlements will be determined by the disciplinary authority on conclusion of the enquiry. Hence the Supreme Court rejected the claim for back wages upon reinstatement following orders to conduct de novo enquiry if the employer so chooses.

Chairman-cum-M.D., Coal India Ltd. & Ors. v. Ananta Saha & Ors., 2011 III LLJ 165 : 2011 (129) FLR 787 : 2011 LIC 2592 : 2011 LLR 673 : 2011 (5) SCC 142 : 2011 (1) SCC (L&S) 750 (S.C.2J) CA 2958 of 2011 dt. 6-4- 2011

“In the last, the delinquent has submitted that this Court must issue directions for his reinstatement and payment of arrears of salary till date. Shri Bandopadhyay, learned senior counsel appearing for the Appellants, has vehemently opposed the relief sought by the delinquent contending that the delinquent has to be deprived of the back wages on the principle of "no work - no pay". The delinquent had been practicing privately i.e. has been gainfully employed, thus, not entitled for back wages. Even if this Court comes to the conclusion that the High Court was justified in setting aside the order of punishment and a fresh enquiry is to be held now, the delinquent can simply be reinstated and put under suspension and would be entitled to subsistence allowance as per the Service Rules applicable in his case. The question of back wages shall be determined by the disciplinary authority in accordance with law only on the conclusion of the fresh enquiry. It is settled legal proposition that result of the fresh inquiry in such a case relates back to the date of termination.” (Page: 175, Para: 44)

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“The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is re-instated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of re-instatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide: U.P.S.R.T.C. v. Mitthu Singh AIR 2006 SCC 3018; Secy., Akola Taluka Education Society and Anr. v. Shivaji and Ors. MANU/SC/7280/2007 : (2007) 9 SCC 564; and Managing Director, Balasaheb Desai Sahakari S.K. Limited v. Kashinath Ganapati Kambale MANU/SC/8399/2008 : (2009) 2 SCC 288).”(Page: 176, Para: 47)

Sec. 11 A Service of notice – U/s. 27 of the General Clauses Act, 1897 and Sec. 114 of Evidence Act 1872 presumption in law arises

¥4.66 If the employer sent the show cause notice and copy of enquiry report by registered post to his

address then no question of non receipt of the same arise because there is a presumption in law particularly u/s. 27 of the General Clauses Act, 1897 and Sec. 114 of Evidence Act 1872 that the addressee has received the materials sent by post.

Chairman-cum-M.D., Coal India Ltd. & Ors. v. Ananta Saha & Ors., 2011 III LLJ 165 : 2011 (129) FLR 787 : 2011 LIC 2592 : 2011 LLR 673 : 2011 (5) SCC 142 : 2011 (1) SCC (L&S) 750 (S.C.2J) CA 2958 of 2011 dt. 6-4-2011

“Similarly, we find no force in the submission made by the delinquent that he did not participate in the disciplinary proceedings and did not make any comment on receiving the inquiry report along with the second show cause notice as the notices had not been served upon him in accordance with law. The second show cause notice and the copy of the inquiry report had been sent to him under registered post. Therefore, there is a presumption in law, particularly, under Section 27 of the General Clauses Act, 1897 and Section 114 Illustration (f) of the Evidence Act, 1872 that the addressee has received the materials sent by post. (vide: Greater Mohali Area Development Authority and Ors. v. Manju Jain and Ors. MANU/SC/0627/2010 : AIR 2010 SC 3817).” (Page: 172, Para: 22)

Sec. 11 A Unauthorized Absence – Including past conduct of similar nature does not call for lesser punishment than dismissal Dismissal – Proper for unauthorized absence with similar past conduct Past Conduct – If part of the charge sheet for unauthorized absence though some action was taken in the past does not mitigate the weight of the present misconduct

¥4.67 Willful or habitual absence without sufficient cause and neglect of duty with past similar misconduct

does not call for interference in the punishment of dismissal. In case of such grave misconduct the disciplinary authority may take into consideration the past conduct for enforcing punishment of dismissal. In this case the charge sheet did specify the misconduct of unauthorized absence committed by the workman in the past also. Hence merely some action was taken against him in the past it in no way mitigates the weight of the present misconduct. The award was also perverse for the onus to prove the charges were placed on the employer even when the workman admitted he did not give prior information for his absence. Hence the award including the order of Single Judge was set aside.

Management of Bokaro Steel Plant v. State of Jharkhand & Anr., 2011 LIC 3436 (Jhar.DB) LPA 478 of 2003 dt. 13- 5-2011

“It is true that……….charge sheet itself.” (Page: 3438, Para: 7)

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Sec. 11 A Daily Wager – Compensation instead of reinstatement is the current legal position Reinstatement – Excludes – To a daily Wager compensation is proper relief Compensation – Only payable not reinstatement being the legal position in long line of cases

¥4.68 If the status of the workman was that of a daily rated and engaged not on permanent or regular post

and for some period intermittently as an when required stretching only for 3 - 4 years with due regard to the fact that the services are discontinued since last about 18 years, the relief of reinstatement was held not maintainable in consistent with current legal position but payment of compensation was held proper. Hence the compensation of ` 60,000 in lieu of reinstatement was allowed in modification of the order of Single Judge.

Executive Engineer, Minor Irrigation Dept. & Anr. v. Mahmad Rafik Nazar Mahmad Makrani, 2011 LIC 3984 (Guj.DB) LPA 3057 of 2010 dt. 31-1-2011

“……….In a recent judgement……….ends of justice.” (Page: 3986, Para: 10)

“We find that ……….deserved to be awarded.” (Page: 3986, Para: 14)

“In view of the ..........months from today.” (Page: 3987, Para: 16)

Sec.11 A Bipartite Settlement – Before striking off the name from the rolls the bank must make it sure that notice was sent to the permanent address of the employee Disciplinary Proceedings – Cannot be dispensed with before striking off the name from the rolls for unauthorized absence even under bipartite settlement Notice – Duly to be served on the workman before taking decision to striking off the name from the rolls even under bipartite settlements Unauthorized Absence – Warrants initiation of disciplinary proceedings before striking off the name from the rolls despite by late bipartite settlements

¥4.69 The employer bank cannot take advantage of Clause 17 of the Fifth Bipartite Settlement to strike off

the name of the workman from the rolls when the bank had failed to send proper notice to his permanent address calling upon him to report within 30 days. In this case the workman had sent an intimation of his inability to join duties from his native place due to illness. But no notice was sent to that permanent address. Hence desertion of duties or no intention of joining duties cannot be inferred for taking a view of deemed voluntary retirement from the bank’s service on expiry of the notice period sent to an address where the workman was admittedly not residing. It is not that the permanent address was not recorded in the bank’s records. Besides, the bank was in error in not initiating appropriate disciplinary proceedings when his livelihood was sought to be deprived of. The order to reinstate passed by the Courts below was upheld.

UCO Bank v. Jaglal Ram & Ors., 2011 LIC 4027 (Cal.DB) FMA 468 of 2010 dt. 22-3-2011

“The Central point……….was relied upon.” (Page: 4035, Para: 28)

“Right to work……….clause of clause 17.” (Page: 4035, Para: 29)

Sec. 11A Defence Assistant – If opportunity of assistance was refused by the delinquent he cannot allege enquiry vitiated Enquiry – Cannot be held vitiated if the opportunity to get the assistance of a defence assistant was refused

¥4.70 In the proceedings in a domestic enquiry for the misconduct of a conductor for non issue of tickets

and brash behavior before the checking staff leading to his dismissal his dispute before the labour Court was answered against him, despite his contention that the enquiry was vitiated for the reason that he was not provided with a defence assistant and the documents sought were not provided. The single judge

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dismissed his petition for the reason that there were records proving full opportunity given to him including to take the assistance of a defence assistant which he had rejected. The required prosecution documents were also made available to him by the Depot Manager. He had also cross examined the management witnesses. His appeal before the Division Bench also met the same fate as before the single judge for the same reason.

Virender Singh Conductor B.No. 21473 v. Delhi Transport Corporation, 2009 IV LLN 177 : 2009 II CLR 439 (Del.DB) LPA 1189 of 2007 dt. 18-4-2009

“It is thus seen that the Circular……….on every enquiry date has to be rejected.” (Page: 179, Para: 5)

“The next contention of the appellant's……….natural justice must be rejected.” (Page: 179, Para: 6)

Sec.11A Reinstatement – Cannot be done where there is long history of acrimonious litigation leading to a trust deficit Trust Deficit – Is a strong reason for refusing reinstatement Compensation – Is proper instead of reinstatement in cases of trust deficit

¥4.71 Every illegality in termination ipso facto does not attract the relief of reinstatement. Where there is

long history of litigation and acrimony between the parties leading to a trust deficit especially in the case of a Charitable Hospital the relief of compensation was held proper. The exercise of power u/s. 11A by the labour Court granting only compensation was upheld by the single judge and the Division Bench.

Mohd. Shakir v. Sunder Lal Jain Hospital, 2010 I LLJ 245 : 2009 (122) FLR 618 : 2009 II CLR 736 (Del.DB) LPA 240 of 2009 & CM 7284 of 2009 dt. 19-5-2009

“The learned single Judge rightly held……….intention to harass him.” (Page: 246, Para: 3)

“We see no infirmity in the conclusion……….atmosphere in a Charitable Hospital.” (Page: 246, Para: 4)

Sec.11A Principle of Proportionality – Tribunal can apply if pension 100% was stopped with gratuity for minor negligence Gratuity – Cannot be stopped for negligence carelessness irregularity Pension – Cannot be stopped 100% for negligence carelessness irregularity Disciplinary Authority – Has to reconsider the harsh punishment of stoppage of pension 100% with gratuity for negligence carelessness irregularity

¥4.72 The employer hospital had proceeded against the Administrative Officer for the theft of cash to the

tune of ̀ 16,17,058 from the cash box though he was not functioning as in charge of cash and the cashier was responsible for the cash. Notwithstanding this a punishment of 100% cut in pension and withholding of gratuity in full was imposed upon him on the ground of irresponsibility, negligence, carelessness, irregularity etc. Upon challenge the Industrial Tribunal set aside the punishment and held that the punishment was too harsh which pricks the judicial conscience. The tribunal remanded the matter to the employer to impose the punishment of cut in a part of pension and to release the gratuity. The writ petition upheld the remand to the disciplinary authority to modify the punishment because there was no connivance on his part though there was some bit of negligence and hence on the principle of proportionality the punishment requires to be reconsidered by the disciplinary authority.

Government of Andhra Pradesh (represented by its Ex-Officio Secretary, Health, Medical & Family Welfare Department), Hyderabad, & Anr. v. M. M. Krishna Kumar, 2010 III LLN 101 (AP.DB) WP 21800 of 2009 dt. 22-2- 2010

“A perusal of G.O.Ms.No.70 dated……….the doctrine of proportionality.” (Page: 105, Para: 8)

“In so far as punishment imposed……….interference by this Court.” (Page: 106, Para: 10)

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“Since the petitioner has……….liable to be set aside.” (Page: 106, Para: 11)

Sec.11A Extraordinary Leave – Is not an embargo for conducting an enquiry Gainfully Employed – Or not is the basis for awarding the back wages Back wages – Cannot be awarded without an enquiry into the gainful employment

¥4.73 Grant of extraordinary leave without pay is not an embargo for holding an enquiry in respect of

unauthorised absence of the workman for nearly 7 years. In this case the workman remained absent unauthorisedly from 11 August 1995 to March 2002. Employer terminated his services from 1995 without enquiry. The tribunal holding the punishment illegal reinstated him with back ages. The High Court upon challenge allowed the employer to conduct an enquiry into the fact that whether or not the workman was gainfully employed during the period of such absence for granting back wages. Merely because extraordinary leave was granted it is not a condonation against conducting an enquiry into the absence. The order of the tribunal was set aside.

Chief Engineer, Irrigation Department, Nagpur, & Ors.V. Aashish Son of Vasantrao Dabhade & Anr., 2010 III LLN 144 (Bom.DB) WP 4975 of 2009 dt. 3-3-2010

“It is not possible……….in the above terms.” (Page: 145, Para: 6)

Sec. 11A Acquittal – On technical ground from criminal charges is not sufficient to treat the dismissal non est for assault and reinstate a workman Assault – With non co-operation in the enquiry leading to the dismissal cannot be set aside on the ground of PNJ Dismissal – Proper for assault Ex-Parte Enquiry – For assault of G.M. due to consistent and deliberate non co-operation cannot be called into question Misconduct – Of assault calls for the punishment of dismissal

¥4.74 The services of the workman were terminated for the reason that they instigated and incited the

workmen to indulge in riotous and disorderly behaviour and gheraoing and assaulting the General Manager in front of the huge gathering of employees. As neither the notice nor the charge sheet was accepted and he did not attend to the enquiry proceedings deliberately, an ex -parte enquiry was conducted leading to his dismissal from service. The tribunal set aside the dismissal on the ground that the employer completed the enquiry with in five to six days when the workman was in jail and that he was acquitted of the charges in the criminal cases. Reversing the award the Single Judge held that the workman was given enough opportunity after release from jail by the fact that the enquiry proceedings were held over a period of 5 months and that the workman was acquitted only on technical ground. The Division Bench upheld the same.

Surinder Kaushik v. General Manager, Badarpur Thermal Power Station, 2010 III LLN 221 (Del.DB) LPA 108 of 2007 dt. 9-2-2010

“It is in line with the above stand……….clearly erroneous and perverse.” (Page: 225, Para: 11)

“On the second issue, the learned single……….technical ground and not based on merits.” (Page: 226, Para: 12)

Sec.11A Tamil Nadu Pension Rules – Allow only recovery of pecuniary loss a rate not exceeding 1/3 of the pension Pension – Recovery of pecuniary loss is permissible not exceeding 1/3 of the same

¥4.75 The employer imposed a penalty by 50% cut in pension for a period of 36 months after issuing

charge sheet and an enquiry only after the workman had superannuated. The Single Judge held that the punishment was in accordance with law. Upon challenge the Division Bench modified the punishment to a cut of 1/3 pension instead of 50% for a period of 36 moths and not more than that in keeping with Rule

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9 (5) of the Tamil Nadu Pension Rules, 1978 in which recovery of pecuniary loss shall not be made at a rate exceeding 1/3 of the pension.

Aziz Ahmed v. Government of Tamil Nadu (represented by its Chief Secretary, Public (Special A) Department) Chennai, 2010 III LLN 465 (Mad.DB) WA 695 of 2008 dt. 24-6-2010

“It is, thus, evidently clear that……….of a Government servant.” (Page: 468, Para: 10)

“In the instant case, it is seen that……….for a period of 36 months and not more.” (Page: 468, Para: 11)

Sec.11A Witness – It is not necessary for the enquiry officer to examine any suggested by the defence as prosecution witness if the charges can be proved even by a solitary one Prosecution Witness – Can be solitary Bank Officer – Committing fraud if dismissed it cannot be called into question for not examining the witness suggested by him as management’s witness Fraud – By bank officer calls for dismissal after an enquiry

¥4.76 It is up to the presenting officer to present the prosecution witnesses as listed in the charge sheet to

substantiate the charges framed. The enquiry officer cannot be compelled to examine any particular witness in the disciplinary proceedings. The only requirement is that whether the materials and evidence produced had nexus with the conclusions arrived at by the enquiry Officer and withholding of any evidence had an effect of adverse inference. In this case the bank officer had proceeded with following encashment of two cheques to the tune of ` 3.69Lakh by forging the signatures of the customer fraudulently on the charges of failing to take all possible steps to ensure and protect the interest of the Bank and discharge his duties with utmost integrity, honesty diligence and devotion and exhibition of a conduct unbecoming of an officer of the bank. He assailed his dismissal on the ground that the prosecution failed to examine a specific witness and failed to produce certain documents sought by him. The single judge rejected the petition on that the evidence of one witness itself was held sufficient to prove the charges and evidence of the other witness was not relevant and he had raised no objection for rejection of documents sought on the ground it being confidential disentitling him to raise the same now. The Division Bench upheld the same.

V. Marimuthu v. R. Ramachandran & Ors., 2010 LIC 2484 (Mad.DB) WA 366 of 2008 dt. 16-4-2009

“It is not disputed that……….of adverse inference.” (Page: 2487, Para: 9)

“From the above……….bar in such course.” (Page: 2488, Para: 11)

“As regards the documents……….the enquiry proceedings.” (Page: 2489, Para: 19)

Sec.11A Acquittal – In criminal cases is not a ground to question the validity of dismissal in domestic enquiry especially when the charges were based on different set of facts Criminal Proceeding – Acquittal by itself is not a ground to question the dismissal in domestic enquiry especially when the charges were based on different set of facts Different set of facts – Dismissal in domestic enquiry cannot be called into question merely because he was acquitted in criminal charges

¥4.77 A departmental enquiry on different set of charges than in the criminal proceedings can validly be

proceeded with and an acquittal in criminal case is no ground to question the validity of dismissal from service after a domestic enquiry on different charges.

V. Marimuthu v. R. Ramachandran & Ors., 2010 LIC 2484 (Mad.DB) WA 366 of 2008 dt. 16-4-2009

“In the present case……….not applicable to the facts of this case.” (Page: 2490, Para: 20)

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Sec.11A Habitual Absence – Clause of the standing order can be invoked to strike off the name from the roll holding the workman had abandoned the duties Striking Off the Rolls – In terms of the standing order is proper for habitual absence

¥4.78 When the workman remained absent unauthorizedly from duty for 13 days in August 1987, 13 days

in September 1987, 18 days in October 1987, and 13 days in November 1987 total 57 days in a period of 4 months, the employer struck off his name from the muster roll under clause 20 (xi) of the standing order on the ground of abandoning or not reporting to duty. The tribunal reversing the action reinstated him in service for violation of Sec. 25 F of the Act. The Single Judge set aside the same and the Division Bench upheld the said decision on the ground that in the past also he was warned for similar act. The Court expressed its inability to direct the employer to grant compensation to the widow of the workman who was prosecuting the case following the death of the workman since it was the prerogative of the employer. It was for the employer to consider the representation or not in its wisdom under the facts and circumstances of the case.

Workman Sri P.C. Manjhi v. Management of Bokaro Steel Plant, 2011 (130) FLR 123 : 2011 II CLR 906 : 2011 LLR 846 (Jhar.DB) LPA 301 of 2009 dt. 5-5-2011

“We have considered the……….was a habitual absentee.” (Page: 124, Para: 4)

“Learned Counsel……….to the workman’s wife.” (Page: 124, Para: 6)

Sec.11A Promotion – If denied wrongfully then the workman so wronged will not be entitled to full back wages of the promoted post but only for 50% of that Back wages – Payable in case of denial of promotion to higher post cannot be full but only 50%

¥4.79 The senior workman was not offered the promotion but his junior superseded him. The justification

was that they belonged to different streams. The tribunal found that both of them were appointed as clerks and the senior could not have been denied the promotion on such perverse grounds. It granted him all the benefits accruing out of promotion including the back wages of higher posts. The writ petition there against was dismissed. In letters Patent Appeal the Division Bench held that full back wages in the promoted post cannot be paid for the simple reason that the workman had not worked in the higher post to which he was ordered to be promoted. At the same time the workman was deprived of the wages of the higher post on account of wrongful action of the management. Balancing the above factors it is reasonable to modify the award by directing the employer to pay 50% of the back wages only payable to the higher post.

Punjab Land Development & Reclamation Corp. Ltd. v. Presiding Officer, Industrial Tribunal, Punjab & Anr., 2011 (130) FLR 946 (P&H.DB) LPA 284 of 2009 dt. 7-10-2010

“We would now deal……….which he is to be promoted.” (Page: 948, Para: 7)

Sec. 11A Back Wages – Is payable only 25% if it cannot be ruled out that the daily wager during the forced unemployment was not gainfully employed Gainful Employment – If cannot be ruled out the daily wager for illegal te5rmination is entitled only for 25% backwages

¥4.80 An illegal termination in violation of Sec. 25F though leads to an order of reinstatement in normal

cases, back wages payable only if it was not found absolutely that the workman was not gainfully employed. But in this case as the workman was only a daily wager it cannot be ruled out that he was not gainfully employed. Hence the Division Bench modified the award granting 40% back wages into 25% back wages in this case.

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State of M.P. & Anr. v. Mishri Lal, 2011 (131) FLR 819 (MP.DB) WP 10337 of 2006 dt. 21-4-2011

“In the instant case……….date of reference.” (Page: 821, Para: 12)

Sec.11A Criminal proceedings – And domestic proceedings are based on different footings Acquittal – If based on positive finding of innocence in criminal proceedings has some relevance to free from the culpability in departmental proceedings Sub Post Master – Not acquitted on honourable grounds in criminal prosecution cannot contest his dismissal in the domestic enquiry

¥4.81 The charge, leading to the dismissal of a Sub. Post Master after a departmental enquiry, was

misappropriation of money in the transaction of Kisan Vikas Patras. But in the same matter the said workman, though proceeded with criminally, his culpability was not proved in the criminal proceedings as the proof therein requires beyond any shadow of doubt. Hence he was acquitted only on a technical ground of insufficiency of evidence etc. The tribunal wherein he challenged his dismissal rejected his pleas. The review petition was also, came to be dismissed. The Division Bench upheld his dismissal and held that his acquittal cannot be said to be on honourable grounds based on a positive finding of innocence. Since the two proceedings are based on different footings one on preponderance of probability and the other beyond any shadow of doubt his dismissal on the basis of a fair domestic enquiry cannot be set aside.

M. K. Sharma v. Union of India & Ors., 2011 I LLN 717 (Del.DB) WP 9306 of 2009 dt.23-9-2010

“Perusal of the relevant……….in the Disciplinary proceedings.” (Page: 730, Para: 24)

“Thus, an “honourable acquittal’……….innocence of the accused.” (Page: 731, Para: 29)

Sec. 11 A In house proceedings – Two adjournments are sufficient Domestic enquiry – Two adjournments are sufficient Admission – Of guilt requires no chance need be given for rebuttal by enquiry officer Ajournment – Only two in in-house proceedings are sufficient

¥4.82 The principles of natural justice cannot be stretched to a point where they would render the in-house

proceedings unworkable. If the delinquent fails to attend the enquiry for the first and second and even did not directly notify to the enquiry officer his inability to attend for the third time also in a row, the exparte enquiry holding the charges proved cannot be faulted. Three barren dates in an in house proceeding warrants no further adjournments. Secondly when the workman admitted the guilt of misappropriation there is no question of allowing him a further chance for rebuttal by the enquiry officer. Hence the award of Tribunal and order of High Court to the contrary was set aside.

State Bank of India v. Hemant Kumar, 2011 II CLR 1 : 2011 II LLJ 517 : 2011 LIC 1828 : 2011 AIR (SC) 1890 (S.C.2J) CAJCA 2957 of 2011 dt. 6-4-2011

“The second reason assigned by the Tribunal that the Enquiry Officer should have allowed the Respondent the opportunity to lead evidence in rebuttal is also without substance in the overall facts of the case. The Respondent had already tendered two admissions of guilt in writing and one orally before PW.1 and there was hardly anything that could be said on his behalf to repel the charges.” (Page: 4, Para: 11)

“We are, therefore, satisfied that the Tribunal's findings are wholly unreasonable and perverse and fit to be set aside. The High Court, unfortunately, did not consider the matter as it should have, in light of the discussions made above. The High Court's order is equally unsustainable. We, accordingly, set aside the order passed by the High Court and the award made by the Tribunal.” (Page: 4, Para: 12)

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“Against the order passed by the disciplinary authority, the Respondent preferred an appeal and during the pendency of the appeal he submitted yet another letter admitting his guilt in writing, presumably hoping that a lenient view would be taken in the appeal. In the memo dated December 10, 1986 addressed to the Manager, State Bank of India, the Respondent stated as follows:

Dear Sir,

Subject: Entry dated 26.09.93 for Rs. 14,000/-.

With reference to above, I committed a fraud by wrong crediting Rs. 14,000/- on 26.09.93 which was Sunday in SB account No. 1287 of Shivani and lt. col. G.G. Agrawal and I was closing the wrong balancing of ledger No. 10 --- months. For which I am extremely sorry and shameful. I beg you to --- for this shameful act and I promise you not to do such thing in future.” (Page: 3, Para: 7)

“The Tribunal has assigned two reasons for holding that the departmental enquiry held in the case was in violation of the principles of natural justice. First, it held that the Respondent had sent an application through post for adjournment of the enquiry on December 14, 1994 on the ground that he had sustained injuries and even though this application had not reached the Enquiry Officer it was his duty to find out from the bank whether or not such a letter was received and secondly, even after examining PW.1 ex parte the Enquiry Officer should have given another opportunity to the Respondent to lead evidence in rebuttal. In this connection, the Tribunal made the following observations:

In the instant case I find that after 14.12.94 the witness of the management were (sic was) examined but no opportunity was given for adducing evidence in defense. Apart from this I find that the concerned workman had applied through post and (sic for) adjournment on 14.12.94 on the ground that he had sustained injuries. Before this tribunal concerned workman has adduced evidence to prove that fact that he had applied for adjournment through post. O.P. Chaudhary PW1 enquiry officer has stated that he had not received any such application. However, he had admitted in cross-examination that the mail is received in the office of the bank premises. It appears that from the bank this letter was not handed over to the enquiry officer. In any case it is held that application was sent by post and in this way there is a presumption that such application would have been reached the addresses. Hence, the concerned workman had applied for adjournment. There was no inordinate delay in holding of enquiry as it was only third date of hearing hence it cannot be said that the concerned workman had adopted dilatory tactics.” (Page: 3, Para: 9)

“We are of the view that both the reasons assigned by the Tribunal for condemning the departmental enquiry as defective are completely untenable. The principles of natural justice cannot be stretched to a point where they would render the in-house proceedings unworkable. Admittedly, the Respondent had not appeared for the enquiry on two earlier dates. On the third date too he was absent and there was no intimation from him before the Enquiry Officer, yet the Tribunal insists that it was the duty of the Enquiry Officer to find out from the concerned department of the bank whether any intimation or application was received from the Respondent. Let us take a case where the enquiry is not being held in the bank premises or even in the same town, where the concerned branch of the bank is located. In such a situation, it may take hours or even a day or two to find out whether any letter or intimation from the person facing the enquiry was received in the bank and for all that time the Enquiry Committee would remain in suspended animation. The Tribunal's observation that it was only the third date of hearing and hence, it could not be said that the Respondent had adopted dilatory tactics can only be described as unfortunate. We completely reject the notion that three barren dates in an in-house proceeding do not amount to delay. Let the in-house proceedings at least be conducted expeditiously and without in any undue loss of time.” (Page: 4, Para: 10)

Sec. 11 A Acquittal – In criminal case is not sufficient to set aside the dismissal on domestic enquiry Domestic Enquiry – Charges and witnesses being not same & without additional witnesses & charges being grave acquittal in criminal case cannot be a cause to quash dismissal imposed

¥4.83 The workman was dismissed from service for the misconduct of cutting the cash chest and theft,

caught red handed. In criminal trial, he was though convicted by trial court was acquitted by High

36

Court. The Labour Court where the dispute was pending held the enquiry fair and misconduct proved & hence rejected the reference. Whereas the single judge based only on acquittal modified the award into termination thereby directing the employer to pay terminal benefits but no back wages. The Division Bench on the basis of petition by the workman directed his reinstatement with all consequential benefits & 50% back wages. The Supreme Court set aside the order of Division Bench which had set aside the award & reversed the order of Single Judge. The Supreme Court reiterated that the Division Bench did not arrive at a finding that the charges leveled in the domestic enquiry were the same as in criminal trial, the witness had been the same, there were no additional witnesses, & without considering the gravity of charge but relied only on acquittal for the decision. In this case, as employer did not challenge the order of single judge, the Supreme Court upheld the order of Single Judge & set aside that of Division Bench.

Divisional Controller, KSRTC v. M.G. Vittal Rao, 2011 III CLR 1075 : 2012 I LLJ 320 : 2012 LLR 8 : 2012 (1) SCC 442 : 2012 (3) Mah.LJ 169 (S.C.2J) CAJCA 9933 of 2011 dt. 18-11-2011

“The domestic enquiry found the delinquent employee guilty of all the charges. The enquiry report was accepted by the Disciplinary Authority and there is no grievance on behalf of the Respondent-workman that statutory provisions/principles of natural justice have not been observed while conducting the enquiry. The Disciplinary Authority imposed the punishment of dismissal from service which cannot be held to be disproportionate or non- commensurate to the delinquency. The Labour Court after reconsidering the whole case came to the conclusion that the enquiry has been conducted strictly in accordance with law in a fair manner and charges have rightly been proved against the delinquent employee. However, considering the difference in the standard of proof required in domestic enquiry, vis--vis that applicable to a criminal case, the Labour Court repelled the argument of Respondent- workman that once he stood acquitted he was entitled for all relief's including re-instatement and back wages. The learned Single Judge as well as the Division Bench had simply decided the case taking into consideration the acquittal of delinquent employee and nothing else.” (Page: 1083, Para: 24)

“In view of the aforesaid settled legal propositions that there is no finding by the High Court that the charges leveled in the domestic enquiry had been the same which were in the criminal trial; the witnesses had been the same; there were no additional or extra witnesses; and without considering the gravity of the charge, we are of the view that the award of the Labour Court did not warrant any interference.

Be that as it may, the learned Single Judge had granted relief to the delinquent employee which was not challenged by the present Appellant by filing writ appeal. Therefore, the delinquent employee is entitled for the said relief.” (Page: 1083, Para: 25)

“In view of the above, we dispose of the appeal holding that the delinquent employee shall be entitled only to the relief granted by the writ court and the judgment and order of the court in writ appeal is set aside. The benefit of the judgment of the learned Single Judge may be made available to the delinquent employee within a period of 4 months from the date of production of the certified copy of the order before the Appellant.” (Page: 1083, Para: 26)

Sec.11A Disciplinary Authority – Findings are subservient to that of the criminal Court if the charges are identical based on the same set of facts Acquittal – In criminal proceedings will prevail over the findings of the Disciplinary Authority if the charges were identical on same set of facts Charges – If identical based on the same set of facts acquittal in criminal charges will prevail over the findings of disciplinary authority Domestic Enquiry – Results cannot be different than that of criminal proceedings if the charges are identical arising out of same set of facts

¥4.84 In all cases it cannot be construed that the criminal case and the departmental proceedings fall on

different planes and hence it cannot be held that acquittal in former cannot bring relief against infl iction of punishment in the later. It is held that where the charges are identical in both the proceedings arising out of the same set of facts the findings of the criminal Court will prevail being the order of a judi cial authority upon the findings of the Disciplinary Authority because though the provisions of the Evidence Act may not apply but the Principles of Natural Justice are. Hence any reliance of a charge without

37

proof but merely on surmises and conjectures or on mere suspicion cannot take the place of legal proof. In this case, the order of reinstatement of constable on charges of robbery cannot be set aside as the main de facto complainant himself was not examined and there were contradictory evidences of other prosecution witnesses. The Division Bench upheld the findings of courts below directing to reinstate the constable.

State of West Bengal & Ors. v. Vidyasagar Pandey & Anr., 2011 III LLN 157 (Cal.DB) WPST 606 of 2009 dt. 24- 11-2010

“The contradictory……….learned Magistrate.” (Page: 161, Para: 13)

“Upon considering……….learned Tribunal.” (Page: 162, Para: 19)

Sec. 11A Unauthorised Absence – Once the workman admitted that he did not give any prior information for his absence, the onus cannot be put on the employer Onus of Proof – Cannot be put on the employer once the workman admitted that he did not give any prior information for his absence

¥4.85 In respect of the charges of unauthorized absence of a workman, it was held that once he admitted

that he did not give any prior information for his absence, the onus to prove for such charges of absence cannot be put on the employer. The Labour Court had erroneously placed the onus on the employer. The Single Judge also erroneously upheld the same. The Division Bench held that the findings of courts below is perverse and set aside the award reinstating the workman with 50% back wages and restored the [punishment of dismissal imposed on the workman.

Management of Bokaro Steel Plant v. State of Jharkhand & Anr., 2011 LIC 3436 (Jhar.DB) LPA 478 of 2003 dt. 13- 5-2011

“……….As noticed above……….information for his absence……….” (Page: 3438, Para: 7)

Sec.11A Past Conduct – Once mentioned in the charge sheet it can be relied on no matter action was taken against him in the past

¥4.86 Past conduct of the workman in frequently remaining unauthorisedly absent cannot be ignored

saying that action was taken previously against the workman for those absences especially when the past absenteeism was clearly informed to him in the charge sheet itself for the similar subsequent misconduct. Hence the Division Bench set aside the award of the Labour Court and the decision of the Single Judge holding the punishment of dismissal was bad and restored the punishment.

Management of Bokaro Steel Plant v. State of Jharkhand & Anr., 2011 LIC 3436 (Jhar.DB) LPA 478 of 2003 dt. 13- 5-2011

“……….As noticed above……….information for his absence……….” (Page: 3438, Para: 7)

“Thus, we are of the……….stands vacated.” (Page: 3439, Para: 8)

Sec. 11-A Insubordination – And disobedience of lawful orders of superiors must attract stoppage of two increments with denial of back wages instead of dismissal Dismisssal – Is disproportionate to the misconduct of insubordination & disobedience to lawful orders of superiors but the stoppage of two increments with denial of back wages proper Increments – Stoppage of two with cumulative effect must for insubordination and disobedience of orders of superiors Misconduct – of Insubordination calls for stoppage of two Increments with cumulative effects

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¥4.87 The misconduct of insubordination and disobedience of lawful and reasonable orders of the superiors cannot be confronted with a punishment of dismissal which will be disproportionate to the charges. However denial of only back wages as punishment by the tribunal and Single Judge is also not sufficient. Hence in such cases additionally stoppage of two increments with cumulative effect must be appropriate in addition to denial of back wages instead of dismissal which will be harsher in the facts & circumstances of the case. The Division Bench modified the proportionality of punishment imposed by courts below accordingly.

The Management of Indian Institute of Management, Bangalore, rep. by its Chief Administrative Officer v. D. Manikya, 2011 II LLJ 656 : 2011 III LLN 270 (Karn.DB) WA 379 of 2010 C/W 2457 of 2010 dt. 23-11-2010

“The Labour Court has misdirected……….order of the Labour Court.” (Page: 658, Para: 8)

“Therefore……….following order.” (Page: 658, Para: 9)

Sec. 11 Interim order of tribunal – Cannot be challenged in a Writ Petition Writ Petition – Is not maintainable against an interim order of Tribunal

¥4.88 No Writ Petition is maintainable against an interim order of the Tribunal, that being not the final

order. The Supreme Court upheld the order of Single Judge and Division Bench in this regard.

Dena Bank v. D. V. Kundadia, 2011 III CLR 415 : 2011 (131) FLR 775 : 2012 LLR 115 (S.C.2J) PSLA 17543 of 2010 in LPA 266 of 2009 dt. 16-7-2010

“It is well settled by this Court that no writ should be entertained against an interim order of the Labour Court or the Industrial Tribunal. It is only when a final award is given, then a party should be allowed to challenge it if he is aggrieved.

In the present case, the order of the Tribunal dated 28.5.1997 was only an interim order and it did not decide the reference finally. Therefore, the writ petition was rightly dismissed. Hence, we are not inclined to interfere in this matter.

The Special Leave Petition is dismissed accordingly.” (Page: 415, Para: 2 to 4)

Sec.11A Enquiry – If defective it amounts to no enquiry Dismissal – For using a leaf of demand draft without any intention to defraud the Bank by the workman will not sustain Demand Draft – A leaf taken not for misuse, cannot be termed as “gross misconduct”

¥4.89 The enquiry held, to nail the misconduct of removing one leaf of demand Draft to furnish as security

against loan taken by the delinquent from a money lender being Prima facie defective it amounted to no enquiry. In this case there was no financial loss to the bank, nor the misconduct could be termed as “gross misconduct’’. No opportunity to defend her self in the enquiry was provided. The bank had just used against her, her own admission of the transaction. The Bank failed to lead any further evidence to substantiate the charges. The Division Bench therefore upheld the award & the order of Single Judge, setting aside the dismissal, reinstating her in service inasmuch as the scope of interference is limited, the jurisdiction in writ being only supervisory in nature.

Bank of India, Zonal Office, Ludhiana v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh & Anr., 2011 III CLR 1023 (P&H.DB) LPA 1014 of 2011 dt. 19-10-2011

“The Labour Court……….used against her.” (Page: 1024, Para: 2)

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“The Labour Court……….before the labour Court.” (Page: 1025, Para: 3)

“Learned Counsel……….dismissed the appeal.” (Page: 1026, Para: 9)

Sec. 11A Prayer – Relief cannot exceed what is sought there in Back wages – Granting if only contested the Court cannot grant the prayer beyond that even by quashing reinstatement

¥4.90 The award of Labour Court was for reinstatement and back wages. But the employer contested

before the Single Judge only the award for back wages as exemplified in the prayer. However the Single Judge set aside the whole of the award not withstanding the prayer. The Division Bench upheld the same as the workmen was only a Daily Wager holding that the technicality impinging upon the decision will not obliterate it. The Supreme Court set aside both the decisions of Single Judge and Division Bench and reinstated the workman without back wages and held that the party must be held to be bound by its pleadings and a prayer clause cannot be dubbed to be a mere technicality. The relief cannot be given beyond the prayer.

Ranbir Singh v. Executive Engineer, 2011 II CLR 677 : 2011 II LLN 28 : 2011 LLR 612 (S.C.2J) CA 5 of 2011 dt. 3-1-2011

“Before us today, the learned Counsel for the Appellant has argued that in the writ petition filed by the Respondent- State challenging the Award of the Labour Court, the only plea was against the grant of back wages and nothing more. In support of this submission, the learned Counsel has drawn our attention to the writ petition which has been appended with the paper book. We find that the assertion of the learned Counsel is correct. We are, therefore, of the opinion that the order of the Single Judge as well as of the Division Bench was well beyond the scope of the prayers in the writ petition If the State felt aggrieved by the Award of the Labour Court in to there was no impediment in its way to challenge it in its entirety. We feel that a party must be held to be bound by its pleadings; a prayer clause cannot be construed or dubbed as a technicality. We are, therefore, of the opinion that the appeal deserves to succeed. We, accordingly, allow the appeal and set aside the orders of the Single Judge as well as the Division Bench and restore the order of the Labour Court to the extent of reinstatement. We are also told by the learned Counsel for the Appellant that the Appellant had in fact been reinstated but after the order of the Division Bench his services had again been terminated in December, 2009. We, accordingly, direct that the back wages envisaged would be payable only from January 2010 onwards till his reinstatement as a consequence of this order.” (Page: 678, Para: 3)

Sec. 11A Moral Turpitude – Includes – Even conviction to undergo rigorous imprisonment U/s. 323/149 AND 148 of I.P.C Conviction – U/s. 323/149 and 148 of I.P.C is sufficient to bring the offence under the doctrine of ‘moral turpitude’ Dismissal – For conviction U/s. 323/149 and 148 of IPC being moral turpitude cannot be interfered with Proportionality of Punishment – The doctrine cannot be applied to interfere with punishment involving moral turpitude

¥4.91 A workman even if convicted u/s. 323/149 and 148 of the IPC to undergo rigorous imprisonment for

a period of 6 months especially because of the nature of offence engrafted u/s. 148 of IPC was held involved in an offence within the meaning of “moral turpitude”. An administrative decision to dismiss the said workman cannot be interfered with on the doctrine of proportionality as the same under such circumstances cannot said to be shocking to the judicial conscience. The award of Labour Court and order of Single Judge interfering with the punishment was set aside and dismissal upheld.

BSES Rajdhani Power Ltd. v. Union of India & Ors., 2011 II CLR 1051 (Del.DB) LPA 647 of 2010 dt. 4-7-2011

“In the case in hand……….totally unreasonable.” (Page: 1063, Para: 35)

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Sec. 11A Back wages – Can be denied if in exercise of discretionary jurisdiction the Labour Court holds that punishment is harsh not that removal is illegal Discretionary jurisdiction – If not arbitrary or perverse, by Labour Court, the High Court cannot interfere with Removal from service – If not found illegal mere harshness of punishment can be softened, by only denying back wages, High Court cannot restore the back wages

¥4.92 When the workman in his status as a casual conductor, was removed from service for certain

misconduct, it is natural that the employer can no more repose confidence in him. Yet he obtained employment again by virtue of a fresh recruitment drive for 300 vacancies without employer aware of the fact that earlier he was removed from the job. As soon as, his antecedents were discovered, after due enquiry he was removed from service. The Labour Court reinstated him without back wages by exercising jurisdiction u/s. 11A. The High Court did not interfere.The Supreme Court held that though an order of removal may not bar reemployment the finding is not that removal was not due to malafides. It only held that punishment is harsh. When the discretionary jurisdiction is not arbitrary or pervers , the High Court could not have interfered with the award. The denial of back wages was upheld. However as the workman has obtained some other work with some other employer, question of reinstatement does not arise. Back wages paid if any was held not to be revered.

Depot Manager, Andhra Pradesh State Road Transport Corp. v. P. Jayaram Reddy, 2009 II LLJ 530 : 2009 (120) FLR 802 : 2009 I LLN 472 : 2009 I CLR 447 : 2009 (2) SCC 681 : 2009 (1) SCC (L&S) 529 (S.C.2J) CA 7406 of 2008 dt. 18-12-2008

“The learned Presiding Officer, Labour Court considered the entire matter. He opined that the punishment of removal from service imposed upon the respondent was `very much harsh, disproportionate and unjustified'. There is no finding that the order of removal was wholly illegal and, thus, void ab initio. As noticed hereinbefore, the validity and/or legality of the domestic enquiry was upheld. The Labour Court in exercise of its power under Section 11A of the Act may substitute one punishment for the other in the event it comes to the conclusion that the quantum of punishment is disproportionate to the gravity of the misconduct wherewith the delinquent employee was charged. It is one thing to say that the order of reinstatement with back wages is a logical corollary of a finding that the order of termination is wholly illegal and without jurisdiction but it is another thing to say that the punishment imposed being very harsh and disproportionate and, therefore, was found to be unjustified. Whereas in the former case, back wages may or may not be granted keeping in view the facts and circumstances of the case but in the latter the labour court may substitute one punishment for the other. The award of the labour court belongs to the second category of cases. If that be so, the High Court was bound to consider as to whether it should interfere with such a discretionary jurisdiction exercised by the Labour Court. It has not been found by the High Court that the discretionary jurisdiction exercised by the labour court was otherwise arbitrary or perverse. It posed unto itself a wrong question, namely, whether the respondent was in gainful employment or not and not the right question, namely, whether the jurisdiction has lawfully been exercised or not. The judgment and order passed by the High Court, therefore, amounted to misdirection in law.” (Page: 533, Para: 13)

“For the reasons aforementioned, the impugned judgment of the High Court cannot be sustained, and is set aside. The appeal is allowed accordingly. However, the amount of ̀ 83,954 already paid by way of back wages may not be recovered from the respondent.” (Page: 534, Para: 18)

Sec.11A Increments – Not payable if there is no order to that effect Out of service – Excludes–Payment of increments Attendant benefits – If excluded the workman is not entitled to annual increments during the period when he remained out of service

¥4.93 By reason of a compromise by the terms of a contact the dismissed workman was reinstated by the

Labour Court with continuity of service without att endant benefits and back wages. As a result thereof when the workman was denied the increments he filed a writ petition. The Single Judge allowed the same and writ appeal was barred by limitation. The Supreme Court condoning the same remitted the matter to Division Bench which allowed the prayer of employer. The Supreme Court affirming the judgment of

41

Division Bench held that as the workman was not in service from October 1, 1983 to February 15, 1989 he would not be entitled to increment besides there is no award to the effect that termination was ab initio illegal.

V.V.G. Reddy v. Andhra Pradesh State Road Transport Corporation, Nizamabad Region & Anr., 2009 II LLJ 489 : 2009 (120) FLR 1013 : 2009 I CLR 423 : 2009 LLR 561 : 2009 (2) SCC 668 : 2009 (1) SCC (L&S) 435 : 2009 AIR (SC) 1654 (S.C.2J) CA 99 of 2009 dt. 13-1-2009

“Appellant has not been directed to be reinstated in service by reason of an Award holding that the order of termination was wholly illegal and, thus, void ab initio. On what premise, parties entered into a compromise is not known. It is possible to hold that findings of the Enquiry Officer which might have been accepted by the disciplinary authority holding him guilty of misconduct had not been set aside; the Management might have thought that denial of back wages and attendant benefits would be sufficient punishment. If that be so, appellant being not in service during the period in question, namely, 1.10.1983 to 15.2.1989, in our opinion, would not be entitled to increment.” (Page: 492, Para: 18)

Sec.11-A

Back Wages – Not payable for serious charges Burden of Proof – As to gainful employment not on employer Sec. 106 of Evidence Act – Imposes burden of proof as to gainful employment not on employer Gainful employment – Burden is not on employer

¥4.94 Where a question arises whether the workman was gainfully employed or not, the burden of proof by

virtue of Sec. 106 of the Indian Evidence Act, falls not on the employer. In this case the burden of proof is wrongly placed on the employer. The Supreme Court considering the serious misconduct held that the workman is not entitled to any back wages and thus modified the judgment of High Court granting 50% back wages.

M.D. Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale, 2009 II LLJ 210 : 2009 (120) FLR 510 : 2009 I LLN 770 : 2009 I CLR 700 : 2009 (2) SCC 288 : 2009 (1) SCC (L&S) 372 : 2009 (2) BCR 102 (S.C.2J) CA 7249 of 2008 dt. 12-12-2008

“Charges against the respondent as noticed hereinbefore were serious in nature. During the period between July 1983 and December 1983, he not only absented himself from work without leave but also had been reporting to the work place late and leaving factory premises without permission early. He was also found guilty of indiscipline.

It is now well settled by a catena of decisions of this Court that having regard to the principles contained in Section 106 of the Indian Evidence Act the burden of proof to show that the workman was not gainfully employed is not on the employer. In this case, the burden of proof had wrongly been placed upon the appellant.” (Page: 212/213, Para: 12)

“Forfeiture of 50% back wages, in our opinion, thus, was not an adequate punishment. In a case of this nature, he should have been awarded some punishment in lieu of the order of dismissal and furthermore the question as to whether the respondent was entitled to the full back wages or not should have been considered on the basis of the materials brought on record by the parties.” (Page: 213, Para: 16)

“We are, therefore, of the opinion that in this case, no back-wages should have been awarded in favour of the respondent.” (Page: 214, Para: 18)

Sec. 11-A

Burden of Proof – Is on workman to prove that he is not gainfully employed Gainful Employment – Burden is on workman Negative – May be the burden to prove that not in gainful employment but it is on the workman

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¥4.95 There is a paradigm shift in the matter of placing burden of proof as regards gainful employment. The burden of proof having regard to the provisions contained in Sec. 106 of the Indian Evidence Act, cannot be placed on the employer. Though burden is negative, it is to be placed on and discharged by the workman.

Talwara Co-operative Credit & Service Society, Ltd. v. Sushil Kumar, 2009 I LLJ 326 : 2008 (119) FLR 598 : 2008 IV LLN 612 : 2008 LIC 4155 : 2008 III CLR 581 : 2008 LLR 1121 : 2008 (9) SCC 486 : 2008 (2) SCC (L&S) 931 (S.C.2J) CA 5951 of 2008 dt. 1-10-2008

“This Court in a large number of cases noticed the paradigm shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Indian Evidence Act, the burden would be on the workman. The burden, however, is a negative one.

If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the concerned employee was in fact gainfully employed.

In Surinder Kumar (supra), this Court held:

The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden was on the workman. See U.P. State Brassware Corporation and Ors. v. Udit Narain Pandey MANU/SC/2321/2005 : (2006)ILLJ496SC and State of M.P. v. Arjan Lal Rajak (2006) 2 SCC 610.

Equally well settled is the principle that the burden of proof, having regard to the principles analogus to Section 106 of the Evidence Act that he was not gainfully employed, was on the workman. See Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors.” (Page: 329/330, Para: 14)

Sec. 11-A

Back wages – Not automatic Reinstatement – Not automatic Short Period – Of service is a constraint for award of back wages Sick Unit – Is a consideration for refusal to grant reinstatement and back wages but rather compensation only

¥4.96 Grant of a relief of reinstatement and back wages are not automatic various considerations weigh in

the minds of Court. In this case the workman was employed for a short time for two spells i.e. 1987 to 1990 and 1995 to 1997. Secondly, the capacity to pay is a relevant consideration. In this case the unit was sick. The Supreme Court modified the orders of Courts below whereby instead of reinstating with back wages, a lump sum compensation of ` 2 lakhs is directed to be paid in addition to the amount deposited u/s. 17B of the Act in full and final settlement no matter the termination may be technically illegal and hence the compensation.

Talwara Co-operative Credit & Service Society, Ltd. v. Sushil Kumar, 2009 I LLJ 326 : 2008 (119) FLR 598 : 2008 IV LLN 612 : 2008 LIC 4155 : 2008 III CLR 581 : 2008 LLR 1121 : 2008 (9) SCC 486 : 2008 (2) SCC (L&S) 931 (S.C.2J) CA 5951 of 2008 dt. 1-10-2008

“Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment, viz., whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned etc., should be taken into consideration.” (Page: 328, Para: 11)

“We have noticed hereinbefore that the respondent was employed for a short period and that too in two different spells, viz., from 1987 to 1990 and from 1995 to 1997. Having regard to the fact that the respondent has not worked for a long period and the appellant does not have any capacity to pay as it is a sick unit, interest of justice would be

subserved if in stead and place of an award of reinstatement with full back wages, a compensation for a sum of Rs. 2,00,000/- (Rupees two lakhs only) is directed to be paid. The said sum would be over and above the amount which the appellant has deposited in terms of the order of the High Court under Section 17B of the Industrial Disputes Act.” (Page: 330, Para: 16)

Sec. 11-A

Back wages – On reinstatement payable only 50%

¥4.97 Back wages payable need not be full. The Supreme Court reduced the back wages to 50% thereby

modifying the High Court order to that extent.

Senior Regional Manager, TASMAC Ltd. & Anr. v. M. Raviselvam, 2009 I LLJ 1 : 2008 (118) FLR 1156 : 2009 LIC 940 (S.C.2J) SLP (C) 15994 of 2007 dt. 21-8-2008

“We have heard the learned Counsel for the parties and examined the record including the impugned order. We modify the order of the High Court only to the extent that the respondent shall be entitled to 50% of the back wages from the petitioners. Such back wages shall be paid to the respondent, if not already paid in the meantime within three months from the date of supply of a copy of this order to the High Court.” (Page: 1, Para: 2)

Sec. 11-A

Investigator – Appointed as trainee possess no legal right to the post of investigator Acquiescence – And waiver applies if trainee investigator accepts the post of clerks without demur for long time though appointed as trainee investigator

¥4.98 The trainee investigators, on completion of training if accepted the post of clerks and also made

permanent in the said posts and yet raised no objection immediately for denying the post and salary of investigators, despite they being not illiterate they cannot raise a dispute later on after closure of the establishment because they stood for a long time without demur attracting the doctrine of acquiescence and waiver. The Supreme Court set aside the award of Industrial Court as confirmed by High Court granting back wages with retrospective effect to the workmen who had accepted the VRS as clerks as a closure settlement of the employe’s business.

Laxmi Rattan Cotton Mills Ltd. v. State of U.P. & Ors., 2008 IV LLN 970 : 2009 I LLJ 527 : 2009 (120) FLR 325 : 2009 LIC 690 : 2008 III CLR 1048 : 2009 (1) SCC 695 : 2009 (1) SCC (L&S) 265 (S.C.2J) CAJCA 6710 of 2008 dt. 19-11-2008

“The opinion of the Industrial Court that even if no post of investigator was available, as soon as vacancy occurred the same should have been offered to the respondents cannot be held to be correct. We say so firstly because the respondents had no legal right to the said posts; secondly, if they had accepted to work in the post of clerk for a long time, only because subsequently a vacancy arose, the same in law was not required to be offered to those who had taken training; and thirdly, only because the Management had spent some amount for their training, the same by itself is not a ground that they should have been absorbed as investigators.” (Page: 974, Para: 15)

“The act of discrimination and/ or inappropriate action on the part of the employer, if any, should have been the subject matter of a demand immediately after their appointment as clerks. They not only accepted their appointments to the post of clerk; as noticed hereinbefore, they were made permanent in the said post.” (Page: 974/975, Para: 16)

Sec. 11-A

Issuers – All should be taken together Preliminary Issue – Whether jurisdiction to adjudicate the plea of separated workmen by VRS can not be taken in isolation but only along all other issues VRS – Though by impact, allegedly no more workmen if they choose to challenge their separation being under coercion, the jurisdictional fact cannot be separately decided but only along all other issues

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44

¥4.99 The employer contended that as the workman had already taken VRS thereby snapping the employer and employee relationship, the Labour Court before entertaining the application from such workmen stating they are still employees because the VRS was forced upon them by coercion should first decide the jurisdictional fact as a preliminary issue. The Supreme Court held that it is well settled that generally, all issues arising in a suit or proceeding should be tried together and a judgment should be pronounced on those issues. Even under CPC, now the normal rule is to decide all issues together. The Supreme Court upheld the decision of Labour Court, Industrial and Single Judge that this matter cannot be decided as a preliminary issue in isolation.

Ramesh Chandra Sankla & Ors. v. Vikram Cement & Ors. AND Asha Ram Malviya & Ors. v. Vikram Cement & Ors. AND Ratan Singh & Ors. v. Vikram Cement AND Dwarka Prasad Agarwal & Ors. v. Vikram Cement & Ors. AND Vikram Cement v. Hemant Kumar Jain & Ors., 2009 (1) SCC (L&S) 706 : 2008 (14) SCC 58 : 2009 AIR (SC) 713 (S.C.2J) CA 4223 to 4227 of 2008 dt. 8-7-2008

“In our considered opinion, in the present case, it cannot be said that the Courts below have committed any error of jurisdiction in not deciding the issue as to the maintainability of claim-petitions as preliminary issue. It is well settled that generally, all issues arising in a suit or proceeding should be tried together and a judgment should be pronounced on those issues.” (Page: 727, Para: 75)

“Apart from the fact that the provisions of Code do not stricto sensu apply to `industrial adjudication', even under the Code, after the Amendment Act, 1976, the normal rule is to decide all the issues together in a civil suit.” (Page: 728, Para: 78)

“In the case on hand, the contention of the workmen is that the acceptance of the scheme was not with free consent, and even otherwise they were not given all the benefits to which they were entitled under the scheme. Therefore, they continued to remain employees of the Company. The Labour Court felt that the controversy raised by the workmen can only be decided in the light of the evidence before it. The said decision has been confirmed by the Industrial Court as well as by the learned Single Judge. We find no illegality in this approach which deserves interference under Article 136 of the Constitution. We, therefore, see no substance in the contention of the Company.” (Page: 728, Para: 79)

Sec. 11A

VRS – Benefit once received if the workman still wants contest the VRS as forced upon him, he must return the amount of VRS Coercion – And duress if the contention of the workman for VRS are, before prosecuting claim petition amount so received is to be refunded Equity – Who seeks must also do it meaning amount of VRS taken is to be returned in order to challenge the VRS

¥4.100 If the workmen, after having secured the benefits of VRS and ceased to be workmen in the eyes of

employer, desire to challenge the said VRS as having thrust on them by coercion and force and like to prosecute their case as being subjected to illegal termination of their services, it is open to the employer to contend that they cannot “approbate and reprobate”. The Supreme Court upholding the decision of Division Bench held that in that case the workmen could not have resiled from their position by retaining the benefits which they never wanted but imposed on them against their will. A person “who seeks equity must do equity”. The Court held that if the amount of benefit received under VRS is not returned by the date prescribed, the Labour Court was directed to dismiss the claim petition.

Ramesh Chandra Sankla & Ors. v. Vikram Cement & Ors. AND Asha Ram Malviya & Ors. v. Vikram Cement & Ors. AND Ratan Singh & Ors. v. Vikram Cement AND Dwarka Prasad Agarwal & Ors. v. Vikram Cement & Ors. AND Vikram Cement v. Hemant Kumar Jain & Ors., 2009 (1) SCC (L&S) 706 : 2008 (14) SCC 58 : 2009 AIR (SC) 713 (S.C.2J) CA 4223 to 4227 of 2008 dt. 8-7-2008

“Even otherwise, according to the workmen, they were compelled to accept the amount and they received such amount under coercion and duress. In our considered opinion, they cannot retain the benefit if they want to

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prosecute Claim Petitions instituted by them with the Labour Court. Hence, the order passed by the Division Bench of the High Court as to refund of amount cannot be termed unjust, inequitable or improper. Hence, even if it is held that a `technical' contention raised by the workmen has some force, this Court which again exercises discretionary and equitable jurisdiction under Article 136 of the Constitution, will not interfere with a direction which is in consonance with the doctrine of equity. It has been rightly said that a person "who seeks equity must do equity". Here the workmen claim benefits as workmen of the Company, but they do not want to part with the benefit they have received towards retirement and severance of relationship of master and servant. It simply cannot be permitted. In our judgment, therefore, the final direction issued by the Division Bench needs no interference, particularly when the Company has also approached this Court under Article 136 of the Constitution.” (Page: 733, Para: 100)

“For the foregoing reasons, in our opinion, the order passed by the Division Bench of the High Court deserves to be confirmed and is hereby confirmed. The payment which is required to be made as per the said order should be made by the applicants intending to prosecute their claims before the Labour Court, Mandsour. In view of the fact, however, that the said period is by now over, ends of justice would be served if we extend the time so as to enable the applicants to refund the amount. We, therefore, extend the time up to December 31, 2008 to make such payment. We may, however, clarify that Claim Petitions will not be proceeded with till such payment is made. If the payment is not made within the period stipulated above, the Claim Petitions of those applicants will automatically stand dismissed. The Labour Court will take up the claim petitions after December 31, 2008.” (Page: 733/734, Para: 101)

Sec. 11A

Reinstatement – With full back wages by Civil Court when possible Civil Court – Can reinstate with full back wages if the rights are claimed under constitutional provisions, violation of PNJ, common law provisions Constitutional Provisions – If violated rights are claimed therewith, jurisdiction of Civil Court is not barred Principles of Natural Justice – If violated, rights not claimed under Industrial Disputes Act or sister laws, the doors of Civil Court is open to claim reinstatement and back wages

¥4.101 In a case where no enquiry was conducted, there would be a violation of statutory regulation as also

the right of equality as contained in Art. 14 of the Constitution of India. In such cases if employee intends to enforce his constitutional rights under a statutory regulation, the Civil Court will have the necessary jurisdiction to try the suit. It is only when he claims his right and corresponding obligation in terms of Industrial Disputes Act or Standing Orders Act, the Civil Court will have none. The erring party especially if it is a “State” within the meaning of Art. 12 of the constitution, having violated the provisions of statute and also principles of natural justice, the Civil Court will have the jurisdiction to direc t reinstatement, with full back wages.

Rajasthan State Road Transport Corporation & Anr. v. Bal Mukund Bairwa, 2009 (1) SCC (L&S) 812 : 2009 III LLJ 177 : 2009 (121) FLR 603 : 2009 LLR 439 : 2009 (3) SCC 299 (S.C.3J) CA 328 of 2005 with CA 316 to 318 of 2005, CA 328 of 2005, 1825 & 3002 of 2008, 954 of 2009 dt. 12-2-2009

“If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan State Road Transport Corporation and Ors. v. Mohar Singh MANU/SC/7522/2008 : (2009)ILLJ149SC . The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the fact of each case.” (Page: 828, Para: 36)

“If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is

46

claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction.” (Page: 828, Para: 37)

“Where the relationship between the parties as employer and employee is contractual, right to enforce the contract of service depending on personal volition of an employer, is prohibited in terms of Section 14(1)(b) of the Specific Relief Act, 1963. It has, however, four exceptions, namely, (1) when an employee enjoys a status, i.e., his conditions of service are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or a statute and would otherwise be governed by Article 311(2) of the Constitution of India; (2) where the conditions of service are governed by statute or statutory Regulation and in the event mandatory provisions thereof have been breached; (3) when the service of the employee is otherwise protected by a statute; and (4) where a right is claimed under the Industrial Disputes Act or sister laws, termination of service having been effected in breach of the provisions thereof.” (Page: 829, Para: 38)

“Appellant - Corporation is bound to comply with the mandatory provisions of the statute or the regulations framed under it. A subordinate legislation when validly framed becomes a part of the Act. It is also bound to follow the principles of natural justice. In the event it is found that the action on the part of State is violative of the constitutional provisions or the mandatory requirements of a statute or statutory rules, the civil court would have the jurisdiction to direct reinstatement with full back wages.” (Page: 829, Para: 39)

Sec. 11A

Ubi jus ibi remedium – Is the source of power to Civil Courts to exercise jurisdiction Sec. 9 of CPC – Confers a right on the litigant to institute a civil suit unless specifically barred Civil Court – Is a Court of plenary jurisdiction Plenary Jurisdiction – A Civil Court have

¥4.102 The Civil Courts draw jurisdiction to enforce fundamental principles of law from Sec. 9 of Civil

Procedure Code. The source of such power stems from the maxim Ubi jus ibi remedium. Civil Courts can try all suits, unless barred by statute either expressly or by necessary implication. It can decide the case on its own being a Court of plenary jurisdiction.

Rajasthan State Road Transport Corporation & Anr. v. Bal Mukund Bairwa, 2009 (1) SCC (L&S) 812 : 2009 III LLJ 177 : 2009 (121) FLR 603 : 2009 LLR 439 : 2009 (3) SCC 299 (S.C.3J) CA 328 of 2005 with CA 316 to 318 of 2005, CA 328 of 2005, 1825 & 3002 of 2008, 954 of 2009 dt. 12-2-2009

“Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim Ubi jus Ibi remedium. A litigant, thus, having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless bared by statute, either expressly or by necessary implication.” (Page: 822, Para: 12)

“The civil court, furthermore, being a court of plenary jurisdiction has the jurisdiction to determine its jurisdiction upon considering the averments made in the plaint but that would not mean that the plaintiff can circumvent the provisions of law in order to invest jurisdiction on the civil court although it otherwise may not possess. For the said purpose, the court in given cases would be entitled to decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of the jurisdictional fact.” (Page: 822, Para: 13)

Sec. 11-A

Proportionality of Punishment – U/s. 11A against dismissal of a conductor for misappropriation is misplaced Conductor – Of a bus works in trust if fund misappropriating, Labour Court or High Court cannot exercise discretion to set aside the punishment of dismissal Dismissal – As a punishment for misappropriation by a Bus Conductor is not excessive for interference u/s. 11A

¥4.103 When charges of misappropriation against a Bus Conductor in two occasions are found proved even

by the Labour Court merely because similar charges in 4 more occasions are not found proved, the

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Labour Court could not have exercised its discretionary jurisdiction u/s. 11A of the Act to interfere with the punishment of dismissal especially when the bus conductor holds a position of trust. The High Court also committed the same error. The award of Labour Court and judgment of High Court reinstating with continuity of service are quashed and set aside and punishment of dismissal as awarded by disciplinary authority was upheld. Though the workman had since retired, the Court refused to give any leniency to him.

U.P. State Road Transport Corporation v. Nanhe Lal Kushwaha, 2009 IV LLJ 655 : 2009 (123) FLR 388 : 2009 IV LLN 720 : 2009 III CLR 184 : 2009 LLR 1149 : 2010 LLR 230 : 2009 (8) SCC 772 : 2009 (2) SCC (L&S) 546 (S.C.2J) CAJCA 5114 of 2009 dt. 4-8-2009

Sec. 11A

Back Wages – Not payable to workman whose services are illegally terminated but appointed dehors the rules Dehors the Rules – If appointment made back wages for illegal termination not payable Illegal termination – Does not warrant automatic back wages Reinstatement – For illegal termination though followed no back wages payable

¥4.104 Though the two men, doing work as cashiers, i.e. collecting cash and depositing collected cash,

alleged illegal termination, have not been appointed following the drill of regular recruitment process, nor able to produce their suitability to the post, yet the Supreme Court upheld their reinstatement though denying back wages for the reason that they were able to produce some contemporaneous documentary evidence including ECR sheets bearing the signatures of workmen and another Senior Officer of the company, though neither letter of appointment nor salary slips could be furnished. There is no rebuttal from the employer. These cumulative facts clinched the employer– employee relationships leading to upholding the decision of reinstatement made by Courts below. Back wages denied.

Kanpur Electricity Supply Co. Ltd. v. Shamim Mirza, 2009 LLR 226 : 2009 I LLJ 679 : 2009 (120) FLR 143 : 2009 LIC 415 : 2009 I CLR 1 : 2009 (1) SCC 20 : 2009 (1) SCC (L&S) 70 : 2009 AIR (SC) 638 (S.C.2J) CA 6585 & 6586 of 2008 dt. 7-11-2008

“It is true that in the instant case, the workmen did not produce the letters of appointment as also their salary slips but they have been successful in adducing some contemporaneous documentary evidence, including ECR sheets bearing the signatures of the workmen and that of another senior officer of the appellant company (Ex.W-7, W- 10 to W-15), which shows that they were collecting cash on behalf of the appellant; depositing it in the van or central office of the appellant and were answerable to the officials of the appellant. In this regard, Clause 5 of the terms and conditions of the contract awarded to Vivek and Associates is also relevant, which provides as under:

You will be responsible for the operation of machines only. The cash handling is to be done by K.E.S.A., Cashier or a representative of K.E.S.A. duly authorised by Dy. C.A.O./Head Cashier.” (Page: 229, Para: 16)

“Bearing in mind the afore-noted broad parameters, we are of the opinion that the facts at hand do not warrant payment of back-wages to the respondents. In both the cases, though the respondents have succeeded in establishing that they were in the employment of the appellant when their services were terminated but nothing has been brought on record to show that they were selected through a regular recruitment process. It has also not been shown whether they were actually qualified for the post of a cashier. Besides, on their own showing they had worked with the appellant for about two years when their services were terminated. These circumstances, in our view, disentitle them from their claim for back wages. Accordingly, the orders of the High Court to the extent they affirm the directions of the adjudicatory authority with regard to the payment of back wages are set aside.” (Page: 230, Para: 24)

Sec.11A

Misconduct – Excludes – Compulsory retirement under regulation Compulsory Retirement – Under regulations is not a misconduct Principles of Natural Justice – Not violated for taking recourse to compulsory retirement Enquiry – Not necessary for taking action towards compulsory retirement under regulations

48

¥4.105 A compulsory retirement does not in the nature of punishment for misconduct and hence does not violate the Principles of Natural Justice and hence no departmental enquiry is called for.

National Aviation Company of India Ltd. v. S.M.K. Khan, 2009 I CLR 1030 : 2009 III LLJ 40 : 2009 (121) FLR 593 : 2009 II CLR 633 : 2009 (5) SCC 732 : 2009 (2) SCC (L&S) 1 : 2009 AIR (SC) 2637 (S.C.2J) CAJCA 1622 of 2009 dt. 24-3-2009

“The High Court also erred in treating the show cause notice dated 27.5.1999 as a charge memo and finding fault with it on the ground that it did not contain necessary particulars in regard to the charge of unauthorized absence, and consequently holding that in the absence of any inquiry, principles of natural justice were violated. The letter dated 27.5.1999 was not a charge memo but only a notice giving opportunity to the employee before compulsorily retiring him under Regulation 12. In fact even without such a notice he could have been compulsorily retired.” (Page: 1035, Para: 11)

Sec. 11A

Public Interest – Can be institutional interest in case of service in Government Company, statutory corporation etc. Compulsory Retirement – In case of Government company need not be based on public interest Institutional Interest – Not public interest, could be the basis for compulsory retirement of services in Government company any or statutory institution

¥4.106 Recourse to compulsory retirement can only be taken in ‘public interest’ in case of Government

servant while considering the service under ‘State’. But in case of statutory authority or a Government company, the concept of public interest gets replaced by ‘institutional interest’. When the performance of employee is inefficient and unsatisfactory, his continuance is detrimental to the interest of the institution calling for compulsory retirement.

National Aviation Company of India Ltd. v. S.M.K. Khan, 2009 I CLR 1030 : 2009 III LLJ 40 : 2009 (121) FLR 593 : 2009 II CLR 633 : 2009 (5) SCC 732 : 2009 (2) SCC (L&S) 1 : 2009 AIR (SC) 2637 (S.C.2J) CAJCA 1622 of 2009 dt. 24-3-2009

“The learned Counsel for the respondent next submitted that recourse to `compulsory retirement' should be only in `public interest'; and that in this case, as neither the regulations nor the order of compulsory retirement referred to public interest, the compulsory retirement was vitiated. This contention has no merit. "Public interest" is used in the context of compulsory retirement of government servants while considering service under the state. The concept of public interest would get replaced by `institutional interest' or `utility to the employer' where the employer is a statutory authority or a government company and not the government. When the performance of an employee is inefficient or his service is unsatisfactory, it is prejudicial or detrimental to the interest of the institution and is of no utility to the employer. Therefore compulsory retirement can be resorted to (on a review of the service on completion of specified years of service or reaching a specified age) in terms of relevant rules or regulations, where retention is not in the interests of the institution or of utility to the employer. It is however not necessary to use the words `not in the interests of the institution' or `service not of utility to the employer' in the order of compulsory retirement as the regulation provides that no reason need be assigned.” (Page: 1034/1035, Para: 9)

Sec. 11A

Compulsory Retirement – Made by postponing the decision after giving a year’s period on leniency is not a review Review of compulsory retirement – Excludes–Postponing the decision for a year on leniency, thereafter retiring him compulsorily

¥4.107 An order for compulsory retirement under regulation of the institution though made after going

through the unsatisfactory service records the actual retirement can be kept postponed for a year so as to review the position taking a lenient view. If the official has still not found improved in his conduct by remaining unauthorisedly absent the compulsory retirement made thereafter a year will not vitiate the action on the ground that once his performance as subjected to review and allowed him to continue he is

49

free and untrammeled to retire on his normal retirement date. That argument is valid only when on review his service was found satisfactory. In this case his service was not found satisfactory and instead of retiring compulsorily one more year is given to watch his performance. That leniency can not be construed as a bar for compulsory retirement subsequently immediately after a year being only a postponement of compulsory retirement.

National Aviation Company of India Ltd. v. S.M.K. Khan, 2009 I CLR 1030 : 2009 III LLJ 40 : 2009 (121) FLR 593 : 2009 II CLR 633 : 2009 (5) SCC 732 : 2009 (2) SCC (L&S) 1 : 2009 AIR (SC) 2637 (S.C.2J) CAJCA 1622 of 2009 dt. 24-3-2009

“The respondent contended that once on review of performance, an employee is allowed to continue beyond 55 years, such employee is entitled to continue in service until he attains the age of 58 years and the employer cannot compulsorily retire him before 58 years, except by way of punishment for a proved misconduct. In support of the said contention, he relied upon the decisions of this Court in State of Uttar Pradesh v. MANU/SC/0335/1977 : Chandra Mohan Nigam (1978)ILLJ6SC where this Court held that once a review committee considered the case of a government servant, and the government, on the report of the committee, decides not to take any prejudicial action against the government servant, there is no warrant for a second review committee under the provisions relating to premature retirement, to reassess his case on the same material, unless the exceptional circumstances emerge in the meantime or the next stage for review arrives. In particular, the respondent relied on the following observations in that case:

Once a review has taken place and no decision to retire on that review has been ordered by the Central Government, the officer gets a lease in the case of 50 years upto the next barrier at 55 and if he is again cleared at that point, he is free and untrammeled upto 58 which is his usual span of the service career. This is the normal rule subject always to exceptional circumstances such as disclosure of fresh objectionable grounds with regard to integrity or some other reasonably weighty reason.

The said decision will not assist the respondent. The principle laid down therein is that after a review of the service of an employee for purposes of extension of service beyond 55 years, if it is decided that he is fit and suitable for continuation, there is no question of a re-appraisal of the same material, for taking a different decision in the absence of exceptional circumstances. That principle will apply, where on review, the competent authority is satisfied that the service of the employee is satisfactory and there is no ground to compulsorily retire the employee. But in this case, the employee's service was not found to be satisfactory on review of performance at the end of 55 years, nor was the employee cleared for retention in service till 58 years. In this case, on review, the competent authority decided that the employee was not fit and suitable for retention and that he should be compulsorily retired from service with effect from 10.8.1998. But because of the extreme hardship pleaded by the employee and assurance of improvement in performance, the respondent's service was continued as a special case, for only a period of one year beyond 55 years making it clear that retention of service beyond one year, that is, 10.5.1999, will be subject to the outcome of review that will be carried out after monitoring his attendance and performance during that period. Thus the continuation of respondent beyond 55 years was not because his service was satisfactory, but out of leniency, for a specific period somewhat on the lines of probation. During the extension period of one year, his performance was watched and it was found to be unsatisfactory. Therefore after giving due opportunity to him to explain the unsatisfactory service, a decision was taken by the competent authority not to continue him in service and consequently he was compulsorily retired from service with effect from 26.8.1999. Thus the compulsory retirement with effect from 26.8.1999 was merely a postponement of the compulsory retirement which was to take place on 10.5.1998 and not on account of a second-appraisal of the service performance upto 55 years.” (Page: 1034, Para: 8)

Sec. 11A

Back Wages – Full not payable but 50% only even in case of illegal termination Illegal Termination – Warrants only 50% back wages Sickness of Factory – Warrants 50% back wages though termination is illegal

50

¥4.108 Though termination of service is illegal, full back wages is not payable because that by itself will not create a right for full back wages and reinstating with employment benefits. Hence Supreme Court reduced the back wages from full to 50% considering the employer’s factory being declared sick.

M/s. P.V.K. Distillery Ltd. v. Mahendra Ram, 2009 I CLR 883 : 2009 (121) FLR 381 : 2009 II LLN 94 : 2009 LIC 2042 : 2009 LLR 337 : 2009 (5) SCC 705 : 2009 (2) SCC (L&S) 134 : 2009 AIR (SC) 2205 (S.C.2J) CA 1349 of 2009 dt. 2-3-2009

“Giving a realistic approach to the matter and in spite of all these circumstances we are restricting ourselves to the question of 50% of the total back wages. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages. The notice was issued with a view that the appellant's factory has been taken over by a new management altogether and by asking the appellant to pay full back wages for the long interregnum would be unfair and unjust. The workman has not entered appearance to justify the award passed by the Labour Court. Therefore, in our view, it would be unreasonable to put a huge burden on the appellant by directing them to reinstate respondent with continuity of service and with full back wages, because the appellant's factory had been declared sick and remained closed for many years and has been assigned to a new management led by its Chief Executive Director, Sri M.K. Pilania in order to rehabilitate/reconstruct it.” (Page: 887, Para: 21)

“In view of the above discussion, we are of the opinion that it would be fair and reasonable to direct the employer to deposit 50% of back wages by way of arrears of back wages, instead of full wages awarded by the Labour Court.” (Page: 887, Para: 22)

Sec.11A

Back Wages – Payable for illegal termination from the date of termination till superannuation Illegal Termination – Warrants payment of back wages from date of termination Novartis India Ltd. – Judgment on back wages

¥4.109 Where termination of the workmen were made post haste without enquiry for not reporting to the

place of transfer, the Supreme Court held that back wages in the form of compensation is payable since they were attained the age of superannuation. The Court held that mere fact that they survived and did not die of starvation is not a proof that they did not remain unemployed because even an unemployed person has a right to survive. He may beg or borrow and so long as he remained unemployed back wages are payable and in this case the order of Tribunal for paying last drawn wages as pay having reached finality the revised wages to which they were otherwise entitled could not be granted by Supreme Court.

Novartis India Ltd. v. State of West Bengal & Ors., 2009 I CLR 75 : 2009 II LLJ 9 : 2009 (120) FLR 618 : 2009 (3) SCC 124 : 2009 (1) SCC (L&S) 595 (S.C.2J) CAJCA 7011 of 2008 dt. 2-12-2008

“The workmen had pleaded that they remained unemployed. They stated so in their respective depositions. The fact that they survived and did not die of starvation itself could not be a ground for denying back wages to them. Even an unemployed person has a right to survive. He may survive on his past savings. He may beg or borrow but so long as he has not been employed, back wages, subject to just exceptions, should not be denied.” (Page: 84, Para: 36)

“Respondents were in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been conducted. The order of discharge was, thus, void ab initio. Back wages, therefore, could have been granted from the date of termination of service.” (Page: 84, Para: 38)

Sec. 11A

Conductor – Once admitted he has not issued tickets to 28 passenger’s punishment of dismissal cannot be set aside Enquiry – Fairness of which was never challenged, findings cannot be modified by Labour Court Confidence – If lost due to misappropriation no sympathy needs to reduce punishment u/s. 11A of the Act

51

¥4.110 When the delinquent official does not challenge the correctness, legality and validity of enquiry conducted it is not open to the Labour Court to go into the findings recorded by the enquiry officer and modify the punishment of dismissal into one of reduction of one increment without cumulative effect especially when the conductor himself admitted that he did not issue tickets to 28 passengers shaking the trust and confidence of employer. The Supreme Court upheld the order of dismissal passed by disciplinary authority and set aside the order and judgment of Labour Court and High Court.

U.P. State Road Transport Corporation v. Vinod Kumar, 2008 LIC 468 : 2008 I LLJ 676 : 2008 I CLR 847 : 2008 (1) SCC 115 : 2008 (1) SCC (L&S) 1 : 2008 (2) Mah.LJ 161 (S.C.2J) CA 5660 of 2007 dt. 6-12-2007

“As stated in the preceding paragraphs, the respondent had confined his case only to the conclusions reached by the Enquiry Officer as well as the quantum of punishment. Therefore, since the respondent had not challenged the correctness, legality or validity of the enquiry conducted, it was not open to the Labour Court to go into the findings recorded by the Enquiry Officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the Courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. Without burdening the judgment with all the judgments of this Court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. v. H. Amaresh, 2006 III LLJ 232 (SC)……….” (Page: 470, Para: 10)

“Respectfully agreeing and following the aforesaid decision of this Court, we accept this appeal and set aside the judgment of the High Court as well as the order passed by the Labour Court. Consequently, the order passed by the Punishing Authority dismissing/removing the respondent from service is restored.” (Page: 470, Para: 11)

Sec. 11A

Evidence Act – Sec. 58, provides that no proof is required for admitted facts Proof – Not necessary for admitted facts u/s. 58 of Evidence Act

¥4.111 In terms of Sec. 58 of the Evidence Act, things admitted need not be proved. Once the workman

admitted in enquiry that he was a habitual absentee being absent unauthorisedly on various dates further proof is unnecessary.

Chariman & MD, V.S.P. & Ors. v. Goparaju Sri Prabhakara Hari Babu, 2008 LIC 1769 : 2008 II LLJ 645 : 2008 (117) FLR 377 : 2008 (5) SCC 569 (S.C.2J) CA 1770 of 2008 dt. 5-3-2008

“Indisputably was a habitual absentee. He in his explanation, in answer to the charge sheet pleaded guilty admitting the charges. In terms of Section 58 of the Indian Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation that his mother being ill. He, despite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct.

In Sangramsinh P. Gaekwad and Ors. v. Shantadevi P. Gaekwad (Dead) through LRs and Ors. MANU/SC/0052/2005 : AIR2005SC809 , this Court noticing Section 58 of the Indian Evidence Act, held:

214. In terms of the aforementioned provision, things admitted need not be proved. In view of the admission of Respondent 1 alone, the issue as regards allotment of 6475 shares should have been answered in favour of the appellants. The company petitioner at a much later stage could not be permitted to take a stand which was contrary to or inconsistent with the original pleadings nor could she be permitted to resile from her admissions contained therein.

It was observed that judicial admissions can be made the foundation of the rights of the parties.” (Page: 1772, Para: 15)

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Sec. 11A

Sympathy or Sentiment – Cannot override the High Court to upset a well reasoned legal order of punishment imposed by disciplinary authority High Court – Under Art.226 of the constitution cannot overturn a legal order on mere sympathy or sentiment Punishment – If well reasoned and legal, the High Court cannot overturn the same on sympathy or sentiment

¥4.112 The employee was found habitual absentee from his duties. It was his admitted position in the

enquiry. He was found absent in the year 1990, 1991, 1993, 1995 and 1996 despite lenient action taken by employer in every case. In the last year of absence, he did not furnish any explanation stating that for that year, his mother was sick before the enquiry that was started before another authority. The labour and Single Judge upheld the termination of the workman. The Division Bench reversed the punishment for the reason that the factum of illness of his mother for the absence was not considered by Courts and authorities. The Supreme Court setting aside the same and upholding the punishment held that the High Court cannot set aside a well reasoned legal order only on sympathy and sentiment besides the workman never disclosed any reason for his absence as later disclosed in enquiry before another authority.

Chariman & MD, V.S.P. & Ors. v. Goparaju Sri Prabhakara Hari Babu, 2008 LIC 1769 : 2008 II LLJ 645 : 2008 (117) FLR 377 : 2008 (5) SCC 569 (S.C.2J) CA 1770 of 2008 dt. 5-3-2008

“A subsequent explanation before another authority, which had not been pleaded in the departmental proceedings, cannot by itself a ground to hold that the principles of natural justice had not been complied with in the disciplinary proceedings.

The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well known factors. It cannot set aside a well reasoned order only on sympathy or sentiments. [See Maruti Udyod Ltd. v. Ram Lal and Ors. MANU/SC/0056/2005 : (2005)ILLJ853SC ; State of Bihar and Ors. v. Amrendra Kumar Mishra MANU/SC/4355/2006 : 2006(9)SCALE549 ; Regional Manager, SBI v. Mahatma Mishra MANU/SC/8622/2006 : 2006(11)SCALE258 State of Karnataka v. Ameerbi and Ors. MANU/SC/8767/2006 : (2007)ILLJ996SC ; State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors. MANU/SC/8006/2007 : (2008)1SCC456 and Uttar Haryana Bijli Vitran Nigam Ltd. and Ors. v. Surji Devi CA No. 576 of 2008 decided on 22.1.2008.]” (Page: 1772, Para: 16)

“Once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. {[See Sangeroid Remedies Ltd. v. Union of India and Ors. MANU/SC/0843/1999 : 1999ECR183(SC) ]}.

The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order.” (Page: 1772, Para: 17)

Sec. 11A

Ipse Dixit – And hypothesis for pinning down the management for dismissing the union leaders cannot be taken as a basis by Labour Court Judicial Discretion – Cannot be exercised whimsically or capriciously

¥4.113 Where there took place a scuffle between the contractors and two union leaders and assault to a

contractor leading to stoppage of work due to instigation of workers, after an enquiry the services of the said two union leaders came to be terminated. The Labour Court even while holding the enquiry fair and proper held that the small matter was blown out of proportion by the management taking sides with contractors and against workmen probably because workmen’s demands and their trade union activities. The Division Bench set aside these findings of which the Supreme Court upheld albeit for reasons that the Labour Court cannot overturn a decision of management on mere ipse Dixit or on mere

53

hypothesis. Judicial discretion cannot be exercised whimsically or capriciously. A union leader, does not enjoy immunity from being proceeded with in a case of misconduct.

Usha Breco Mazdoor Sangh v. Management of M/s. Usha Breco Ltd. & Anr., 2008 II LLJ 945 : 2008 (118) FLR 400 : 2008 III LLN 84 : 2008 III CLR 85 : 2008 LLR 619 : 2008 (5) SCC 554 : 2008 (2) SCC (L&S) 298 (S.C.2J) A(C) 3051-3052 of 2008 dt. 29-4-2008

“The Labour Court, on the one hand, has taken into consideration only some portion of the depositions of the witnesses and not the other portions. It merely stated that the workmen examined themselves as W.W/1 and W.W/2. Even if the finding that there had been a scuffle between the contractor and the workmen and both shouted against each other, is correct, the purported inference that the same was mere psychological and natural in such a situation and nothing untoward had happened is based on no evidence. No injury had been caused to anybody. If the workman was found to be not only abusing the contractors, even an iron rod had been taken out so as to threaten Shri Dara Singh with a view to assault him, a clear case of misconduct had been made out. It was a matter of utmost importance to determine as to who started the quarrel; who started using abusive language; who started shouting; whether the workmen were more sinned against than sinning; whether there were materials on record to arrive at the findings on the said issue. These should have been the questions posed by the Labour Court.” (Page: 954, Para: 31)

“There might have been a power cut for some time but the Labour Court even did not enter into the question as to whether the workmen were otherwise instigated to stop work. Without there being any material on record, the Labour Court has arrived at a finding that the Management had taken side in favour of the contractors and against the workmen "probably because of their demand and trade union activities". The finding is based on surmises. If that be so, the Labour Court should have tried to find out as to whether the Management's witnesses were confronted with such questions and documents in the departmental proceedings or not. On what basis a finding was arrived at that the act of Management proves victimization of the workmen had not been spelt out.” (Page: 954, Para: 33)

“The upshot of our discussion is that the decision of the Labour Court should not be based on mere hypothesis. It cannot overturn a decision of the Management on ipse dixit. Its jurisdiction under Section 11A of the Act although is a wide one, must be judiciously exercised. Judicial discretion, it is trite, cannot be exercised either whimsically or capriciously. It may scrutinize and analyse the evidence but what is important is how it does so.” (Page: 954, Para: 34)

“We, therefore, are of the opinion no case has been made out for interfering with the ultimate conclusion of the High Court, albeit for different reasons.” (Page: 955, Para: 41)

Sec. 11A

Cantakerous Workman – Cannot be reinstated but paid compensation Abrasive Workman – Cannot be reinstated but paid compensation only Reinstatement – Cannot be of a cantankerous and abrasive workman Workman – Who is cantankerous and abrasive, cannot be reinstated but paid compensation

¥4.114 Where the Labour Court found the charges of abuse in filthy language leveled against the workmen

in presence of lady supervisor was proved enquiry being found fair and proper, upheld the dismissal, the Single Judge and Division Bench held that the punishment of dismissal being disproportionate shocked the conscience of the Court. Besides management though relied upon his past antecedents no notice was given to him. Hence it reinstated him with full back wages. The Supreme Court considering the bitter relations between the workman and employer felt that it is not appropriate to hoist the cantankerous and abrasive workman on employer and hence a compensation of ` 10,00,000 was directed to be paid instead with due regard to the fact that he was not on duty since the year 1981.

Management, Aurofood Pvt. Ltd. v. S. Rajulu, 2008 III CLR 109 : 2008 II LLJ 1061 : 2008 (117) FLR 770 : 2009 (2) SCC (L&S) 368 (S.C.2J) CA 4735 of 2006 dt. 3-4-2008

“We have heard the learned Counsel for the parties and gone through the record. The Division Bench has held that the workman had not been given the requisite material that was required by him to prepare his defence more

54

particular as his antecedents had been taken into account depicting him as incorrigible, though he had not been given any opportunity to rebut these charges. The High Court has also found that the allegations against the workman even if taken to be true were trivial and could not justify an order of dismissal from service. The judgments cited by the learned Counsel do not adequately meet the issues raised by the High Court. The questions of fact which have been decided by the High Court call for no interference by this Court under Article 136 of the Constitution. We also find that the workman has been out of employment since the year 1981 and despite succeeding before the single bench of the High Court on 9th February 2001 he has not yet been reinstated in service because of the interim order passed in this litigation. We had accordingly and at the very outset, suggested to Mr. Sundravardhan that on account of the situation as now existed, it would, perhaps, be appropriate that the respondent be given a compensation package rather than an order of reinstatement. The learned Counsel stated that the management was willing to give no more than Rs. 5,00,000/- towards that package. The respondent, on the othe`r hand who was present in Court, insisted that he was not interested in the compensation and would prefer that the orders of the High Court be implemented in letter and spirit. We are of the opinion that consequent upon the bitter relations between the parties and as even the High Court has found the charges proved though 'trivial' and the fact that the respondent has not been on duty with the appellant-management since the year 1981, it would be inappropriate to foist a cantankerous and abrasive workman on it.

We accordingly dismiss the appeal but direct that instead of reinstatement the respondent would be entitled to the payment of ̀ 10,00,000 as compensation as full and final settlement with respect to his entire claim.” (Page: 111, Para: 5)

Sec. 11A

Reason – For a decision if absent, not sustainable

¥4.115 The Labour Court reinstated the daily wager with back ages. The workman despite letters failed to

join duties upon reinstatement. On the contrary filed petition before ALC. ALC ordered the employer to pay ` 92,842 for non-employment. High Court without adducing any reason confirmed the order. The Supreme Court setting aside the order of High Court remitted the matter to High Court for fresh disposal in as much as reason is the heart beat of every conclusion.

State of Uttaranchal v. Sunil Kumar Singh Negi, 2008 II LLJ 874 : 2008 (118) FLR 18 : 2008 II LLN 651 : 2008 LIC 2076 : 2008 II CLR 873 : 2008 LLR 503 : 2008 (11) SCC 205 : 2008 (2) SCC (L&S) 1093 : 2008 AIR (SC) 2026 (S.C.2J) CA 1924 of 2008 dt. 12-3-2008

“In Raj Kishore Jha v. State of Bihar and Ors., 2003CriLJ5040 , this Court has held that reason is the heartbeat of every conclusion and without the same, it becomes lifeless.” (Page: 876, Para: 7)

“In the light of the factual details particularly with reference to the stand taken by the Horticulture Department at length in the writ petition and in the light of the principles enunciated by this Court, namely, right to reason is an indispensable part of sound judicial system and reflect the application of mind on the part of the court, we are satisfied that the impugned order of the High Court cannot be sustained.” (Page: 876, Para: 9)

Sec. 11A

Back Wages – Modified to be 25% payable instead of 50%

¥4.116 The Supreme Court modified the payment of back wages from that of 50% awarded by Labour

Court and confirmed by High Court to be paid 25% only under the facts and circumstances.

Executive Engineer, Public Health Division v. Kumesh, 2008 II LLJ 826 : 2008 (118) FLR 1188 : 2008 III LLN 482 : 2008 (3) SCC 304 : 2008 (1) SCC (L&S) 652 (S.C.2J) CA 1663 of 2008 dt. 25-2-2008

“Considering the facts and circumstances of the case, we are of the view that the order regarding payment of 50% back wages be modified by 25% of back wages to be paid to the respondent. We order accordingly. With this

55

modification, the order of the High Court is affirmed. The appeal is disposed of accordingly. There shall be no order as to costs.” (Page: 826, Para: 4)

Sec.11A

Non Co-operation – Of workman in enquiry will cost his back wages Proportionality of Punishment – U/s. 11A, the Labour Court can reduce the punishment of dismissal into reinstatement Ex-parte Enquiry – For non Co-operation of workman in enqiry is fair and proper Back Wages – Not payable for non co-operation of the workman in enquiry leading to ex-parte decision

¥4.117 Where the workman failed to co-operate with the disciplinary enquiry, the ex-parte decision of the

enquiry officer holding the charges of unauthorized absence from duty etc. is proved, could not have been disturbed by Labour Court and High Court. However, the exercise of jurisdiction u/s. 11A of the Act holding the punishment of dismissal for a few days of unauthorized absence as excessive is valid and legal and interference on proportionality cannot be questioned. The reinstatement in service cannot be interfered with. But as the delinquent official repeatedly failed to attend the enquiry despite due notice, the award for back wages with interest is an error not in consonance with law. He is not entitled to back wages with interest for the period for which he has not worked.

Pepsu Road Transport Corporation v. Rawel Singh, 2008 II LLJ 625 : 2008 (117) FLR 354 : 2008 II LLN 647 : 2008 LIC 1694 : 2008 II CLR 958 : 2008 LLR 628 : 2008 (4) SCC 42 : 2008 (1) SCC (L&S) 996 (S.C.2J) CA 1664 of 2008 dt. 29-2-2008

“The question then remains with regard to consequential benefits and payment of back wages. Once we hold, and we have already held, that the enquiry could not be said to be contrary to law or in violation of principles of natural justice and fair play, it was the duty of the respondent-workman to cooperate with such enquiry and participate in disciplinary proceedings. The workman failed to do so. In the circumstances, in our opinion, Corporation should not be asked to pay back wags to the workman. Had the respondent remained present at the enquiry proceedings, an appropriate order could have been passed by Enquiry Officer after considering his case and after hearing him. There was thus default and failure on the part of the workman himself which resulted in the situation which has arisen. In view of this, in our view, the Labour Court was not right in awarding back wages with interest thereon. To that extent, therefore, the order could not be said to be in consonance with law. The High Court, in upholding the said award and confirming the direction, committed the same error. That part of the direction, therefore, is required to be set aside.” (Page: 628, Para: 16)

“For the foregoing reasons, the appeal is partly allowed. The award passed by the Labour Court and confirmed by the High Court so far as reinstatement of the respondent-workman is concerned, is not disturbed. But the direction issued by the Labour Court to the appellant- Corporation to pay back wages to the respondent workman with interest thereon as confirmed by the High Court is hereby set aside. The respondent-workman will be treated in continuous service. He will also be entitled to consequential benefits on setting aside of dismissal order but he is held not entitled to back wages for the period for which he has not worked.” (Page: 629, Para: 17)

Sec. 11A

Proportionality of Punishment – To interfere with dismissal for 105 days unauthorized absence in 15 occasion u/s. 11A cannot be exercised by Labour Court and High Court Unauthorized Absence – Being a serious misconduct dismissal as a punishment should not disturb the conscience of Court to interfere with the quantum of punishment Dismissal – Proper for unauthorized absence

¥4.118 When there are as many as 15 occasions in which the workman was found indulging in unauthorized

absence and remained absent for 105 days from August 1, 2000 to April 30, 2001, the Labour Court and High Court could not have interfered with the quantum of punishment by reinstating the workman with continuity of service. The discretion which can be exercised u/s. 11A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the

56

conscience of the Court or the existence of any mitigating circumstances which require reduction of the sentence or the past conduct of the workman with persuasive element not amounting to a misplaced sympathy. The award and judgment of Labour Court and High Court respectively were set aside and dismissal upheld.

L&T Komatsu Ltd. v. N. Udaya Kumar, 2008 I LLJ 849 : 2008 (116) FLR 1139 : 2008 I LLN 783 : 2008 LIC 415 : 2008 I CLR 978 : 2008 LLR 113 : 2008 (1) SCC 224 : 2008 (1) SCC (L&S) 164 (S.C.2J) CA 3852 of 2006 dt. 3-12- 2007

“When the factual background is considered in the light of principles indicated above, the inevitable conclusion is that the Labour Court and the High Court were not justified in directing the reinstatement by interference with the order of termination. The orders are accordingly set aside. The Order of termination as passed by the concerned authority stands restored.” (Page: 854, Para: 12)

Sec. 11A

Permission to adduce evidence – Cannot be refused to employer in support of termination before Industrial Tribunal without making a finding to the contrary Acceptable Evidence – Not same as granting a wrong permission to adduce evidence

¥4.119 The Industrial Tribunal allowed the employer Bank to adduce evidence in justifications of

termination of the services of tiny deposit collectors and upheld to termination and so also the Single Judge. The Division Bench set aside the concurrent findings on the ground that termination simplicitor does not call for elaborate evidence from bank to permit it to produce documents as evidence in support of termination. However Supreme Court set aside the judgment of Division Bench and upheld the Tribunal’s decision and held that the Division Bench has erred in distinguishing the concepts of wrong permission granted to lead evidence and absence of acceptable evidence and failed to record any finding that permission was wrongly granted.

United Bank of India v. Tamil Nadu Banks Deposit Collectors Union & Anr., 2008 I LLJ 845 : 2008 (116) FLR 357 : 2008 II LLN 141 : 2008 I CLR 973 : 2007 (12) SCC 585 : 2008 (2) SCC (L&S) 529 (S.C.2J) CA 5344 of 2005 dt. 5-12-2007

“In view of the aforesaid position in law, the inevitable conclusion is that the Division Bench of the High Court was not justified in allowing the writ appeal. A wrong permission granted to lead evidence and absence of acceptable evidence are conceptually different. The Division Bench appears to have been confused between the two concepts. There is no finding recorded that the permission was wrongly granted.” (Page: 849, Para: 11)

Sec. 11A

Direct Evidence – Includes – Proof of confession of theft made before management’s witnesses whose evidence in cross examination by delinquents remaied uncontroverted Confessional Statement – Made before police in presence of management’s witnesses if remained uncontroverted on cross, is a direct evidence in domestic enquiry

¥4.120 A confession made before the police by the delinquents in presence of management’s witnesses

regarding their involvement in the theft on which these management’s witnesses were examined in domestic enquiry is maintainable in proof of misconduct. The proof of misconduct can, construed to be proved by such direct evidence by management witnesses unless the delinquents in their cross examination of management’s witnesses controverts the same or atleast state that confession was extracted under threat. Such an evidence of misconduct is direct and Labour Court in such cases cannot treat the evidence of misconduct as not direct after all, all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility. Hence the Supreme Court agreeing with High Court upheld the dismissal of workman for theft and held that Labour Court erred in interfering with the punishment imposed upon domestic enquiry.

57

Workmen of Balmadies Estate & Ors. v. Management, Balmadies Estate & Ors., 2008 I LLJ 673 : 2008 (116) FLR 731 : 2008 LIC 1685 : 2008 I CLR 794 : 2008 LLR 231 : 2008 (4) SCC 517 : 2008 (1) SCC (L&S) 1066 (S.C.2J) CA 2435 of 2006 dt. 18-1-2008

“It is fairly well settled now that in view of the wide power of the Labour Court it can, in an appropriate case, consider the evidence which has been considered by the domestic Tribunal and in a given case on such consideration arrive at a conclusion different from the one arrived at by the Domestic Tribunal. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a Civil Court could do when a lis is brought before it. The Indian Evidence Act, 1872 (in short the 'Evidence Act') is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility.” (Page: 675, Para: 8)

“As noted above what MWs. 1 & 2 had stated was to the effect that the confession was made by the two delinquents in their presence and also in the presence of others. There was no cross examination with regard thereto. There was no complaint made by the delinquents even after the charge sheet was filed that the confessions had been extracted from them and/or that they had been compelled to make such a statement by reason of any threat hold out. Even when they cross examined the witnesses, they did not even suggest that what had been stated by the witnesses are incorrect. The findings of the Labour Court were perverse and can be termed to be based on misconception of law. The High Court, therefore, rightly observed that the evidence could not have been brushed aside by the Labour Court in the manner done.” (Page: 675, Para: 10)

Sec. 11A

Major Penalty – Includes–Withholding of 3 increments requiring holding of full fledged enquiry Full Pledged Enquiry – Requires for imposing penalty of withholding 3 increments Increments – If 3 are to be withheld full fledged enquiry necessary

¥4.121 Stoppage of 3 increments for misconduct cannot said to fall within the ambit of minor penalty within

the service conditions. It requires atleast issuing a show cause notice imputing the genre of misconduct committed if not full fledged enquiry. In the absence of fair opportunity withholding of 3 increments was set aside.

Sultan Khan Hamidullah Khan v. Principal B.N. College of Engineering, 2008 (116) FLR 811 : 2008 (1) BCR 291 (Bom.HC) WP 6079 of 2006 dt. 21-9-2007

“In the present case……….own hands.” (Page: 814, Para: 10)

Sec. 11A

Absence – If repeated without permission, if led to termination on enquiry, cannot be interfered with u/s. 11A Sec. 11A – Cannot be invoked to interfere with the punishment of termination for repeated absence Proportionality of Punishment – Is not under the discretion of Labour Court if the unauthorized absence was repeated and proved

¥4.122 Repeated absence without prior permission, if led to termination, after proper enquiry, does not call

for interference by the Labour Court u/s. 11A of the Act. The award interfering therewith is set aside, termination held valid.

Tata Engineering & Locomotive Co. Ltd. v. Ishwarchand Tarachand Jain & Anr., 2008 (116) FLR 76 : 2007 (6) BCR 427 (Bom.HC) WP 2115 of 1999 dt. 21-8-2007

“In the present case……….in the matter.” (Page: 80, Para: 12)

Sec. 11A

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Contract Employee – A pleading which when ignored by Labour Court, the matter needs to be remanded except in case of superannuation Superannuation – Of a workman during period of litigation if happened may be paid 50% back wages irrespective of ignoring the plea that he is a contract employee by Trial Court Back Wages – Only 50% payable on superannuation pending litigation of the dispute of illegal termination, though the plea of contract employee was ignored by Trial Court

¥4.123 When the services of a driver engaged by a contractor during the period of construction of the

factory was dispensed with, the Labour Court without recording such facts gave an award to reinstate him with back wages in the establishment of principal employer, the Single Judge and Division Bench did not interfere with the finding, Supreme Court held that in normal practice, it could have remanded the matter for proper consideration of these facts but as the workman had since superannuated, 50% back wages will meet the ends.

Bihar Caustic & Chemicals Ltd. v. Kripa Pandey, 2008 I CLR 799 : 2008 I LLJ 824 : 2008 (116) FLR 736 : 2008 LLR 438 : 2008 (11) SCC 173 : 2008 (2) SCC (L&S) 1128 (S.C.2J) CA 1389 of 2001 dt. 18-1-2008

“Considering the facts that the specific stand of the appellant about the respondent being employee of the Contractor was not considered by the Labour Court and the High Court, in normal course we would have remitted the matter to the High Court for consideration of that aspect. But taking into account the fact that even after reinstatement, the respondent has superannuated, ends of justice would be best served if 50% of the back wages in terms of the Labour Court Court's award is paid to the respondent.” (Page: 801, Para: 9)

Sec. 11A

Reference – U/s. 10 should be strictly construed Labour Court – Has no scope to go beyond the reference Award – Unsustainable if the Labour Court brought extraneous matter to the reference

¥4.124 The jurisdiction of Labour Court is circumscribed by the scope of reference. Once found the

termination illegal it cannot bring into the reference any extraneous matter such as the sub-division where the workman was employed was now abolished and in case similar employees were paid retrenchment compensation u/s. 25F he may be paid the same that being beyond the scope of reference. The Labour Court had only two alter natives either to reinstate with full back wages or to give compensation. The High Court quashing the award reinstated the workman albeit without back wages.

Tarsem Singh v. Judge, Labour Court & Ors., 2008 (116) FLR 346 : 2008 LIC 1075 (Raj.HC) SBCWP 3421 of 1994 dt. 13-8-2007

“In may considered……….in these proceedings.” (Page: 349, Para: 10)

Sec. 11A

Self Employment – Includes–Gainful employment Gainful Employment – Includes–Self employment engaged in a betal nut shop Betal nut shop – Running of which though self employment is a gainful employment

¥4.125 Self employment cannot be excluded from the concept of “gainful employment” though Labour

Court and High Court held so. Even if the employee is engaged in a “Betal nut shop” on self employed basis he is deemed to have been engaged in gainful employment and he is therefore not entitled to full back wages. Supreme Court allowed 50% back wages only and not full in this case.

Niranjan Cinema v. Prakash Chandra Dubey & Anr., 2008 (116) FLR 172 : 2008 I LLJ 668 : 2008 LIC 470 : 2008 I CLR 429 : 2009 (1) SCC (L&S) 502 (S.C.2J) CA 3960 of 2006 dt. 5-12-2007

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“In support of the appeal learned Counsel for the appellant submitted that contrary to this Court's view the Labour Court and the High Court have held that self employment is not gainful employment. It is also pointed out that there was no indication in the claim petition that he was not gainfully employed.” (Page: 173, Para: 4)

“It is also relevant that there was no averment in the claim petition that the earnings from the betel shop were not sufficient to make both ends meet. Therefore, the view expressed by the High Court in that regard is not legally sustainable. But it has not been shown as to how much the respondent earned from the betel shop. In view of this factual position, we direct that 50% of the back wages which has been deposited with the Tribunal, be released to the respondent. His entitlement is accordingly determined.” (Page: 174, Para: 6)

Sec. 11A

Back Wages – ` 10,000 payable if the corporation is suffering from heavy losses Financial Losses – If the corporation is suffering, the back wages can be paid only lump sum ` 10,000 despite lapse of many years since termination

¥4.126 Where the employer concerned was suffering from huge losses which was an accepted fact, though

the employee’s services were put an end on 18.07.1991 and award to reinstate him with 50% back wages was given on 06-11-1997, the employee is entitled to back wages of ̀ 10,000 only both for reasons of belated claim and financial loss being suffered by the corporation.

Haryana Land Reclamation & Development Corporation Ltd. v. Nirmal Kumar, 2008 (116) FLR 366 : 2008 I LLJ 864 : 2008 I LLN 793 : 2008 (2) SCC 366 : 2008 (1) SCC (L&S) 951 : 2008 (3) Mah.LJ 49 (S.C.2J) CA 3961 of 2006 dt. 10-12-2007

“It is not in dispute that the appellant was suffering from huge losses from 1990 onwards. In fact, this aspect has been referred to by the Labour Court and has been accepted.” (Page: 368, Para: 10)

“Considering the facts, we restrict the back wages to ̀ 10,000 to be paid within a period of two weeks from today, if not already paid.” (Page: 368, Para: 11)

Sec. 11A

Misappropriation – Of money by the bank manager–Being serious, the High Court cannot interfere with punishment so long as some evidence exists Departmental Enquiry – Findings are not susceptible to be interfered with by the High Court in cases of misappropriation by bank officer so long as some evidence exists Bank Manager – If misappropriates money High Court cannot interfere with dismissal so long as there is some evidence proved in departmental enquiry

¥4.127 Where a Bank Manager misappropriated the money by issuing 20 loans against fictious persons

against FDRs of different persons that also in far excess over the amounts of FDRs, the Supreme Court held that the High Court should not have interfered with the findings of enquiry officer on the ground that his reliance on documents were sketchy even when the falsification including entries were made in the handwriting of the said bank manager. The findings of domestic enquiry so long as it has some evidence, should not be interfered with by High Court. The Supreme Court set aside the orders of High Court including the contempt proceedings instituted by the bank manager against the management and upheld his dismissal.

General Manager, Punjab & Sind Bank & Ors. v. Daya Singh, 2010 LIC 3921 : 2010 (127) FLR 605 (S.C.2J) CA 4120 of 2007 dt. 28-7-2010

“We are rather amazed at the manner in which the High Court has dealt with the material on record. The Inquiry Officer is an officer of a Bank. He was considering the material which has placed before him and thereafter, he has come to the conclusion that the misconduct is established. He was concerned with a serious charge of unexplained withdrawals of huge amounts by a Branch Manager in the name of fictitious persons. Once the necessary material

60

was placed on record and when the charge-sheeted officer had no explanation to offer, the Inquiry Officer could not have taken any other view. The order of a bank officer may not be written in the manner in which a judicial officer would write. Yet what one has to see is whether the order is sufficiently clear and contains the reasons in justification for the conclusion arrived at. The High Court has ignored this aspect. Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge-sheeted employee. But the present case was certainly not one of that category. Once the charges were found to have been established, the High Court had no reason to interfere in the decision. Even though there was sufficient documentary evidence on record, the High Court has chosen to hold that the findings of the Inquiry Officer were perverse. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni Rubber & Plastics v. CCE MANU/SC/0309/1994 : AIR 1994 SC 1341. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu and Anr. v. State Represented by the Public Prosecutor and Anr. MANU/SC/1709/2009 : (2009) 10 SCC 206. The decision of the High Court cannot therefore be sustained.” (Page: 3925, Para: 17)

“In a number of cases including State Bank of India v. Bela Bagchi (supra) this Court has held that a bank employee has to exercise a higher degree of honesty and integrity. He is concerned with the deposits of the customers of the Bank and he cannot permit the deposits to be tinkered with in any manner. In Damoh Panna Sagar Rural Regional Bank's case (supra) the Manager of a Bank who had indulged in unauthorized withdrawals, subsequently returned the amount with interest. Yet this Court has held that this conduct of unauthorized withdrawals amounted to a serious misconduct. Same is the case in the present matter. There was a clear documentary evidence on record in the handwriting of the respondent which established his role in the withdrawal of huge amounts for fictitious persons. The ledger entries clearly showed that whereas the FDRs were in one name, the withdrawals were shown in the name of altogether different persons and they were far in excess over the amounts of FDRs. The respondent had no explanation and, therefore, it had to be held that the respondent had misappropriated the amount. Inspite of a well reasoned order by the Inquiry Officer, the High Court has interfered therein by calling the same as sketchy. The High Court has completely overlooked the role of the bank manager as expected by this Court in the aforesaid judgments.” (Page: 3926, Para: 19)

Sec. 11A

Habitual Absenteeism – If not proved dismissal from service is disproportionate Dismissal – From service is disproportionate for 15 days unauthorized leave being not one of habitual absentee Proportionality – Deserves to be noticed if workman was dismissed for unauthorized absence which is not habitual

¥4.128 Where the absenteeism was not a case of habitual one, but confirmed to a total of 15 days on 4

occasions during two months occasioned primarily due to his filial bondage and emotional attachment towards his daughter in which he was engrossed to save the matrimonial life of his daughter arising out of indifferent attitude of her in laws, his dismissal from service is held disproportionate. It shocks the conscience of the Court. The Supreme Court set aside the order of dismissal as affirmed by High Court. Instead it reduced 2 increments with cumulative effect on the principle of proportionality, emphasis being laid on the plank that he was not found a habitual absentee as could be seen from his past records.

Jagdish Singh v. Punjab Engineering College & Ors., 2009 LIC 3113 : 2009 III LLJ 373 : 2009 (121) FLR 984 : 2009 (7) SCC 301 : 2009 (2) SCC (L&S) 569 : 2009 AIR (SC) 2458 (S.C.2J) CA 3565 of 2009 dt. 14-5-2009

“The instant case is not a case of habitual absenteeism. The appellant seems to have a good track record from the date he joined service as a sweeper. In his long career of service, he remained absent for 15 days on four occasions in the month of February and March 2004. This was primarily due to sort out the problem of his daughter with her in-laws. The filial bondage and the emotional attachment might have come in his way to apply and obtain leave from the employer. The misconduct that is alleged, in our view, would definitely amounts to violation of discipline that is expected of an employee to maintain in the establishment, but may not fit into the category of gross violation of discipline. We hasten to add if it were to be habitual absenteeism, we would not have ventured to entertain this appeal.” (Page: 3114, Para: 10)

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“In the result, we allow the appeal and set aside the order passed by the disciplinary authority dated 30.09.2004 and affirmed by the High Court vide its order dated 28.08.2007. Taking the totality of the facts and circumstances of the case and having due regard to unblemished record of the appellant, and the reasons for which he remained absent without obtaining permission, the ends of justice would be met, if punishment imposed by the disciplinary authority is modified to that of stoppage of two increments with cumulative effect and further declare that he would not entitled for any monetary benefits during the period he was out of service and that period would be counted only for the purpose of his service benefits. We direct the disciplinary authority to issue appropriate orders in this regard within one month from the date of production of certified copy of this Court's order by either of the parties.” (Page: 3114, Para: 11)

Sec. 11A

Service of Notice – Must be by Registered A.D. Personal Service of Notice – Not required but by Registered A.D. sufficient Bank Employee – Deemed to have ceased and abandoned his post if he overstays his leave by virtue of clause 16 of Shastri award

¥4.129 In case of a bank employee who remains absent unauthorisedly beyond the leave period then as per

clause 16 of Shastri award he is deemed to have ceased to be a bank employee and voluntarily abandoned his service. But the Principle of Natural Justice warrants that notice to employee is to be served by registered A.D. though personal service of notice is not imperative.

Regional Manager, Central Bank of India v. Vijay Krishna Neema & Ors., 2009 LIC 2036 : 2009 III LLJ 191 : 2009 (121) FLR 559 : 2009 (5) SCC 567 : 2009 (2) SCC (L&S) 85 : 2009 AIR (SC) 2200 (S.C.2J) CA 2242 of 2009 dt. 8- 4-2009

“The question which, however, arises for consideration is as to whether the appellant has been able to prove that the notice was served upon the respondent. The High Court, it must be noticed at the outset, committed a serious error in holding that personal service of notice was imperative inasmuch as in case of an absent employee notice was required to be served by registered post with acknowledgment due. The learned Single Judge has arrived at a finding of fact that notice, in fact, has not been served upon him. Appellant has merely produced a photostat copy of the envelop. There was nothing to show that the notice was sent under registered cover with acknowledgment due.” (Page: 2041, Para: 16)

Sec. 11A

Principles of Natural Justice – Apply only by reason of statute for second show cause notice Second Show Cause Notice – Need not be issued for the employees of Gramin Bank for deciding the quantum of punishment NABARD – Guidelines regarding second show cause notice does not apply to Gramin Banks

¥4.130 Issuance of second show cause notice to delinquent employee before deciding the quantum of

punishment for the employee’s of Gramin Bank is not necessary because giving such opportunity does not fall under the Principles of Natural Justice. Such a right can only arise by reason of a statute such as in terms of Art. 311(2) of the Constitution. The said statute does not cover Gramin Bank. Moreover, whatever NABARD guidelines issued in this regard being only for guidance is not mandatory.

Chairman, Ganga Yamuna Gramin Bank & Ors. v. Devi Sahai, 2009 LIC 2019 : 2009 II LLJ 508 : 2009 (121) FLR 386 : 2009 (11) SCC 266 : 2009 (2) SCC (L&S) 618 : 2009 AIR (SC) 2126 (S.C.2J) CA 940 of 2009 dt. 12-2-2009

“Concededly again, the guidelines issued by NABARD laying down the procedure to be adopted for disciplinary action in Regional Rural Banks were made part of the Regulations. Even after coming into force of Act No. 1 of 1988, regulations were not amended. Issuance of second show cause notice for the purpose of obtaining the views of delinquent officer in regard to quantum of punishment is not a part of the common law principles of natural justice. Such a provision could be laid down by reason of a statute. The respondent does not enjoy any status. The service

62

conditions of employees of Regional Rural Banks are not protected in terms of Article 311(2) of the Constitution of India.” (Page: 2021, Para: 10)

“We, therefore, are of the opinion that the NABARD guidelines having been issued only for the guidance of the Regional Rural Banks, the same was not mandatory in character and in any event respondent was not prejudiced by reason of non-compliance thereof.” (Page: 2022, Para: 11)

Sec. 11A

Caste Certificate – If furnished found false for securing employment, but on enquiry found backward instead of S.C only 50% back wages payable not full Back Wages – 50% payable if caste certificate is false for securing employment if found backward and not S.C

¥4.131 The services of workman were terminated for securing employment on the basis of false caste

certificate as Supreme Court. The Tahsildar found that he belonged to backward caste and not Supreme Court. The High Court ordered full back wages and reinstatement. Supreme Court modified the portion of full back wages into 50% back wages.

Canara Bank by its M.D. v. Damodhar Govind Idoorkar & Ors., 2009 LIC 1957 : 2009 III LLJ 215 : 2009 (121) FLR 1153 : 2009 (4) SCC 323 : 2009 (1) SCC (L&S) 832 (S.C.2J) CA 1716 of 2009 dt. 18-3-2009

“We have heard the learned Counsel for the parties and considered the entire materials on record and after considering the submissions of the learned Counsel for the parties and after giving serious consideration to the facts and circumstances of the case, we are of the view that the order of the Division Bench of the High Court, which is impugned before us, should be suitably modified by directing the appellant-Bank to pay 50% of the back wages to the respondent No. 1 instead of full back wages within two months from the date of supply of a copy of this order to the Bank Authorities.” (Page: 1958, Para: 5)

Sec. 11A

Approval – Of manager taken prior to dismissal or not as per standing order a fact requiring raising the issue at Trial Court High Court – Cannot decide the issue whether approval as per standing order taken or not from manager – cannot be decided without giving opportunity to employer Employer – Should be given opportunity to prove that approval is given by manager for dismissal as per standing order before taking adverse view by courts

¥4.132 The Tribunal set aside the dismissal of 4 workmen on the ground that proper opportunity to defend

was not given. The Single Judge and Division Bench noticed that the holding of tribunal that the enquiry is opposed to the principles of natural justice is contrary to record. But it upheld the award on different ground that no approval of manager/employer is taken before issuing dismissal orders in terms of Standing Order No. 14(e), knowing fully well that this is a new contention of the workmen not taken before Tribunal. No opportunity is also given to employer to produce materials for having complied with the standing order. Therefore Supreme Court set aside the judgment and order of High Court and finding of Tribunal. However to give quietus to the dispute instead of remanding to Tribunal, ordered that 1/3 of the back wages be given to the workmen who had by then superannuated even when holding the dismissal valid.

M/s. Tirupati Jute Industries Pvt. Ltd. & Anr. v. State of West Bengal & Ors., 2009 LIC 2346 : 2009 III LLJ 247 : 2009 (14) SCC 406 (S.C.2J) CA 2429 with 2583, 2584 & 2585 of 2009 dt. 13-4-2009

“In regard to the finding that there was no approval by the manager/employer, it is not in dispute that such a contention was never raised before the Tribunal. What was urged before the Industrial Tribunal by the workmen was that they were not given due opportunity to defend themselves and therefore the inquiry was opposed to principles of natural justice. The workmen did not contend before the Industrial Tribunal that the order of dismissal was bad for want of approval of the manager or of the employer under Standing Order 14(e). The issue of violation of

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Standing Order 14(e) was raised before the High Court for the first time and as rightly contended by the learned Counsel for the appellant, the appellant did not have an opportunity to demonstrate that such an approval was in fact available or that such approval was not required, having regard to the fact that a decision was taken by the Manager or the Board of Directors, which was the employer. Neither the learned Single Judge nor the Division Bench could have assumed that there was no approval without giving an opportunity to the appellant to establish that there was approval. Merely on the ground that the matter was pending for a considerable time, the Division Bench could not say that there was no need to remit the matter back to the Tribunal or chose to assume that there was non- compliance with the requirement of Standing Order 14(e).” (Page: 2349, Para: 11)

“We are of the view that if the High Court felt that the matter need not be remitted and that it should decide the issue on merits, it ought to have given due opportunity to the appellant employer to produce before it, relevant material to establish that it had complied with Standing Order 14(e). That was also not done. Therefore, the finding of the learned Single Judge affirmed by the Division Bench, holding that there was no approval as required by Standing Order 14(e), requires to be set aside, as the same is based on no evidence.” (Page: 2349, Para: 12)

“In the usual course, this would have necessitated referring back the matter to the Tribunal for examination of the issue relating to compliance with Standing Order 14(e). But certain subsequent events have necessitated exercise of our jurisdiction under Article 142 to do complete justice. The orders of termination in regard to the employees were passed in the years 1990 and 1991. All the four employees have reached the age of superannuation long ago. There is therefore no question of any of them being reinstated, even if the matter is referred to the Tribunal and they succeed before the Tribunal. The High Court has found that the charges are proved. Only the technical contention about approval remains. On the facts and circumstances, we are of the view that a quietus should be given to this litigation by directing the appellant to pay one-third of the back-wages (less any amounts already paid/deposited by the appellant) in full and final settlement, to the four workmen.” (Page: 2349, Para: 13)

Sec. 11A

Back Wages – Payable on reinstatement is 30% Reinstatement – Cannot accompany back wages not more than 30%

¥4.133 The back wage on reinstatement can be 30% only. The Supreme Court though not interfered with

the order of High Court in reinstating the workman reduced the back wages from 50% to 30% relying on some other judgment of the Court.

State of Haryana v. Krishan Lal, 2009 LIC 4215 : 2010 I LLJ 252 : 2010 (124) FLR 1003 : 2010 LLR 1 : 2009 (2) SCC (L&S) 545 (S.C.2J) CA 5576 of 2009 dt. 18-8-2009

“At the time of hearing of this appeal, the learned Counsel for the parties had drawn our attention to an order passed by this Court on 6th of February, 2009 by which, this Court had similarly refused to interfere with the order passed by the High Court re-instating the workman but modified the award to the extent that the workman shall be entitled to 30% of back wages instead of 50% as directed by the High Court. Such being the stand taken by us in the similar matter, we also dispose of this appeal by directing that the appellants, i.e. General Manager, Haryana Roadways, Rohtak shall re- instate the respondent within a period of one month from this date without fail and the respondent shall be entitled to 30% of the back wages and be paid the said 30% of back wages within three months from this date. Accordingly, the impugned order of the High Court is modified to the extent indicated above.” (Page: 4215, Para: 4)

Sec. 11A

Appreciation – Cannot be differently to arrive at a different conclusion by the same forum on same evidence Forum – Which is same cannot appreciate evidence differently after remanding the matter Evidence – Cannot be differently appreciated by same forum after remand

¥4.134 The Tribunal cannot reverse its own decision on the same evidence because the same forum cannot

appreciate the same evidence differently even if High Court remands the matter to Tribunal for reconsideration.

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Biecco Lawrie Ltd. & Anr. v. State of West Bengal & Anr., 2009 IV LLN 91 : 2009 IV LLJ 644 : 2010 (124) FLR 108 : 2009 LIC 4207 : 2010 I CLR 328 : 2009 (10) SCC 32 : 2009 (2) SCC (L&S) 729 : 2010 AIR (SC) 142 (S.C.2J) CA 245 of 2007 dt. 28-7-2009

“The learned Single Judge also misused the power vested in him by remanding back the matter to the industrial tribunal for reconsideration when the charges were found to be proved. The tribunal also erred in reversing its own decision on the same evidence for which we fail to see as to how the same forum can appreciate the same evidence differently. The arguments advanced by the respondent that there was violation of the principles of natural justice does not stand true and if it does it was duly redressed by the fresh inquiry conducted by the tribunal after its order dated 9th of October, 1990.” (Page: 101, Para: 25)

Sec. 11A

Remand – By High Court to Tribunal cannot sustain where charges are proved in fair enquiry Charge – If proved in a fair enquiry remand to Tribunal cannot be made High Court – Cannot remand the matter where charges are proved for re-appreciation on same evidence Re-appreciation – Differently on same evidence not permissible by remanding the matter to Tribunal by High Court

¥4.135 Where the charges were found proved in a fair enquiry conducted by the Tribunal itself holding

dismissal proper the High Court in a writ petition cannot remand the matter for reconsideration and re- appreciation on same evidence differently.

Biecco Lawrie Ltd. & Anr. v. State of West Bengal & Anr., 2009 IV LLN 91 : 2009 IV LLJ 644 : 2010 (124) FLR 108 : 2009 LIC 4207 : 2010 I CLR 328 : 2009 (10) SCC 32 : 2009 (2) SCC (L&S) 729 : 2010 AIR (SC) 142 (S.C.2J) CA 245 of 2007 dt. 28-7-2009

“The learned Single Judge also misused the power vested in him by remanding back the matter to the industrial tribunal for reconsideration when the charges were found to be proved. The tribunal also erred in reversing its own decision on the same evidence for which we fail to see as to how the same forum can appreciate the same evidence differently. The arguments advanced by the respondent that there was violation of the principles of natural justice does not stand true and if it does it was duly redressed by the fresh inquiry conducted by the tribunal after its order dated 9th of October, 1990.” (Page: 101, Para: 24)

Sec. 11A

Charge sheet – Need not necessarily contain the specific language of abuse hurled Abuse – Hurled need not specifically be mentioned in the charge sheet

¥4.136 A charge sheet though did not contain specifically the abusive language used by the workman, does

not become bad. This is because it is neither vague nor unintelligible. Where the workman furnishes reply denying all the charges and names the employer’s witnesses, it cannot be said that the workman is unaware of the charges notwithstanding the fact that charge sheet is devoid of specific language of the abuse hurled by him. The response of workman is indicative that he was aware of the charges, the witnesses that would be arraigned against him and specifications of the charges.

Biecco Lawrie Ltd. & Anr. v. State of West Bengal & Anr., 2009 IV LLN 91 : 2010 (124) FLR 108 : 2009 LIC 4207 : 2010 I CLR 328 : 2009 (10) SCC 32 : 2009 (2) SCC (L&S) 729 : 2010 AIR (SC) 142 (S.C.2J) CA 245 of 2007 dt. 28-7-2009

“It was made the major bone of contention that the charge sheet was bad as it did not mention specifically the abusive language used by the respondent. In this connection, reliance can be placed on a decision of this Court in Punjab National Bank Ltd. v. Their Workmen (1959)IILLJ666SC : (1959) 2 LLJ 666 (SC), wherein it was held that before the management could dismiss its workman, it must hold a proper domestic enquiry into the alleged misconduct of such a workman and such an enquiry must begin with the supply of a specific charge sheet to him. In the instant case, on a perusal of the charge sheet it is evident that the charges laid down are precise and specific in

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nature along with the relevant provision of the standing order and neatly lays down the consequences thereof. We do not also find from the said charge sheet that there was any patent or latent vagueness involved and they are unintelligible. This is clearly evident from the explanation furnished by the respondent dated 6th of August, 1984 where he clearly denied all the charges and also mentioned the name of the four appellant-witnesses who were examined in the enquiry proceedings subsequently. This is a clear indication that the respondent was fully aware of the charges and even their specifications and also the probable witnesses for his misconduct and hence the entire plea falls flat on the face of it.” (Page: 97/98, Para: 14)

Sec. 11A

Principle of Natural Justice – Not violated merely because enquiry officer is company lawyer Company Lawyer – If becomes enquiry officer, it is does not violate the Principle of Natural Justice Enquiry Officer – Can be company lawyer

¥4.137 The question is whether the principles of natural justice is violated by appointing company lawyer as

on enquiry officer. It is held that where findings of enquiry officer were based on evidence and were not perverse, the mere fact that the enquiry was conducted by an officer of the management would not vitiate the enquiry. The Supreme Court rejected the contention that the enquiry officer, merely because a company lawyer, iwa baised and partisan.

Biecco Lawrie Ltd. & Anr. v. State of West Bengal & Anr., 2009 IV LLN 91 : 2010 (124) FLR 108 : 2009 LIC 4207 : 2010 I CLR 328 : 2009 (10) SCC 32 : 2009 (2) SCC (L&S) 729 : 2010 AIR (SC) 142 (S.C.2J) CA 245 of 2007 dt. 28-7-2009

“The instant case might appear to be a case of departmental bias as it is persistently lodged by the respondent that the Enquiry Officer was biased being a company lawyer and had favoured the company in causing miscarriage of justice. Departmental bias arises when the functions of a Judge and the prosecutor are combined in the same department as it is not uncommon to find that the same department which initiates the matter also decides it, therefore, at times, department fraternity and loyalty militates against the concept of fair hearing. In Hari Khemu Gawali v. MANU/SC/0010/1956 : The Deputy Commissioner of Police 1956CriLJ1104 : AIR 1956 SC 559, an externment order was challenged on the ground that since the police department which heard and decided the case was the same, the element of departmental bias vitiated administrative action and this Court rejected the challenge on the ground that so long as two functions (initiation and decision) were discharged by two separate officers, though they were affiliated to the same department, there was no bias. In The General Secretary, South Indian Cashew Factories Workers' Union v. MANU/SC/2767/2006 : The Managing Director, Kerala State Cashew Development Corporation Ltd. and Ors. (2006)IILLJ772SC : (2006) 5 SCC 201, it was held that the inquiry had been conducted by the Assistant Personnel Manager of the Corporation and the Union raised an industrial dispute in which Labour Court set aside the inquiry on the ground of institutional bias as the Enquiry Officer was part of the same institution and had also made certain uncorroborated remarks against the employee. This Court in appeal held that mere presumption of bias cannot be sustained on the sole ground that the officer was a part of the management and where findings of the Enquiry Officer were based on evidence and were not perverse, the mere fact that the inquiry was conducted by an officer of the management would not vitiate the inquiry. On a bare perusal of these decided cases, it could be strongly established that the fact that P.K. Mukherjee, the Enquiry Officer, who was also the company lawyer cannot be considered as being "biased and partisan" who favoured and was partial towards the management of the company.” (Page: 96/97, Para: 12)

Sec. 11A

Back Wages – When payable due regard to be given to gainful employment after taking into account the enrolment as an advocate Advocate – If enrolled as a professional it being a gainful employment back wages is to be reduced Gainful Employment – Includes–Employment as an Advocate in the profession of glorious uncertainties

¥4.138 The Labour Court in an application u/s. 33C(2) computed the entitlement of back wages not paid by

employer upon an award to the extent of ` 6,54,766 for the period 12th December 1996 to 15th June 2004. The same is contested by the employer on the ground that he had meanwhile from 12th December 2000

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enrolled as an advocate and hence gainfully employed. The Supreme Court agreed with the view that he as gainfully employed for the reason that he even after reinstatement by the employer later resigned his settled job and resumed the profession of glorious uncertainties. In view of this admitted position his back wages are restricted to ` 40,000 only.

Metropolitan Transport Corporation v. V. Venkatesan, 2009 IV LLN 5 : 2009 IV LLJ 305 : 2009 (122) FLR 939 : 2009 III CLR 1 : 2009 (9) SCC 601 : 2009 (2) SCC( L&S) 719 : 2010 AIR (SC) 206 (S.C.2J) CAJCA 5167 of 2009 dt. 7-8-2009

“It is difficult to accept the submission of the learned senior counsel for the respondent that he had no professional earnings as an advocate and except conducting his own case, the respondent did not appear in any other case. The fact that he resigned from service after 2-3 years of reinstatement and re- engaged himself in legal profession leads us to assume that he had some practice in law after he took sanad on December 12, 2000 until June 15, 2004, otherwise he would not have resigned from the settled job and resumed profession of glorious uncertainties. In this view of the matter, reasonable deduction needs to be made while determining the back wages to which respondent may be entitled. Taking overall facts and circumstances of the case and all other aspects including the aspect that he was enrolled as an advocate from December 12, 2000 to June 15, 2004, in our considered view, demand of justice would be met if the respondent is awarded back wages in the sum of Rs. 4 lacs instead of Rs. 6,54,766/-. We order accordingly.” (Page: 10, Para: 13)

Sec. 11A

Escalation of Prices – Compensation payable in lieu of reinstatement increased from ` 50,000 to ̀ 1 lakh Compensation – Payable in lieu of reinstatement should address the steep increase in cost of living Reinstatement – If to be substituted compensation payable should address the rising prices

¥4.139 The Supreme Court increased the compensation payable in lieu of reinstatement against illegal

termination from ` 50,000 to ̀ 1 lakh in view of steep escalation of prices in the commodity market, cost of living, cost of education etc.

Narendra Kumar v. Regional Manager, Punjab National Bank & Ors., 2009 IV LLJ 46 : 2009 (122) FLR 536 : 2009 (14) SCC 219 : 2010 (1) SCC (L&S) 358 (S.C.2J) CA 3543 of 2009 dt. 13-5-2009

“Ordinarily, we would not have interfered with the concurrent findings of the labour court and the High Court. At the same time, we can't be obdurate to the hard realities of life. In matters of this nature, a humane and pragmatic approach to the various factors, including the steep escalation in prices in the commodity market, the cost of living, the cost of education of children etc. Therefore, keeping in view the peculiar facts and circumstances of this case, in our view, it would be in the interest of justice, to enhance the compensation from Rupees Fifty Thousand (50,000/-) to One Lakh (1,00,000/-) only.” (Page: 47, Para: 9)

Sec. 11A

Appellate Authority – Is not incompetent to issue dismissal order acting as disciplinary authority notwithstanding the standing order Disciplinary Authority – May be different but appellate authority if issues dismissal order it is not vitiating the standing order Dismissal Order – Can be passed by appellate authority instead of disciplinary authority irrespective of standing order Prejudice – To workman is not caused even if appellate authority passes dismissal order instead of disciplinary authority Standing Order – Is not violated even though order of dismissal was passed by appellate authority instead of disciplinary authority

¥4.140 The workman assailed his dismissal from service for having passed the same by the appellate

authority instead of the disciplinary authority being in violation of the clause of the certified standing order. The Labour Court allowed the reference. The High Court set aside the award of Labour Court

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and held that no prejudice was caused to the workman by the order because the appellate authority is superior to disciplinary authority. Moreover, he has availed the avenue of mercy petition from the Managing Director who is a reviewing authority. However the matter was remanded to Labour Court to decide the allegation of misappropriation on merit since the Labour Court only dealt with the jurisdiction of appellate authority.

Karnataka Power Corporation Ltd. & Anr. v. G.G. Bhat, 2008 (118) FLR 571 : 2008 LIC 2388 (Karn.HC) WP 48545 of 2003 dt. 8-2-2008

“The question……….petition.” (Page: 578, Para: 24)

“The contention……….such power.” (Page: 579, Para: 28)

“Since……….on merit.” (Page: 580, Para: 33)

Sec. 11A

Fraud – Includes–Proved false representation with intent to overcome the requirement of qualification Employment – If obtained by false representation with intent to overcome the requirement of qualification punishment of dismissal can be imposed

¥4.141 When the qualification advertised for the post of Senior Maintenance Technician was SSLC plus

Diploma in Mechanical Engineering, the workman though only passed upto 9th standard has fraudulently stated in his bio data that he had passed SSLC with special training in ITI and obtained employment. Upon detection after enquiry he was dismissed. Both Tribunal and Single Judge by showing misplaced sympathy reinstated him with 50% back wages. The Division Bench correcting the error committed by courts below, set aside the award of Tribunal and judgment of Single Judge because of workman’s proved false representation with intent to overcome the requirement of qualification. These are fraudulent acts of the workman. Hence dismissal upheld.

Management of Mangalore Chemicals & Fetilisers Ltd., Mangalore v. Udaya, 2008 III CLR 241 : 2008 III LLJ 657 : 2008 (117) FLR 1138 (Karn.DB) WA 1813 of 2007 dt. 5-12-2007

“Added to this as it is to……….required to be interfered with.” (Page: 243, Para: 9)

Sec. 11A

Domicile Certificate – If fake and fabricated as basis for obtaining Anganwadi post termination is valid Anganwadi Worker – Who furnished fake and fabricated domicile certificate is properly terminated Fake & Fabricated – Domicile certificate if basis of termination it cannot be cured

¥4.142 Termination of an Anganwadi worker, who furnished fake and fabricated domicile certificate to

claim residence of the village to obtain the job, was held valid. The Division Bench upheld the finding of Courts below and expressed its inability rescue the workman.

Satya Devi v. Presiding Officer, Labour Court, Ambala & Ors., 2008 III CLR 874 : 2009 II LLJ 359 : 2009 (120) FLR 680 (P&H.DB) CWP 16033 of 2008 dt. 9-9-2008

“During the course……….petitiioner workman.” (Page: 876, Para: 5)

Sec. 11A

Back Wages – Not payable to a workman suffering from varicose veins and terminated but appointed in another post Termination – For less production though due to physical incapacity attracts Standing Order 24(e) Misconduct – Includes–Less production due to physical incapacity attracting Standing Order 24(e) Reinstatement – Excludes –Alternative appointment due to physical incapacity sans back wages

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¥4.143 The workman was suffering from varicose-veins, thereby unable to give more than 39% production. His services were accordingly terminated under Standing Order 24(e). The Labour Court found that because of his physical incompetency, he cannot be reinstated in the same post. Hence he was directed to be posted in a suitable post which was done. But no back wages granted. Single Judge upheld the same. The workman dissatisfied approached for back wages. The Division Bench held that it is not a case of reinstatement and since, he is neither capable of giving 100% production in the original post nor he has worked since his termination, granting back wages does not arise. The Division Bench upheld the finding of Labour Court that Standing Order 24(e) attracts even though he was not willful in his conduct to bring down the production.

Bhagat Punja Bagul v. Ceat Ltd., Mumbai & Anr., 2008 III CLR 56 : 2008 III LLJ 990 : 2009 (120) FLR 109 : 2008 (6) BCR 688 : 2008 (4) Mah.LJ 934 (Bom.DB) OOCJA 191 of 2001 WP 1824 of 1997 dt. 11-3-2008

“After having……….physical ailment.” (Page: 58, Para: 6)

Sec. 11A

Statement of Claim – Determines the starting point for back wages Back Wages – Will be paid only from the date of preferring statement of claim not before that

¥4.144 Where the workman has failed to prefer his claim statement immediately upon termination in the

year 1988, but only filed before the Court in the year 1992, it is held that the workman was not entitled to back wages upon reinstatement from 1988 to 1992. The order of Labour Court granting back wages was modified.

Maharashtra State Road Transport Corporation v. S.Y. Ubale & Ors., 2008 III CLR 360 : 2009 II LLJ 279 (Bom.DB) CAJWP 4224 of 1993 dt. 26-8-2008

“In my opinion……….filed.” (Page: 361, Para: 4)

Sec. 11A

Prejudice – Under Standing Order No. 25(4) could not be caused if the workman is represented by an English knowing person of his choice Representation – By an English knowing person of workman’s choice will not cause prejudice Standing Order No. 25(4) – Is not violated even if the workman is ignorant of English but his representative knew

¥4.145 The fairness of domestic enquiry was challenged on the ground that the enquiry officer recorded the

proceedings in English a language which the delinquent workman did not know which is in violation of Standing Order No. 25(4). The Labour Court held that prejudice was caused to him but the Single Judge overruled the same for the reason that he was represented by a person of his choice knowing English causing thereby no prejudice. Upholding the decision of Single Judge, the Division Bench held that the defence assistant of his choice being fully qualified aware of the language of the proceedings, having fully participated in the proceedings without any protest or demur, it cannot be said that any prejudice was caused to the workman for recording the proceedings in English having conducted cross examination in Marathi language which is the language known to the workman.

Shashikant M. Sable v. Advani Oerlikon Ltd. & Anr., 2008 III CLR 340 : 2008 (119) FLR 537 : 2009 (4) BCR 942 : 2008 (6) Mah.LJ 833 (Bom.DB) CAJLPA 104 of 2008, WP 972 of 1997 dt. 29-8-2008

“……….Applying the same principle……….protest or demur.” (Page: 342/343, Para: 5)

Sec. 11A

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Back Wages – Full payable once the workmen upon cross examination stated their effort and futility to get the employment Cross Examination – In which if the workmen stated that their effort to find employment failed they entitled full back wages

¥4.146 Pursuant to setting aside the illegal termination by Labour Court and as affirmed by revision, Single

Judge and Division Bench, the workmen were reinstated with full back wages. The direction to pay full back wages was contested stating that workmen were not having any ipso facto right to get back wages merely because termination was held illegal. But in this case it is reiterated by workmen in their cross examination that they had taken efforts to secure the employment but they were not able to get one. While credence in their version can be placed but the case of the management is totally disbelieved by the concurrent findings of Courts below. Hence no fault could be found in the grant of full back wages.

Sarita S. Melwani v. Pallavi V. Talekar & Ors., 2009 I LLJ 116 : 2008 LIC 3306 : 2008 II CLR 679 : 2008 (4) AIR (Bom.HC) 706 : 2008 (5) BCR 901 (Bom.DB) CAJLPA 87 of 2008 in WP 3969 of 2007 dt. 12-6-2008

“……….The last submission……….Judge of this Court.” (Page: 123/124, Para: 21)

Also Note:- Sarita S. Melvani V. Pallavi V. Talekar & Ors., 2008 (117) FLR 791 (Bom. HC)

Sec. 11A

Probationer – Can be terminated for unsatisfactory service by minting the said reason in the letter inviting no stigma Stigma – Excludes–Termination of probationer for unsatisfactory work Unsatisfactory Work – Even if mentioned as the reason for termination of a probationer, it is not stigmatic

¥4.147 Termination of a probationer for his services found unsatisfactory even though the termination letter

contained the same unsatisfactory service as reason for termination, was not deemed to be stigmatic. If requirement of termination even in extended period of a probation such as one month’s wages in lieu of notice etc. in terms of appointment letter if complied with then such termination will be termination simplicitor and hence not stigmatic. So long as the order does not attatch any stigma what was in the mind of management cannot be gone into. The Division Bench in this case upheld the findings of Labour Court which found the termination of probationer proper but set aside the order of Single Judge which had remanded the matter back to Labour Court for re consideration having held the termination stigmatic.

Deputy General Manager, Export Import, Bank of India v. Presiding Officer, Industrial Tribunal, Madras & Anr., 2008 LLR 300 : 2008 LIC 180 (Mad.DB) WA 1672 of 2000 dt. 9-10-2007

“The order……….November 8, 1986.” (Page: 301, Para: 3)

“It was……….challenged.” (Page: 301, Para: 4)

“On examing……….1988.” (Page: 309, Para: 32)

Sec. 11A

Abandonment of Job – Excludes – Non report of the workman to the new place of Transfer Transfer – If not complied with it does not constitute abandonment of job Departmental Proceedings – Proper for not reporting to the place of Transfer

¥4.148 When the workman refused to join the place of Transfer, it cannot be termed as a case of

abandonment of job. In such cases, it is open to the employer to initiate departmental proceedings against the workman for not joining his duties in the new place of posting.

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M/s. Sikand & Co. v. State of H.P. & Ors., 2008 LLR 58 : 2007 (115) FLR 465 (HP.DB) CWP 669 & 1023 of 2003 dt. 27-4-2007

“The contention……….abandonment of job.” (Page: 61/62, Para: 18)

Sec. 11A

No Work No Pay – Is the principle to deny back wages if the workman refuse to join the new place of posting Transfer – If refused to join new place of posting no back wages payable Back wages – Not payable if workman fails to joint new place of posting on the principle of no work no pay basis

¥4.149 If the workman does not join the place of Transfer even after the award to that effect, he is not

entitled to any back wages on the principle of ‘No Work No Pay’ basis. Besides the employer is at liberty to initiate departmental enquiry in accordance with law since no employee is permitted to hold his employer to ransom.

M/s. Sikand & Co. v. State of H.P. & Ors., 2008 LLR 58 : 2007 (115) FLR 465 (HP.DB) CWP 669 & 1023 of 2003 dt. 27-4-2007

“……….Even in the present……….duties at solan.” (Page: 62, Para: 22)

Sec. 11A

Reinstatement – Of the workman should be in the same project of territorial area from where his services were terminated though a new employer by bifurcation is created Territorial Area – Where the project was situated should be the federation to be reinstated though his appointment is not there following bifurcation Bifurcation – Of a federation will still entitle the workman to be reinstated in the same geographical area where the project is situated

¥4.150 A workman, whose services were terminated by U.P. Provincial Co.-Op. Federation which was later

bifurcated whereby another federation namely Uttaranchal State Co-Op. Marketing Federation came into being w.e.f. 1.1.2005, upon reinstatement is entitled to join the federation at the territorial a rea where he was working prior to his termination. It means the workman in this case though appointed in U.P. Provincial Co-op. Federation, he will be reinstated in Uttaranchal State Co-op. marketing federation though he was under termination when bifurcation took place because the project in which he was working at the time of termination is now under Uttaranchal State Co-op. marketing federation and hence he is to be reinstated in the very same project but in different federation.

Managing Director, Uttaranchal Rajya Sahkari Vipran Sangh Ltd. & Anr. v. Rajeev Kumar & Anr., 2008 LIC 2149 (Utt.DB) SA 31 of 2007 dt. 13-8-2007

“In view……….dismissed.” (Page: 2151, Para: 72)

Sec. 11A

Back Wages – Not payable to a cook who did not discharge the burden that he was not gainfully employed Gainful Employment – The burden is on workman to be discharged for claiming back wages Cook – A workman who failed to discharge the burden that he was not gainfully employed is not entitled to back wages

¥4.151 When the workman failed to raise a plea that he was not gainfully employed though burden is on him

by virtue of to Sec. 106 of the Evidence Act or the provisions analogous there to, a cook who had also not under gone any special training in cooking, could not have been granted any back wages especially when viewed by the fact that the Government has taken austerity measures to trim the expenditure. The back wages granted were set aside.

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Project Director, IDCWD Project, Jeypore v. Kailash Chandra Jena, 2008 LIC 1268 : 2008 LLR 611 (Ori.DB) WP (C) 4594 of 2003 dt. 17-12-2007

“……….In view of the said decision……….not have allowed back wages.” (Page: 1271, Para: 10)

Sec. 11A

Representation – By an advocate on behalf of delinquent employee cannot be claimed unless such right is part of Standing Order Advocate – Need not be represented in domestic enquiry as a matter of right unless Standing Order permits Enquiry – Can go on without being represented by an advocate on behalf of workman if Standing Order has no such provision Co-employee – Can represent a delinquent workman advocate need not be

¥4.152 The question is whether the refusal of the management to be represented by an advocate prejudices

the rights of the delinquent workman. The Court held that it does not unless the employer by his Standing Order recognized such a right. In this case the management representative is not a law graduate. Right to represent with a co-employee was granted. The Apex Court even otherwise, in the case of Crescent dyes and chemicals held that the law in India does not concede an absolute right of representation as an element of PNJ. Hence no prejudice is caused on this account.

(1) Peerless General Finance & Investment Company, Ltd. (represented by its Regional Manager, Southern Regional Office), Chennai, (2) Peerless General Finance & Investment Company, Ltd. (represented by its Branch Manager), Bangalore (3) Director-Administration, Peerless General Finance & Investment Company, Ltd. Kolkata v. Harikrishna Althal (Major) S/o. Late Narayan Althal, Bangalore, 2008 I LLN 683 : 2008 I LLJ 935 (Karn.DB) WA 2206 of 2006 (L-TER) dt. 14-12-2007

“Though respondent………. orders recognises such a right.” (Page: 690/691, Para: 13)

Sec. 11A

Misappropriation – Of ticket money being serious calls for dismissal of conductor Fiduciary Relationship – Where ever exists misconduct does not call for leniency Misconduct – Of misappropriation in a fiduciary capacity calls for deterrent punishment Conductor – Who misappropriates being in a fiduciary capacity is liable to be dismissed

¥4.153 When the checking staff of the Bus found the passenger possessing a ticket of ` 1 -10 pertaining to

altogether different route issued by the conductor, the Division Bench upheld his dismissal made after proper enquiry for the reason that he held a position of fiduciary relationship to the employer and quantum of amount misappropriated is not of a material consideration. The Division Bench set aside the award of reinstatement with 50% back wages and also the order of Single Judge who had directed his reinstatement as a fresh hand in a non fiduciary capacity even while upholding the charges.

Management of Marudhupandiyar Transport Corporation, Marudhapathi, Karaikudi (represented by its Managing Director) (now Known as Tamil Nadu State Transport Corporation (Kumbakonam Division III), Ltd.) v. Presiding Officer, Labour Court, Madurai & Anr., 2008 I LLJ 428 : 2008 (117) FLR 344 : 2008 I LLN 928 : 2008 I CLR 756 : 2008 LLR 632 (Mad.DB) WA 1158 of 2002 WP 11080 of 1994 dt. 28-11-2007

“Further more……….remained clean.” (Page: 431, Para: 9)

“It is to be remembered……….valid in law.” (Page: 431, Para: 13)

Sec. 11A

Non supply of reports – To delinquent workman relied on by employer justifies adverse preliminary award

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Preliminary Award – Stating enquiry was not fair and proper for want of providing with relied reports cannot be contested Prejudice – Is caused if the relied reports are not supplied to delinquent workmen

¥4.154 The preliminary award of Labour Court holding the enquiry not fair and proper for want of supply

of copies of 4 reports made by 4 different authors relied upon by the management had caused prejudice to the workman, the employer unsuccessfully challenged the same before Single Judge who dismissed the same. The Division Bench also upheld the finding of Labour Court and Single Judge that non supply of 4 reports relied on had prejudiced the workman and hence there is nothing improper in the preliminary award of Labour Court.

Management of M/s. Turbo Energy Ltd. v. Pulivalam rep. by its Executive Director v. Presiding Officer, Labour Court, Vellore & Anr., 2009 II CLR 403 : 2009 IV LLJ 115 (Mad.DB) WA 373 of 2009 & MP 1 of 2009 dt. 13-4- 2009

“We have heard………. contents of Exhibits M-11 to M-14.” (Page: 405, Para: 6)

“In the present……….Single Judge.” (Page: 406, Para: 8)

Sec. 11A

Principles of Natural Justice – If not complied with by giving one month’ notice prior to termination in terms of certified standing order, termination will be set aside Termination – Non est if notice prior to termination as per standing order not issued Standing Order – If requires notice termination without it is illegal

¥4.155 The workman absented himself for more than 15 days undergoing treatment for his mental

problems. Management exercising the provisions of Clause 15(x) of the certified standing orders terminated his service. The workman challenged the same under item 3 of Sch. II of the Act. The Labour Court found that the principles of natural justice were not complied with since one month’s notice as per Clause 15(x) of certified standing order is condition precedent. The Single Judge and Division Bench upheld the award of reinstatement with full back wages.

M/s. Heavy Engineering Corporation Ltd. Ranchi v. Somra Oraon, 2009 LIC 4344 : 2010 II LLJ 471 (Jhar.DB) LPA 120 of 2004 dt. 1-5-2009

“Learned tribunal on due……….challenged in the writ petition.” (Page: 4346, Para: 16)

“Learned single judge……….dismissed the writ petition.” (Page: 4346, Para: 17)

Sec. 11A

Union Leader – When communicates with management letters containing somewhat harsh language without motive does not constitute misconduct Misconduct – Excludes–Harsh language used by the union leader in communications with management Harsh Language – Used by union leader in communication does not constitute misconduct Dismissal – Not proper for harsh language used in communications with management by a Union leader

¥4.156 Where a workman who is also a secretary of the employee’s union in the Bank in his capacity as

union leader writes some letters to the management containing some harsh language, they cannot constitute misconduct as a basis to frame charges especially the management had failed to attribute any motive or grudge against his superiors. Moreover the letters were written long prior to the date of passing his suspension order. Hence the charge of using abusive language in communications was rejected by Single Judge and Division Bench though upheld by the Labour Court. However the charges on second count that he failed to make proper entries for money disbursed is proved as upheld by

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Labour Court and Single Judge on which the Division Bench has concurred. In the facts of the matter the dismissal of the workman was set aside and he was directed to be reinstated without back wages.

Pudukottai Central Co-operative Bank Ltd. v. Presiding Officer & Ors., 2008 LIC 1289 : 2008 I LLJ 588 (Mad.DB) WA 2579 of 2003 dt. 23-11-2007

“As for the first charge……….finding in this regard.” (Page: 1291, Para: 10)

“Further, the second……….against the petitioner.” (Page: 1291, Para: 12)

“For the foregoing……….writ appeals are dismissed.” (Page: 1293/1294, Para: 23)

Sec. 11A

Presenting Officer – Can tender evidence in enquiry lawfully Perverse Finding – Of Tribunal that enquiry is vitiated due to P.O. tendering evidence is unsustainable

¥4.157 A perverse award of Tribunal can be set aside. It was perverse because, it was held that the

presenting officer cannot tender evidence which in this case he did. Such a holding by the Tribunal is illegal. Since the Single Judge failed to interfere, in appeal the Division Bench set aside the award. Since the facts on record indicated that the workman made fictitious entries of receipt of premium even when the policy holder never made payment. The workman later deposited the amount after years of misdemeanor.

Life Insurance Corporation of India Ltd. v. Presiding Officer, Central Government Labour Court & Ors., 2008 I CLR 275 : 2008 I LLJ 559 : 2007 (114) FLR 1001 (Cal.DB) APO 591 of 2003 dt. 4-7-2007

“Employer herein, being a corporate……….wrong on that score.” (Page: 280, Para: 19)

“In our considered view……….interfering on that score.” (Page: 280, Para: 20)

Sec.11A

Order – To agitate before Labour Court against the award of Tribunal dismissing the writ petition is erroneous High Court – Cannot direct the parties to take their plea to labour court

¥4.158 Once the Tribunal gave its award reinstating the terminated employee, the Single Judge erred in the

writ petition in granting liberty to the parties to take their plea before Labour Court which is only an executing Court. The Labour Court cannot reagitate the issues presented by the employer in the dismissed writ petition.

Life Insurance Corporation of India Ltd. v. Presiding Officer, Central Government Labour Court & Ors., 2008 I CLR 275 : 2008 I LLJ 559 : 2007 (114) FLR 1001 (Cal.DB) APO 591 of 2003 dt. 4-7-2007

“We have considered……….judge was not correct.” (Page: 280, Para: 14)

Sec. 11A

Back Wages – Payable full if termination held illegal within the ambit of exceptions in the decision of J.K. Synthetics J.K. Synthetics – In the exceptions, Apex Court allowed back wages in full applicable herein Defence – If shut out, entitled for full back wages falling within exceptions in J.K. Synthetics case decided by Apex Court Termination – If illegal due to shutting out of defence, entitled to full back wages falling within exceptions in J.K. Synthetics case

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¥4.159 Where the termination of service was found illegal because the employer had virtually shut out the defence of the workman, he is entitled for back wages also upon reinstatement as it falls squarely within the exceptions postulated by the Apex Court in the case of J.K. Synthetics v. K.P. Aggerval, 2007 (2) SCC 433.

Taranjitsingh I. Bagga v. Maharashtra State Road Transport Corporation through the Divisional Controller, 2008 (4) BCR 330 : 2008 III LLJ 273 : 2008 (118) FLR 119 : 2008 (3) Mah.LJ 743 (Bom.DB) LPA 4 of 2007 in WP 4733 of 2005 dt. 11-4-2008

“In this case……….his reinstatement.” (Page: 332, Para: 7)

Sec. 11A

Resignation – Cannot be contested as being given under duress, if transfer order itself was not contested Service Benefits – Once accepted and appropriate it cannot lie in the mouth of workman that resignation was involuntary Transfer – If malafide requires to be contested before challenging resignation as being obtained under duress

¥4.160 The workman, a service mechanic, refused to accept the transfer order from Delhi to Pinjore in the

teeth of service conditions. He was relieved from Delhi but failed to report to his new place of posting resulting in chargesheet and enquiry. In order to circumvent with the disciplinary action, he tendered his resignation which was accepted. Thereafter be raised a dispute of involuntary resignation being extracted under threat and duress. The Labour Court exercising jurisdiction based on of proportionality, ordered compensation of Rs. 3 lakhs. The Single Judge set aside the same and Division Bench upheld the decision of Single Judge and held that the workman has never contested his transfer if illegal. He accepted the service dues after submitting resignation. He has not contested the disciplinary proceedings if it was unwarranted. His conduct shows that the resignation was given voluntarily on his own volition and hence dismissed his appeal.

Deepak Kumar Bali v. HMT Ltd., 2009 III LLN 150 : 2009 III LLJ 27 : 2009 (121) FLR 742 : 2009 I CLR 672 : 2009 LLR 427 (Del.DB) LPA 2031 of 2006 dt. 23-1-2009

“It is view……….duress or pressure.” (Page: 153, Para: 9)

“We are in full agreement……….labour court at Pinjore.” (Page: 10, Para: 10)

Sec. 11A

Back Wages – Upon reinstatement is not automatic & 100% but only 50% Re-appreciation of Evidence – By writ petition is not permitted Writ Petition – Cannot be resorted to for re-appreciation of evidence

¥4.161 Where the rash and negligent driving was not proved, termination of service was set aside with

orders to pay full back wages. The writ petition by employer was dismissed. In the L.P.A., the Division Bench, while upholding the reinstatement, the back wages payable was modified to 50% instead of full, it being not automatic.

State Express Transport Corporation Ltd. Chennai v. Presiding Officer, Labour Court, Tirunelveli & Ors., 2009 I CLR 343 (Mad.DB) WP 860 of 2005 & WAMP 1620 of 2005 dt. 4-11-2008

“We have considered……….of evidence.” (Page: 344/345, Para: 6)

“The Apex Court……….materials.” (Page: 345, Para: 8)

“It has therefore……….wages.” (Page: 345/346, Para: 10)

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Sec. 11A

Loss of Confidence – Stems from the fact of misappropriation of money by conductor warranting the penalty of dismissal, no interference u/s. 11A Misappropriation of Funds – Warrants dismissal with no scope to mould u/s. 11A of the Act Section 11A of the Act – There is no scope for moulding the punishment where the workman indulged in misappropriation Doctrine of Proportionality – Does not ensue for moulding relief from the punishment of dismissal if misconduct of misappropriation is proved

¥4.162 Where the bus conductor was found misappropriating the corporation’s funds, no generosity or

misplaced sympathy can be used to mould the penalty of dismissal. The dismissal made after an enquiry is proper and not harsh, employer having lost the confidence and trust with the workman. The Single Judge and Division Bench upheld the findings of Tribunal as to the guilt and punishment of dismissal imposed on him.

P. Channabasavaiah v. Divisional Controller, KSRTC, Bangalore, 2009 (123) FLR 511 : 2010 LLR 36 (Karn.DB) WA 1122 of 2008 dt. 17-2-2009

“In our considered……….dismissal is harsh.” (Page: 512, Para: 6)

“In the case……….does not arise.” (Page: 512, Para: 7)

Sec. 11A

Sec. 11A – To mould the punishment of dismissal cannot be used even if the proved misappropriation is very less Doctrine of Proportionality – Cannot be used where there is proved case of misappropriation Misplaced Sympathy or Generosity – Cannot be shown to mould the punishment of dismissal in cases of proved misappropriation

¥4.163 Where the charges of misconduct in not issuing tickets to passengers is proved, the law is well settled

that the workman cannot ask to mould the punishment of dismissal imposed for loss of confidence on being very harsh. In cases of misappropriation, viewing with sympathy or generosity does not arise.

H.K. Shekar v. Karnataka State Road Transport Corporation, 2009 (123) FLR 650 : 2009 LIC 2585 : 2009 LLR 1037 (Karn.DB) WA 882 of 2008 dt. 17-2-2009

“No illegality……….disproportionate.” (Page: 651, Para: 6)

“In our considered……….dismissal is harsh.” (Page: 651/652, Para: 7)

Sec. 11A

Disciplinary Authority – Higher Authority than specified in model standing order cannot dismiss an Air hostess for over staying leave Air Hostess – Cannot be dismissed under Model Standing Order by a superior officer than that authorized assuming the power of disciplinary authority Deputy Director Inflight – Is not competent to dismiss Air Hostess by asserting power under Model Standing Order

¥4.164 The employer terminated the services of workman under the Model Standing Orders for over

staying leave even when the workman an Air Hostess conceived back to back pregnancy in the leave period and during extended leave. The Deputy Director, inflight services exercising the authority as disciplinary authority after an ex-parte enquiry dismissed her for the said misconduct. The Tribunal held the dismissal illegal for want of competence under Model Standing Orders since he is no where figured in the Model Standing Order as a disciplinary authority or an appellate authority. It provides manager inflight as the disciplinary authority. There is no appellate authority specified for the punishment passed

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by Deputy Director. Deputy Director is two stages higher than manager. Merely he is superior; he cannot usurp the authority to exercise the disciplinary proceedings unless provided specifically. The delegation of power which was belatedly produced in writ Court no where provides for disciplinary powers exercisable by him. Upholding the decision of Courts below the Division Bench upheld the reinstatement and back wages subject to conditions.

Air India, Ltd., Mumbai v. Shashikala Jatav & Anr., 2011 (128) FLR 421 : 2011 II LLJ 125 : 2010 IV LLN 540 : 2010 III CLR 737 : 2011 (1) BCR 642 (Bom.DB) OOCJA 635 of 2004 in WP 1991 of 2004 dt. 16-9-2010

“So far as……….in any manner.” (Page: 428, Para: 8)

“The Tribunal……….disciplinary jurisdiction.” (Page: 429, Para: 9)

Sec.11 A

Full back wages – Payable if employer thrusts upon the workman long drawn legal battle

¥4.165 Where the management thrusts long legal battle upon the workman after illegal termination, if the

order of reinstatement is accompanied with orders for full back wages, by the Labour court and affirmed by Single Judge, the said decisions cannot be disturbed in appeal by Division Bench & no fault could be formed in the decision to award full back wages.

Telecom District Manager, Telecommunication v. Shashi Kamal & Anr., 2010 (126) FLR 1121 : 2011 II LLJ 741 (HP.DB) LPA 18 & 19 of 2007 dt. 26-2-2010

“……….The long drawn……….to the workman.” (Page: 1123, Para: 8)

Sec.11 A

Voluntary Resignation – If disproved by facts writ large in evidence the labour court and single judge cannot brush aside the contrary contentions of workmen Division bench – Can direct reinstatement of workmen with back wages if Labour court and single judge erred to read the evidence properly to dismiss the workmen’s contentions

¥4.166 The services of some workmen working as machine men were illegally terminated. Before the Labour

Court, management contended that it is a case of voluntary resignation with payment full and final. The Labour Court and single judge believed the employer and dismissed their contentions of workmen. On appeal that Division Bench noticed that the workmen were threatened by the employer and they were beaten and signatures on blank paper was obtained. These facts were brought out in cross examination by workmen at the available opportunity. These were evidence of police compliant & compliant to Labour Inspector and receipt of a months salary in pressure of Labour Inspector. Despite this preponderance of evidence, the courts below ignored them. Hence setting aside an award of Labour Court judgment of Single Judge the Division Bench directed that reinstatement with full back wages.

Om Prakash v. Lamba Plastics, 2010 (125) FLR 614 : 2010 III LLJ 557 : 2010 I CLR 864 (Del.DB) LPA 474 of 2009 dt. 10-3-2010

“Both the learned……….settlement is untenable.” (Page: 617, Para: 8)

“In our view……….Labour Court.” (Page: 618, Para: 11)

“The appeal……….Labour Court.” (Page: 618, Para: 12)

Sec.11 A

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Union – If once accepted the decision of Single Judge who remanded the matter to Tribunal to find out proportionality of punishment, is precluded from appeal to Division Bench from that verdict

¥4.167 The 13 workmen involved in a gherao were dismissed after an enquiry. The challenge before Labour

Court led to its observation that the enquiry was fair and misconduct is also grave and serious and punishment of dismissal was also not excessive and yet awarded compensation which upon challenge was set aside by single judge who remanded the matter to give its findings whether dismissal was shockingly disproportionate. The union accepted these findings and represented before the tribunal. The Tribunal thereafter held that the dismissal was proper punishment. The union thereafter now cannot make an appeal to Division Bench from the orders of Single Judge having accepted the decision and acted thereupon.

Tata Press Employees Union v. Tata Infomedia, Ltd. & Ors., AND Tata Press Employees Union v. Infomedia India, Ltd. & Anr., 2010 (125) FLR 514 : 2010 II LLJ 847 : 2010 II LLN 151 : 2010 LIC 3195 : 2010 II CLR 463 (Bom.DB) A 914 of 2005 in WP 1049 of 2002 & A 385 of 2008 in WP 2599 of 2007 dt. 25-3-2010

“……….In an opinion……….dismissed.” (Page: 516, Para: 3)

“……….In paragraph……….in the negative.” (Page: 517, Para: 4)

“Thus, the Labour Court……….interference……….” (Page: 517, Para: 5)

Sec. 11 A

Habitual Absenteeism – Includes – Unauthorized absence of 885 days within 3 years Certified Standing Order – Rule 31 can be invoked to dismiss a workman remaining unauthorized have for 885 days Dismissal – For unauthorized absence for 885 days invoking certified standing order is proper

¥4.168 An absence from duty during a period of 3 years at the rate of 355 days in the first year, 285 days in

the second and 245 days in the third year, without prior permission attracts Rule 31 of the certified standing order and Rule 3(i)(ii) and (iii) of central civil service (conduct) Rules 1964 and hence the Division Bench upheld the Tribunals decision, that there is no error in his dismissal for the misconduct of absenteeism and held that regularization of such absenteeism is of no consequence.

Pandurang Vithal Kevne v. Bharat Sanchar Nigam Ltd. Mumbai & Anr., 2010 (124) FLR 720 : 2010 I CLR 170 (Bom.DB) OOCJWP 2584 of 2007 dt. 5-12-2009

“The time period……….fitness certificate.” (Page: 724, Para: 7)

“……….No doubt……….dismissed.” (Page: 725, Para: 11)

Sec.11 A

Coal mines Nationalization Act – Is not retrospective

¥4.169 The services of genl. mazdoor is erst while colliery before nationalizations was terminated on 25.4.73 having worked since 5.4.1971. The coal mines nationalization Act came with force on 1.5.1973. The Tribunal gave an award to reinstate him without back wages in Akashkinaree Colliery of M/S Bharat coking coal Ltd. The single judge replied the source. The contentions before Division Bench was no workmen after 1.5.1973 can be inducted as he is an inductee, the Act being applicable retrospectively. The Division Bench rejected the same in view of the finding of Tribunal and judgment of Apex court in the case of Ram kanali colliery or BCCL v/s workmen by secretary. Rashtriya colliery mazdoor sangh upheld the award and judgements of courts below.

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Employers in relation to the Management of Akashkinaree Colliery of M/s. B.C.C.L. v. Presiding Officer, Central Government Industrial Tribunal No. 2 at Dhanbad & Anr., 2010 II CLR 550 : 2010 (124) FLR 327 : 2011 LIC 384 (Jhar.DB) LPA 551 of 2002 dt. 13-5-2010

“From perusal……….they are perverse.” (Page: 553, Para: 10)

“From perusal……….care of delay.” (Page: 553, Para: 11)

Sec. 11A

Delinquency – Of workman if Labour Court has not considered the substitution by mild penalty is liable to be modified by Writ Court Section 11A – The Labour Court has to give reason and consider to delinquency of workman Labour Court – Has to consider the delinquency of workman at the time of awarding a mild punishment

¥4.170 Dismissal for misconduct in crediting wages, delay is processing gratuity and PF dues etc was

challenged before Labour Court. Applying the doctrine of proportionality, the Labour Court entering into the merit of enquiry and near superannuation of workman interfered with punishment by ordering 25% back wages and continuity of service. The Single Judge found that the workman had given up the challenge to enquiry but only challenged the findings yet Labour Court went on into the merits of conducting enquiry. Due to its lack of reasoning and proved delinquency of workman the single judge substituted the penalty by awarding stoppage of one increment with cumulative effect and back wages reduced to 10%. The Division Bench upheld the same with due regard to the delinquency of workmen.

Babubhai S. Solanki v. Ahmedabad Municipal Corp., 2011 III LLJ 154 : 2010 (127) FLR 347 : 2010 III CLR 226 (Guj.DB) LA 192 & 352 of 2001 in SCA 10816 & 8742 of 2000 dt. 16-8-2010

“……….There cannot be……….dismissed.” (Page: 157, Para: 10)

Sec.11A

Enquiry – Non participation will make their demand to furnish the role played by them not maintainable in appeal Charge sheet – If not replied enquiry not attended, they have no claim to demand in appeal the individual role played them justifying termination

¥4.171 The workmen were issued with charge sheets for playing their part in pelting stones to the jeep of the

employer. Out of 83 workmen except two all others have settled their disputes in one way or other. The two workmen however, neither attended the enquiry, nor replied to the charges nor gave apology or settled with employer. However the Tribunal gave an award of reinstatement with 25% back wages but the single judge set aside the award. Upon challenge, the Division Bench affirmed the order of single judge and held that the workmen have no case to claim now demanding the role played by each of them when the fact remains that they failed to participate in enquiry and failed to reply to the charges and hence the termination cannot be called into question nor it is discriminatory.

Maharashtra General Kamgar Union v. Haldyn Glass Works Ltd., 2010 (127) FLR 1001 : 2010 IV LLJ 449 : 2010 II CLR 1012 (Bom.DB) OOCJA 243 of 2006 in WP 2416 of 2000 & A 244 of 2006 in WP 6 of 2001 dt. 29-6-2010

“We have heard……….specific role.” (Page: 1014, Para: 3)

Sec. 11 A

Penalty – Modification better to be left to management than to tribunal Management – Is in a better position to impose modified lighter punishment than dismissal or renewal Proportionality of punishment – Is better left to the wisdom of management

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¥4.172 Where out of two charges i.e. assault on superiors and leaving the place of work unauthorizedly before the duty hours, the later charge only proved, the Division Bench held that the punishment of dismissal to the proved charges is disproportionate. But it did not agree in modifying the penalty of dismissal into one of stoppage of two increments on the part of Tribunal because that aspect should have been left to the employer considering the nature of duties performed by him. In this case their duties were sealing of isolation stoppage a very important work. Hence Division Bench modified the order and left the punishment to be inflicted on the wisdom of management and not on Tribunal but with a rider than it should be lighter than dismissal or removal from service.

Eastern Coalfields Ltd. v. Misri Yadav & Ors., 2010 III LLJ 849 : 2010 (125) FLR 221 : 2010 III LLN 203 : 2010 II CLR 315 (Cal.DB) FMA 164 of 2009 dt. 30-11-2009

“We are of the view……….second charges.” (Page: 854/855, Para: 24)

“We hasten to add……….appellant.” (Page: 855, Para: 25)

“Under those……….been made.” (Page: 855, Para: 26)

Sec. 11 A

Fiduciary capacity – A conductor works Termination – Of a conductor for misappropriation of ` 15 is justified

¥4.173 Termination of the services of a Bus conductor for the misconduct of not issuing bus tickets despite

receiving money no matter, the misappropriated amount is only ̀ 15 does not require interference by the High Court because he being in a fiduciary capacity the conduct is very serious. In this case, he had two similar past misconducts on record. The Division Bench upheld the findings of courts below that non examination of passengers is not fatal to the fairness of enquiry since other evidence establish the charges. Hence termination was upheld.

Mahinder Pal (Sh.) v. Delhi Transport Corporation & Anr., 2010 III CLR 510 : 2011 I LLJ 141 (Del.DB) LPA 598 of 2009 dt. 13-9-2010

“In the case……….economic growth.” (Page: 517, Para: 22)

Sec. 11 A

Charge sheet – Even if issued by High ranking Officer, it cannot be regarded as unauthorized High Ranking officer – Even if issues charge sheet it cannot be regarded as unauthorized

¥4.174 The misconduct leading to termination after enquiry was contested on the group that the charge

sheet was issued by an unauthorized officer because he was a high ranking officer. The courts upto Division Bench held that issuing of charge sheet by a high ranking officer as per Standing Orders cannot be regarded as unauthorized.

M.Y. Khan v. Tata Engineering & Locomotive Company Ltd., Jamshedpur, 2010 III CLR 500 : 2011 I LLJ 274 (Jhar.DB) LPA 306 of 2009 dt. 7-9-2010

“Perused charge sheet……….person.” (Page: 500/501, Para: 3)

Sec.11 A

Compensation – of ` 50,000 cannot be enhanced for misconduct of absence from duty for 6 months without sanction Absence from duty – without sanction of leave for 6 months can only be compensated by ` 50,000 and not more upon superannuation

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¥4.175 The workman remained absent without sanction or leave for a period of six months. The same is proved by the employer by letting in evidence before Labour Court. As employer had dismissed him from service for misconduct the Labour Court considering his superannuation in the interregnum period, awarded compensation of ̀ 50,000 by way of proportionality, this was upheld by single judge. The Division Bench also could not come to a different decision considering the serious nature of misconduct including silence on his part regarding gainful employment which disentitles him for any back wages. Hence division bench held that there is no case for enhancement of compensation made out.

Khairulla Hasanali Pathan v. Godrej & Boyce Mfg. Co. Ltd., 2010 III CLR 48 : 2011 I LLJ 223 : 2010 LLR 1150 (Bom.DB) OOCJA 772 of 2007 in WP 1315 of 2006 dt. 23-7-2010

“We have heard……….fails and is dismissed.” (Page: 49, Para: 3)

Sec. 11 A

Judicial Review – In respect of departmental proceedings is very limited–to decision making process rather than merits of proceedings

¥4.176 Where a clerk in southern railway in the guise of giving refund of the cancelled ticket is able to

pocket a sum of ̀ 10,070 the misappropriation of which upon enquiry resulted in his compulsory retirement. All the forums i.e. – Tribunal and single judge upheld the same and the Division Bench also found that there is substance in the allegation of misappropriation and held that in the teeth of overwhelming evidence against the workman that Division Bench is the judicial review cannot come to a different conclusion.

S. Singaravelu v. General Manager, Southern Railways, Chennai & Anr., 2010 III CLR 252 : 2011 II LLJ 510 : 2011 LLR 35 (Mad.DB) WP 13196 of 2001 dt. 9-8-2010

“We have perused……….appellant.” (Page: 257/258, Para: 20)

“The procedure……….by the appellant.” (Page: 258/259, Para: 24)

Sec. 11 A

Proportionality punishment – In respect of a subordinate official is inextricably limited to the question of punishment imposed on his superior in the same chain of events leading to misconduct Misconduct – Of subordinate official cannot be severe if the lighter punishment is imposed to superior in self same chain of events Subordinate official – Cannot be imposed harsher punishment of dismissal were his superior is let off lightly for the self same misconduct

¥4.177 The Bank dismissed the services of a special assistant after an enquiry for the misconduct committed

by him. The Labour Court found the enquiry vitiated. In the evidence let in before it if formed the dismissal illegal and reinstated him. Upon challenge, single judge affirmed the award but the Division Bench interfered with the same as in its opinion the charges were proved but since his superior, the manager of the bank who was also proceeded with similarly was let off by lighter penalty. Hence if remanded the matter to Labour Court to decide the proportionality of punishment. In its award, if then held that withholding 2 increments is proper. Where on the single judge upon challenge exceeding his authority, while sustaining penalty, reduced back wages to 50% besides giving power to the bank to recover alleged loss of ̀ 4,81,400.90 from him. Setting aside the same the Division Bench restored the award and held that the single judge is bound by the terror of the reference and observation made in the earlier judgment of Division Bench remitting the matter to decide the proportionality and hence single judge has no power to decide the money decree.

General Secretary, Syndicate Bank Staff Union, Madras & Ors. v. Deputy General Manager, Syndicate Bank, Thiruvananthapuram & Anr., 2010 III CLR 22 : 2010 IV LLJ 396 (Ker.DB) WA 2425 of 2007 dt. 15-3-2010

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“We considered……….wages is fully justified.” (Page: 26/27, Para: 9)

“……….The finding……….it from the workman.” (Page: 28, Para: 12)

Sec. 11 A

Standing orders – As to termination and notice thereof are violated, the termination unsustainable Termination – Without complying with S.O. as to notice or notice pay will be set aside Notice or Notice pay – If not paid as per S.O, termination is liable to be set aside

¥4.178 If standing order stipulates that in case of termination of a permanent workman (in this case on

medical ground) 3 months notice or 3 months wages is lieu are to be paid then if the employer paid with termination letter only one month’s wages and even if paid the balance later on after 2 months, such termination was held to be defective for that reason. In that case if the workman reached superannuation he is entitled for back wages and terminal dues computed thereon. The termination made, without complying with relevant standing order was set aside with orders to pay back wages but after deducting payment of compensation made under F.C. Act 1923 and nominal rent of housing accommodation still occupied by him since 24 years. Court also gave liberty to evict him if not vacated within 3 months.

General Manager, Indian Oil Corporation Ltd. Begusarai & Anr. v. Rabindra Natha Mishra & Anr., 2010 LIC 3969 : 2011 II LLJ 802 : 2011 LLR 185 (Pat.DB) LPA 346 of 2009 dt. 29-6-2010

“In our view……….terminal dues if any.” (Page: 3970, Para: 6)

“In view of……….workman forcibly.” (Page: 3970, Para: 10)

Sec. 11 A

Fresh enquiry – Remitting after 9 to 12 years to employer once the enquiry was held unfair is not warranted as memory of workman might be faded Memory – Of workman/ witnesses may be faded for remission for fresh enquiry Witnesses – Might have disappeared giving no scope for remission for fresh enquiry

¥4.179 The question is whether it is justified to remit to the employer for a fresh enquiry if the enquiry was

found unfair after a period of 9 to 12 years of the incident when the workman had already reached the age of superannuation some 6 years ago. The Division Bench held in the negative because the memory of the workman and his witnesses might have faded and the witnesses may not be available. Hence the request of employer to conduct fresh enquiry was rejected and it upheld the division of the single judge to give all service benefits to him with 50% back wages.

Punjab National Bank & Ors. v. K. Prabhakaran Amrutha, 2010 LIC 1580 : 2011 I LLJ 356 (Ker.DB) WA 97 of 2010 dt. 25-1-2010

“Finally what……….disappeared also.” (Page: 1583, Para: 9)

Sec. 11 A

Amalgamation – Disciplinary enquiry made prior to that can be pursued with amalgamated entity by the workman Disciplinary enquiry – Grievances is to be redressed by the amalgamated body

¥4.180 In case of amalgamation of Nedungadi Bank with PN Bank, if some disciplinary proceedings were

completed prior to amalgamation with Nedungadi bank, the workman can persue his remedies before the PN Bank which is then liable for redressing the grievances if any of the workman.

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Punjab National Bank & Ors. v. K. Prabhakaran Amrutha, 2010 LIC 1580 : 2011 I LLJ 356 (Ker.DB) WA 97 of 2010 dt. 25-1-2010

“As per the amalgamation……….appellants.” (Page: 1582, Para: 6)

Sec. 11 A

Hospital – Any illegal strike with utter disregard to the welfare of patients renders the workmen unfit to employment in any hospital Termination – Legal and valid for strike in a hospital with utter disregard to the welfare of patients

¥4.181 13 hospital workmen were dismissed from service after enquiry having found indulged in illegal

strike, stoppage of work, rioter’s behaviour abuse. The Labour Court found enquiry violated and allegation not proved. It set aside the punishment reinstated with back wages. Upon challenge the single judge quashed and set aside the award because going on illegal strike was proved. The Division Bench upheld the judgment of single judge and held that these workmen are unfit to be reinstated for work in any Hospital because of their proved misconduct with utter disregard to the welfare of their patients.

Bombay Labour Union v. Bhartiya Arogya Nidhi & Ors., 2010 III LLN 731 : 2010 IV LLJ 783 : 2010 (127) FLR 790 : 2010 II CLR 798 (Bom.DB) OOCJA 783 of 2002 WP 557 of 1997 dt. 22-6-2010

“In any case……….Approval dismissed.” (Page: 733, Para: 7)

Sec. 11 A

Retrenchment – If illegal and much time elapsed they will be compensated and not reinstated

¥4.182 Services of workman were illegally terminated without enquiry but by discharge Simpliciter

allegedly for strike and putting the employer to loss to the time of ̀ 45, 00,000. The Labour Court upheld the discharge Simpliciter. But the single judge held that Labour Court relied on materials extraneous to the matter to justify termination. The employer failed losing an record the alleged strike before conciliation. Setting aside the award they were directed to be reinstated with back wages. The division Bench upheld the judgement of single judge but said that they were out of employment since 20 years their gainful employment cannot be ruled out. If the retrenchment was legal, they would have paid 15 days average wages to every complete year of service. Hence appropriate order was to compensate with one lakh Rupees to each and orders in modification of judgment owned.

Management of City Knitting Company, Tiruppur v. K.K. Selvaraj & Ors., 2010 III LLN 348 (Mad.DB) WA 2115 to 2134 of 2000 dt. 9-3-2010

“Appellants……….appropriate.” (Page: 358, Para: 39)

“……….In so far as……….this judgment.” (Page: 358, Para: 41)

Sec. 11A

Extraneous advice – Excludes – A letter written to appointing authority to examine against taking lenient view Chief vigilance officer – Is not influencing the appointing authority if he writes a letter to examine against taking lenient view

¥4.183 When the appointing authority made some communication of an enquiry to the chief vigilance officer

without placing any new grounds, documents and proposing to take some what lenient view, a letter from chief vigilance officer expressing his view that leniency is not warranted in the face of the gravity of the matter giving no other suggestion, leaving the quantum of punishment to the disciplinary / appointing authority exclusively for examination, will not render such observations as extraneous advice influencing the authority for taking a drastic action of removal from service.

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State Bank of India & Ors. v. S.N. Goyal, 2008 III LLJ 567 : 2008 (117) FLR 967 : 2008 LLR 790 : 2008 (2) SCC (L&S) 678 : 2008 (8) SCC 92 : 2008 AIR (SC) 2594 (S.C.2J) CA 4243-44 of 2004 dt. 2004 dt. 2-5-2008

“The assumption made by the High Court that the Appointing Authority had placed some undisclosed additional material before the Chief Vigilance Officer is without any basis. The Enquiry Officer had found the respondevnt guilty of the charge on consideration of the evidence. The finding of guilt was accepted by the Disciplinary Authority and the Appointing Authority. This is not a case where any evidence or other material was sent to the vigilance department seeking their decision or views on the question of guilt of the respondent. The issue relating to the respondent's guilt was neither referred to the Vigilance Department nor did the Vigilance Department give any finding on the question of guilt. When the Disciplinary Authority and the Appointing Authority accepted the finding of guilt recorded by the Enquiry Officer on examining the facts, even before the matter was informed to Vigilance Department, it cannot be said that the said decision was influenced by any extraneous advice from Vigilance Department. The issue on which the Vigilance Department made its comment was on the limited ground whether any leniency should be shown in imposing punishment. No additional facts or material were placed by the Appointing Authority before the Vigilance Department for this purpose. Further the Vigilance Department merely expressed the view that the gravity of the charge did not warrant leniency and the authority should examine the matter. Therefore the assumption by the High Court that the Appointing Authority had placed some material not put to the respondent, before the Chief Vigilance Officer and that the Chief Vigilance Officer had issued any direction to the Appointing Authority on the basis of such material, is baseless.” (Page: 578, Para: 24)

Sec. 11A

Pleadings – If absent no amount of evidence can be looked at by the Court Evidence – In the absence of pleadings cannot be looked into

¥4.184 In a case of temporary misappropriation of Bank Deposits made to the Bank after an enquiry, the

Branch Manager was dismissed. His plea was that the appointing authority has changed his mind at the instance of chief vigilance officer of the Bank who by a letter had recommended against taking a lenient view in a matter of serious nature. Therefore he contended that his correction of earlier order of reductions by 4 stages into that of dismissal is unsustainable in law. The Supreme Court held that neither the plaint was amended to include this plea nor any issue was framed and hence no amount of evidence on a plea that was not put forward in the pleadings can be looked into. The considerations of these contentions in the absence of pleadings by the trial and appellate courts are not sustainable.

State Bank of India & Ors. v. S.N. Goyal, 2008 III LLJ 567 : 2008 (117) FLR 967 : 2008 LLR 790 : 2008 (2) SCC (L&S) 678 : 2008 (8) SCC 92 : 2008 AIR (SC) 2594 (S.C.2J) CA 4243-44 of 2004 dt. 2004 dt. 2-5-2008

“The plaint did not contain any plea that the order of removal by the Appointing Authority (Chief General Manager) was vitiated on account of his consulting and acting on the advice of the Chief Vigilance Officer of the Bank. Nor did it contain any allegation that the Appointing Authority acted on extraneous material in passing the order of removal. In the plaint, the challenge to the order of removal was on the ground that the enquiry by the Enquiry Officer was opposed principles of natural justice that is : (i) the charge was vague and not established; (ii) he was not given reasonable opportunity to defend himself; (iii) material witnesses were not examined; (iv) documents relied on were not formally proved; (v) burden of proof was wrongly placed on him; (vi) findings in the enquiry report were based on surmises and conjectures; and (viii) the enquiry officer was prejudiced. The respondent had also averred that the Appointing Authority had approved the recommendation made by the Disciplinary Authority for imposition of penalty of removal, without application of mind and without giving him a hearing. He alternatively contended that the punishment imposed was severe and disproportionate to the gravity of the proved charge. But there was absolutely no plea with reference to the advice/recommendation of the Chief Vigilance Officer of the Bank. However, during the examination of the Bank's witness DW-1 (T.S. Negi, Deputy Manager) it was elicited that on 18.1.1995, the Disciplinary Authority had put up a recommendation to impose the penalty of reduction of pay by four stages by taking a lenient view; that the Appointing Authority had by his note dated 18.1.1995 accepted the said recommendation; that subsequently, on 2.2.1995, the Appointing Authority had informed the Chief Vigilance Officer of the Bank about the enquiry and proposed punishment; and that after receiving the comments of the Chief Vigilance Officer, the Appointing Authority on the recommendations of the disciplinary authority had

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reconsidered the question of punishment and imposed the penalty of removal. The respondent I plaintiff did not amend the plaint to include the averments and grounds to challenge the order of removal on the said additional ground. No issue was framed in that behalf. No amount of evidence on a plea that was not put forward in the pleadings can be looked into. In the absence of necessary pleading and issue, neither the trial court nor the appellate court could have considered the contention and recorded a finding thereon.” (Page: 574, Para: 13)

Sec. 11A

Functus Officio – The appointing / Disciplinary authority does not become so long as he did not pronounce publish or notify or communicate his order Communication of order – Makes the authority functus officio Disciplinary authority – So long as does not pronounce, publish communication order does not become functus officio

¥4.185 In a case of temporary misappropriation of bank funds, the initial recommendation of disciplinary

authority to take a lenient view made to the appointing authority even if accepted by him initially as could be seen by an order made in an office noting in a file but that itself cannot ipso facto become a bar from correcting it or altering it for valid reasons as if the authority has become functus officio. But once the order is pronounced or published or notified or communicated the authority will become functus officio. The Supreme Court set aside the order of reinstatement ordered by courts below and upheld the dismissal order.

State Bank of India & Ors. v. S.N. Goyal, 2008 III LLJ 567 : 2008 (117) FLR 967 : 2008 LLR 790 : 2008 (2) SCC (L&S) 678 : 2008 (8) SCC 92 : 2008 AIR (SC) 2594 (S.C.2J) CA 4243-44 of 2004 dt. 2004 dt. 2-5-2008

“We may first refer to the position with reference to civil courts. Order XX of Code of Civil Procedure deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Sub-rule (1) provides that the Court, after the case has been heard, shall pronounce judgment in an open court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer (if the Judge is specially empowered in this behalf). The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by Section 152 or on review. Thus where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement. But even after such pronouncement by open court dictation, the Judge can make corrections before signing and dating the judgment. Therefore, a Judge becomes functus officio when he pronounces, signs and dates the judgment (subject to Section 152 and power of review). The position is different with reference to quasi judicial authorities. While some quasi judicial tribunals fix a day for pronouncement and pronounce their orders on the day fixed, many quasi judicial authorities do not pronounce their orders. Some publish or notify their orders. Some prepare and sign the orders and communicate the same to the party concerned. A quasi judicial authority will become functus officio only when its order is pronounced, or published/notified or communicated (put in the course of transmission) to the party concerned. When an order is made in an office noting in a file but is not pronounced, published or communicated, nothing prevents the Authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the Authority will become functus officio. The order dated 18.1.1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the Appointing Authority became functus officio when he signed the note on dated 18.1.1995.” (Page: 576, Para: 19)

Sec. 11A

Misconduct – If trivial the doctrine of proportionality is applicable against the punishment of dismissal Doctrine of Proportionality – Is applicable if punishment of dismissal is inflicted for trivial matter and if past records are clean

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Dismissal – For trivial misconduct if made the Labour Court can interfere with the same on the basis of the doctrine of proportionality

¥4.186 Where the complaint against the delinquent was trivial and he had not found to have committed any

misconduct in the past 30 years of service, the punishment of dismissal is held disproportionate to the proved charges. The exercise of jurisdiction u/s. 11A on the doctrine of proportionaliy by the Labour Court setting aside the order of dismissal was in order and High Court has erred in setting aside the said award.

Mavji C. Lakum v. Central Bank of India, 2008 III CLR 73 : 2008 III LLJ 1 : 2008 (119) FLR 96 : 2008 LIC 2403 : 2008 (12) SCC 726 : 2009 (1) SCC (L&S) 254 (S.C.2J) CA 2385 of 2008 dt. 2-4-2008

“……….In our opinion the reasons given by the Tribunal were correct and the treatment given by the Tribunal to the evidence was perfectly justified. The Tribunal committed no error in observing that for good long 30 years there was no complaint against the work of the appellant and that such a complaint suddenly surfaced only in the year 1982. The Tribunal was justified in appreciating the fact that the charges were not only trivial and were not so serious as to entail the extreme punishment of discharge. Here was the typical example where the evidence was of a most general nature and the charges were also not such as would have invited the extreme punishment. It was not as if the appellant had abused or had done any physical altercation with his superiors or colleagues. What was complained was of his absence on some days and his argumentative nature. Though the learned Judge had discussed all the principles regarding the exercise of powers under Section 11A of the Industrial Disputes Act as also the doctrine of proportionality and the Wednesbury's principles, we are afraid the learned Judge has not applied all these principles properly to the present case.” (Page: 81, Para: 20.1)

Sec. 11A

Fiduciary capacity – Conductor being working breach of Trust warrants dismissal Dismissal – Is the normal course for breach of Trust of a conductor working in a fiduciary capacity Conductor – Liable to be dismissed for breach of trust being working in a fiduciary capacity

¥4.187 Conductors are acting in a fiduciary capacity. Even if the amount of misappropriated is small, such

breach of trust does not deserve to be dealt with in the yardstick of proportionality. The holding by Labour and High Court that punishment of dismissal disproportionate was quashed and set aside and the punishment of dismissal was upheld.

Uttaranchal Transport Corporation v. Sanjay Kumar Nautiyal, 2008 II LLJ 313 : 2008 (117) FLR 1180 : 2008 I CLR 888 : 2008 (12) SCC 131 : 2009 (1) SCC (L&S) 129 (S.C.2J) CA 696 of 2006 dt. 27-2-2008 (

“In V. Ramana v. A.P. SRTC and Ors. 2005 III LLJ 725SC it was held as follows:

4...In Karnataka State Road Transport Corporation v. B.S. Hullikatti MANU/SC/0054/2001 : (2001)ILLJ725SC , it was held that misconduct in such cases where the bus conductor either had not issued tickets to a large number of passengers or had issued tickets of lower denomination, punishment of removal is proper. It is the responsibility of the conductors to collect correct fare charges from the passengers and deposit the same with the Corporation. They act in fiduciary capacity and it would be a case of gross misconduct if they do not collect any fare or the correct amount of fare. A conductor holds a post of trust. A person guilty of breach of trust should be imposed punishment of removal from service. The factual position shows that the appellant's conduct in collecting fare at the designated place and not collecting fare from persons who had already travelled were in violation of various Regulations contained in The Andhra Pradesh State Road Transport Corporation Employees (Conduct) Regulations, 1963 (in short 'Regulations'). In the Karnataka State Road Transport case (supra) it was held that it is misplaced sympathy by Courts in awarding lesser punishments where on checking it is found that the Bus Conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It was finally held that the order of dismissal should not have been set aside. The view was reiterated by a three Judge Bench in Regional Manager, RSRTC v. Ghanshyam Sharma 2002 (1) LLJ 234, where it was additionally observed that the proved acts amount either to a case of dishonesty or of

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gross negligence, and Bus Conductors who by their actions or inactions cause financial loss to the Corporations are not fit to be retained in service.” (Page: 316, Para: 4)

Sec. 11A

Discretion u/s. 11A – Is wide, vested in Labour Court to interfere with punishment Strike – If illegal and charges of misconduct proved instead of reinstatement compensation proper Compensation – Proper instead of reinstatement when faced with serious charges of illegal strike Reinstatement – Not proper for illegal strike coupled with passage of time elapsed

¥4.188 The services of 8 employees were terminated on serious charges of going on illegal strike and

committing other misconducts. The Labour Court exercising discretion u/s. 11A, reinstated them even when holding enquiry was fair and proper and misconduct was proved. The denial of back wages for 15 years was held as sufficient punishment. The High Court interfered with this finding and set aside the award and upheld the punishment. The Supreme Court held that Labour Court is vested with wide discretion to enter into the proportionality of the punishment and High Court failed to notice it. However in this case considering long passage of time and the seriousness of misconduct, the Supreme Court modified the award into one of compensation of ̀ 1 lakh each instead of reinstatement mainly on the basis of good gesture shown by the employer.

U.B. Gadhe & Ors. v. G.M., Gujarat Ambuja Cement Pvt. Ltd., 2008 I LLJ 156 : 2007 (115) FLR 515 : 2007 IV LLN 560 : 2007 III CLR 834 : 2007 LLR 1178 : 2007 (13) SCC 634 : 2008 (2) SCC (L&S) 672 : 2008 AIR (SC) 99 (S.C.2J) A 892 of 2007 dt. 28-9-2007

“We would have asked the High Court to consider that aspect. But considering the long passage of time, it would not be proper to do so since the employer seems to be a public utility service and the workmens' continued utility to the employer is gravely doubtful in view of their conduct. After such a long period, it would not be in the interest of parties to direct the High Court to consider parameters of Section 11-A of the Act. Therefore, we have considered the matter, taking into account the background facts. The proved misconduct is definitely serious. The respondent has, as a matter of good gesture, offered to pay each of the appellant rupees one lakh, in view of the fact that they have received payment upto December, 2004.” (Page: 160, Para: 23)

Sec. 11A

Conductor – Liable to be dismissed on finding of fact of non issue of tickets even though collected fare Fare – Once collected if tickets not issued, it is fatal to conductor’s service Termination – Proper if the conductor fails to issue tickets even though collected fares

¥4.189 When bus conductor, it is noticed on inspection, did not issue tickets to 20 passengers but issued the

tickets only at the instance of checking staff, the High Court misinterpreted the facts on record to overturn the findings of Tribunal. The order of High Court to reinstate the workman was quashed and set aside and the matter remanded to High Court to decide the same according to law.

Regional Manager, Uttaranchal Road Transport Corporation v. Than Singh & Anr., 2008 I CLR 797 : 2008 I LLJ 818 : 2008 (116) FLR 734 : 2008 (2) SCC 581 : 2008 (1) SCC (L&S) 513 : 2008 AIR (SC) 1119 (S.C.2J) CA 471 of 2008 dt. 17-1-2008

“It appears from the statement of the respondent No. 1- employee that he himself accepted that though he had collected the fare, he had not issued tickets to 20 passengers and had only issued tickets to three passengers. The confusion appears to have arisen because the High Court apparently proceeded on the basis that after the tickets were issued only the entries in the way bill were to be recorded. This is really not so, because the respondent No. 1 himself had accepted that tickets had not been issued to 20 passengers. The material on record also shows that the checking staff with a view to regularize the entries and regularizing the travel of the passengers had directed issuance of tickets to those 20 passengers to whom respondent No. 1 had not issued tickets. This is evident from the fact that the Tribunal had categorically noted that 20 passengers were issued tickets by the checking staff and the respondent No. 1 was directed to make entries in the way bill. Issuance of tickets on the basis of the instructions of

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the checking staff cannot legalize the illegality committed by the respondent No. 1-employee. That being so, the approach of the High Court was clearly wrong and the conclusions drawn are contrary to the materials on record. Since the High Court has not considered the materials in the proper perspective, the impugned order is set aside and the matter is remitted to the High Court for fresh consideration in accordance with law.” (Page: 798/799, Para: 7)

Sec. 11A

Unauthorised absent – Bipartite agreement can be invoked to terminate his service Bipartite agreement – Terms of which can be invoked to terminate the service PNJ – Giving show cause sufficient for unauthorized absence invoking bipartite agreement

¥4.190 When a workman absented himself without leave for 60 days on the ground that he had suffered

from tuberculosis, even though the application sent by him remained unresponded, the employer can invoke the terms of bipartite settlement and terminate his services. The last opportunity given to him to report does not condone his absence. For such termination especially when employer sent medical practitioner to check the facts upon which the workman found absent nor did he sent proper medical certificate in compliance of rules, a full fledged enquiry before his removal is not called for. Calling for his explanation is sufficient compliance of PNJ. High Court order was quashed and termination order of employer upheld.

New India Assurance Co. Ltd. v. Vipin Behari Lal Srivastava, 2008 I CLR 776 : 2008 II LLJ 317 : 2008 (117) FLR 570 : 2008 LLR 440 : 2008 (3) SCC 446 : 2008 (1) SCC (L&S) 778 (S.C.2J) CA 5213 of 2006 dt. 21-2-2008

“Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The Bank, as noticed hereinbefore, in response to the lawyer's notice categorically stated that the workman had been carrying on some business elsewhere.” (Page: 780/781, Para: 18)

“We cannot accept the submission of Mr. Mathur that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the Bank from invoking Clause 2 of the bipartite settlement.” (Page: 780, Para: 19)

Sec. 11A

Regularisation – Of daily rated mali appointed by independent society not getting any grants by State Government is invalid Mali – Appointed as daily wager by independent society cannot be regularized by applying policy of State Government

¥4.191 The policy decision / Instructions dated 7th March 1996 issued by Government of Haryana to

regularise the services of daily wager completing 240 days of service is not applicable to a mali, a daily rated employee appointed by the Haryana Rajya Sainik Board-cum-Defence & Security Relief Fund & Member Management Committee, an independent association registered under Societies Act, having their own rules of service conditions and not getting any govt. grant. Hence the judgement of Courts below to regularize his service, was quashed and set aside.

Haryana Rajya Sainik Board-cum-Defence & Security Relief Fund & Member Management Committee v. Mohan Lal & Anr., 2008 IV LLN 624 : 2009 I LLJ 740 : 2008 (119) FLR 1049 : 2008 III CLR 685 : 2008 (10) SCC 133 : 2008 (2) SCC (L&S) 996 (S.C.2J) CA 5607 of 2008 dt. 11-9-2008

“We are not in a position to accept the finding of the learned Judges of the High Court that the services of the respondent are governed by the said Policy decision of the State of Haryana in the matter of regularization. The respondent was not an employee of the State of Haryana in Group `C' or Group `D' posts nor was he engaged in any Department or other authority of the State on daily wage by the competent authority of the State Government or the authority, as the case may be. Indisputably, he was appointed by the appellant-Committee as Mali on daily wage and not in the cadre of ex-servicemen for which the vacancy is reserved in terms of the Sainik Parivar Bhawan's Haryana

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Service (Common Cadre) Rules, 1999. Thus, the High Court gravely erred by holding that the Policy decision of the State of Haryana dated 07.03.1996 will be ipso facto applicable to the employees of the appellant-Committee without proving that the same has been adopted by the appellant-Committee and made applicable to its employees. The appellant-Committee has framed its own Service Rules called `The Sainik Parivar Bhawan's Haryana Service (Common Cadre) Rules, 1999', for regulating the recruitment and conditions of service of the persons appointed to Sainik Parivar Bhawan's Haryana. Details of posts authorized in Saink Parivar Defence Organisation prescribing qualifications/experience required and pay equalency are mentioned in Appendix `A' of the said Rules. The post of Peon-cum-Mali is shown at Serial No. 22 of Appendix `A' for which the essential qualification is 5th class with two years experience of gardening. The footnote provides that certain posts, including the post of Peons and Peon-cum- Mali, are reserved for ex-servicemen/war widows and widows only. In the teeth of the separate service rules of the appellant-Committee framed for governing the service conditions of its employees, the High Court was not justified in applying the Policy decision/Instruction of 1996 of the State Government to the employees of the appellant, which undoubtedly is an independent body registered under the Societies Act exclusively for the welfare of the widows and their dependents (males/females) and dependents of ex- servicemen and serving Armed Forces personnel, etc. of Haryana.” (Page: 627, Para: 14)

“In the facts and circumstances narrated hereinabove, the judgment of the High Court directing the appellant- Committee "to regularize the services of the respondent and, accordingly, grant him all other benefits of regular employee" is unjustified and unsustainable both on facts and in law and the same deserves to be set aside on this short ground without entering upon the merits of other issues involved in regard to the power of the High Court to issue mandamus in mandatory form directing regularization of the respondent against the service rules of the appellant-Committee and granting him all benefits of a regular employee.” (Page: 627/628, Para: 15)

Sec. 11A

LIC Act 1956 – Is not in conflict with 1947 Act Development Officer – Is a workman Workman – Includes – Development officer Negligence – Excludes – Misconduct Misconduct – Excludes – Negligence

¥4.192 The services of Development Officer was terminated after enquiry for negligence in verifying the

proposal submitted by the agent, leading to issue of a policy to a dead man. The Labour Court held that mere negligence does not warrant extreme penalty in one stray case. The High Court concurred. The Apex Court also upheld the decision and held that where there is no conflict between the provisions of LIC Act, 1956 and Industrial Disputes Act, 1947, the jurisdiction of the forum under Industrial Disput es cannot be ousted. The workman can avail the forum either of Civil Court or that of Industrial Court at his option and held that negligence in one decision is not a misconduct to warrant dismissal and upheld the decision of reinstatement.

LIC of India v. R. Suresh, 2008 III LLN 483 : 2008 II LLJ 708 : 2008 (118) FLR 1189 : 2008 LIC 2088 : 2008 I CLR 1074 : 2008 (11) SCC 319 : 2008 (2) SCC (L&S) 1083 (S.C.2J) CA 2004 of 2008 dt. 14-3-2008

“We have noticed hereinbefore that the 1956 Act does not contain any provision ousting the jurisdiction of the Civil Court or the Industrial Court. The question, therefore, would be as to whether the jurisdiction is ousted by necessary implication. For the said purpose, construction of Clause (cc) of Sub-section (2) of Section 48 of the Act is necessary. It is one thing to say that rules may provide for the terms and conditions of service of the employees but it is another thing to say that a person is entitled to avail his human right of access to justice to get his grievances adjudicated before an independent fora. Access to justice as is well known is a valuable right.” (Page: 487, Para: 13)

“If, therefore, the Rules made under the 1956 Act are not in conflict with the jurisdiction of an Industrial Tribunal to go into the question of validity or legality of an order of termination of service, we fail to see how the jurisdiction of the Industrial Court stood ousted.” (Page: 488, Para: 14.1)

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“Furthermore, however, the respondent is out of service since 1987. He has already suffered a lot being out of service for more than 20 years. All the courts have held in his favour. We, thus, do not think that it would be a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India. This appeal is dismissed.” (Page: 489, Para: 19)

Sec. 11A

Admission – Of guilt for the commission of misconduct is fatal without the need for furthur justifications Sympathy – Is misplaced u/s. 11A to differ from the finding of guilt admitted by the employer

¥4.193 The employee has admitted that as a time keeper, he had committed the misconduct of manipulating

the punch card and the attendance register of nearly 30 workmen. No justification is given. His past conduct is nothing but aggravating. The concurrent finding of fact upholding the penalty of dismissal by Labour Court and single judge leaves no ground to differ in the writ appeal.

Sri N.R. Sajid v. The Karnataka State Road Transport Corporation, rep. by the Managing Director & Anr., 2008 (116) FLR 285 : 2007 LIC 4442 : 2007 LLR 1176 : 2008 II CLR 171 : 2008 LLR 185 (Karn.DB) WA 371 of 2007 dt. 9-8-2007

“Once the appellant……….misconduct.” (Page: 287, Para: 5)

“In the present case……….Disputes Act.” (Page: 288, Para: 9)

Sec. 11A

Relation back – The principle is valid and settled, that dismissal relates back to the order itself

¥4.194 Order of Single Judge, relying on the judgement of Desh Raj Gupta v. Industrial Tribunal IV U.P. Lucknow & Anr. and Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha & Ors. (S.C.) granting back wages from date of termination till the date of award upholding dismissal by the labour court i.e. acceptance of resignation, was set aside due to the settled law of relation back as postulated in the case of P.H. Kalyani v. M/s. Air France, 1963 (6) FLR 435 and D.C. Roy v. Presiding Officer, Labour Court & Ors., 1976 (32) FLR 285 (S.C) by constitution bench. The dismissal relates back to the date of order itself with no scope to back wages.

Hindustan Machine Tools Ltd. v. Lajwanti & Ors., 2008 (116) FLR 299 : 2008 I LLJ 911 : 2008 I CLR 156 (P&H.DB) LPA 115 of 1997 dt. 11-7-2007

“The main thrust……….Gupta’s judgement.” (Page: 300, Para: 4)

“……….the appeal……….set aside.” (Page: 300, Para 6)

Sec. 11A

Doctrine of proportionality – For denying back wagers cannot be invoked where workman was found not guilty Back wages – Payable without applying the doctrine of proportionality if the workman was exonerated of all charges Exoneration of all charges – Opens no door to Labour Court to deny the back wages by applying the doctrine of proportionality

¥4.195 The doctrine of proportionality can be invoked by Labour Court for disallowing back wages while

reinstating the workman, only if the workman was held guilty of the charges. Where the Labour Court holds the workman not guilty it is deemed that he never suffered any punishment and hence entitled to back wages. Hence the High Court set aside the order of Labour Court denying back wages.

B. Ramulu v. Presiding Officer, Labour Court-II, Hyderabad & Anr., 2008 (116) FLR 1188 : 2008 III LLN 761 : 2008 LIC 155 (AP.HC) WP 33311 of 1998 dt. 19-9-2007

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“Having given……….wholly unjust.” (Page: 1190, Para: 11)

Sec. 11A Compassionate appointment – Made of a wife in place of sick husband cannot be terminated on the ground of death of her husband notwithstanding standing policy Termination – Of wife working on compassionate appointment in place of husband, on his death is illegal, standing policy notwithstanding

¥4.196 A compassionate appointment of a wife of an employee lying in death bed due to cancer cannot

become co-terminus with the demise of the employee. In any case no writ of certiorari lies, merely on the ground that evidence adduced before tribunal was insufficient or inadequate, unlike instances of perversity. High Court upheld the award of tribunal holding the termination illegal.

Employers in relation to the Management of M/s. Tisco Ltd. Jamadoba, Jamshedpur v. Concerned Workman, Madhuri Devi, 2008 (116) FLR 1105 (Jhar.HC) WP 2205 of 2005 (L) dt. 12-5-2007

“The facts……….21.11.1998.” (Page: 1105/1106, Para: 2)

“It is well settled……….rajkumar.” (Page: 1106/1107, Para: 6)

Sec. 11A

Burden of proof – Is on employer if the preliminary issue has gone against them though employee failed to provide evidence and proof before tribunal

¥4.197 Even if the employee failed to produce evidence in support of his contentions that domestic enquiry

was not fair and proper such preliminary issue cannot be decided in favour of employer. Employer has to prove and establish the fairness and propriety of the same before the Tribunal.

Uttar Pradesh State Road Transport Corporation v. Ram Surat Yadav & Anr., 2008 (116) FLR 109 : 2008 I LLN 709 : 2008 I CLR 417 : 2008 LLR 193 (All.HC) CMWP 51186 of 2003 dt. 18-9-2007

“In the present case……….any evidence.” (Page: 112/113, Para: 6)

“Having regard……….he failed to do.” (Page: 113, Para: 7)

Sec. 11A

Abandonment of service – If the plea of employer the back wages cannot be full but 50% Back wages – If the plea of employer is abandonment of service, 50% back wages only payable

¥4.198 The contention of workman was that his services were terminated orally. The employer contended

that it was an abandonment of service. The Labour Court reinstated him with full back wages as affirmed by High Court. But the Supreme Court ruled that since it is the case of employer that he had not terminated him at all, full back wages cannot be paid. Hence 50% back wages was directed to be paid.

Malwa Vanaspati & Chemical Co. Ltd. v. Rajendra, 2010 AIR (SC) 198 : 2010 I LLJ 861 : 2010 (125) FLR 274 : 2009 (12) SCC 490 : 2010 (1) SCC (L&S) 155 (S.C.2J) CA 2874 of 2009 dt. 28-4-2009

“Since a limited notice was issued on the question whether the respondent was entitled to full back wages or not, we did not go into the question of reinstatement or otherwise. On the aspect of payment of full back wages, we are of the view that the appellant had already taken the respondent in service and considering the fact that the case of the appellant was that he was not terminated at all, we are of the view that in the facts and circumstances of the case, the back wages should be paid to the extent of 50 per cent (50%) of the salary. Accordingly, we dispose of this appeal

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by modifying the award to the extent that the employee/respondent would be entitled to back wages to the extent of 50 per cent (50%) and not full back wages.” (Page: 199, Para: 9)

Sec. 11A

Reinstatement – By an award for illegal termination is not same as regularization in public employment Regularisation – In public employment is not same as reinstatement for illegal termination

¥4.199 The decision of Supreme Court, in the case of Secretary, State of Karnataka & Ors. v. Umadevi & Ors.,

2006 III LLN 78, being for regularization in public employment, that descion cannot be equated with a case for reinstatement ordered by an award u/s. 11A of the Act by Labour Court arising out of illegal termination of service.

Krishan Singh v. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), 2010 II LLN 634 : 2010 II LLJ 678 : 2010 (125) FLR 187 : 2010 LIC 1723 : 2010 I CLR 920 : 2010 LLR 450 : 2010 (3) SCC 637 : 2010 (1) SCC (L&S) 890 (S.C.2J) CA 2335 of 2010 dt. 12-3-2010

“The decision of this Court in Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. (supra) cited by the counsel for the respondent relates to regularization in public employment and has no relevance to an Award for re- instatement of a discharged workman passed by the Labour Court under Section 11A of the Act without any direction for regularization of his services.” (Page: 637, Para: 22)

Sec. 11A

Financial difficulties – Is a mitigating factor against the liability to pay full back wages Back wages – Need not be full if the financial condition of the employer is not sound Co-op. Society – If financially not sound back wages can be reduced from full to 50%

¥4.200 The illegal termination was visited with relief of reinstatement with full back wages from Labour

Court, affirmed by Single Judge and Division Bench. The workman under the provision of Sec. 33C(2) got the back wages computed to be ` 5,16,032-01. The employer contested the quantum of back wages among others stating that the financial condition of the employer Co-op. Society was not sound and there was serious dispute around the gainful employment. The Supreme Court therefore modified the relief of back wages to 50% instead of full.

Manager, K.V.S.S. Mandawar & Anr. v. Mukesh Kumar Sharma, 2010 (125) FLR 320 : 2010 II LLJ 851 : 2010 I CLR 1066 : 2010 LLR 568 : 2010 (12) SCC 487 : 2011 (1) SCC (L&S) 241 : 2010 AIR (SC) 3840 (S.C.2J) CA 2698 of 2010 dt. 25-3-2010

“Labour Court, Bharatpur vide its award dated 3.4.1996 ordered reinstatement with full back wages when the service of the respondent was terminated without enquiry and without assigning any reasons. The writ petition filed by the appellant was dismissed on 11.5.1999 which was ultimately affirmed by the Division Bench of the High Court of Rajasthan vide its judgment dated 4.3.2008. The said order is challenged in this appeal. Respondent workman then filed an application under Section 33(C)(2) of the Industrial Disputes Act 1947 before the Labour Court Bharatpur as LCC 1/2005 for computation of monetary benefits. The Labour Court passed an order dated 3.9.2008 awarding a total amount of Rs. 5,16,032.01 towards back wages. Though the respondent was reinstated in service on 9.6.2005, there is serious dispute between the parties as to whether, the respondent was gainfully re- employed during the period he was out of service. Further it was also stated that the appellant Co- operative Society is not financially sound to meet the claim of full back wages.” (Page: 321, Para: 2)

Sec. 11A

Back wages – 50% proper for a skilled workman who might have worked to meet the two ends Beldar – If illegally terminated deserves only 50% back wages on assumption he might be employed some where

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¥4.201 Illegal termination was visited with payment of full back wages with reinstatement. The High Court both Single and Division Bench affirmed the award. The Supreme Court held that 50% back wages is proper as he is a skilled worker must have been employed as beldar during the forced unemployment.

State of Haryana & Anr. v. Saminder Singh, 2010 (1) SCC (L&S) 729 (S.C.2J) CA 3768 of 2001 dt. 14-1-2003

“Lastly……….extent.” (Page: 730, Para: 3)

Sec. 11A

Compensation – Of Rs. 200000/- payable in lieu of ` 50,000 being considered too meager in the present day affairs

¥4.202 An award of reinstatement with full back wages for illegal termination was modified by the High

Court into compensation of ̀ 50,000 only. The Supreme Court held that the compensation is too meager in the present day affairs and hence increased the same to ̀ 2 lakhs. In this case, the increase was made even after deleting the name of respondent No. 2 from the array of parties.

Faridan v. State of U.P., 2010 I CLR 341 : 2010 I LLJ 251 : 2009 (123) FLR 1106 : 2010 (1) SCC 497 (S.C.2J) CAJCA 7487 of 2009 dt. 9-11-2009

“After service of notice, the matter came up for final hearing before us on the aforesaid limited issue as to whether the compensation awarded by the High Court in lieu of service to the respondent No. 2 could be increased from Rs. 50,000/- to Rs. 2 lakhs. On this aspect, we have heard the learned Counsel for the parties. Considering the entire materials on record including the order of the High Court as well as the award of reinstatement passed by the Labour Court, Gorakhpur and without interfering with the order of the High Court, we are of the view that the compensation awarded by the High Court was too meager in the present day affairs and the same may be enhanced to Rs. 2 lakhs, to be paid to Faridan, the appellant herein.” (Page: 341/342, Para: 4)

Sec. 11A

Domestic enquiry – The examination of passengers does not arise for proving misappropriation of ticket money Misappropriation – Of ticket money need not be proved by examining the bus passengers Bus passengers – Need not be examined in domestic enquiry for proving misappropriation of money by conductor Conductor – Who misappropriated ticket money need not be confronted with passengers in domestic enquiry

¥4.203 In domestic enquiry complicated principles and procedures laid down in CPC 1908 and Evidence Act

1872 do not apply. Therefore misappropriation of ticket money by the conductor need not be proved either by examining the passengers to whom no tickets, allegedly, were issued but money was collected or for want of checking the cash box. It is enough if he was given all the opportunities to defend himself. Moreover it is not the amount embezzled but the mens rea which is material for proving the guilt of the workman.

U.P. State Road Transport Corp. v. Suresh Chand Sharma, 2010 LIC 2823 : 2010 (126) FLR 157 : 2010 III LLN 603 : 2010 II CLR 534 : 2010 (6) SCC 555 (S.C.2J) CAJCA 3086 of 2007 with CA 3088 of 2007 dt. 26-5-2010

“The High Court has decided the Writ Petition only on the ground that the passengers found without tickets, had not been examined and the cash with the employee was checked. No other reasoning has been given whatsoever by the Court.” (Page: 2826, Para: 12)

“In view of the above, the reasoning so given by the High Court cannot be sustained in the eye of law. More so, the High Court is under an obligation to give not only the reasons but cogent reasons while reversing the findings of fact recorded by a domestic tribunal. In case the judgment and order of the High Court is found not duly supported by reasons, the judgment itself stands vitiated. (Vide State of Maharashtra v. Vithal Rao Pritirao Chawan MANU/SC/0248/1981 : AIR 1982 SC 1215; State of U.P. v. Battan and Ors. MANU/SC/2391/2000 : (2001) 10 SCC 607); Raj Kishore Jha v. State of Bihar and Ors. MANU/SC/0783/2003 : AIR 2003 SC 4664; and State of Orissa v. Dhaniram Luhar MANU/SC/0082/2004 : AIR 2004 SC 1794.” (Page: 2826, Para: 14)

“We do not find any force in the submissions made by Dr. J.N. Dubey, learned Senior counsel for the employee that for embezzlement of such a petty amount, punishment of dismissal could not be justified for the reason that it is not the amount embezzled by a delinquent employee but the mens rea to mis-appropriate the public money.” (Page: 2827, Para: 20)

“Thus, in view of the above, the contention raised on behalf of the employee that punishment of dismissal from service was disproportionate to the proved delinquency of the employee, is not worth acceptance.” (Page: 2827, Para: 22)

Sec. 11A

Enquiry report – Non supply of will not vitiate the imposition of penalty if no foundation of causing prejudice is laid Prejudice – For non supply of enquiry report having caused requires to be proved for setting aside the penalty Natural justice – Principles if followed question of causing prejudice for non furnishing of enquiry report will not vitiate penalty

¥4.204 Non supply of an enquiry report will not ipso facto render the imposition of penalty for

misappropriation, fraud and irregularities with reg ard to the maintenance of accounts, non est, unless he was able to show non supply has resulted in prejudice or miscarriage of justice. In this case personal hearing was given to the delinquent. There was not even a whisper of prejudice having caused to him. The issue with regard to non supply of enquiry report was raised for the first time in appeal. Here also he was silent as to what prejudice was caused to him. In view of this the Supreme Court set aside the order of Division Bench which had reversed the penalty imposed for this reason. The Supreme Court upheld the penalty of stoppage of 6 increments permanently as imposed by disciplinary authority.

Sarv U. P. Gramin Bank v. Manoj Kumar Sinha, 2010 LIC 2029 : 2010 II LLJ 641 : 2010 (125) FLR 378 : 2010 AIR (SC) 2491 : 2010 (3) SCC 556 : 2010 (1) SCC (L&S) 861 (S.C.2J) CA 1639 of 2010 SLP 30805 of 2008 dt. 9- 2-2010

“Thereafter, this Court notices the development of the principle that prejudice must be proved and not presumed even in cases where procedural requirements have not been complied with. The Court notices a number of judgments in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non- observance had prejudicially affected the applicant. Ultimately, it is concluded as follows:

44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent, employee has to show "prejudice". Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.” (Page: 2038, Para: 30

“We have examined the factual situation in this case elaborately to see as to whether any prejudice has been caused to the respondent. We are unable to accept the submissions of the learned Counsel for the respondent that any prejudice has been actually caused. We are of the considered opinion that there has been no failure of justice in the facts and circumstances of this case by non-supply of the enquiry report to the respondent.” (Page: 2039, Para: 31)

“We are also of the opinion that the punishment imposed on the respondent cannot be said to be disproportionate to the gravity of the charges proved against the respondent. The charges related to the conduct of the respondent in a financial institution whereby taking advantage of the official position he attempted to procure unlawful pecuniary benefits for himself. The charges related to misappropriation, fraud and irregularities with regard to the maintenance of accounts. He had been siphoning off money belonging to the account holders. He was holding a position of trust in the Bank, which he betrayed. We are of the opinion that the Chairman has correctly observed at the personal hearing given to the respondent that the Bank has already been sympathetic and lenient enough.” (Page: 2039, Para: 32)

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Sec. 11A

False Bills – Punishment of withholding 3 increments proper Increments – Withholding of 3 is proper for false bills Quietus – For litigation can be given by Apex Court by balancing equities instead of remitting the matter

¥4.205 A misconduct of passing false bills was visited with punishment of reduction to lower grade in the

time scale after enquiry. The Single Judge held imposition of major penalty illegal and set aside the order of punishment. The Division Bench remitted the matter to Single Judge for reconsideration. The Supreme Court held that as the employee was facing enquiry and court cases for 25 years, the matter requires to be given a quietus and hence withholding of 3 increments was held to be proper punishment after balancing the equities.

Nantu Ranjan Paul v. Steel Authority of India Ltd. & Ors., 2010 LIC 1461 : 2010 II LLJ 3 : 2010 (124) FLR 686 : 2010 (12) SCC 512 : 2011 (1) SCC (L&S) 242 (S.C.2J) CA 475-476 of 2010 dt. 19-1-2010

“We find no serious infirmity with the impugned judgement of the Division Bench. However, the appellant has been facing inquiry and Court proceedings for almost twenty five years and at this stage remitting the matter to the learned Single Judge would be very harsh to the appellant.” (Page: 1462, Para: 11)

“On consideration of the totality of the facts and circumstances and in the interest of justice, we direct that, instead of withholding of two increments, three increments be withheld which should meet the ends of justice. In that view of the matter, we set aside only that part of the judgement by which it has been remitted to the learned Single Judge. We have passed this order primarily to avoid, avoidable litigation which may take several years before it is finally adjudicated. We, accordingly, put a quietus to the entire dispute after balancing the equities.” (Page: 1462, Para: 12)

Sec. 11A

Compensation – Must be adequate to a confirmed workman for illegal termination in lieu of reinstatement Confirmed workman – If illegally terminated should be adequately compensated in lieu of reinstatement Reinstatement – May not be the rule for illegal termination but to be compensated adequately Soup spoons – 30 in number cannot be carried in a shoe while walking until detected

¥4.206 The reason for termination without enquiry of a confirmed loader was that he illegally carried in his

shoe 30 soup spoons and was caught by the security. He allegedly admitted the misconduct. The Labour Court held dismissal not proper but only awarded back wages. The Division bench suspected the possibility of the workman walking with 30 soup spoons carrying inside his shoes and hence modified the award to one of compensation of ̀ 60,000, whereas, Supreme Court held that he being a confirmed employee though reinstatement in illegal termination is not a rule the compensation of ` 60,000 is grossly inadequate. It increased the compensation to ` 2 lakhs to serve the ends of justice.

Ashok Kumar Sharma v. Oberoi Flight Services, 2010 LIC 701 : 2009 IV LLJ 732 : 2009 III CLR 928 : 2010 (1) SCC 142 : 2010 (1) SCC (L&S) 20 : 2010 AIR (SC) 502 (S.C.2J) CAJCA 7395 of 2009 dt. 6-11-2009

“The afore-referred two decisions of this Court and few more decisions were considered by us in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board MANU/SC/1213/2009 : JT 2009(9)SCC396 albeit in the context of retrenchment of a daily wager in violation of Section 25F of Industrial Disputes Act who had worked for more than 240 days in a year and we observed thus:

7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the

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prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.” (Page: 703, Para: 9)

“In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be said to be unjustified. However, we find that the compensation in the sum of Rs. 60,000/- awarded by the Division Bench is grossly inadequate. Regard being had to all relevant facts and circumstances, including the nature of employment and the fact that he was a confirmed employee, in our considered view compensation of Rs. 2 lacs to the appellant by the Respondent shall meet the ends of justice. We order accordingly. Such payment should be made, after deducting the amount already paid, within six weeks from today failing which the same shall carry interest at the rate of 9 per cent per annum on unpaid amount.” (Page: 703/704, Para: 11)

Sec. 11A

Back wages – Payable for illegal termination is not full but 50% Discretionary jurisdiction – Of Labour Court cannot be modified by High Court without adducing reasons Automatic – Are not the 100% back wages for illegal termination Termination – Though illegal back wages full are not automatic

¥4.207 The illegal termination of an accountant after serving for a short period of 1 year 3 months was

visited with the award of reinstatement but with no back wages after 15 years of termination. The workman’s writ petition to get back wages was allowed by Division Bench granting full back wages. The Supreme Court modified the award of Labour Court and order of Division Bench by moderating the back wages payable to 50%. The reason for 50% back wages inter alia is that he did not place on record of Labour Court any material or evidence to show that he was not gainfully employed during the long spell of 15 years when he was out of service. A discretionary jurisdiction of Labour Court is normally not amenable for modification without adducing cogent reasons by higher courts.

M/s. Reetu Marbles v. Prabhakant Shukla, 2010 LIC 533 : 2010 I LLJ 305 : 2010 (124) FLR 72 : 2010 I CLR 10 : 2010 (2) SCC 70 : 2010 (1) SCC (L&S) 555 : 2010 AIR (SC) 397 : 2010 (3) Mah.LJ 343 (S.C.2J) CA 635 of 2007 dt. 3-12-2009

“Applying the aforesaid ratio of law we have examined the factual situation in the present case. The services of the respondent were admittedly terminated on 11.6.87. The Labour Court gave its award on 27.9.02. Therefore, there is a gap of more than 15 years from the date of termination till the award of reinstatement in service. Labour Court upon examination of the entire issue concluded that the respondent would not be entitled to any back wages for the period he did not work. A perusal of the award also shows that the respondent did not place on the record of the Labour Court any material or evidence to show that he was not gainfully employed during the long spell of 15 years when he was out of service of the appellant. In the writ petition the respondent was mainly concerned with receiving wages in accordance with the Minimum Wages Act and for inclusion of the period spent in Conciliation Proceedings for the calculation of financial benefits. The High Court without examining the factual situation, and placing reliance on the judgment in Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd. and Ors. held that the normal rule of full back wages ought to be followed in this case. We are of the considered opinion that such a conclusion could have been reached by the High Court only after recording cogent reasons in support thereof. Especially since the award of the Labour Court was being modified. The Labour Court exercising its discretionary jurisdiction concluded that it was not a fit case for the grant of back wages. In the case of P.V.K. Distillery Ltd. (supra), it is observed as follows:

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. 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.” (Page: 537, Para: 21)

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“In our opinion the High Court was unjustified in awarding full back wages. We are also of the opinion that the Labour Court having found the termination to be illegal was unjustified in not granting any back wages at all.” (Page: 537, Para: 22)

Sec. 11A

Proportionality of punishment – The power of Labour Court is to be exercised judiciously Misconduct – If repeated the penalty of dismissal in terms of S.O. cannot be modified u/s. 11A of the Act Penalty – Of dismissal in terms of S.O cannot be reduced if the misconduct is repeated Standing Order–Prevails over any circular issued there to

¥4.208 In the case of a conductor on probation committing misconduct as many as five times, if on enquiry

found proved, there is little scope for Labour Court to reduce the punishment on the basis of proportionality. In this case the Labour Court modified the punishment of dismissal into one of reduction of two increments with cumulative effect. The High Court affirmed the same. The Supreme Court setting aside the award and judgement of High Court held that the power u/s. 11A should be exercised judiciously. A penalty awarded under certified standing order over rides any circular issued thereto. In such cases, the Labour Court and High Court have little scope to interfere with the quantum and nature of penalty.

Rajasthan S.R.T. Corporation v. Kamruddin, 2009 III LLJ 591 : 2009 (121) FLR 979 : 2009 (122) FLR 671 : 2009 III LLN 53 : 2009 LIC 3003 : 2009 II CLR 659 : 2009 LLR 689/945 : 2009 (7) SCC 552 : 2009 (2) SCC (L&S) 352 : 2009 AIR (SC) 2528 (S.C.2J) CA 3485 of 2009 dt. 12-5-2009

“It is not a case where the misconduct against the respondent had not been proved. It is also not a case where the domestic enquiry was found to have been conducted in an unfair manner or contrary to the principles of natural justice. The services of the respondent had been terminated while the period of probation was not over. As a conductor, his performance during the period of probation was found to be unsatisfactory. It is not in dispute that a disciplinary proceeding was initiated against him while he was found to have committed similar misconduct for the fifth time. It is also beyond any doubt or dispute that he had also been served with a letter of warning.” (Page: 594, Para: 9)

“The power of Labour Court and/or Industrial Tribunal in terms of Section 11A of the Industrial Disputes Act, 1947 to interfere with the quantum of punishment although cannot be denied, but it is also a well settled principle of law that the said power should be exercised judiciously.” (Page: 595, Para: 10)

“For the aforementioned reasons, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed.” (Page: 595, Para: 14)

Sec. 11A

Back wages – Where no proof of gainfully employed available, only 25% payable Gainful employment – If cannot be ruled out back wages are to be reduced to 25% from 50% Back Wages – Are liable to be reduced to 25% from 50% if gainful employment cannot be ruled out

¥4.209 An illegal termination was visited with reinstatement and 50% back wages. The question is whether

the workman could have remained not gainfully employed during the period of forced discontinuation of his engagement. Since there is no evidence the Supreme Court reduced the back wages from 50% to 25% thereby modifying the award.

Executive Engineer, Water Services Div., Haryana v. Kartar Singh, 2010 LIC 11 : 2009 III LLJ 38 : 2009 (121) FLR 598 : 2009 I CLR 1036 : 2009 (5) SCC 44 (S.C.2J) CAJCA 1795 of 2009 dt. 23-3-2009

“In our view, since the respondent has already been reinstated in service and considering the fact that there was no plea nor any evidence or proof to show that from the alleged discontinuation of his engagement till the date of the award, the respondent was not in gainful employment, we are of the view that instead of payment of 50% of the

back wages, the award may be modified to the extent that the respondent shall be entitled to 25% of the back wages.” (Page: 12, Para: 8)

Sec. 11A

Burden of proof – Is on employer to prove misconduct of workman who was terminated without enquiry Enquiry – If not conducted before termination, initial burden is on employer to prove misconduct Onus – The Labour Court cannot put initially on the workman that he was victimized even when enquiry was not conducted Workman – Cannot be put the burden to prove victimization even when no enquiry was conducted before termination

¥4.210 The service of a workman was terminated without holding enquiry leading to reference to Labour

court. The Labour Court put the onus on the workman to prove victimization and completion of 240 days of service etc. The High Court affirmed. The Supreme Court held that the burden of proof is on the employer to adduce evidence to justify the action of termination without holding enquiry for misconduct. The Labour Court and High Court have erred in placing the burden on workman even where no enquiry had been held. Setting aside the decision of courts below, the Supreme Court remanded the matter to Labour Court to dispose of the reference by placing the proper burden.

Amar Chakravarty & Ors. v. Maruti Suzuki India, Ltd., 2011 (128) FLR 564 : 2011 II LLN 14 : 2010 IV LLN 571 : 2011 I CLR 22 : 2011 LLR 1 : 2010 (14) SCC 471 (S.C.2J) CA 10135 & 10142 to 10144 of 2010 dt. 29-11-2010

“In view of the aforesaid position in law, the inevitable conclusion is that when no enquiry is conducted before the service of a workman is terminated, the onus to prove that it was not possible to conduct the enquiry and that the termination was justified because of misconduct by the employee, lies on the management. It bears repetition that it is for the management to prove, by adducing evidence, that the workman is guilty of misconduct and that the action taken by it is proper. In the present case, the services of the appellants-workmen having been terminated on the ground of misconduct, without holding a domestic enquiry, it would be for the management to adduce evidence to justify its action. It will be open to the appellants-workmen to adduce evidence in rebuttal. Therefore, the order passed by the Labour Court, shifting the burden to prove issue No. 1 on the workmen is fallacious and the High Court should have quashed it.” (Page: 574, Para: 17)

Sec. 11A

Globalization – Cannot be reason for setting aside the constitutional provision of social and economic justice Social justice – Cannot be thrown out on the specious ground of globalization and liberalization

¥4.211 Globalization and liberalization cannot become the raison d’être of the judicial process to deny, to the

illegally retrenched workmen, proper relief by creating an impression that courts are no longer sympathetic to their plights. Economic and social justice enunciated in our constitution will become illusory if the courts do not uphold the constitutional focus on social justice without in any way misled by the glitz and glare of the globalization and liberalization.

Harjinder Singh v. Punjab State Warehousing Corporation, 2010 II LLJ 277 : 2010 (124) FLR 700 : 2010 II LLN 14 : 2010 LIC 1433 : 2010 I CLR 884 : 2010 LLR 335 : 2010 (3) SCC 192 : 2010 (1) SCC (L&S) 1146 : 2010 AIR (SC) 1116 (S.C.2J) CA 587 of 2010 dt. 5-1-2010

“In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs. 87,532/- by entertaining a wholly unfounded plea that the appellant was appeared in violation of Articles 14 and 16 of the Constitution and the regulation.” (Page: 286, Para: 16)

“Before; concluding, we consider it necessary to observe, that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the/Industrial Disputes Act and other similar legislative Instruments are social welfare legislations and the same are

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required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.” (Page: 286/287, Para: 17)

Sec. 11A

Theft – Of a bicycle being serous matter, yet Labour Court can modify it into compensation Compensation – If ` 25,000 is proper for theft of a bicycle instead of dismissal Bicycle – If stolen by employee he can be given compensation of ̀ 25,000 in place of dismissal

¥4.212 The Labour Court in its discretionary jurisdiction can modify the order of dismissal of a permanent

cleaner in the canteen inflicted by the disciplinary authority for the proved misconduct of theft of a bicycle belonging to a co-worker into one of compensation for ` 25,000. The Division Bench affirmed the same.

M. Gunaseelan v. Presiding Officer, Principal Labour Court, Chennai & Anr., 2008 I LLJ 101 (Mad.DB) WA 1062 of 2007 & MP 3 of 2007 dt. 6-9-2007

“We are of the view that……….learned single judge.” (Page: 103, Para: 7)

Sec. 11A

Subsistence allowance – Cannot be denied on the ground that the workman did not daily report to mark is presence in the absence of rules Rules and Regulations – Are material for denying subsistence allowance on the reason the workman has not attended daily to mark his attendance Marking attendance – Daily is not a conditions precedent to payment of subsistence allowance in the absence of Rules and Regulation Suspension – Warrants subsistence allowance no matter workman has not attended daily to mark his attendance in the absence of rules

¥4.213 The workman was suspended on 4.3.1993 and his suspension was also revoked unconditionally on

4.9.1993. No subsistence allowance was paid to him for the reason that he was not reporting daily between 9.15 am to 9.30 am to mark his presence in accordance with the order of suspension. His application for subsistence u/s. 33C(2) was however allowed by the Labour Court. But the single judge set aside the same because following his dismissal in furtherance of a dispute in the related matter a dispute is pending in Labour Court. In his opinion the question of admissibility of subsistence allowance depends upon the result of that adjudication. Setting aside the said judgement the Division Bench held that employer is erred in refusing subsistence allowance on the ground that he did not report daily and marked his presence. Because there is neither any Rule nor any Regulation in support of this ground and hence the ground is frivolous. The terms of order of suspension cannot be a substitution to framing of rules. The subsistence allowance was ordered to be paid as provided u/s. 10A of Standing Order Act, 1946.

Manoj Kumar Panda v. Orissa Air Products Ltd., 2008 II LLJ 800 : 2008 (116) FLR 1005 : 2008 II CLR 42 (Ori.DB) WA 33 of 2004 dt. 16-11-2007

“Despite repeated query……….suspension order.” (Page: 802, Para: 8)

“……….in the instant……….frivolous grand.” (Page: 804, Para: 14)

“For the reason……….actual payment.” (Page: 804, Para: 16)

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Sec. 11A

Proportionality – Stemming from administrative law, if the employer displays bias judicial review is proper Judicial Review – Proper if employer displays bias in terminating the employee Bias – Employer should eschew in imposing punishment lest there will be judicial review Abuse of discretion –In terminating if made by employer, it calls for judicial review False complaint – Is a charge calculated to upstage the legitimate union activity

¥4.214 The workman organised a Trade Union and is a key Trade union activist. He is a boiler operator. He

alleged intimidation and threat to his job by his foreman apparently at the instance of employer. His complaint against the foreman turned out to be counterproductive since he was charge sheeted for making false complaint leading to enquiry and his dismissal from service. The industrial Tribunal and Single Judge upheld the dismissal. The Division Bench thereupon held that the threat made out is proved to be true. Even otherwise when the charge was flimsy a major punishment was inflicted. The Lower Court and Single Judge without understanding the undercurrent of the matter and without going in to the dictum of proportionality of the punishment in the face of severity of penalty imposed upheld the dismissal. The factum of “Bias in the entire proceedings and abuse of discretion by the management is overlooked. The dismissal order therefore set aside. The workman was reinstated with continuity of service and 50% backwages.

A. Thangaraj v. Presiding Officer, Labour Court, Madurai & Anr., 2008 II LLJ 471 : 2008 III LLN 434 : 2008 LLR (Sum) 892 (Mad.DB) WA 870 of 2001 dt. 30-8-2007

“Admittedly……….workman.” (Page: 473, Para: 10)

“The Labour Court……….justified.” (Page: 473, Para: 12)

“In the case……….employees union.” (Page: 473/474, Para: 13)

Sec. 11A

Back wages – To a Daily labour is not automatic with reinstatement upon illegal termination Daily wager – Though reinstated not entitled to back wages Reinstatement – Cannot be accompanied with back wages in case of a daily wager

¥4.215 The Labour Court gave an award of reinstatement with continuity of service but with no back wages,

holding the termination of daily wager as illegal. The Division Bench upholding the award and judgement of Single Judge held that the back wages upon reinstatement is not automatic. In this case it is justified for the reason that in a case concerning a daily wager without a vacant post, granting full back wages will only impose heavy burden on employer. The demand for backwages was rejected.

Mohd. Shoukath Ali v. Industrial Tribunal-cum-Labour Court, Warangal & Ors., 2008 I LLJ 969 : 2008 (116) FLR 244 : 2008 II LLN 443 : 2008 I CLR 144 : 2008 LLR 251 (AP.DB) WA 614 of 2007 dt. 9-8-2007

“The unchecked……….judgments of the Supreme Court.” (Page: 971, Para: 5)

Sec. 11A Prejudice – Cannot cause even if the charge sheet is not accompanied with list of documents and names of prosecution witnesses but given later for cross examination Charge sheet – Need not be accompanied with list of documents and names of prosecution witnesses but can be given later before cross examining Cross examination – If facilitated by providing the list of documents and names of witnesses no prejudice is caused even if the charge sheet does not accompany the same

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¥4.216 No prejudice to workman was said to have been caused even if the employer does not furnish the names of prosecution witnesses and list of documents relied on while issuing charge sheet in as much as these were given well before the enquiry and the workman there upon after availing sufficient time cross examined the management witnesses. In this case he has not raised any issues before the enquiry officer causing him any prejudice but raised only before tribunal and High Court, which is unacceptable.

1. Peerless General Finance & Investment Company, Ltd. (represented by its Regional Manager, Southern Regional Office), Chennai, 2) Peerless General Finance & Investment Company, Ltd. (represented by its Branch Manager), Bangalore 3) Director-Administration, Peerless General Finance & Investment Company, Ltd. Kolkata v. Harikrishna Althal (Major) S/o. Late Narayan Althal, Bangalore, 2008 I LLN 683 : 2008 I LLJ 935 (Karn.DB) WA 2206 of 2006 (L-TER) dt. 14-12-2007

“From the proceedings……….19th August, 1988.” (Page: 689/690, Para: 10)

Sec. 11A Dishonesty – If proved of a bank employee, does not call for reinstatement but discharge proper Bank Employee – Does not deserve reinstatement upon dismissal for dishonesty in claiming false LTA False LTA – To wife and son being dishonest the Bank employee does not call for reinstatement discharge proper Past record – If unblemished, a dishonest act of Bank employee can be mitigated by discharge instead of dismissal Discharge – Proper of a dishonest Bank employee instead of dismissal with due regard to past record

¥4.217 The workman was dismissed from the service of the Bank for claiming false T.A. Bills for his wife

and sons exhibiting dishonesty. The Labour Court modified the same interfering with the punishment of dismissal u/s. 11A into one of reinstatement with continuity of service but with no back wages on the basis of proportionality. The Single Judge set aside the same, charges being serious, restored the penalty. The Division Bench held that the Labour Court should have allowed some lesser punishment than reinstatement as dishonesty is proved. Hence Division Bench itself modified the punishment of dismissal into one of discharge, taking into consideration his unblemished past record.

Federal Bank Employees Union v. Federal Bank Ltd. & Anr., 2008 III LLJ 75 : 2008 (117) FLR 730 : 2008 LIC 1839 : 2008 III CLR 144 : 2008 LLR758 (Ker.DB) WA 142 of 2008 dt. 23-1-2008

“It was argued……….from service.” (Page: 80, Para: 14)

Sec. 11A

Dismissal – Of a conductor for not issuing tickets is proper Conductor – Deserves to be dismissal for the misconduct of not issuing tickets Tickets – If not issued to passengers the misappropriation merely calls for dismissal Misappropriation – Of ticket money calls for dismissal of conductor

¥4.218 Dismissal of a conductor for misappropriation of money by not issuing tickets was upheld by Labour

Court and Single Judge. The Division Bench also upheld the same taking into consideration of the concurrent findings of courts below, taking into account the admitted position of his past records.

Shankar M. Pujari v. Divisional Controller, North-West Karnataka Road Transport Corporation, Bagalkot Division, Bagalkot, 2008 III LLJ 828 : 2008 (118) FLR 340 : 2008 II CLR 651 (Karn.DB) WA 1047 of 2007 dt. 4- 12-2007

“There is no dispute……….such cases.” (Page: 830/831, Para: 10)

Sec. 11A

Enquiry – Is vitiated if the defence material on record are not considered by enquiry officer Disciplinary Authority – Has to consider the material on record given by defence before inflicting penalty of dismissal failing which the proceedings will be vitiated

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¥4.219 The enquiry officer and disciplinary authority in a departmental enquiry cannot brush aside the material evidence furnished by the delinquent officer in his defence against the charges levelled against him. If the material evidence was not considered by them, the findings are vitiated and the High Court in Art. 226 can reappreciate the evidence and set aside the dismissal order. As this case is no different, but the official was already superannuated, he was ordered to be granted all retiral benefits with 30% back wages.

P.A. Karkhanis v. UCO Bank, Mumbai & Ors., 2010 I LLJ 227 : 2010 (124) FLR 1107 (Bom.DB) OOCJWP 1311 of 2001 dt. 22-6-2009

“At this stage……….conjection.” (Page: 237, Para: 30)

“The enquiry officer……….material on record.” (Page: 237, Para: 31)

“In view of what is stated……….age of superannuation.” (Page: 238, Para: 32)

Sec. 11A

Cross examination – In which the workman admitted that he had obtained loan and repaid it during the period of termination is sufficient proof of gainful employment Back Wages – Not payable to a workman who had admitted in cross examination of repaying the loan amount of ` 50,000 on the assumption of gainful employment

¥4.220 The workman who was terminated was ordered to be reinstated by the Tribunal. But Single Judge

modified the award. While upholding reinstatement, directed the employer to pay only 50% back wages that also only from 18th March, 1997 till reinstatement and denied wages from 2nd December, 1992 to 31.12.1995 because in his cross examination the workman had admitted that for purchase of house he had borrowed Rs. 50,000 which he was able to repay till 1995. This means he might be gainfully employed till 1995 and hence the Single Judge had correctly disallowed any back wages to that period. The Division Bench has no reason to interfere on this.

Balu Baburao Mhatre v. Bharatkumar Motilal & Co., 2009 I CLR 125 : 2009 II LLJ 547 (Bom.DB) OOCJNM 156 of 2008 in A 6 of 2008 in WP 1952 of 2003 dt. 17-11-2008

“In any case……….motion is dismissed.” (Page: 126/127, Para: 4)

Sec. 11A

Research Assistant – Required to be reinstated but without back wages for non complying with Sec. 25F of the Act for continued employment for 6 years Termination – Of Research Assistant without complying with Sec. 25F is improper to be reinstated but no back wages Back wages – Not payable on basis of no work no pay having been in a state of termination for last 10 years No Work No Pay– Applies for denial of back wages since 10 years elapsed from date of termination

¥4.221 The termination of Research Assistant who worked from 1991 to 1997 was terminated without

complying with Sec. 25F of the Act. He was ordered to be reinstated with all back wages in a writ petition. The same was modified in appeal by the Division Bench in which reinstatement was upheld sans back wages on the principle of ‘no work no pay’ basis since 10 years had elapsed since his termination.

University of Rajasthan & Anr. v. Gopal Sharan Gupta, 2010 I LLJ 216 : 2009 (122) FLR 848 : 2010 I LLN 654 : 2009 LLR 1187 (Raj.DB) DBCSA 733 of 2000 dt. 24-3-2009

“……….the termination……….work no pay.” (Page: 218, Para: 6)

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“Accordingly, the appeal is……….30 days from today……….” (Page: 218, Para: 7)

Sec. 11A

Misappropriation – If results in dismissal, calls for no moulding punishment Dismissal – Is proper of a conductor for misappropriation of ticket money by the conductor Conductor – If loses confidence by misappropriation of small amount is liable to be dismissal

¥4.222 Dismissal of a conductor for not issuing of tickets of Rs. 4 and Rs. 3 even after collecting money

cannot be interfered with in writ petition. The Division Bench upheld the decision of Tribunal and Single Judge to this effect, in view of the consistent declaration of law by the Apex Court in this regard that where misappropriation is the cause, loss of confidence is the result which u/s. 11A calls for no generosity or misplaced sympathy no matter whether defalcation is small and the penalty is harsh.

S. Govindaraju v. Divisional Controller, 2009 LIC 2587 : 2009 (123) FLR 250 (Karn.DB) WA 1242 of 2008 dt. 17- 2-2009

“In our considered……….dismissal is harsh.” (Page: 2587, Para: 9)

“Similarly, the same view……….quantum of punishment.” (Page: 2587, Para: 13)

Sec. 11A Sec. 11A – Under which the Labour Court can exercise jurisdiction judiciously to reduce the quantum of punishment Eldest son – Who visited to see his mentally retarded brother at village absenting for 43 days if dismissed Labour Court u/s. 11A can interfere

¥4.223 Where the explanation of terminated workman for absence unauthorisedly for 43 days was that his

brother who was mentally retarded in his village was required urgent medical attention and hence perforce he being eldest visited his village and unfortunately his brother could not survive. Hence dismissal of his services for such misconduct rightly shakes the consciousness of the court and hence Division Bench also upheld the order of Labour Court and Single Judge in quashing the termination orders and reinstating him with lesser punishment of stoppage of 3 increments with cumulative effect in consonance with Sec. 11A of the Act.

Management of Amco Batteries Ltd., Bangalore v. C.K. Ponnappa, 2009 (121) FLR 471 (Karn.DB) WA 990 of 2008 dt. 31-10-2008

“It is not……….Hari Babu reported in 2008 LLR 715.” (Page: 474, Para: 9)

“The existence……….charge proved.” (Page: 475, Para: 13)

Sec. 11A

Leading evidence – Leave of court is to be obtained in the written statement itself but Court/Tribunal can permit at any stage KSRTC v. Lakshmi Devamma – 5 judge Bench – At what stage employer should seek the leave of Labour Court/Tribunal to adduce additional evidence to prove his case

¥4.224 The question is at what stage the management should seek the leave of the Labour Court/Tribunal to

lead evidence, justifying its actions to dismiss the workman. The question is no more ‘res integra’. It is decided by Supreme Court in KSRTC v. Lakshmi Devamma, (2001 II LLJ 199) that management has to seek leave of the Court/Tribunal in the written statement itself to lead additional evidence to support its action, in the alternative, without prejudice to its rights and contentions. But that should not be understood as placing fetters on the powers of Court/Tribunal to allow management to do so at any stage of the proceedings.

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N. Parathasarathy v. Blue Star Ltd. & Anr., 2009 III LLJ 111 : 2009 III LLN 271 : 2009 LIC 1081 (Mad.DB) WA 60 of 2007 & MP 2 of 2007 dt. 9-1-2009

“The question is……….interest of justice.” (Page: 127, Para: 53)

Sec. 11A

Bias – Against an enquiry officer can be alleged only on cogent evidence Conjectures and Surmises – Are not sufficient to prove bias against an enquiry officer–cogent evidence required

¥4.225 The question is whether the workman can allege bias on the part of inquiry officer and if so what is

the nature of ‘bias’. It is defined by Supreme Court in G.N. Nayak v. Goa University, (2002 AIR (SC) 790 : 2002 (2) SCC 712) as partiality or preference. In Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant, (2001 AIR (SC) 24 : 2001 (1) SCC 182 : 2001 I LLJ 583) as a broader view of ‘malice’ which in common acceptance means and implies “Spite or ill will” and hence a general statement made will not be sufficient. There should be cogent evidence to prove bias or malafide and not mere conjectures and surmises.

N. Parathasarathy v. Blue Star Ltd. & Anr., 2009 III LLJ 111 : 2009 III LLN 271 : 2009 LIC 1081 (Mad.DB) WA 60 of 2007 & MP 2 of 2007 dt. 9-1-2009

“On the allegation……….are prejudices.” (Page: 126, Para: 50)

“The Supreme Court in kumaron……….of justice.” (Page: 126, Para: 52)

Sec. 11A

Continuity of service – For purpose of terminal benefits with no other benefits payable if dismissed employee rendered long service Back wages – Not payable if the dismissed conductor failed to issue luggage tickets but continuity of service can be given only for terminal benefits

¥4.226 The services of conductor were dismissed for not issuing luggage tickets and upheld by Labour

Court. The Single Judge reversing the same held that he be reinstated but without back wages and continuity of service. The employer did not challenge the same. But workman made a further appeal for granting atleast continuity of service. The employer resisted stating that he would in that case claim benefits of seniority promotion etc. Hence the Division Bench gave benefit of mere continuity of service only for terminal benefits nothing else.

H. Rangaiah v. Divisional Controler, KSRTC, Davanagere, 2009 II CLR 690 (Karn.DB) WA 401 of 2008 dt. 18-2- 2009

“Considering……….Single Judge.” (Page: 692, Para: 7)

“In the result……….benefits.” (Page: 692, Para: 8)

Sec. 11A

Restoration application – If not accompanied with condonation application it deserves to be dismissed Condonation of Delay–Should accompany restoration application

¥4.227 The dismissal of workman after proper enquiry for non issuing tickets, though money is taken from

passengers, was upheld by the Labour Court and Single Judge. The appeal preferred, after a long delay could hardly be proceeded with being barred by time. The restoration application was not accompanied

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with any condonation of delay. Even otherwise on facts the Division Bench held that there is hardly any case for interference. Restoration application was dismissed.

Harish Kandara v. Judge, Labour Court, Jodhpur & Anr., 2009 II CLR 622 (Raj.DB) WR 03581 of 2008 dt. 11-5- 2009

“This restoration……….dismissed.” (Page: 622/ 623, Para: 1)

“We have……….injustice.” (Page: 623, Para: 5)

Sec. 11A

Admitted Facts – Still requires charge sheet and show cause Charge Sheet – And show cause is still necessary though it is an admitted fact Big soup Spoons – Cannot be stolen keeping in a shoe and walking

¥4.228 The workman was dismissed on admitted allegation of theft of 30 Big Soup Spoons concealed in his

shoes alleged to have been caught red handed. No enquiry was held being an admitted fact. The Labour Court held the dismissal bad for want of show cause, charge sheet etc. as to why his services should not be dismissed notwithstanding his alleged admission. The Division Bench on the contrary found loophole in the facts that 30 Big Soup Spoons if concealed, he could hardly have walked upto the security and hence though being a fact finding Court, it had to enter into facts. Consequently instead of reinstatement the Division Bench ordered to pay Rs. 60,000 as compensation to the workman.

Ashok Kumar Sharma v. Oberoi Flight Services, 2009 II CLR 61 (Del.DB) LPA 39 of 2008 dt. 18-3-2008

“……….the evidence……….in the pocket.” (Page: 62/63, Para: 4)

“Keeping in mind……….judgment till payment.” (Page: 63, Para: 6)

Note–The S.C. increased the compensation to Rs.2 lakhs as Rs. 60000/- being grossly inadequate.

Sec. 11A

Copy of Enquiry Report – Has to be given to the delinquent workman failing which the action of dismissal is prejudicial Personal Hearing – Is necessary before issuing dismissal order to avoid prejudice being caused Prejudice – Will be caused if the copy of enquiry report is not given and personal hearing was not afforded

¥4.229 In a case of dismissal from service on proof of misconduct the Labour Court and High Court upheld

the dismissal. However in appeal to Division Bench, it was held that prejudice was caused to the workman for non supply of enquiry report and non affording an opportunity of personal hearing in terms of Rule 149(18)(b) of Tamil Nadu Co-op. Societies Rules, 1988. Even otherwise Article 311(2) of the constitution even after 42nd amendment, with due regard to Supreme Court settled cases, mandates supply of a copy of enquiry report. The award was set aside in view of the substantive provision and ratio laid down by Supreme Court

M. Rajagopal v. Principal Labour Court, Madurai & Anr., 2009 II CLR 425 (Mad.DB) WP 1794 of 2005 dt. 31-3- 2009

“A plain reading……….effectively.” (Page: 430, Para: 19)

“Admittedly……….award of the Tribunal.” (Page: 430/431, Para: 20)

Sec. 11A

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M. Paul Anthony – The case applies for identical charges, evidence in criminal and departmental proceedings Identical Charges – In criminal and departmental same treatment to departmental on acquittal is to be accorded Acquittal – In criminal proceedings results in reinstatement provided the charges are identical including facts and evidence Criminal Proceedings–If results in acquittal on identical charges facts and evidence in departmental proceedings nothing but reinstatement follows

¥4.230 Where the charges in both criminal prosecution and departmental enquiry were common based on

same incident which in this case is abetment of theft and where evidence is also the same, acquittal of charges in the criminal trial for the reason that the prosecution was not able to prove the identification of the delinquent, no different treatment to the workman can be given in departmental enquiry. Hence the Division Bench set aside the finding of Single Judge who overturned the award for reinstatement of dismissed workman. The Division Bench held that if the facts, charges, evidence are common, the acquittal in criminal case will automatically result in reinstatement of workman with back wages and continuity of service. The Division Bench remanded the matter to tribunal to quantify the back wages.

Ramkrishna Shivram Gadekar v. Board of Trustees of the Port of Mumbai & Anr., 2009 II CLR 866 : 2009 IV LLJ 767 : 2009 (123) FLR 123 (Bom.DB) OOCJA 350 of 2004 dt. 30-3-2009

“As the outset……….theft by the appellant.” (Page: 868, Para: 5)

“Perusal of……….been proved.” (Page: 870, Para: 10)

“Industrial Tribunal……….on the spot.” (Page: 870, Para: 11)

Sec. 11A

Proportionality of punishment – Does not warrant dismissal for not making two entries for not making entries for issue of Two Tickets Entry for Tickets – If not made for two does not warrant dismissal Conductor – Cannot be dismissed merely for not making entries for issue of two tickets

¥4.231 Where the misconduct of conductor was limited to not making entries for issue of two tickets,

otherwise he has issued the tickets and collected the amount, such misconduct was obviously cannot warrant a punishment of dismissal from service. The Division Bench upheld the finding of Tribunal and Single Judge to reinstate him but with 25% back wages. The punishment was shockingly disproportionate to the proved charges in this case.

Management of Cheran Transport Corporation, Coimbatore v. G. Balasubramaniam & Ors., 2009 I LLN 342 : 2009 II LLJ 645 : 2009 I CLR 525 (Mad.DB) WA 1670 & 1671 of 1999 dt. 6-1-2009

“It is settled……….Apex Court.” (Page: 348, Para: 21)

“In the light……….confirms.” (Page: 348, Para: 22)

Sec. 11A

Proportionality of punishment – Does not warrant dismissal for leave justified on medical ground Sec. 11A – Confers on Labour court to set aside dismissal in suitable case on the principle of proportionality

¥4.232 The employer dismissed the workman for unauthorized absence in the face of workman furnishing

medical certificates for the absence. The Labour Court quashed the dismissal orders by exercising jurisdiction u/s. 11A but without back wages taking into consideration his past meritorious service. Single Judge reversed the same relying on past series of absences. But the Division Bench set aside the same and upheld the award holding that the award could not have been interfered with in the face of the finding on record.

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P. Jayaraman v. Bharat Heavy Electricals Ltd. Trichy & Ors., 2009 I LLN 349 : 2009 I CLR 335 : 2009 LLR 301 (Mad.DB) WP 2844 & 2845 of 2001 dt. 19-11-2008

“The Labour Court……….interference.” (Page: 355, Para: 15)

Sec. 11A

Industrial Tribunal – Has the power to direct appointment of the son of deceased workman Compassionate appointment – The industrial tribunal has the power to direct appointment of a son of deceased workman Son of a deceased workman – Can be ordered to be appointed on compassionate ground upon espousal by the union Power of Industrial Tribunal– Can straight way direct appointment on compassionate ground instead of only directing to ‘consider’ appointment

¥4.233 An Industrial Tribunal has the power to direct the management to appoint the son of deceased

workman on compassionate basis as espoused by the representative of Trade Union. The contention that the Tribunal instead should have directed only “to consider” his appointment on compassionate ground, was rejected.

Delhi Development Authority v. Sudesh Kumar & Anr., 2009 II LLJ 641 : 2009 (121) FLR 366 : 2009 I LLN 655 : 2009 I CLR 767 : 2009 LLR 448 (Del.DB) LPA 384 of 2008 dt. 29-1-2009

“Mr. Birbal also……….behalf of appellant.” (Page: 644/645, Para: 11)

“In our opinion……….Trade Union.” (Page: 645, Para 12)

Sec. 11A

Proportionality of Punishment – On assessment if found harsh and disproportionate, the Labour Court can modify even in case of alleged rash and negligent driving case Sec. 11A – In which the dismissal of a bus driver for rash and negligent driving could be moderated by reinstatement without back wages on the basis of proportionality Driver – Dismissed for rash and negligent driving could be reinstated without back wages on the basis of proportionality

¥4.234 The driver of bus was dismissed from service after an enquiry for rash and negligent driving in

which an auto driver succumbed and another received grievous injuries. Exercising jurisdiction u/s. 11A, the Labour Court held that the punishment was harsh and disproportionate since the auto driver was also equally in error. Hence it modified the punishment into one of reinstatement with continuity of service but without back wages. The Single Judge and Division Bench found the award reasonable being not arbitrary or perverse and dismissed the writ petition of employer.

T.N. State Transport Corporation (K) Ltd. rep. by its G.M., Trichy v. Presiding Officer, Labour Court, Trichy, 2011 II LLJ 254 : 2011 (128) FLR 272 : 2010 III CLR 1057 : 2011 LLR 154/284 (Mad.DB) WA 693 of 2008 dt. 28-10- 2010

“On the earlier……….Single Judge.” (Page: 256, Para: 6)

Sec. 11A

Enquiry – If not conducted a temporary casual worker terminated will have to be reinstated for violation of PNJ Casual Labour – Though temporary but working since 10 years cannot be terminated without notice and enquiry Ill Health – If compelled the workman to remain absent for a prolonged time without any intimation to the employer yet termination without enquiry will be in violation of PNJ

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¥4.235 The workman had served for a period of 10 years and there after he stopped attending office due to suffering from mental illness and hypertension and mild paralyses for a period of nine months. He was terminated from service without any notice and enquiry. He approached the employer only after a period of 4 years for employment with medical certificate. The genuineness of the medical certificate was not questioned. The labour court held that there was violation of principles of natural justice and termination order was illegal. The single judge upheld the same. The Division Bench also upheld the award and the order of High Court confirming his reinstatement without back wages for the reason that a temporary casual workman cannot be removed in violation of PNJ and as the workman was a graduate knowing typing and shorthand should be appointed in any suitable post instead of as a temporary casual labour as there was a ban to appoint casual labours.

General Manager, Telecom, B.S.N.L., Eluru & Anr. v. K. Sudarshana Rao & Anr., 2011 (129) FLR 225 : 2011 IV LLJ 73 (AP.DB) WP 2339 of 2003 dt. 28-7-2010

“The above paras make……….consequential absence.” (Page: 232, Para: 17)

Sec. 11A

Compromise – If arrived between the workman assaulting and the assaulted employee harsh punishment of dismissal can be modified into reinstatement without back wages Back Wages – Not payable even though the complaint by the assaulted ex-employee against the workman was compromised and withdrawn

¥4.236 On the charge of assault of ex-employee, the workman, a Civil Motor Driver was dismissed from

service by the employer. The tribunal gave an award holding the workman guilty notwithstanding with the fact that the assaulted ex-employee backtracked his complaint on a compromise. The single judge remanded the matter to the tribunal. However the Division Bench setting aside the findings of the courts below held that the charges in toto are not maintainable in view of backtracking by the assaulted ex- employee. However full back wages cannot be given since the assault itself cannot be washed off in view of the compromise. Hence he was reinstated without back wages with continuity of service.

A. Kajendran v. Presiding Officer, Central Govt. Industrial Tribunal, Cum Labour Court, Chennai & Ors., 2011 I CLR 658 : 2011 LLR 438 (Mad.DB) WA 1881 of 2010 MP 1 of 2010 dt. 4-2-2011

“Be that as it may……….disproportionate to the charge.” (Page: 662, Para: 18)

Sec. 11A

Enquiry – Cannot be dispensed with on the basis of inferential admission unless the admission is unequivocal and unambiguous Admission – Of guilt unless unequivocal and unambiguous the enquiry cannot be dispensed with merely on the basis of inferential admission

¥4.237 The employer dismissed the workman on the basis of alleged admission of some misconduct about

fraudulently and dishonestly drawing sickness benefit and conviction and sentence etc. No enquiry was conducted because according to the employer in such cases enquiry can be dispensed with. The labour court held that absence of the enquiry has violated the PNJ and hence set aside the dismissal reinstating him with 50% back wages. The single judge affirmed the reinstatement but remanded the matter so far as back wages are concerned. The Division Bench upheld the order of the single judge and the tribunal for the reason that even if there is an admission enquiry cannot be dispensed with unless the admission of guilt was unequivocal and unambiguous without any reservation whatsoever. The term “admission” though not defined support can be taken from Sec. 17 of the Evidence Act. The workman in this case did not give any statement in writing or oral admitting his guilt. There was no express admission but only an inferential admission which does not permit dispensing with enquiry. Order of reinstatement therefore held proper and valid.

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R. K. Gandhi & Ors. v. 1st Labour Court, W.B. & Ors., 2011 I CLR 680 (Cal.DB) CAJMAT 534 of 2008 dt. 15-7- 2009

“We have already set……….in strict sensu.” (Page: 683, Para: 14)

“We are, therefore, of……….therefore, distinguishable.” (Page: 684, Para: 21)

Sec. 11A

Weigh Bridge Operator – Being a responsible post negligence in duties being directly affecting the finances compensation upon termination is proper instead of reinstatement Reinstatement – Of a negligent weigh bridge operator is not warranted when employer loses confidence in him due to responsible post affecting the finance Compensation – In lieu of reinstatement proper for a negligent weigh bridge operator losing confidence in him Loss of Confidence – Warrants compensation and not reinstatement

¥4.238 The services of the workman, a weigh bridge operator were terminated on the proved irregularity in

the issue of stocks from the factory after an enquiry. The labour court reversed the same in exercise of the discretion u/s. 11A. The single judge modified the award into payment of compensation of ̀ 70,000 instead of reinstatement. The Division Bench upheld the same since the employer had lost confidence in him inasmuch as it directly affects the finances of the company.

Vajravelu v. Management of Salem Steel Plant, Salem & Anr., 2011 I LLN 604 : 2011 II LLJ 759 : 2011 I CLR 228 (Mad.DB) WA 2302 of 2005 dt. 8-12-2010

“The learned Single Judge……….by the Management.” (Page: 607, Para: 7)

“The learned Counsel for……….in any event.” (Page: 609, Para: 14)

“We follow the above……….is devoid of merits.” (Page: 610, Para: 15)

Sec. 11A

Industrial Tribunal – Is clothed with the power to reappreciate evidence u/s. 11A unlike administrative tribunals Reappreciation – Of evidence is bestowed upon the industrial tribunal u/s. 11A unlike administrative tribunals Administrative Tribunals – Are not clothed with the power to reappreciate evidence unlike industrial tribunals Sec. 11A – A power vested with industrial tribunal for reappreciation of evidence is not vested with administrative tribunals

¥4.239 The workman was removed from the service after an enquiry but upon raising a dispute the

industrial tribunal exercising power u/s. 11A reinstated her with back wages and continuity of service with all other attendant benefits after appreciating the evidence. The employer challenged the award in a petition and the single judge relying on the judgement in the case of B.C. Chaturvedi v. UOI and Government of TN & Anr. v. Rajapandian held that the tribunal had no power to reappreciate the evidence and to go into adequacy and sufficiency of evidence and to come to a different conclusion from that of enquiry officer by reappreciating the evidence like an Appellate Court. Setting aside the same the Division Bench held that the judgements relied on by the single judge relates to jurisdiction of administrative tribunal and also the High Court in dealing with the disciplinary matters. The matters covered therein were not industrial disputes. Industrial courts are clothed with power to reappreciate the evidence u/s. 11A. Modifying the award and setting aside the order of single judge the Division Bench restored the reinstatement and other related benefits of the award except payment of full back wages in the circumstances.

G. Annie Christy v. 1. Deputy Chief Mechanical Engineer, Personnel Branch, Golden Rock Workshop, Southern Railway, Ponmalai, Trichy-620 004 2. The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai, 2011 I LLN 77 (Mad.DB) WA 311 of 2009 dt. 26-11-2010

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“The facts leading to the……….with the present Appeal.” (Page: 78, Para: 2)

“On a thorough perusal of……….re-appreciate the evidence.” (Page: 84, Para: 17)

Sec. 11A

Compensation – Proper instead of reinstatement in case of 3 years of service and 16 years have elapsed Reinstatement – Not proper for short period of service but 16 years have elapsed since dismissal but compensation proper

¥4.240 The services of the workmen were dispensed with on allegation of incitement and instigation of the

workmen to go on strike. No enquiry was conducted but the employer led evidence before the labour court which after appreciation the dismissal was set aside by direction to pay 20% back wages together with reinstatement and continuity of service. The single judge affirmed the same as the employer could not prove that the workmen had misbehaved with them or inflicted any physical harm. The award did not harbour any perversity for interference. The Division Bench did not find any reason to interfere with the findings of courts below. However as the workmen had hardly put up 3 years service and already 16 years had elapsed since their dismissal the court acceded to the request of employer that adequate compensation will meet the ends of justice and equity especially in view of strained relations. Hence modifying the award an amount of ` 5,25,000 was awarded in lieu of reinstatement in full and final settlement.

Indian Acrylics Ltd. & Anr. v. Presiding Officer, Labour Court, Patiala & Ors., 2011 II CLR 288 : 2011 LLR 794 (P&H.DB) LPA 14 of 2011 dt. 4-2-2011

“At the time of arguments……….present writ petition.” (Page: 288, Para: 5)

“Taking note of facts of……….execute the order passed.” (Page: 288, Para: 13)

Sec. 11A

G.E.B. Service Regulations – Regulation 113 though contemplates summary disciplinary action a warning must specify the regulation precisely Gujarat Electricity Board Conduct, Discipline and Appeal Procedure – Has to be followed if the show cause notice under Regulation 113 was not complied with in letter and spirit Regulation 113 – G.E.B. Service Regulation being a summary procedure should be followed in letter and spirit for removal of a workman

¥4.241 The services of the workman were dispensed with for unauthorized absence under Regulation 113 of

the G.E.B. Service Regulations. The dispute raised by the workman was answered in his favour by the labour court for the reason that the employer had failed to comply with the Gujarat Electricity Board Conduct, Discipline and Appeal Procedure inasmuch as no enquiry was conducted. He was reinstated with 50% back wages. The single judge upheld the award. Upon challenge the Division Bench held that though Regulation 113 provides a summary procedure it contemplates giving of a warning to remind him that his continued unauthorized absence will result in discharge of his service. In this case the employer had given only a show cause notice with no mention that action would be taken under Regulation 113. In this case the workman was caught by surprise when the show cause notice could only mean action would be only taken after holding a regular departmental enquiry. Hence in the absence of valid notice under Regulation 113 his termination was held illegal and the orders passed by the courts below cannot be faulted.

Gujarat Electricity Board v. Kodarji Babarji Dabhai, 2011 II CLR 502 : 2012 I LLJ 205 : 2012 (132) FLR 1036 (Guj.DB) LPA 1932 of 2004 in SCA 2276 of 2004 with CA 8526 of 2004 & 434 of 2011 dt. 6-5-2011

“The facts of the instant……….respondent by the appellant.” (Page: 506, Para: 12)

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“Another important aspect……….under Service Regulation 113.” (Page: 506, Para: 13)

Sec. 11A

Back Wages – There is no straight jacket formula being discretionary in nature Claim – Which was not raised in a lower Court cannot be conceded by the Division Bench

¥4.242 So far as back wages are concerned there is no straight jacket formula, relief being only

discretionary especially when the survival of the workman during the forced unemployment is a question of fact. In this case the single judge had set aside the order for full back wages. The Division Bench upholding the same noted that the workman did not claim compensation before the single judge and that a claim not raised before the single judge cannot be conceded by the Division Bench if compensation is sought instead of reinstatement granted by the single judge. The order for reinstatement only was therefore upheld.

Oghad Masri Rabari v. State of Gujarat, 2011 II CLR 507 : 2011 (130) FLR 384 : 2011 LLR 811 (Guj.DB) LPA 533 of 2011 in SCA 8250 of 2001 dt. 2-5-2011

“The learned Single Judge……….rate of 9% per annum.” (Page: 509, Para: 4)

Sec. 11A

Suspension – The bi-partite settlement can still be invoked during its subsistence Bi-Partite Settlement – Can be invoked even during the suspension period for compulsory retirement

¥4.243 The employer bank invoked clause XVI of the Fourth bi-partite settlement and suspended the

workman for some misconduct and subsequently compulsorily retired him. The question is whether the employer was at liberty to invoke the clause of the settlement when the workman was suspended. It was held by CGIT that during suspension, contract of employment was suspended and consequently Rules of the bank including bi-partite settlement containing provision of deemed voluntary retirement were not applicable. To arrive at this decision it erroneously relied on the decision in Hotel Imperial instead of the subsequent decisions in Khem Chand’s case & Ors., because suspension does not bring to an end or supersede the contract of service during suspension pending enquiry. Hence the Division Bench upheld the decision of the single judge overruling the decision of CGIT because employer-employee relationship subsists and continuous.

U.P. Singh v. Punjab National Bank, 2011 II CLR 608 : 2012 I LLJ 131 : 2011 (130) FLR 682 : 2011 LLR 708 (Del.DB) LPA 481 of 2010 dt. 10-2-2011

“Learned Single Judge in……….(2001) 3 SCC 161.” (Page: 610, Para: 6)

“The appellant had submitted……….Fourth Bipartite Settlement.” (Page: 615, Para: 16)

Sec. 11A

Back Wages – Is always in the discretion of the court with due regard to the gainful employment of the workman Gainful Employment – Evidence for or against is critical for granting back wages

¥4.244 While reinstating the workman for illegal termination the court cannot automatically grant full back

wages in the absence of evidence being led to the effect that he was not gainfully employed during the forced unemployment. It is always in the domain of discretion of the court. In this case the tribunal before granting back wages has not examined whether the workman was or not employed in any other establishment. Hence the Division Bench upheld the judgement of the single judge setting aside the award for back wages granted by the tribunal and dismissed the Letters Patent Appeal.

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Bhojabhai Danabhai Rabari v. State of Gujarat, 2011 II CLR 777 : 2012 I LLJ 174 : 2011 (130) FLR 759 : 2011 LLR 903 (Guj.DB) LPA 2842 of 2010 in SCA 8251 of 2001 dt. 2-5-2011

“The learned Single Judge……….rate of 9% per annum.” (Page: 778, Para: 4)

Sec. 11A

Closure – Of an establishment though creates hurdles in reemployment but workman cannot be deprived of reemployment benefit on par granted to other workmen already in service Alternative Employment – Granted to workmen at the time of closure cannot be denied to a workman illegally terminated though the establishment no longer exists

¥4.245 When the award was granted the establishment of the employer was closed and the tribunal could

not grant reinstatement but awarded compensation and salary upto the closure. The said award was not implemented but attained finality. The workman filed a writ petition praying implementation of the award. The single judge held that the award reached finality and the employer’s establishment was no longer in existence but had the workman remained in active service he would have got alternative employment on the same way like others who had been retrenched. Hence order to treat him on par with other workmen was passed for granting alternative employment, retrenchment compensation and salary from the date of termination till the date of closure of the establishment. The Division Bench upheld the same.

State of U. P. through Principal Secretary, Deptt. Of Land Development v. Vinay Kumar Maurya, 2011 II LLN 65 : 2011 (128) FLR 966 (All.DB) SAD 39 of 2011 dt. ---------

“Since the aforesaid award……….in the alternative employment.” (Page: 66, Para: 4)

Sec. 11A

Misconduct – If committed against person(s) not directly involved in the management and not in work place punishment of dismissal is grossly disproportionate Misbehaviour – Committed outside the work place with a sleeping partner of the establishment and father of one of the partners does not call for dismissal being disproportionate Dismissal – For misbehaving outside the work place with persons not directly involved in the management is disproportionate to the charges Sec. 11A – Exercise of power by the labour court in setting aside the dismissal for the misconduct not committed in the work place with persons not connected with the management is proper

¥4.246 The services of the workman were terminated for the alleged misbehavior towards the father of the

Managing Partner of the establishment and one of the sleeping partners of the firm. The labour court interfering with the punishment holding it grossly disproportionate to the gravity of the misconduct by an award reinstated him without back wages. Upon challenge the single judge reversed the award upholding the punishment. Whereas, the Division Bench held that the misconduct alleged did not take place within the premises of the establishment but took place far away from the workplace and not against the persons directly involved in the management. Such interference is not perverse but valid in law under the circumstances. The view taken by the tribunal in granting reinstatement but without back wages is a plausible view. Hence the order of single judge was set aside and award of labour court restored.

B. Rajagopal v. Jomy Xavier & Anr., 2011 LIC 1131 : 2011 IV LLJ 712 (Ker.DB) WA 215 of 2009 dt. 3-3-2010

“Yet another aspect has……….and render a decision.” (Page: 1138, Para: 8)

“Some of the decisions……….his senses would take.” (Page: 1140, Para: 10)

Sec. 11A

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Onus of Proof – To explain the discovery of drugs in the dickey of his scooter rests on the workman Theft – A charge cannot be without foundation in the absence of evidence tendered explaining the discovery of drugs in the scooter of the workman a pharmacist Pharmacist – If drug is found in the scooter at the work place the workman if fails to explain the discovery the charges of theft survives

¥4.247 The workman, a Pharmacist found in possession of drugs in the dickey of his scooter and after an

enquiry he was terminated on charges of theft. His dispute before the labour court and single judge failed. In the LPA, the Division Bench upholding the punishment and affirming the decisions of the courts below held that once it was held that the drugs were found from his possession, then the onus shifts on him to prove otherwise. His assertion that the employer did not prove the ownership of the drugs cannot be accepted as it was not pressed at the appropriate stage. Even otherwise it was for him to prove that he was the owner of those drugs in the absence of his inability to establish as to whom else had kept it in his scooter. In these circumstances the allegation that those were stolen cannot be said to be unfounded. Mere denial in the departmental enquiry will not reduce the gravity of the delinquency without proof.

Sunil Kumar v. M/s. Telco Ltd., 2011 LIC 1151 : 2011 III LLJ 682 : 2011 LLR 611 (Jhar.DB) LPA 475 of 2010 dt. 22-11-2010

“The aforesaid orders have……….to be without foundation.” (Page: 1152, Para: 4)

“In the aforesaid background……….is accordingly dismissed.” (Page: 1152, Para: 5)

Sec. 11A

Continuity of Service – Even if not mentioned in the award granting of back wages from the date of termination by implication allows the said benefits Award – Though silent regarding continuity of service grant of back wages by implication allows the same Back Wages – Wherever paid is an indication for continuity of service no matter the same was not specifically mentioned in the award in so many words Selection Scale – Is admissible if grant of promotion after several years of illegal termination disturbs the settled position promotions granted to the personnel Last Drawn Wages – If paid a logical inference flows there from that employer-employee relationship continues albeit suspended Employer-Employee Relationship – During a challenge to reinstatement survives if last drawn wages were paid no matter in a suspended manner

¥4.248 The labour court set aside the termination of the workman by an award directing reinstatement with

25% back wages. The award was silent regarding continuity of service and attendant benefits of promotion, revised pay scales etc. The employer unsuccessfully challenged the award before single judge and Division Bench. By then 16 years have elapsed before he was reinstated. The employer did not pay him the benefits flowing from the continuity of service for the reason that the award did not specifically directed to grant. Upon challenge for continuity of service and benefits the single judge partly allowed the petition by directing to give him notional benefits of selection scale on completion of 9, 18 and 27 years of service. The employer challenged the same before Division Bench. Dismissing the special appeal the Division Bench held that his rights stood crystallize after the award. The grant of back wages is a proof that the labour court by implication also granted continuity of service. Since granting promotion will unsettle the whole scheme of promotion already implemented grant of selection scale was upheld. The grant of last drawn wages is also a proof for suspended employer-employee relationship as he was not gainfully employed. Orders for paying him actual benefits of selection grade with revised pay scale with 9% interest per annum were issued. The order of single judge was modified.

Krishi Upaj Mandi Samiti, Dholpur v. Bangali Mal Sharma & Anr., 2011 LIC 300 : 2011 III LLJ 230 (Raj.DB) SA 1302 of 2005 dt. 8-9-2010

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“Factual matrix of the case……….costs of ` 5,000.” (Page: 300, Para: 3)

“In view of what has……….terms indicated above.” (Page: 304, Para: 13)

Sec. 11A

Judicial Officer – while stating the reason for the award cannot bodily lift the written Submissions given by a party as his own but should be in his own language Own language – Must be applied by a judicial officer not lifting bodily from the written Submissions of the party

¥4.249 Reasons which are to be indicated in a Judgment must be that of a Judicial Officer and it should be

in his own language otherwise the legitimacy of the judicial process would be eroded. Hence the Written Submissions given by a party lifted bodily by the Judicial Officer by incorporating them as his own are unsatisfactory. Therefore the award is set aside and the President of Industrial Court is requested to assign the reference to some other Court.

German Remedies Ltd. Mumbai v. Pratibha S. Tiwatane & Anr., 2010 (1) Mah.LJ 761 (Bom.HC) WP 1955 of 2009 dt. 9-11-2009

“There has been no……….prepared the Award.” (Page: 762, Para: 6)

Sec.11A

Service of summons – If refused or avoided, then as per Rule 18 of Industrial Tribunal (Procedure) Rules, 1954 the Court has to send the same under postal certificate-Rule mandatory Rule 18 of Industrial Tribunal (Procedure) Rules, 1954 – Summon if refused or avoided the Court has to send the same under postal certificate failing which service becomes doubtful Rule 18 of Industrial Tribunal (Procedure) Rules, 1954 – If violated, then the service of summons becomes doubtful

¥4.250 An ex parte award was set aside because on refusal to accept the summon by the Petitioner

Management, the Court as per Rule 18 of Industrial Tribunal (Procedure) Rules, 1954 had to send the same under postal certificate, which wasn’t done. Hence the service of summons becomes doubtful.

Plaza Plastics v. Government of NCT & Anr., 2010 (124) FLR 160 : 2010 LLR 242 (Del.HC) WP(C) 2736 of 2006 dt. 22-1-2009

“Certified photocopies of………. becomes doubtful.” (Page: 161, Para: 5)

“Apart from this the Rule……….the ex parte award.” (Page: 162, Para: 6)

Sec. 11-A

Back wages – Full denied to the widow as no evidence was given to prove that the deceased workman was not gainfully employed Widow – Is entitled 50% back wages for want of proof that the workman her deceased husband was not gainfully employed Termination – Illegal if the medical certificate was not sent while sending the application for leave Misconduct – Of not enclosing the medical certificate while seeking leave does not warrant termination

¥4.251 Termination of the workman only because medical certificate was not sent while sending the

application for leave due to sickness is held to be illegal. The award of the Labour Court is modified because the question of reinstatement does not arise since the workman died during the pendency of the case and instead of full back wages, 50% was awarded to the widow as no evidence was given to prove that the workman was not gainfully employed.

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M/s. Tata Yodogawa Ltd. v. Presiding Officer, Labour Court, Jamshedpur & Anr., 2010 (124) FLR 731 (Jhar.HC) WP(L) 3151 of 2001 dt. 17-12-2009

“As it appears that the……….to the management.” (Page: 732, Para: 7)

“On consideration of……….does not arise.” (Page: 732, Para: 9)

“So far as the Award……….copy of the order.” (Page: 732, Para: 10)

Sec. 11-A

Acquittal – In criminal proceeding is no ground for exonerating the workman in the Departmental Proceedings Departmental Proceedings – And criminal proceeding being on different basis acquittal in former is not a ground to let off in departmental proceeding Criminal proceeding – If leads for acquittal departmental enquiry need not depend on the said outcome

¥4.252 Workman terminated for granting employment to 11 persons on the basis of forged employment.

Acquittal in criminal proceeding is no ground for exonerating the workman in the Departmental Proceedings because in criminal trial charge has to be proved beyond all reasonable doubts whereas guilt in departmental proceedings has to be decided on the basis of probabilities. Another person accused for the same charge was acquitted and reinstated on the ground that the workman may not have known about the forgery and that cannot be a ground for allowing the petition. High Court dismissed the petition.

Manoj Kumar Sinha v. Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad & Anr., 2010 (124) FLR 854 : 2010 II CLR 394 : 2010 LLR 475 (Jhar.HC) WP(L) 20 of 2002 dt. 17-11-2009

“In order to test the……….faith and dishonesty.” (Page: 856, Para: 8)

“From the award passed……….quite different footings.” (Page: 856, Para: 9)

Sec. 11-A

Termination – Merely on the ground of suspicion held to be illegal Suspicion – Is no ground for terminating the workman hence to be paid back wages following his superannuation Age of Superannuation – If reached by the workman then reinstatement cannot be granted but entitled to back wages and retiral benefits

¥4.253 Suspicion howsoever strong even if proved cannot take the place of proof. Hence suspicion merely

because the workman had left at 5.30 p.m. after the banking hours is no ground for his termination for shortage of ̀ 10000. There was no shred of evidence. Termination order held to be illegal. Hence the High Court set aside the award of Labour Court which had upheld the dismissal. Since the workman had reached the age of superannuation, reinstatement could not be granted but entitled to 70% back wages and retrial benefits.

Shriram Vishwanath Deshpande v. Presiding Officer, Central Government Industrial Tribunal cum Labour Court, Jabalpur & Anr., 2010 (124) FLR 911 : 2010 I LLN 439 : 2010 I CLR 345 : 2010 (1) Mah.LJ 587 (Bom.HC) WP 309 of 2004 dt. 18-11-2009

“The up-shot of the above……….question of back wages.” (Page: 918, Para: 6)

“I have carefully considered……….law in paragraph 20.” (Page: 918, Para: 8)

Sec. 11-A

Shockingly disproportionate – Then only the Tribunal can exercise the power of proportionality

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Sec. 11A – Of the Act cannot be invoked unless the punishment was shockingly disproportionate Tribunal – Is not an appellate court but possesses jurisdiction to interfere only when the punishment was shockingly disproportionate Appellate Court – Excludes – Tribunal

¥4.254 Power u/s. 11-A is not Appellate power but is exercised only when the punishment imposed is

shockingly disproportionate. In this case charge of misappropriation was proved in Departmental Inquiry against the workman. Therefore the punishment of reinstatement by putting him by six stages down in pay-scale cannot be said to be shockingly disproportionate. The High Court set aside the order of the tribunal which had modified the punishment by keeping his retiral benefits intact in the face of proved misconduct.

Divisional Controller v. Girdharbhai Thakarshibhai Tank, 2010 (125) FLR 128 : 2010 II CLR 336 : 2010 LLR 600 (Guj.HC) SCA 14693 of 2008 dt. 9-11-2009

“It is by now well settled……….to the charges proved.” (Page: 129, Para: 5)

Sec. 11-A

Charges – If grave and yet if employer reinstates the workmen to avoid payment of last drawn wages his position to contest the reinstatement will be weakened Reinstatement – If made to avoid payment of last drawn wages inspite of grave charges it is difficult to contest the award of reinstatement made by the labour court

¥4.255 Though the charges of dishonesty were proved against the workmen, the Labour Court by exercising

its power u/s. 11-A held that the punishment of termination was too excessive as long service put in by the workmen was not considered and therefore modified the punishment by reinstatement with 50% back wages and continuity in service. The Writ Court held that in the face of the grave charges the employer had reinstated the workmen probably to avoid payment of last drawn wages. The employer now therefore cannot harden his stand as his position to contest the award of the tribunal is weakened. However in order to give quietus to the issue, the Court directed each workman to withdraw only 50% of amount already deposited by the employer against 50% back wages awarded by the Labour Court.

Management of Premier Instruments & Controls Ltd. Coimbator v. Presiding Officer, Labour Court, Coimbatore & Ors., 2010 (125) FLR 307 : 2010 I CLR 675 : 2010 LLR 492 (Mad.HC) WP 14131 & 14132 of 2000 dt. 3-2-2010

“In the present cases, after……….assailing the award.” (Page: 309, Para: 7)

“Considering the overall……….order as to costs.” (Page: 309, Para: 9)

Sec. 11A

Unauthorized absence for long period – Is valid ground for dismissal as no medical certificate produced to prove illness and in past absenteeism supports the action Dismissal – On the ground of unauthorized absence for long period valid as no medical certificate produced to prove illness and past absenteeism supports the action Medical Certificate – Is a weapon to prove the genuiness of the illness against termination on the ground of continued absence

¥4.256 Workman was dismissed on the ground that he was unauthorizedly absent from service for a long

time.The Labour Court upheld the order of termination because no medical certificate was produced to prove illness and the past record showed that many times the workman was on unauthorized leave. The High Court upheld the award.

H.L. Mahendra v. Divisional Controller, Disciplinary Authority, KSRTC, Bangalore, 2010 (125) FLR 373 : 2010 LIC 3208 : 2010 II CLR 65 : 2010 LLR 610 (Karn.HC) WP 36845 of 2009 dt. 5-2-2010

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“Having heard the learned……….say of the petitioner.” (Page: 374, Para: 2)

“Although a feeble attempt……….the order of punishment.” (Page: 374, Para: 3)

Sec. 11-A

Preliminary issue – Whether the domestic enquiry is fair or proper should be decided first Domestic Enquiry – valid or not – being a preliminary issue needs to be decided first Labour Court – has to first decided whether the domestic enquiry conducted by the employer is valid or not as a preliminary issue

¥4.257 Employer had prayed to the Labour Court to decide on the validity of the domestic enquiry as a

preliminary issue and if it was found vitiated then allow them to lead further evidence to substantiate the order of dismissal. Labour Court rejected the prayer on the ground that this was the subject matter of main adjudication will be heard together among all other issues. Upon challenge, the writ court held that it is incumbent upon the Labour Court to frame preliminary issue with reference to validity of domestic enquiry and in case enquiry was in order then parties will have to address arguments on merits and only thereafter Labour Court can interfere. Petition allowed.

Hydraulics Private Ltd. v. Presiding Officer, (II Additional District Judge)Labour Court, Pondicherry & Ors., 2010 (126) FLR 542 : 2010 III LLN 151 : 2010 II CLR 418 : 2010 LLR 820 (Mad.HC) WP 7191 to 7204 of 2010 dt. 19- 4-2010

“Therefore, in the light……….any such permission.”(Page: 546, Para: 9)

Sec. 11-A

Proportionality of punishment – Labour court has no discretion if the punishment was for non-issuance of tickets but collecting money Sec. 11A – Does not permit the labour court to exercise discretion to reduce the punishment of dismissal for non- issuance of tickets but collecting money Dismissal – Cannot be set aside u/s. 11A for misappropriation of money by non-issuance of tickets

¥4.258 Non-issuance of tickets even after collecting fare is a case of serious misconduct. The punishment of

dismissal cannot be held to be disproportionate or unjust. Therefore refusal by the Labour Court to exercise its powers u/s. 11A is proper and no interference is required.

Rajabhai R. Gadhavi v. Divisional Controller, 2010 (126) FLR 935 : 2010 II CLR 673 : 2010 LLR 913 (Guj.HC) SCA 5286 of 2010 dt. 14-5-2010

“In view of aforesaid……….instead of dismissal.” (Page: 937, Para: 4)

“Recently, similar view……….in matters like this.” (Page: 939, Para: 5)

Sec. 11-A

Misconduct – If based on assumption and not on evidence, then punishment of stoppage of 5 increments with cumulative effect is illegal Assumption – If the basis for inflicting punishment of dismissal not based on evidence the punishment is illegal Enquiry – Though not challenged as unfair and improper the tribunal has the power to go into the validity and legality of enquiry on its own Tribunal – Has jurisdiction to interfere with the findings of enquiry on its own even when workman failed to challenge the validity for legality of enquiry

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¥4.259 For misconduct of rash and negligent driving of bus, the driver was given the punishment of stoppage of 5 increments with cumulative effect. The Industrial Tribunal set aside the punishment because findings of the Inquiry Officer was based on assumptions and there was no evidence to prove the same and also the driver was acquitted from the criminal proceedings. The High Court upheld the order of the Tribunal and also further held that even when the workman has not challenged the legality and validity of inquiry, the Tribunal has jurisdiction to interfere with the findings and come to its own conclusion and defer with the conclusion of the Inquiry Officer.

Gujarat State Road Transport Corporation v. Amarsinh Premjibhai Parmar Through Secretary, 2010 (126) FLR 943 : 2010 II CLR 778 : 2010 LLR 1067 (Guj.HC) SCA 15906 of 2004 dt. 9-4-2010

“I have considered submissions……….petition is dismissed.” (Page: 944, Para: 5)

Sec. 11A

Evidence – Has to reasonableness and fairness led by the employer before labour court if ignored the award will not sustain Labour court – Cannot ignore the evidence and posture of employer towards non hostility, mala fides and victimization while making an award Award – Of a labour court should take into consideration the evidence of employer that he was not hostile, mala fide or vindictive

¥4.260 Workman was dismissed for misconduct. The labour Court reinstated him holding termination

illegal. Upon challenge High Court held that the Labour Court ordered reinstatement without considering the evidence led by the employer forgetting the fact that there was absolutely no case for the workman to succeed as no hostility, mala fides or victimization was made out on the part of the Management. Hence the order of Labour Court set aside and the matter was remanded.

Manager, Lahai Estate, Pathanamthitta v. President, Ranni Plantations & Ors., 2010 (127) FLR 37 : 2010 III CLR 1027 (Ker.HC) WP 1185 of 2005 dt. 10-9-2009

“As noted hereinabove……….has gone wrong.” (Page: 39, Para: 6)

Sec.11-A

Rash and negligent driving – Upon acquittal in criminal case and unfair domestic enquiry the termination becomes harsh and excessive Driver – Upon acquittal in criminal case and unfair domestic enquiry for rash and negligent driving the termination becomes harsh and excessive Disproportionate punishment – Includes – Termination of a driver for rash and negligent driving once acquittal criminal case enquiry being not fair and proper

¥4.261 Services of the workman were terminated on the ground of misconduct of rash and negligent driving

of the bus.The High Court held that since he has been acquitted from the criminal case and an important witness was not examined in departmental enquiry, termination is an excessive punishment. Hence the High Court modified the punishment in such a way that his wife could get the terminal benefits on notional reinstatement basis with retrospective effect from the date of his termination till the date of his death with no other monetary benefits.

K. Desikamani (Deceased) through his legal rep. v. Presiding Officer, Labour Court, Vellore & Anr., 2010 (127) FLR 814 : 2010 III CLR 381 (Mad.HC) WP 8906 of 2001 dt. 8-6-2010

“Therefore, considering the……….order as to costs.” (Page: 818, Para: 19)

Sec.11-A

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Conductor – Misappropriating ticket money howsoever negligible requires no sympathy from dismissal Prosecution – If defaulted including non participation in enquiry leads to no relief to the dismissed conductor

¥4.262 Conductor was dismissed from service on the ground of misappropriation of money. He assailed it

before the labour court but failed to prosecute the same. But absence of conductor during the crucial period i.e. at the time of recording of evidence and filing of pursis by his advocate that “No Instructions Pursis” shows that the workman had no case and also inspite of several opportunity given to be present the workman did not avail the same. He also never participated in the enquiry for reasons best known to him. Hence he cannot contend that enquiry was not fair and proper due to an ex parte enquiry. The High Court upheld the award of labour court upholding dismissal and further held that amount of misappropriation whether small or large does not call for showing any sympathy.

Asarm Dagduji Pawar v. Divisional Controller, M.S.R.T.C., 2010 (2) BCR 47 (Bom.HC) WP 2258 of 1991 dt. 8-1- 2010

“On careful perusal……….he remained absent.” (Page: 50, Para: 6)

“So far as the contention……….asked for more time.” (Page: 50, Para: 7)

“On careful perusal……….in law in equity.” (Page: 50, Para: 8)

Sec. 11A

Domestic Enquiry – The controversy on fairness or otherwise between employer and workman needs to be addressed as a preliminary issue Preliminary Issue – Whether Domestic Enquiry is fair or improper, needs to be decided first if there is a controversy on this point between the parties

¥4.263 The question is whether domestic enquiry violated the principles of natural justice or not could be

decided as a preliminary issue to be decided first. The labour court refused to decide this issue as a preliminary issue. The employer assailed the same before High Court. The High Court held that where there is a controversy between the employer and the workman in which the former contends that enquiry was fair and proper and later that it is vitiated then such matter should be decided as a preliminary issue to resolve the controversy. Hence rejection of application for framing and deciding preliminary issue over the legality of the domestic enquiry was held to illegal. The petition was allowed and order of the Tribunal was quashed and set aside. Application to decide this issue as preliminary one was upheld.

Hindustan Petroleum Corporation Ltd. through its Senior Regional Manager, Nagpur v. Presiding Officer, Central Government, Industrial Tribunal-cum-labour Court, Nagpur & Anr., 2010 I CLR 100 : 2010 (4) Mah.LJ 391 (Bom.HC) WP 3923 of 2001 dt. 12-11-2009

“I have considered the submissions……….deciding the preliminary issue.” (Page: 101, Para: 5)

Sec. 11A

Compassionate appointment – Even on purely temporary basis is to be regarded as substantive Appointment of workman – Even if purely on temporary basis, it has to be treated as substantive if on compassionate ground Compensation – In lieu of reinstatement is justified if 19 years have lapsed after removal from service with disability of 40% acquired during the proceedings

¥4.264 The workman was appointed on compassionate ground purely on temporary basis on 9.11.1989. His

services were terminated on 1.3.1990. The Labour Curt held that the removal from service was illegal and passed an award of reinstatement. Upon challenge the order of reinstatement was stayed by High Court. During the pendency of the petition, the workman met with an accident and incurred 40%

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disability. The High Court held that though the workman was appointment on temporary basis on compassionate ground it has to be treated as substantive. However since 19 years have lapsed after his removal from service coupled with a disability of 40% acquired by him requires modification of the award, by granting him a lump sum amount of ̀ 2 lakhs in lieu of reinstatement.

Central Board of Secondary Education v. Mohabbat Ali & Anr., 2010 I CLR 207 (Raj.HC) SBCWP 4541 of 1994 dt. 24-2-2009

“Arguments raised aforesaid……….treated as substantive.” (Page: 209, Para: 6)

“Coming now to the question……….no order as to costs.” (Page: 209, Para: 7)

Sec. 11-A

Misconduct – Includes – Diversion and misuse of housing loan money in violation of the purpose for which the same was obtained Diversion of loan money – Amounts to misuse and a misconduct within the certified Standing Orders Sec. 11A – Does not permit the labour court to dilute the punishment of dismissal for misuse and diversion of housing loan Housing Loan – If misused and diverted the misconduct enumerated in the certified standing orders leading to punishment of dismissal attracts

¥4.265 The workman obtained a housing loan for purchase of a flat at Bhayander in Mumbai. Instead of

purchasing in Mumbai he misused the funds without permission of employer in which he allegedly utilized the same to construct a house in his native place in Uttar Pradesh. The employer proceeded against him for violating the certified standing orders. In the enquiry he admitted his guilt and prayed for a lenient action. The employer dismissed him for diversion of funds and misuse of the same being a serious misconduct. Upon challenge the tribunal though held the enquiry fair and proper yet interfered with the punishment reinstating him albeit without back wages. The employer assailed the same before High Court which set aside the award and held that the tribunal exercised an unchartered discretion without a reasoned foundation. The workman’s explanation that he had utilized the amount for renovation of his house, furnish no ground for obliterating the consequence of misconduct. The Sec. 11A is not a source of arbitrary power but to be exercised judicially. The penalty imposed to the workman cannot be regarded as disproportionate.

Bharat Petroleum Corporation, Ltd. v. Ramesh R. Passi & Anr., 2010 I CLR 425 : 2010 (1) BCR 686 (Bom.HC) WP 2201 of 2009 dt. 3-12-2009

“The Enquiry Officer submitted……….workman of back wages.” (Page: 427, Para: 6)

“In assailing the correctness of……….the act of misconduct.” (Page: 427, Para: 7)

“In considering the merits of the……….consequence of misconduct.” (Page: 428, Para: 9)

“The Tribunal interfered with……….dismissal of workman.” (Page: 429, Para: 10)

“The Supreme Court adverted……….act of misconduct proved.” (Page: 430, Para: 12)

Sec. 11A

Reappointment from the stage of initial appointment – By the Appellant Authority modifying the punishment for want of formalities to be observed Appellate Authority – Is not entitled to direct reappointment from the stage of initial appointment modifying the order of disciplinary Authority Conductor – Cannot be reappointed afresh modifying the punishment by the appellate authority for want of some formalities to be observed

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¥4.266 Interfering with the order of disciplinary authority the appellate authority gave an opportunity to the workman by reappointing him as a conductor afresh from the original date of his appointment. This was challenged by the workman albeit after 14 years. Interfering with the order the labour court held that reappointment was illegal and reinstated him with all the benefits with retrospective date. The employer challenged the same before High Court which noticed that the appellate authority exceeded its power in reappointing him afresh in his earlier post. The court held that reappointment always requires some sort of formalities to be taken by the appointing authority. Reappointment as quashed by the labour court was upheld for these reasons and petition dismissed.

U.P.S.R.T.C. v. State of U.P. & Ors., 2010 I CLR 732 (All.HC) CMWP 10716 of 1994 dt. 12-11-2009

“On merits too I am of……….dismissed. Petition dismissed.” (Page: 736, Para: 11)

Sec. 11A

Tribunal – Has Jurisdiction – To re-appreciate the evidence to see whether the finding recorded by the Enquiry Officer is perverse or not Jurisdiction – The tribunal has to re-appreciate the evidence to see whether the finding recorded by the Enquiry Officer is perverse or not

¥4.267 The entire factual matrix hinges on the allegation of shortage of ̀ 10,000 at cash counter of the bank

which according to it was case of misappropriation by the cashier who was a substitute to the regular cashier. The enquiry officer heavily relied on the evidence of another clerk who disclosed that he was given a packet containing ̀ 10,000 to be delivered to the residence of the delinquent. But this information was passed only after a period of 13 days. The tribunal therefore suspected the veracity of this piece of evidence and therefore reappreciated the same, while setting aside punishment. Upon challenge the High Court held that the conclusions drawn by the Enquiry Officer about the guilt of the workman were perverse and that the Tribunal had jurisdiction to re-appreciate the evidence to see whether the findings recorded by the Enquiry Officer was perverse or not. Hence petition dismissed.

Dena Bank v. D. Kundadia & Anr., 2010 I CLR 87 (Bom.HC) CAJWP 4631 of 1997 dt. 23-4-2009

“The respondent was working……….on 10th August, 1992.” (Page: 87, Para: 3)

“The respondent who appeared……….date of the incident.” (Page: 89, Para: 6)

“In my view, the ratio of the……….recorded by the CGIT.” (Page: 90, Para: 11)

Sec. 11A

Rash and negligent driving – Once proved in a fair enquiry leading to dismissal if found genuine by the labour court it’s refusal to interfere u/s. 11A is valid and legal Misconduct – If proved in enquiry and if labour court upholds the same no interference u/s.11A cannot be called into question Sec.11A – Exercise of jurisdiction does not arise for a proved misconduct of rash and negligent driving leading to the death of a passenger

¥4.268 A driver was dismissed from services after enquiry on charge of rash and negligent driving resulting

in death of a passenger. The Labour Court went entirely through the findings of the Enquiry Officer and held the same to be just and proper and also considered the past record of the driver and refused to exercise its jurisdiction u/s. 11A in interfering with the punishment. The Writ Court held the order of the Labour Court refusing to interfere with the quantum of punishment is justified.

S. Arumainathan v. Managing Director, Tamil Nadu State Transport Corporation & Anr., 2010 I LLJ 697 : 2010 II LLN 198 (Mad.HC) WP 2943 of 2001 dt. 24-7-2009

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“The Labour Court concurred……….the order of dismissal.” (Page: 702, Para: 18)

“Here in this case, the Enquiry……….is dismissed. No costs.” (Page: 707, Para: 22)

Sec. 11-A

Labour Court – U/s.11A has no discretion to interfere with the order of dismissal only on the ground of failure of employer to examine the complainant itself in the enquiry Complainant – Even if not examined in the enquiry it is no ground to interfere with the order of dismissal by the Labour Court by exercising its discretion u/s. 11A Conductor – Misappropriating the ticket money cannot be let of merely on the ground that complainant wa not examined

¥4.269 Conductor was dismissed from service after enquiry for the misconduct of not issuing tickets to a

passenger though he had collected fare from him. The Labour Court despite holding the misconduct duly proved exercising its discretion u/s. 11A modified the order of dismissal to that of reinstatement without back wages. The conductor filed a petition seeking full back wages and the employer filed a petition challenging the order of reinstatement. The High Court held that a plea of failure to examine the complainant itself in the enquiry cannot be a ground to interfere with the finding of guilt of workmen. Also there was no evidence to indicate that the Checking Inspector acted against the workman with a mala fide intention. After looking into his past record, the High Court held that there was absolutely no reason to modify the order of dismissal. The order of reinstatement with continuity of service was set aside.

V. Periyakaruppan v. Tamil Nadu State Transport Corporation Ltd. & Ors., 2010 I LLN 245 : 2010 LIC 1509 : 2010 I CLR 247 (Mad.HC) WP 2189 of 2005 & WP 11337 of 2004 dt. 10-11-2009

“As far as the contention……….against the conductor.” (Page: 248, Para: 11)

“In view of the above, this……….ground of victimization.” (Page: 248, Para: 12)

“Keeping the above catena……….for beating the driver.” (Page: 251, Para: 21)

Sec. 11-A

Labour Court – U/s. 11-A has to exercise power independently as to whether the findings recorded by the enquiry officer was just and proper on the test of preponderance of probability Sec. 11A – Clothes the labour courts with power to enquire independently whether the findings recorded in the domestic enquiry just and proper the test of preponderance of probability

¥4.270 In this case the services of the workman was terminated as he remained absent for a day. Upon

challenge the labour court held the punishment was disproportionate to the proved charges. it reinstated him but did not award any back wages. Upon challenge the High Court remanded the matter to the labour court for reconsideration of non grant of back wages inasmuch as it was for it to consider independently as to whether the findings recorded by the enquiry officer was just and proper on the test of preponderance of probabilities irrespective of the fact that the workman did not dispute the correctness of the procedure followed in the domestic enquiry. After introduction of Sec. 11A labour courts are clothed with this power.

S. Jayaraman v. (1) Management, Tamil Nadu State Transport Corporation (Salem Division) Ltd. Salem (2) Presiding Officer, Labour Court, Salem, 2010 I LLN 258 (Mad.HC) WP 35723 of 2005 & WPMP 1338 of 2008 dt. 3-2-2009

“The charge leveled against……….preponderance of probability.” (Page: 259, Para: 7)

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“In view of the pronouncement……….imposed on the workman.” (Page: 261, Para: 11)

Sec. 11-A

Discharge Simpliciter – Not being a punishment under rule 198 of Kerala Co-op. Societies Rules it cannot be a substitute to the punishment of dismissal Compulsory retirement – Is proper as a punishment in substitution of dismissal since discharge simpliciter is not a punishment under rule 198 of Kerala Co-op. Societies Rules Kerela Co-op. Societies Rules – Order of Discharge Simpliciter being not a punishment under it that cannot be substituted for dismissal in moderation but compulsory retirement proper

¥4.271 Appraiser was discharged after due enquiry on the charge of fraudulent gold loan transaction. The

Labour Court held the enquiry to be just and proper but moderated the punishment of dismissal to that of Discharge Simpliciter. As per Rule 198 of Kerala Co-op. Societies Rules, discharge from service is not a punishment. Hence the High Court interfering with the award imposed a punishment of compulsory retirement which is next less severe punishment to that of dismissal.

K.V. Bhaskaran v. Labour Court, Kozhikode & Anr., 2010 II CLR 1078 (Ker.HC) OP 13350 of 2003 dt. 31-5-2010

“The Labour Court has……….with effect from 15-2-1992.” (Page: 1079, Para: 5)

Sec. 11A

Non Participation in Enquiry – Is justified if the reason was the initiation of conciliation proceedings of which the workman had given sufficient notice Enquiry Proceedings – Vitiated if the enquiry was held despite request to postpone even when conciliation proceeding was in motion Enquiry – Is unfair for non furnishing of list of documents and witnesses and to refusal to adjourn the same till the conciliation talks are over

¥4.272 Request to adjourn the enquiry till the conciliation talks are over by the workman is a valid reason

for non-participating in the enquiry proceedings. Also non-furnishing of list of witness and the list of documents to be marked to the workmen by the Enquiry Officer renders the enquiry to be not in accordance with the procedures. Hence the High court held that the Labour Court has rightly held the enquiry proceeding to be illegal.

Maagement of FAL Industries Ltd. rep. by its Manager, Legal & Co. Secretary v. Presiding Officer, Labour Court, Salem & Anr., 2010 II CLR 1083 (Mad.HC) WP 11564, 11565 & 11566 of 2006 dt. 7-7-2010

“The Labour Court has……….treated as perverse finding.” (Page: 1086, Para: 10)

“The decisions cited by……….cases are entirely different.” (Page: 1087, Para: 13)

Sec. 11- A

Power of Tribunal u/s. 11-A – To re-appreciate the evidence led in the departmental enquiry to modify the punishment cannot be negated Medical Evidence – If absent regarding consumption of liquor, driving negligently and causing injury a driver cannot be punished by giving entry level wages Punishment – Of granting entry level wages to a driver without medical evidence of rash and negligent driving and drinking will not sustain

¥4.273 Even if the driver has not challenged the validity and legality of the departmental enquiry, the

Tribunal has power to re-appreciate the evidence led in the enquiry. In this case while re-appreciating the evidence, the Tribunal came to a finding that the medical certificate for injury said to have been caused to the victim due to rash and negligent driving was absent and also there was no medical evidence

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about consumption of liquor by the workman. Hence the High Court held that the punishment of putting the driver on minimum scale of a driver category by the employer was rightly modified by the Tribunal by putting the driver on the original scale of driver category. Petition dismissed.

Gujarat State Road Transport Corporation v. V.K. Jadeja, 2010 II CLR 17 : 2010 (125) FLR 944 (Guj.HC) SCA 9942 of 2009 dt. 5-3-2010

“I have considered submissions……….is proportionate or not?” (Page: 22, Para: 11)

Sec. 11-A

Unauthorized Absence – If proved to be without reasons it amounts to misconduct attracting punishment of dismissal Past record – Cannot be overlooked while awarding punishment of dismissal

¥4.274 Driver was terminated from employment for remaining unauthorized absent for a period of 1 year,

11 months and 28 days. The evidence led by the driver did not disclose a serious illness suffered by the driver so as to remain absent for a long length of time and also the doctor who treated him was not examined. The Labour Court also considered the past conduct of the driver and held that the termination order was legal. The High Court upheld the order of the Labour Court.

Siddagangaiah v. Management of Karnataka State Road Transport Corp. Bangalore (Central) Division, Bangalore, 2010 II CLR 346 (Karn.HC) WP 16194 of 2008 dt. 11-1-2010

“Having heard the learned……….not credible evidence.” (Page: 348, Para: 6)

“The past record of service……….11 months and 28 days.” (Page: 348, Para: 8)

Sec. 11A

Back Wages – Full not payable if the workman failed to challenge his termination within reasonable time Delay and laches – On the part of workman to raise a dispute against termination within reasonable time will cost him 50% of back wages

¥4.275 The question is whether the workman deserves full back wages for illegal termination even when

there are laches and delay of 5 years on his part both in filing complaint and in prosecution of his case from forum to forum. Same is the case of employer who had dismissed him allegedly for loss of confidence and made every effort that he was not kept in service. The labour court had held that the workman is to be paid back wages for 23 years that also full. High court held that the fault lies in both parties and therefore modified the award by directing to pay only 50% of back wages as both parties are to blame. Other direction of labour court was not touched.

Divisional Controller, Maharashtra State Road Transport Corporation, Division Office at Buldhana v. Sambhaji s/o Shivram Pawar, 2010 II CLR 44 (Bom.HC) WP 4430 of 2009 dt. 16-2-2010

“Facts here show that……….modified to that extent.” (Page: 49, Para: 11)

Sec. 11A

Back wages – To be computed after allowing the wages earned after termination subject to reliable evidence Wages – Earned after termination out of gainful employment can be deducted from the back wages payable to the extent of facts upon evidence

¥4.276 The labour court after finding the termination illegal had awarded back wages only for 10 months

and 17 days though the workman was out of service from 15.3.1986 to 15.4.1993. The workman challenged the award claiming full back wages for the entire period. The High Court observed that the

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workman was in employment after termination in different companies for a total period of 11 months only. Hence the High Court held that the labour court erred in granting back wages only for 10 months and 17 days. Hence it directed to pay back wages for the period 15.3.1986 to 15.4.1993 minus wages for 11 months earned as admitted by him during his forced unemployment.

Burhanuddin Sayyed Ali v. Rank Controls & Instruments (Pvt.) Ltd. & Anr., 2010 II CLR 557 (Bom.HC) CAJWP 3683 of 1999 dt. 9-6-2010

“Considering the evidence……….4 months respectively.” (Page: 560, Para: 8)

Sec. 11A

Domestic enquiry – If the charges could be proved independently under the service conditions acquittal in the criminal case does not warrant similar treatment to be given to the workman Acquittal – In criminal case on the same charges is not a ground for dispensing with domestic enquiry if the charges could be proved independently under service regulation Service Regulation – If gives scope to prove the charges independently an acquittal in the criminal case under the same charges is not a ground to dispense with punishment

¥4.277 The question is whether an acquittal in a criminal case for the same cause of action will become a

case of resjudicata for proceeding against the workman in a domestic enquiry. But the High Court held that if both the proceedings can run together it also means the different and respective principles of assessment of evidence and material apply and if the employer exercises discretion within the frame work of service condition proving the charges independently, then there is little reason to interfere in a writ petition. In such cases there is no scope for judicial review. A punishment imposed under the service condition cannot be set aside after many years merely because there was acquittal order by the magistrate in the present facts and circumstances of the case once the charges were independently proved in a domestic enquiry.

A.S. Manjrekar v. Bombay Port Trust & Anr., 2010 II CLR 590 (Bom.HC) ASCJWP 3406 of 1997 dt. 7-6-2010

“The Supreme Court judgments……….and need no interference.” (Page: 593, Para: 11)

“In the impugned order, the……….no case of interference.” (Page: 594, Para: 14)

Sec. 11A

Confessional Statement – Must be free from any inducement threat etc. lest it will be hit by Sec. 24 of Evidence Act Evidence Act – Sec. 24 will come in the way in cases of confession obtained under coercion and inducement Interest – Now it is a tag to every back wage granted unless otherwise disallowed by cogent reason

¥4.278 A workman in the bank was terminated for alleged misuse of credit card issued to him and unable to

meet the claim of the bank. In the departmental enquiry one of the grounds for termination was his confessional statement made against the second show cause notice which inter alia suggested the punishment of dismissal. The workman in order to overcome the ordeal had prayed that he be given lessor punishment for minor misconduct leniently. The High Court referred to Sec. 24 of Evidence Act and held that the workman in this case wanted only to secure an advantage and hence u/s. 24 of the Evidence Act such confession amounts to obtaining the same by an inducement and hence not operative. The tribunal had passed an award of reinstatement with 50% back wages. Modifying the same the High Court granted full back wages since there was no reason for reducing the back wages. Interest @ 12% was also awarded since it is now a matter of procedure and ought to be granted.

Bank of India v. Central Government Industrial Tribunal & Ors., 2010 II CLR 630 (Cal.HC) CWJWP 13571 (W) of 2009 dt. 16-6-2010

“I propose to deal with……….records of 27 years.” (Page: 634, Para: 16)

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“The statement made by……….answered in the negative.” (Page: 634, Para: 18)

“The learned Tribunal……….law discussed above.” (Page: 637, Para: 26)

“There is no evidence……….in the affirmative.” (Page: 637, Para: 28)

Sec. 11A

Termination – Disproportionate if the cause is not one of misappropriation but only negligence Negligence – Alone does not call for dismissal being disproportionate Dismissal – Disproportionate if the cause is not one of misappropriation but only negligence Disproportionate – Will be dismissal for misconduct of mere negligence of negligible amount

¥4.279 The workmen challenged the finding of enquiry officer and consequent termination by the

disciplinary authority. It is their contention that they were not negligent to the whole loss of stores property to the tune of ̀ 1,19,294.59. A dispute thereof was raised even before exhausting the remedy of appeal. A reference was made and the labour court reinstated two of the workmen out of five upholding the punishment in case of the rest. Two of the workmen challenged before the High Court their termination as upheld by the labour court. The management also preferred petition against reinstatement of two workmen. The High Court noticed that there were discrepancies in the loss computed and real loss was only to the tune of ` 29,297 which when distributed among the five will be so negligible that it does not warrant the punishment of dismissal. Moreover what is the misconduct was not one of misappropriation but only negligence which does not call for capital punishment. Setting aside the award of the labour court the High Court remanded the matter to the disciplinary authority to award lesser punishment than that of dismissal. The employer’s petition against reinstatement was dismissed.

Lakhmir Singh v. Presiding Officer, Labour Court, U.T., Chandigarh & Ors., 2010 II CLR 805 (P&H.HC) CWP 5734, 1418, 2336 of 1997 & CWP 15541 of 1999 dt. 6-11-2009

“From this general rule……….to the workmen.” (Page: 808, Para: 6)

On consideration of all……….of Regulation 20. (Page: 810, Para: 9)

Sec. 11A

Back Wages – To be denied if the workman admits temporary misappropriation Admitted facts – As to misappropriation disqualifies a claim for back wages

¥4.280 Case being just of temporary misappropriation of ` 628 and the same being admitted by the

workman, award of granting 65% of back wages from the date of dismissal till the date of superannuation is not sustainable and hence the High Court quashed and set aside the same keeping other part of the award as to retirement benefits unchanged.

Divisional Controller v. Jaysukhlal L. Soni, 2010 II CLR 904 (Guj.HC) SCA 1955 of 2003 dt. 28-6-2010

“It is, however, required……….judgment and award.” (Page: 906, Para: 6)

Sec. 11A

Peon – In his affidavit prior to appointment though stated 8th pass it cannot be a misconduct if later found he was matric fail Matric Fail – If found later though in affidavit at the time of appointment it was stated 8th pass will not amount to misconduct Misconduct – Excludes – A statement of 8th pass when in reality matric fail to gain employment as a peon

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Bank Job – For a peon it does not matter whether the workman was 8th pass or matric fail irrespective of his assertion at the time of his appointment

¥4.281 A Peon in Bank of Baroda was dismissed from service after an enquiry on the ground that he had

suppressed the fact saying that at the time of his appointment he was 8th pass. Whereas the bank later found that he had appeared for matriculation and failed and hence not 8th pass. The disciplinary and appellate authorities considered this as a misconduct. Upon challenge before the labour court it found that injustice was caused to the poor peon. It set aside the dismissal and reinstated him with benefits because the bank was not put to loss by such misrepresentation if any in his employment. Hence such misrepresentation cannot amount to be a misconduct. The High Court upheld the same.

Bank of Baroda, Chandigarh v. Presiding Officer, Central Government Industrial Tribunal, Chandigarh & Anr., 2010 II CLR 976 (P&H.HC) CWP 10307 of 2009 dt. 30-6-2010

“The counsel for the petitioner……….costs of ` 25,000.” (Page: 978, Para: 7)

Sec. 11-A

Sec. 11A – The labour court is bound to exercise its power vested in it otherwise High Court will intervene Writ Court – Will intervene if the labour court fails to exercise jurisdiction u/s. 11A Punishment – If harsh non exercise of jurisdiction u/s. 11A will impel the High Court to exercise jurisdiction to modify the same

¥4.282 Workman challenged his termination before the Labour Court on the ground that enquiry report

was not furnished to him, his 12 year’s of unblemished service was not considered and no opportunity was given to him to impress the management to prove his innocence. Labour Court upheld the termination without entering into the proportionali ty of punishment. The High Court held that when the Labour Court fails to exercise its powers vested in it u/s. 11A, it is definitely the duty of the High Court to exercise its jurisdiction under Article 226 and intervene in the case. Hence the order of Labour Court was set aside being very harsh and the order for his reinstatement was passed. However the High Court held that the back wages from the date of dismissal till the date of award if not paid it will serve the interest of justice.

Laxman Sahu v. Industrial Tribunal-cum-Labour Court, Faridabad & Anr., 2010 II LLN 364 (P&H.HC) CWP 10834 of 1999 dt. 28-7-2009

“The power of Labour Court……….is such a case.” (Page: 366, Para: 4)

Sec. 11A

Reinstatement – And not compensation is the relief for illegal termination if number of years still exists for superannuation Compensation – In lieu of reinstatement not justified against illegal termination if eight years are still left to reach the age of superannuation

¥4.283 If the termination was found illegal then normal course dictates that the workman is to be reinstated.

Therefore compensation awarded by the labour court in lieu of reinstatement is not justified especially when eight years are still left to reach the age of his superannuation. Hence the High Court held that workman was entitled to the relief of reinstatement with back wages.

Mahabir Singh v. Delhi Transport Corporation, 2010 III CLR 142 (Del.HC) WP 997 of 2008 dt. 9-8-2010

“As regards the finding……….and consequential benefits.” (Page: 144, Para: 13)

Sec. 11A

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Reinstatement – Connotes – Continuity in service from the date of appointment Appointment – Is not same as reinstatement Promotion – Is entitled to be given to a reinstated workman from the date his original appointment itself

¥4.284 The workman won his battle against the employer and got an award of reinstatement with 25% back

wages from the date of raising the dispute. The employer reinstated him but did not consider him for promotion on the ground that his seniority is to be reckoned from the date of the award or reinstatement and not from the date of his prior appointment. His dispute on this point was answered against him by the tribunal. Upon challenge the High Court reversed the order of the tribunal and held that the difference between reinstatement and appointment are to be understood. Reinstatement in service means continuity in service as he was put back in the same position on the same post in which he was working when his services were terminated otherwise it will amount to break in service. The case of fresh appointment is different but the word reinstatement would connote continuity of service. Hence, allowed his petition directing the employer to reconsider his claim for promotion taking him to be in service with continuity from the date of his appointment and not to count the seniority from the date of reinstatement.

Punjab State Electricity Board Workers Union, Gurdaspur v. Industrial Tribunal, Chandigarh & Ors., 2010 III CLR 403 (P&H.HC) CWP 2522 of 2010 dt. 23-8-2010

“Thus, the denial of……….continuity of service.” (Page: 405, Para: 8)

Sec.11A

Enquiry – Is not fair and proper if the charge memo was issued after a period of 5 years without original paper in the proceeding Criminal Charges – Led to acquittal departmental enquiry on same set of facts will not sustain Absolute Integrity – If absent in dealing with public money upon reinstatement for improper enquiry only 30% back wages is payable Back Wages – Only 30% payable if the workman is guilty of in dealing with public money

¥4.285 The services of workman were terminated after an enquiry. The labour court upheld the

termination. The same was challenged before High Court. The High Court examined the enquiry proceeding and observed that enquiry was vitiated for violation of the principles of natural justice because the charge memo was issued to the delinquent workman after a delay of five years of the alleged misconduct; original documents were not produced in the inquiry to prove the charges and he was acquitted in criminal charges on same set of facts. Hence the order of dismissal as upheld by the labour court was set aside. The High Court directed the employer to reinstate the workman with 30% back wages. 30% back wages was because the workman did not show absolute integrity in dealing with public money.

V. Parameswaran v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai & Anr., 2010 III CLR 421 (Mad.HC) WP 5903 of 2003 dt. 4-12-2009

“The charge memo which……….lapse of 5 years.” (Page: 425, Para: 14)

“The departmental enquiry………. principles of natural justice.” (Page: 425, Para: 15)

“Apart from that, on the……….dismissal is set aside.” (Page: 426, Para: 18)

Sec. 11A

Medical Report – Is conclusive in absence of any evidence to prove the age of the workman Age of Workman – If disputed between the employer and the workman for purposes of reinstatement the opinion of medical officer is final Superannuation – A contention of the employer rejecting reinstatement can be successfully countered by the workman by medical opinion of younger age

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¥4.286 The employer challenged the award of reinstatement by the management on the ground that the workman had attained age of superannuation. As per the medical examination by the Assistant Medical Officer the age of the workman is 38 years and not 59 years as per the Report of internal committee appointed by the Management. The petition was dismissed because the management failed to produce any documentary evidence to the contrary in support of their contentions.

Management of CSI Rainy Multispeciality Hospital, Chennai v. G. Doss & Anr., 2010 III CLR 435 (Mad.HC) WP 6501 of 2009 & 6842 of 2010 & MP 1 of 2009 & MP 1 of 2010 dt. 8-6-2010

“On the strength of the……….was not genuine.” (Page: 436, Para: 10)

Sec. 11A

Back Wages – Full not permissible if the workman failed to submit an affidavit stating he was not gainfully employed Award – For full back wages not maintainable if the length of service and other relevant factors including not giving an affidavit regarding gainful employment Gainful Employment – The full back wages depends among others an affidavit stating lack of it

¥4.287 The employer contested the award of the labour court granting full back wages though he had not

objected for his reinstatement. The High Court held that for granting full back wages there is no rule of thumb that in every case full back wages are to be granted. It depends on factors such as length of service, nature of appointment and whether the workman filed necessary affidavit categorically stating that he was unemployed. The labour court has failed to consider these settled principles of law. In this case the workman had put up only 4 years and 9 months of service in a work charged establishment in a purely temporary post. Hence modifying the award, the back wages were denied and so far as reinstatement is concerned the workman was given an option either to claim a compensation of ` 1,50,000 or reinstatement because of considerable gap from the date of his termination.

Bihar Rajya Pul Nirman Nigam Ltd., through its Managing Director v. Presiding Officer, Labour Court, Patna & Anr., 2010 III CLR 507 (Pat.HC) CWJC 12448 of 1992 dt. 6-7-2010

“Learned senior counsel……….wages could be passed.” (Page: 508, Para: 5)

“The award of the learned……….for the petitioner.” (Page: 509 Para: 6)

Sec. 11A

Misappropriation – Being a serious charge the workman cannot be reinstated due to loss of confidence Loss of Confidence – Does not permit reinstatement Reinstatement – Excludes – Where loss of confidence is a material factor due to misappropriation

¥4.288 A salesman was terminated from service after the charge of misappropriation was duly proved in the

enquiry. Hence the employer had lost faith and confidence in the workman. Hence, the order made for his reinstatement by the Tribunal being not conducive, was set aside.

Beerh Rau Ke Co-op Agricultural Services Society Ltd. & Anr. Petitioner v. Presiding Officer & Ors., 2010 III CLR 526 (P&H.HC) CWP 4606 of 2009 dt. 29-4-2010

“When the employee, who……….of natural justice.” (Page: 529, Para: 9)

“A salesman is a person……….law and fully justified.” (Page: 529, Para: 10)

Sec. 11A

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Domestic Enquiry – Once conceded to be valid by the workman then the Labour Court or the Writ Court – cannot reagitate the issue Misconduct – Proved in the enquiry accepted the enquiry as fair and proper gives no scope to reagitate the validity de novo by labour court or High Court

¥4.289 The workman a conductor was charged with committing 19 misconducts in the past with large scale

tampering with the entries in the way bills. He was terminated after an enquiry due to loss of confidence. When workman concedes to the validity of the domestic enquiry wherein it was concluded that the charge of misconduct was proved against the workman, then the issue of whether or not the workman has committed the misconduct cannot be reagitated and the Court cannot hold the said enquiry to be not proper and fair. The Writ Court further held that i t cannot act as a Court of appeal for correcting the mere errors of facts while considering the petition under Art. 227 of the Constitution of India.

Rachappa v. Managing Director, North-East Karnataka Road Transport Corp. Gulbarga, 2010 III CLR 796 (Karn.HC) WP 8651 of 2006 dt. 15-12-2009

“On the issue of whether……….would not arise at all.” (Page: 798, Para: 6)

“My perusal of the articles………. the Constitution of India.” (Page: 798, Para: 9)

Sec. 11A

Compassionate Appointment – Cannot be claimed beyond the date permitted under the scheme formulated by the employer for this purpose Scheme – Formulated by the employer governs the terms and conditions for compassionate appointment to be viewed strictly

¥4.290 Application for appointment on compassionate ground cannot be availed of at any point of time and

the same has to be regulated as per the terms of policy formulated by the employer and once the time limit for making application has expired it cannot be extended without there being any provision in the scheme. In this case the application was submitted approximately after a period of 2 years and 6 months from the date of attaining majority instead of within a year as per scheme. Hence the order of the Tribunal directing to appoint the applicant was quashed and set aside.

Divisional Controller G.S.R.T.C. v. General Secretary Kheda Vibhag S.T. Karmachari Mandal, 2010 III CLR 875 (Guj.HC) SCA 17472 of 2003 dt. 6-10-2010

“Identical question came……….on compassionate ground.” (Page: 877, Para: 7)

Sec. 11A

Absence – For 101 days does not call for a punishment of dismissal if the employee has put up 20 years of service Dismissal – Disproportionate for remaining absent for 101 days since the workman had put in 20 years of service Back Wages – Denied – For misconduct of remaining absent for 101 days

¥4.291 A punishment of dismissal from service merely for remaining absent for a period of 101 days was

held disproportionate to the said misconduct inasmuch as the workman had put in long service of 20 years. Hence the workman was reinstated but without back wages since denial of back wages was held sufficient punishment for his absence. The High Court upheld the orders of the Tribunal.

Union of India (represented by chief Workshop Manager), Carriage & Wagon Works, Southern Railway) Madras & (1) Registrar Industrial Tribunal, Tamil Nadu, Chennai (2) P. N. Balasundaram, 2010 III LLJ 349 : 2010 IV LLJ 786 : 2010 III LLN 148 : 2010 LLR 1002 (Mad.HC) WP 18429 of 2000 dt. 19-2-2010

“The petitioner has put……….matter of the writ petition.” (Page: 350, Para: 7)

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Sec. 11A

Res ipsa loquitur – Cannot be applied if the driver was not rash and negligent when he made sincere attempt to avoid a collision Rash and Negligent Driving – Cannot be proved if the circumstances of collision was not associated with rash and negligence but while making sincere attempt to avoid collision Proportionality of Punishment – The labour court can enter into if the cause of accident was not due to rash negligent driving but to avoid collision justifying setting aside dismissal Back Wages – Not payable even if rash and negligent driving was not proved in the accident

¥4.292 The driver of the vehicle caused an accident in which some people have lost their lives. The employer

contended before the motor vehicles claims tribunal that he was not rash and negligent. There was no eye witness. It was the case of the driver that he tried his best to prevent accident by avoiding collision with the incoming vehicle. Hence the principle of res ipsa loquitur cannot be applied. Hence the order of dismissal was disproportionate to the proved misconduct. The order of the labour court which went into the proportionality of punishment set aside the order of dismissal into reinstatement with continuity of service albeit without back wages and that cannot be interfered with. The High Court therefore upheld the award being within the power vested u/s. 11A of the Act.

Tamilnadu State Transport Corp. (Salem) Ltd., Salem v. Presiding Officer, Labour Court, Salem & Anr., 2010 IV LLJ 311 (Mad.HC) WP 15 of 2006 dt. 5-1-2010

“Once it has been……….pay the back wages.” (Page: 313, Para: 9)

“The discretionary……….the second respondent.” (Page: 313, Para: 10)

Sec. 11-A

Unauthorized Absence – Dismissal for a single instance is disproportionate Dismissal – For a single incident of unauthorized absence is disproportionate Disproportionate – Will be the dismissal for the misconduct of a single instance of unauthorized absence

¥4.293 Dismissal of driver for a single incident of unauthorized absence was held disproportionate by the

Labour Court. Hence the order of dismissal was set aside and the driver was reinstated without back wages. The High Court upheld the order of the Labour Court.

Managing Director, Tamil Nadu State Transport Corp. (Salem Division II) Ltd., Dharmapuri v. K.V. Krishnan & Anr., 2010 IV LLJ 385 : 2011 LLR 148 (Mad.HC) WP 12062 of 2003 dt. 7-12-2009

“The judgment relied upon……….with the said findings.” (Page: 388, Para: 11)

Sec. 11A

Preliminary Issue – Regarding validity of inquiry should be dealt with first Domestic Enquiry – Whether fair or proper if contested the issue requires to be dealt with as a preliminary issue Sec. 11A – While giving powers to the labour court to decide the proportionality of punishment imposes a duty on it to decide the fairness of enquiry as a preliminary issue

¥4.294 The employer dismissed the workman for unauthorized absence. The labour court straightaway

allowed the parties to lead evidence even when the workman in his claim statement had stated that the enquiry was not fair and proper and principles of natural justice were not followed. The High Court held that the labour court ought to have treated fairness of enquiry as a preliminary issue before the workman was reinstated. It without deciding the validity of enquiry as a preliminary issue erred in allowing the parties to lead evidence straightaway. After introduction of Sec. 11A the labour court has to follow this procedure of hearing the preliminary issue separately instead of hearing on the merit of the claim. Hence

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the award was set aside and matter remanded for fresh trail before the labour court by affording opportunity to the parties to lead evidence on the preliminary issue.

Superintending Engineer, Kancheepuram Electricity Distribution Circle, Kancheepuram, New Chengalpattu & Ors. v. M. K. Vasu & Anr., 2010 IV LLJ 55 (Mad.HC) WP 4477 of 2010 MP 1 of 2010 dt. 17-3-2010

“In the present case……….if he so desires.” (Page: 57, Para: 8)

“In the present case……….the Labour Court.” (Page: 57, Para: 10)

Sec. 11-A

Dismissal – Is too harsh for the act of temporary embezzlement done by the bank clerk Temporary Embezzlement – By a clerk in the bank does not call for the punishment of dismissal Compensation – Proper if the workman did not put up any service in last 30 years after termination and nearer to retirement instead of reinstatement Reinstatement – Not proper for a clerk in the bank for temporary embezzlement if he did not work for the last 30 years after termination nearing retirement

¥4.295 Punishment of dismissal for temporary embezzlement to the Clerk is held to be too harsh. Hence the

Tribunal interfering with the punishment u/s. 11A, directed his reinstatement with continuity of service but without back wages. Upon challenge the High Court held that the workman has only 5 years of service is left before he retired and in last past 30 years he had barely worked for a few months. Considering these facts it is not reasonable and useful to direct his reinstatement at this belated stage. Considering the equities the High Court modified the relief by granting a lumpsum compensation of ` 5 lakhs in lieu of reinstatement. This is besides the amount he received u/s. 17B of the Act. This arrangement will also not disturb the harmony in the bank.

State Bank of India v. C.P. Kanak & Anr., 2010 IV LLJ 563 : 2010 II CLR 955 (Del.HC) WP 1298 of 1987 dt. 1-7- 2010

“In the present case……….a misconduct.” (Page: 567, Para: 12)

“However, that again……….in lieu thereof.” (Page: 568, Para: 16)

Sec. 11A

Participation in stoppage of work – Does not warrant dismissal being very harsh and disproportionate Dismissal – For stoppage of work is too harsh as the workman was not alone responsible for the collective decision to stop work Back Wages – Not payable if the misconduct involves stoppage of work no matter the decision is collective

¥4.296 Dismissal of workman, an office bearer of the union for participation in stoppage of work upon a

reference was upheld by the labour court. The workman challenged the same in a writ petition. The High Court held that the dismissal for participation in stoppage of work was harsh and disproportionate as he was not alone responsible for the collective decision. But since the respondent-establishment was closed, direction to pay closure/VRS benefits only to the workman was directed to be paid in lieu of reinstatement inasmuch as he cannot be exonerated completely from the misconduct. Hence no back wages were paid.

Shivankari Gowda v. Alpas Granite Private Ltd., Bangalore, 2010 IV LLJ 59 : 2010 (126) FLR 217 : 2010 II CLR 726 : 2010 LLR 881 (Karn.HC) WP 14297 of 2009 dt. 1-4-2010

“Further it is seen……….Industrial Disputes Act.” (Page: 60, Para: 6)

“The material on record……….back wages.” (Page: 61, Para: 7)

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Sec. 11A

Dismissal – Of a conductor for non issue of tickets after receiving the fare is justified Conductor – Dismissal proper for misappropriation of ticket money

¥4.297 Conductor was dismissed from service on charge for not issuing tickets after receiving the fare from

the passengers. The Labour Court from the facts on record upheld the order of dismissal and dismissed the reference. The High Court upheld the award.

Riyazkhan Gulamrasulkhan Yusufjay v. Divisional Controller, 2010 IV LLJ 779 : 2010 (126) FLR 434 : 2010 II CLR 522 : 2010 LLR 996 (Guj.HC) SCA 4100 of 2010 dt. 16-4-2010

“In view of the……….dismissed accordingly.” (Page: 783, Para: 4)

Sec. 11A

Inquiry – Vitiated – As the delinquent did not get an opportunity to cross-examine prosecution witnesses Prosecution Witnesses – Whose statements were recorded if not produced for examination the deprivation of the opportunity to cross-examine will vitiate the enquiry Cross-examination – Being a critical right of the delinquent non-examination of the witnesses whose statements were recorded would render the enquiry unfair and improper

¥4.298 Workmen whose statements were recorded were not examined at the inquiry, thereby depriving the

delinquent the opportunity to cross-examine them. Hence the Tribunal held that the inquiry was vitiated as it was contrary to the principles of natural justice. The Writ Court upheld the order passed by the Tribunal.

Gujarat State Fertilisers & Chemicals Ltd. & Anr. v. Industrial Tribunal, Baroda & Anr., 2010 IV LLN 323 : 2010 III CLR 108 (Guj.HC) SCA 9544 of 2009 dt. 13-4-2010

“The Industrial Tribunal……….cannot be accepted.” (Page: 329, Para: 12)

Sec. 11A

Enquiry Officer – If found the delinquent not guilty of disobeying the transfer order the dismissal made will not sustain Dismissal Order – To be set aside if record showed that the delinquent was never found guilty by the enquiry officer, though an ex parte enquiry was conducted

¥4.299 On alleged failure to obey the transfer orders the workman was dismissed after enquiry but the

record showed that the delinquent was never found guilty by the enquiry officer, though an ex parte enquiry was conducted. Hence the Labour Court reinstated by interfering with the order of dismissal by the power vested in it u/s. 11A with back wages. Order was upheld by the High Court.

Superintending Engineer, Erode Electricity Distribution Circle (formerly Periyar Elecy. Distn. Circle), Tamil Nadu Electricity Board, Mettur Road, Erode v. (1) B. Gandhiraju @ B. Gandhi (2) Presiding Officer, Labour Court, Salem, 2010 IV LLN 401 (Mad.HC) WP 8984 of 2003 dt. 6-8-2010

“Therefore, it is……….the Labour Court.” (Page: 405, Para: 18)

“In the result, there……….petition is closed.” (Page: 405, Para: 19)

Sec. 11A

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Labour Court – U/s. 11A can use its discretion only if the inquiry proceedings are vitiated or the punishment awarded is highly disproportionate Enquiry – If fair and proper and punishment disproportionate then the Labour Court has no power to exercise its discretion and interfere with the punishment awarded Misconduct – If one of assault the dismissal after proper enquiry cannot be set aside u/s. 11A Domestic Enquiry – In which if the workman failed to participate despite opportunities ex-parte order cannot deemed to be improper or unfair

¥4.300 Despite of numerous opportunities, the workman did not take part in the domestic enquiry

proceedings. Enquiry Officer found charges of misconduct proved against him. Hence he was dismissed for the proved misconduct. Labour Court quashed the order of dismissal on the ground that out of four charges only a few charges are proved and reinstated him. The High Court held that Labour Court can interfere with the punishment only when the inquiry proceedings are vitiated or the punishment awarded is highly disproportionate. In this case the misconduct was such that he assaulted the ticket checking staff proved in the enquiry and the employer had lost confidence in him. Hence the order of the Labour Court was set aside as the enquiry cannot be held as unfair and improper.

Management of Pallavan Transport Corp. (rep. by its General Manager), Chennai v. (1) Anbazhagan (2) Presiding Officer, First Additional Labour Court, Chennai, 2010 IV LLN 736 : 2011 III LLN 340 (Mad.HC) WP 22280 of 2003 & 49749 of 2006 dt. Nov. 2010

“Admittedly, the……….Transport Corporation.” (Page: 747, Para: 49)

“This Court, after……….December 1991.” (Page: 748, Para: 50)

Sec. 11A

Increment – If withheld with cumulative effect and the delinquent denies charges then without enquiry such punishment is unsustainable Enquiry – Even in case of withholding increments with cumulative effect irrespective of minor nature of penalty cannot be avoided if the delinquent denies the charges Penalty – Of withholding two increments with cumulative effect cannot be resorted to by the disciplinary authority should there be denial of the charges requiring an enquiry

¥4.301 The employer withheld two increments from the delinquent law officer who allegedly failed to

represent a matter resulting in an ex-parte order and consequent contempt proceedings. No enquiry was held and the disciplinary authority straightaway held him guilty. The Apex Court has laid down the dicta that when increments were withheld with cumulative effect notwithstanding with the minor nature of penalty if the delinquent by his explanation denies the charges an enquiry is to be held. In this case the explanation was that the file in question was lying with appellate authority. The High Court therefore set aside the penalty and directed to release the monetary benefit in his favour placing no embargo on his promotion. However the minor penalty of censure could be imposed which will have no reflection on his promotion as per entitlement.

Nanjundegowda v. Karnataka State Road Transport Corporation, Bangalore & Anr., 2010 LIC 1394 (Karn.HC) WP 47792 of 2004 & 19370 of 2005 dt. 30-7-2009

“Disagreeing with the……….Appellate Authority.” (Page: 1395, Para: 8)

Sec. 11A

Charge Memo – Even if does not contain date and place of occurrence of theft it is not render the enquiry not proper and fair Theft – Though date and place is absent in the charge memo it will not render the enquiry unfair and improper Enquiry – And punishment cannot be set aside merely because the date and place of theft was not mentioned in the charge memo

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¥4.302 Omission to mention date of occurrence and place of alleged theft in the charge memo cannot make the charge immaterial. Hence the order of Labour Court setting aside the order of dismissal on the ground of such omission was not proper. The High Court remanded the matter back for fresh decision.

Management of the Dayang Tea Estate v. Secretary, Assam Chah Karmachari Sangha & Ors., 2010 LIC 1451 (Gau.HC) WP(C) 7040 of 2002 dt. 5-2-2010

“In view of the above……….the Labour Court.” (Page: 1454, Para: 22)

Sec. 11A

Unauthorized Absence – Of a workman holding responsible post is a serious misconduct giving no scope for leniency even if the employer was in the knowledge of the cause Misconduct – Includes – Unauthorized absence of a workman holding responsible post Habitual Absentee – Does not deserve to get leniency for unauthorized absence when holding responsible post

¥4.303 Willful unauthorized absence from duty by the workman who was on a responsible post amounts to

misconduct. It does not matter even if some information of his absence was known to the employer it does not grant the sanction to a workman to remain absent unauthorizedly. The High Court on the basis of evidence on record came to a finding that the workman was a habitual absentee. Hence the order of dismissal was held proper.

Brijlal v. Steel Authority of India Ltd. & Ors., 2010 LIC 1462 (Chhat.HC) WP 2978 of 1994 dt. 9-2-2010

“Having regard to the……….absent from service.” (Page: 1464, Para: 16)

Sec. 11A

Misconduct – If the disobeying of the order of transfer the labour court cannot take the aid of extraneous factors to set aside the same Transfer – If disobeyed the misconduct for termination being proved the labour court cannot take the aid of extraneous factors to set aside the same Labour Court – Cannot take a different stand other than the misconduct of disobeying transfer to set aside a termination Termination – Non est if the workman did not obey the order of transfer did not attend enquiry with no reason for labour court to depend on extraneous aid to set aside

¥4.304 On failure to comply with the transfer order, an enquiry was constituted alleging misconduct against

the workman after serving a charge-sheets. The workman did not attend the enquiry despite providing transport assistance. An order of termination was passed against the workman after a fair and proper enquiry. The Labour Court without any evidence set aside the order of termination ignoring the misconduct of not reporting to the transferred place. It relied on extraneous aid to buttress its point such that the workman was offered some other job with some other designation at the transferred place, ill- suited him. Such reasoning was unacceptable when the misconduct was disobeying the transfer order. Therefore the High Court held that the impugned order of the Labour Court was not proper. Hence order of termination was upheld.

Eicher Motors Ltd. v. Presiding Officer, Labour Court, U.T. Chandigarh & Anr., 2010 LIC 1951 : 2010 I CLR 736 : 2010 LLR 418 (P&H.HC) CWP 13802 of 2004 & 720 of 2005 dt. 18-9-2009

“The workman also……….sustain the same.” (Page: 1957, Para: 15)

“The manner of……….ill-suited to him.” (Page: 1958, Para: 16)

Sec. 11A

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Enquiry – Fair and proper even if the enquiry officer refused the demand for assistance of a defence assistant outside workman’s department being within the dictate of industrial Standing Order Industrial Standing Order – If prohibits defence of a workman outside his department the refusal to provide such assistant outside the department by the enquiry officer will not vitiate the enquiry Defence Assistant – If refused from outside the department in terms of industrial standing order it cannot be held that the enquiry was vitiated

¥4.305 If the Industrial Standing Order clearly mentions that the workman undergoing an enquiry is

permitted to be defended by a co-worker working in the same department as himself or representative of the recognized union, then the workman cannot claim that the enquiry was vitiated for not allowing him a defence from outside his department. Hence, the denial by the Enquiry Officer to take assistance from a person outside his department cannot be called into question. But the Labour court held that the enquiry was not fair and proper and set aside the punishment. The High Court set aside the order of labour court because it has not entered into a discussion of the relevant standing order and there was no prejudice caused to the workman inasmuch as he himself had cross examined the management witnesses. The impugned order was set aside and the matter was remanded back for fresh disposal holding the enquiry fair and proper.

Maruti Udyog Ltd. v. Presiding Officer, Labour Court, Gurgaon & Anr., 2010 LIC 2137 (P&H.HC) CWP 4972 of 2001 dt. 6-10-2009

“The decision of the……….alleged by him.” (Page: 2138, Para: 5)

Sec. 11A

Back Wages – Cannot be directed to be paid unless the workman proves that he was not gainfully employed

¥4.306 The claim of the workman for back wages cannot sustain unless he furnishes evidence that he was

not gainfully employed. Hence the award directing to pay back wages to the workman was set aside for want of cogent evidence before the labour court towards not having gainful employment during the period of forced unemployment.

M/s. Modi Sugar Mills (A Unit of Modi Industries Ltd., Modi Nagar), Ghaziabad v. Labour Court (II), Uttar Pradesh, Ghaziabad & Ors., 2010 LIC 2234 (All.HC) CMWP 3180 of 2005 dt. 9-11-2009

“Further, it is……….employee concern.” (Page: 2241, Para: 11)

Sec. 11A

Domestic Enquiry – Enquiry officer cannot travel beyond the charges to hold the delinquent guilty Enquiry Officer – Cannot travel beyond the charges to hold the delinquent guilty Testimony of the Workman – The enquiry officer cannot ignore

¥4.307 The workman security guard was charged with misconduct of allowing a truck with loaded coal from

the colliery. There was no charge of connivance and there was no charge that even during the period and the workman was not on duty he was required to exercise diligence. But the Enquiry Officer has not referred to the testimony of the workman at all in enquiry report and there was nothing in evidence of management witness to even remotely suggest delinquent’s involvement as the truck had left from the premises between 11.30 and 11.45 pm when he was not on duty. Also the prevaricating stands taken by the workman in which it was alleged that he mislead the enquiry officer by shifting stands according to his convenience cannot become a basis for holding him guilty. The enquiry officer travelled beyond the charges and returned a finding by assuming certain extraneous facts and circumstances. Hence he committed an error of law. Hence the order of dismissal was set aside as the guilt of the workman was not proved.

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Bindeswar Shaw v. Coal India Ltd. & Ors., 2010 LIC 2750 (Cal.HC) CO 16744 of 1995 dt. 8-3-2010

“Since the enquiry……….his convenience.” (Page: 2754, Para: 15)

“Here, the finding……….in this behalf.” (Page: 2755, Para: 20)

“Let me now……….thus indefensible.” (Page: 2756, Para: 26)

Sec. 11A

Inquiry Proceedings – Vitiated – As the Companies Legal Advisor is also the Inquiry Officer so there is possibility of bias Bias – Is made out when the Companies Legal Advisor is also the Inquiry Officer, hence the order of dismissal is set aside Legal Advisor – If is also the Inquiry Officer then there is possibility of bias, hence the order of dismissal is set aside Inquiry Officer – If is also Companies Legal Advisor then there is possibility of bias, hence the order of dismissal is set aside Dismissal Order – Set aside – As the Companies Legal Advisor is also the Inquiry Officer so there is possibility of bias in the Inquiry proceedings

¥4.308 Where the Companies Legal Advisor was also the Inquiry Officer, then he cannot be seen as being

impartial in the inquiry proceedings. The case of bias was made out. Hence the order of dismissal passed in the inquiry proceedings was set aside.

Taj Mahal Hotel v. Industrial Tribunal-I & Ors., 2010 LIC 2867 (Del.HC) WP 2221 of 2000 dt. 14-5-2010

“The established……….is made out.” (Page: 2872, Para: 17)

“Applying the……….supporting the same.” (Page: 2873, Para: 19)

Sec. 11A

Continuous Work – Of 240 days if proved by certificate termination of a badli worker without complying with Sec. 25F will not sustain Badli Worker – Putting up 240 days of service cannot be termination without complying with Sec. 25F

¥4.309 A badli worker challenged his termination for violation of Sec. 25F contending that he had completed

240 days of service since by a certificate it was evidenced that he had worked from 1.1.1979 to 14.12.1992. The tribunal gave an award reinstating him with 50% back wages. The same was challenged by the employer in a writ petition. The High Court dismissed the petition and upheld the award on the ground that the certificate was not challenged by the employer before the industrial tribunal as has not being issued by the bank. There was therefore violation of Sec. 25F. It was not the case of the employer that no work was available for reinstatement. The employer produced no documents. The employer all along delayed the cross examination, production of evidence while conducting case before the industrial tribunal.

Regional Manager, Dena Bank & Anr. v. Hareshbhai Nathabhai Goswami, 2010 LIC 3805 (Guj.HC) SCA 7123 of 2010 dt. 23-6-2010

“It is necessary……….record at all.” (Page: 3818/3819, Para: 12)

Sec. 11A

Public Sector Bank – Could not have wasted money of public exchequer by not leading evidence or cross examining the witnesses for years together Back Wages – 50% for not gainfully employed for years together for illegal termination cannot be faulted

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Gainful Employment – The onus is on the employer without which grant of 50% back wages is proper

¥4.310 If the employer a public sector bank remained absent to defend the claim of a badli worker against his termination for 6 years leading to an ex-parte award which was restored despite lapse committed by the bank and the said matter again remained pending for another 10 years indicating negligence for not leading any evidence by the bank before the industrial tribunal inasmuch as neither cross examination of the workman nor production of evidence was made wasting the money of public exchequer irresponsibly the High Court held it is a clear case of lapse in conducting the case before the tribunal. The grant of back wages, 50% cannot be faulted in the wake of the inability on the part of bank to prove gainful employment. Hence the contention of the bank that sincere efforts have not been made by the workman to find a job was rejected. The evidence on record indicated that he was maintained by his father during his forced unemployment.

Regional Manager, Dena Bank & Anr. v. Hareshbhai Nathabhai Goswami, 2010 LIC 3805 (Guj.HC) SCA 7123 of 2010 dt. 23-6-2010

“The industrial tribunal……….Constitution of India……….” (Page: 3819, Para: 13)

Sec. 11A

Visual Disability – Is one of the factors to be looked into to set aside the compulsory retirement if ordered after an enquiry to the charges made Compulsory Retirement – Unsustainable for a workman suffering from visual disability working in accounts in a bank though there are proved charges Withholding 3 Increments – Is proper for misconduct committed in the accounts department of the bank by a visually challenged person despite proof of misconduct

¥4.311 The workman was rendered visually disabled while working in the bank. The bank was aware of this

fact. Even then he was given the work of accounts department. There was no mechanism or methodology to know as to how a blind person can work in accounts section and attend to regular work in a branch. As a result the bank noticed irregularities in accounts and issued charges on 57 allegations and in the enquiry 31 of them were proved and 7 partly. He was compulsorily retired from service. Upon challenge the High Court held that regard should be made to the nature of charges, gravity of the charges, absence of financial loss and visual disability. But certain charges having been proved the workman is also liable for some punishment. The punishment of compulsory retirement was held totally disproportionate to the proved misconduct. Hence punishment of withholding of 3 increments with cumulative effect was imposed with direction to reinstate him in service in any suitable post having regard to his visual disability. Consequential benefits with no back wages was also directed to be given.

T.R. Raghu Kumar v. Management of Union Bank of India & Anr., 2010 LIC 4021 (Karn.HC) WP 20484 of 2007 dt. 20-5-2010

“The petitioner……….set aside.” (Page: 4024, Para: 14)

“The Supreme Court……….an employee.” (Page: 4024, Para: 15)

“In the facts……….modification……….” (Page: 4024, Para: 16)

Sec. 11A

Charges – If not framed of negligence the punishment imposed on that basis will not sustain Negligence – A ground on which termination was made if not covered in the charge sheet the principles of natural justice will be violated Principles of Natural Justice – Will be violated if the punishment imposed was for negligence but that charge was not covered in the charge sheet

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Misconduct – Of negligence if not a charge the termination on that ground is in violation of the principles of natural justice Termination – Non est if the ground was negligence but not a charge for defence by the workman

¥4.312 The workman a conductor was charged with embezzlement. After an enquiry despite giving little

opportunity to defend the enquiry officer held the delinquent innocent and charges not proved. The disciplinary authority issued a show cause as to why his services should not be terminated for negligence even while agreeing with the enquiry officer. Subsequently he was terminated on the ground of negligence for which no charge sheet ever was issued. The workman filed a suit which was dismissed and a subsequent appeal which was also dismissed. He filed a second appeal during the currency of which he expired and his legal representatives were brought on record. Allowing the appeal the court held that he was punished for a charge which was not framed against him. It violates the principles of natural justice. There was no opportunity to defend. There was no misconduct for which the workman could have been punished. The bias was writ large on the face of the order. He suffered prejudice. The second appeal was allowed and suit decreed. The workman was deemed to have been taken in service from the date of his dismissal to the date of his superannuation or death whichever was earlier. The L.Rs could be entitled to claim the pensionary benefits.

Kashmira Singh v. Punjab State & Anr., 2010 LIC 4067 (P&H.HC) RSA 2408 of 1985 dt. 16-3-2010

“The punishing……….Second Appeal.” (Page: 4068, Para: 4)

“The ratio……….above.” (Page: 4070, Para: 16)

“This infirmity……….prejudice.” (Page: 4070, Para: 17)

“For the reasons……….himself……….pensionary benefits.” (Page: 4071, Para: 18/19)

Sec. 11A

Preliminary Issue – Whether the enquiry was legal valid is also requires to return a finding on whether the findings of IO was perverse or not Enquiry – Whether legal or valid as a preliminary issue also requires to return a finding on whether the findings of IO was perverse or not Perversity – Of enquiry findings by the enquiry officer is inseparably linked to the legality and propriety of the enquiry to be decided as a preliminary issue Legality and Propriety – Of enquiry is inextricably linked to the issue whether the findings of the IO was perverse or not as a preliminary issue

¥4.313 Upon a petition by the workman to direct the labour court to decide the preliminary point as to

whether the enquiry conducted by the bank was legal, valid or not and whether findings recorded by the enquiry officers were perverse or not, the High Court directed the labour court to answer these issues. But the labour court answered only the first issue in favour of the bank. The workman challenged these preliminary findings as the second issue was not answered. The High Court held that the issue of legality and validity of the enquiry includes the issue whether the findings of the enquiry officer are perverse or not. An enquiry could be defective if there is violation of principles of natural justice and also if the findings of the enquiry officer are perverse. Hence the High Court held that the labour court has not exercised its jurisdiction causing prejudice to the workman. It remanded the matter for recording a clear finding on the legality and propriety on the enquiry including a finding of the enquiry officer whether it is perverse. After this the only issue remains is to decide the issue of punishment.

Rashmikant G. Dave v. State Bank of India, 2010 LIC 523 : 2010 II CLR 34 (Guj.HC) SCA 8324 of 2009 dt. 6-10- 2009

“Learned advocate……….set aside.” (Page: 524, Para: 9)

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“The court……….the parties.” (Page: 531, Para: 23)

“Thus looking……….eye of law.” (Page: 531, Para: 25)

“In view……….punishment.” (Page: 531/532, Para: 26)

Sec. 11A

Standing Order – Is not an embargo for not holding an enquiry in all cases especially in criminal charges Enquiry – Can be dispensed with and yet standing order not violated in fit cases such as criminal charges Criminal Charges – If the basis for not holding an enquiry before termination it cannot be in violation with the standing orders before proving the charges before Labour Court Termination – Proper – As the Standing Orders do not impose an embargo that the termination cannot be made without complying with the procedure of enquiry in criminal charges

¥4.314 Employer terminated the services of the workman without holding any departmental enquiry on the

ground of initiation of criminal proceedings against him for assault on a co-worker. The employer proved the charges before the tribunal by oral and documentary evidence which proved that the alleged misconduct was committed by him. The workman challenged the termination on the ground that Standing Orders provided for holding an enquiry and without which the termination was illegal. The High Court held that the Standing Orders do not impose an embargo that the termination cannot be made without complying with the procedure of enquiry. The High Court held that termination of workman without holding enquiry is not always improper because in good justifiable reasons it can proceed to terminate the services without resorting to standing orders and hence upheld the award justifying the termination.

Arjun Singh v. State of Punjab & Ors., 2010 LIC 647 (P&H.HC) CWP 5446 of 2008 dt. 26-3-2009

“I have heard……….the workman.” (Page: 649, Para: 4)

“The next contention……….fully justified.” (Page: 650, Para: 6)

Sec. 11A

Dismissal – Cannot be interfered by the Writ Court if the misconduct of riotous and disorderly behavior was proved being shockingly disproportionate Shockingly Disproportionate – A misconduct amounting to riotous and disorderly behavior proved in the enquiry is not held disproportionate for dismissal Writ Court – Cannot interfere with the punishment awarded by the Labour Court for riotous and disorderly behavior being not shockingly disproportionate

¥4.315 Three workmen were terminated from service for various misconducts amounting to riotous and

disorderly behavior. The Labour Court upheld the punishment as the charges against the workmen were proved. The High Court held that it can interfere with the punishment only when the same was shockingly disproportionate but in this case Labour Court has exercised the jurisdiction judicially and fairly, hence no interference can be made. High Court upheld the order.

N. Bhoopathi & Ors. v. Presiding Officer, Labour Court, Salem & Anr., 2010 LLR 715 (Mad.HC) WP 4854 to 4856 dt. 5-1-2010

“Therefore, if the……….different location.” (Page: 719, Para: 17)

The learned counsel……….of the award.” (Page: 719, Para: 18)

Sec. 11-A

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Dismissal – For a short period of absence without going into past records on the basis of habitual absenteeism will not sustain Habitual Absenteeism – Excludes – For a short period of absence with clean past records Past Records – Cannot be ignored while reckoning habitual absenteeism

¥4.316 The workman remained absent for a very short period from 24.4.1992 to 11.5.1992 on account of

death of his mother and marriage of his brother. There was no intentional or unauthorized absenteeism on his part. However the employer after an enquiry held the misconduct proved and dismissed him from service holding him as a habitual absentee. The labour court upheld the termination. Upon challenge the High Court set aside the punishment and held that absent for a few days cannot be termed as habitual absenteeism. More importantly his past record should have been gone into. For the last 9 years of his service his record was clean and hence the labour court failed to exercise its jurisdiction u/s. 11A. He was reinstated with continuity of service but without back wages.

Veer Chand v. D.T.C., 2011 (128) FLR 803 (Del.HC) WP(C) 2267 of 2007 dt. 5-3-2010

“The High Court while……….case of habitual absenteeism.” (Page: 809, Para: 11)

Sec. 11-A

Composite Charge Sheet – For present 2 days and past number of days absence cannot be issued to inflict a punishment of dismissal for want of employer taking cognizance of the past cases at appropriate time Absenteeism – If for a number of days previously it cannot be combined later in the absence to inflict a punishment of dismissal for want of cognizance previous absence at nick of time Proportionality – Of punishment can be gone into if dismissal was for 2 days absent but by a composite charge sheet covering previous absences without a charge sheet at nick of time

¥4.317 The workman remained absent for 2 days. However he was issued with a composite charge sheet

showing 49 days absence in the year 1992, 139 days in the year 1991, 102 days in the year 1990 and 114 days in the year 1989. After an enquiry his services were terminated. The labour court found that the punishment was disproportionate for 2 days absence and set aside the punishment and awarded compensation of ̀ 75,000 in favour of his legal heirs. Upon challenge the High Court upheld the award and held that a composite charge sheet was issued only when he remained absent for 2 days. The employer did not issue any charge sheet for earlier absenteeism implying that he did not take any serious note of the previous absenteeism. Hence the Labour Court had judiciously exercised its discretion to interfere with the punishment which has no illegality or perversity.

Delhi Transport Corporation v. Kuldeep Singh, 2011 (128) FLR 810 : 2011 LLR 400 (Del.HC) WP(C) 2699 of 2007 dt. 4-3-2010

“It is an admitted case……….in the impugned award.” (Page: 812, Para: 5)

Sec. 11-A

Conductor – Not issuing tickets but collecting money being a serious charge dismissal from service cannot be interfered with Dismissal – Of a conductor not issuing tickets but collecting money cannot be set aside on proportionality

¥4.318 The workman was charged for dishonesty and gross negligence on the ground that he was carrying

16 passengers without ticket but collecting money. In the domestic enquiry the said charge was proved. Hence the employer dismissed him from service. After careful appreciation of the entire evidence, the Labour Court found that the enquiry was fair and proper and held that the removal from service was not unjustified. The Single Judge upheld the same misconduct being serious.

B. Narayanappa v. Managing Director, K.S.R.T.C., Bangalore & Anr., 2011 (128) FLR 822 : 2011 LLR 412 (Karn.HC) WP 37355 of 2009 dt. 23-11-2010

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“The Apex Court, in……….Regulation, 1971.” (Page: 826, Para: 20)

“As far as the power……….were not examined.” (Page: 826, Para: 22)

Sec. 11A

Compulsory Retirement – Is appropriate punishment if the charges of beating co-worker is proved Subsistence Allowance – Though payable under certified standing order during suspension non-payment by itself will not vitiate enquiry unless prejudice was shown to be caused to the workman

¥4.319 The workman was charged for obstructing and beating a co-worker and for other misconduct

including his bad past records. After the enquiry was conducted, the charges were proved and an order of compulsory retirement was passed against him. His challenge before the Industrial Tribunal failed. He filed a writ petition stating that the enquiry was vitiated for non-payment of subsistence allowance during the period of suspension. The High Court held that since no prejudice had caused to him notwithstanding the certified standing order not being complied with that by itself will not vitiate the enquiry. Moreover the punishment was not disproportionate to the charges proved considering his past record and upheld his compulsory retirement.

E. Mohan v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, 2011 (129) FLR 472 : 2012 I LLJ 159 : 2011 I CLR 586 (Mad.HC) WP 8767 of 2003 dt. 11-1-2011

“For the proved charges……….the claims of Petitioner.” (Page: 478, Para: 20)

Sec. 11A

Back Wages – Full – Cannot be granted to an able bodied person since some job is open for him to perform Able Bodied Person – Cannot be granted full wages but 50% since job opportunities even as a labourer is open to him

¥4.320 A chowkidar was illegally terminated. Upon reinstatement without back wages he filed a petition for

full back wages. It was his case that he was jailed for some agitation and thereafter on release he could not get alternative job. The High Court held that he is an able bodied person and might have obtained some manual work as a labourer and hence full back wages could not be granted. It modified the award by granting 50% back wages.

Nirmal Singh v. Labour Court, Bhatinda & Ors., 2011 (129) FLR 916 (P&H.HC) CWP 6611 of 1991 dt. 25-1-2011

“As indicated earlier……….this relevant connection.” (Page: 918, Para: 13)

“In this manner, applying……….circumstances of the case.” (Page: 918, Para: 14)

Sec. 11A

Burden of Proof – Is on the employer to prove that the workman had abandoned his service once he accepts that the workman was in his employment Back Wages – Payable 40% for remaining out of service from 1967 to 1989 if the workman fails to prove that he was not gainfully employed

¥4.321 Once the employer accepts that the workman was in his employment then the burden cannot be

avoided from shifting on him also to prove that the workman had abandoned his service. Failing to prove so, the Tribunal accepted the evidence led by the workman that he was in service from 1967 to 1989 where after he was terminated illegally without complying with Sec. 25F. Hence the tribunal by an award reinstated him with 60% back wages. The High Court while upholding the reinstatement modified the

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back wages payable to 40% for the reasons that there was no evidence to disprove that he was not gainfully employed and also considering he had drawn the last drawn wages.

Sirsat Lodge v. Mashnu Gawade & Anr., 2011 (4) BCR 588 (Bom.HC) WP 246 of 2000 dt. 14-1/5-5-2011

“Perusal of the impugned……….reordered by the Tribunal.” (Page: 590, Para: 9)

“In the present case……….to the extent of 40%.” (Page: 592, Para: 15)

Sec. 11A

Unauthorized Absence – Due to travel to Mecca without intimation or taking sanction of leave will be met with the punishment of dismissal from service Domestic Enquiry – Cannot be held vitiated merely because the notice sent could not be served when the workman had unauthorized leave travelled abroad without sanction of leave or intimation Minor Punishment – Uncalled for for unauthorized absence with misconduct of going abroad without leave or intimation Dismissal – Is proper for going abroad without leave or intimation unauthorized absence having been established in the domestic enquiry

¥4.322 The workman after an ex-parte enquiry was dismissed from service for alleged unauthorized

absence. The labour court held that the enquiry was fair and proper and upheld the dismissal. The High Court found no fault in the award for the reasons that firstly the workman failed to establish that he was suffering from any ailment and went on to change his stand in his defence. Secondly he had stated as an admitted fact that he went abroad to Saudi Arabia accompanying his father-in-law enroute to Mecca as per advice of medical officer. No prior permission or obtaining sanction of leave for absence from duty was taken. His past record was unsatisfactory. In the circumstances there was no cause for the labour court to impose any minor punishment in exercise of the power u/s. 11A than reiterating the punishment of dismissal. The High Court held that considering the award being just and proper showing any indulgence or leniency would be adding premium on dishonesty. The petition was dismissed.

M.A. Azim v. Maharashtra State Road Transport Corporation, through its Works Manager, Aurangabad, 2011 I CLR 283 : 2011 (130) FLR 502 : 2011 (3) Mah.LJ 648 (Bom.HC) ASWP 3924 of 1991 dt. 21-12-2010

“Therefore, it is clear from……….needs no interference.” (Page: 290, Para: 12)

Sec. 11A

Date of Birth – If erroneous the earlier superannuation is to be compensated with 60% wages Superannuation – In advance due to erroneous reckoning of date of birth will have to be compensated with wages @ of 60% Compensation – Of ` 50,000 for retiring illegally an employee considering date of birth falling 5 years in advance is insufficient but requires 60% wages to be paid Wages – @ of 60% is payable for advancing the age of retirement due to erroneous date of birth decided by the employer overlooking the school certificate

¥4.323 The employer retired the workman holding his date of birth was year 1924 instead of year 1929

though he had submitted school leaving certificate as evidence. The employer had held that the certificate was bogus and proceeded against him departmentally for misleading the employer. He challenged his termination/superannuation before the date. The labour court held the enquiry vitiated and gave an award that his date of birth was 1929. However as the workman had by the time attained 58 years he could not be reinstated hence compensation of ` 50,000 was directed to be paid. The workman challenged the award for meager compensation. The High Court held that the consolidated compensation was far less and was not backed by any reasoning. Hence modifying the same he was directed to be paid 60% of his wages from the date of his termination/superannuation as otherwise he would have earned full wages taking his date of birth as 1929.

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Krishna Chandra Rout v. Presiding Officer, Labour Court, Sambalpur & Three Ors., 2011 I CLR 341 : 2011 III LLJ 490 : 2011 LLR 354 (Ori.HC) OJC 2676 of 1995 dt. 20-9-2010

“This Court is, therefore……….circumstances without cost.” (Page: 345, Para: 11)

Sec. 11A

Burden of Proof – Is on employer to prove the charges of taking money without issuing tickets and not on the workman Misconduct – Of not issuing tickets while taking money cannot be established without examining the passengers or the ticket checking staff as the burden is on the employer Conductor – Will be reinstated though he could not establish his innocence for not issuing tickets as the employer failed to discharge his basic burden of proof Disciplinary Proceedings – Burden of proof is on employer to prove the charges framed

¥4.324 The workman a conductor faced domestic enquiry/show cause for not issuing tickets against a batch

of 4 passengers and was terminated. The labour court found the enquiry was vitiated and allowed the employer to lead evidence. It placed erroneous burden on the workman to prove his innocence. Since he could not lead evidence in his favour the termination was upheld. The High Court upon challenge set aside the termination and the award and held that the burden of proof is on employer to prove the charges framed against the workman. The role of workman was only to rebut the evidence of the employer. In this case the employer neither produced the passengers nor examined the ticket checking staff and hence unable to prove the charges. Hence the workman was reinstated with continuity of service and attendant the benefits but without back wages.

S.L. Narasaiah v. Addl. Industrial Tribunal-cum-Addl. Labour Court, Hyderabad, rep. by its Chairman & Anr., 2011 I CLR 517 (AP.HC) WP 17972 of 2010 dt. 26-10-2010

“In the disciplinary proceedings……….the employer maintained.” (Page: 518, Para: 7)

“In the instant case, the……….of the checking team.” (Page: 518, Para: 8)

“The documentary evidence……….deserves to be set aside.” (Page: 519, Para: 9)

Sec. 11A

Misconduct – Of collecting fare but not issuing ticket if not proved by circumstance in which the passenger taken to police station in a drunken state was fined will prove illegal termination Conductor – Cannot be terminated for collecting fare but not issuing ticket if the passenger was fined by the checking staff for travelling without ticket Fine – Imposition by the checking staff on the passenger travelling without ticket by issuing ticket is sufficient proof that no money was collected by the conductor

¥4.325 The services of a workman, a conductor, were terminated for not issuing ticket but allegedly

accepting the money. But according to the workman the passenger was in a drunken state and refused to pay the fare. The checking staff had taken the drunken passenger to the police station and collected the fare along with fine. Despite this crucial piece of evidence the enquiry officer held that the conductor could not have taken advantage of the drunken state of the passenger and the disciplinary, appellate, revisional including Labour Court have concluded that the conductor did not issue ticket. If the checking staff fined the passenger after issuing ticket it is obvious that the conductor has not collected the fare and the passenger traveled ticketless. Hence the termination on erroneous finding was illegal. The High Court reinstated him with continuity of service but without back wages thereby setting aside the award to the contrary.

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K. Chattopadhyana v. Government of Andhra Pradesh, rep., by its Secretary to Government, Labour Employment, Training and Factories (LABI) Department, Hyderabad & Ors., 2011 I CLR 874 (AP.HC) WP 15115 of 2009 dt. 5- 10-2010

“In case the passenger……….for the past eight years.” (Page: 876, Para: 8)

Sec. 11A

Sec. 11A – Power can be exercised only in case of dismissal and discharge etc. and not for minor penalty Minor Penalty – Is not amenable to be interfered with by the tribunal in exercise of its power u/s. 11A Dismissal and Discharge – A punishment can be interfered with in exercise of power u/s. 11A and not withdrawal of special allowance being a minor penalty Proportionality – Of punishment cannot be exercised in cases of minor penalty such as withdrawal of special allowance being not a punishment of dismissal or discharge

¥4.326 The head cashier was proceeded with by a departmental enquiry in which the misconduct of

insubordination and arrogant and rude behaviour towards valued customers of the bank was proved. A punishment of withdrawal of special allowance permanently was passed. The tribunal upon challenge upheld the enquiry as fair and proper but interfered with the punishment holding it as disproportionate. Upon challenge the High Court set aside the finding of the tribunal and held that the power u/s. 11A can be exercised only in cases of dismissal or discharge and not in cases like withdrawal of special allowance. In this case the tribunal had modified the punishment of withdrawal of special allowance for a period of 2 years instead of permanently. Hence the award was set aside and petition allowed.

Zonal Manager, Bank of India, Chennai v. General Secretary, Bank of India Staff Union, Chennai, & Anr., 2011 I LLJ 529 : 2010 IV LLN 259 : 2010 III CLR 386 (Mad.HC) WP 10214 of 2001 dt. 8-6-2010

“Having found that the……….penalty is unwarranted.” (Page: 531, Para: 10)

Sec. 11-A

Conductor – Misappropriating ticket money howsoever small deserves dismissal because of his conduct Misappropriation – Of money by conductor by not issuing tickets deserves dismissal because of his conduct

¥4.327 Though the misappropriation by the bus conductor in not issuing tickets but taking money from the

passengers is trivial, what is to be considered is the conduct of the workman and not the amount of money howsoever small. In the domestic enquiry the charges were proved and the workman was dismissed. The labour court upheld the same. The petition there against was dismissed.

K. Murthy v. 1. The Labour Court, Salem 2. The Management, Tamil Nadu State Transport Corporation, Salem Division II, Dharmapuri-5, 2011 I LLN 105 : 2011 LLR 329 (Mad.HC) WP 8690 of 2003 dt. 27-10-2010

“Relying upon a judgment……….the conduct of the delinquent.” (Page: 107, Para: 4.2)

“The finding of the Labour……….cannot be lightly disregarded.” (Page: 108, Para: 8)

Sec. 11A

Service Rule – If absent then the Model Standing Orders framed under Industrial Employment (Standing Orders) Act can be referred Model Standing Orders – Framed under Industrial Employment (Standing Orders) Act can be referred in absence of any Service Rule Superannuation – At the age of 58 is valid even though the employer did not formulate any rules but Model Standing Orders governs Life Time Service – Is if not in the realm of procedure in the company no matter service rules are absent claim cannot be entertained

145

¥4.328 The workman raised a dispute that since the employer has not formulated any rules for retirement, his retirement at the age of 58 was illegal. He claimed such circumstances so long as he was hale and hearty he should be allowed to serve his employer during his life time. The same was rejected by the tribunal. The High Court rejecting workman’s contentions held that since there was no practice in the company to keep an employee for life time and there was evidence to show that there was an earlier settlement demanding to raise retirement age from 58 years to 60 but was dropped and as the employer follows the model standing orders, his retirement at the age of 58 cannot be called into question.

T. Anantha Krishnan v. 1. The Management of Madras Purasawalkam Hindu Janopakara Saswatha Nidhi or The Permanent General Benefit Fund Limited, 168, Vellala Street, Chennai-600 084. 2. The Presiding Officer, Principal Labour Court, Chennai-600 104, 2011 I LLN 267 (Mad.HC) WP 28686 of 2004 dt. 19-11-2010

“The Petitioner was employed……….he has raised a dispute.” (Page: 268, Para: 2.1)

“It has been the case of the First……….by the Labour Court.” (Page: 268, Para: 2.3)

Sec. 11A

Charges – Of habitual absence and lack of interest in work will not survive if it was found that there was sanctioned leave with spread over of leave especially when the absence was on medical ground Absence – Cannot be unauthorized when there was sanctioned leave together with spread over ground being illness Back Wages – Full – Not Permissible in a public body meant for public benefit Termination – Is illegal on the ground of habitual absence on incorrect charges if the workman produced medical certificate for his illness leave being partly sanctioned and rest spread over

¥4.329 When a charge sheet was for unauthorized consolidated absence of 54 days on the basis of which

enquiry was held and workman was dismissed, if it was later transpired that the workman was sanctioned leave for 25 days and remaining period of absence for 29 days was spread over in one’s or two’s in 7 months period the charge for habitual absence or lack of interest in work will not survive especially when the absence was on medical ground. In this case the driver who was removed from service for the above alleged misconduct was reinstated with full back wages but the matter was remanded by the High Court for reconsideration and consequently back wages were reduced to 50% was upheld by the High Court in the second writ petition upholding the award. The 50% back wages was held reasonable being employer a public body meant for public benefit.

Delhi Transport Corporation v. Ram Pal, 2011 I LLN 376 (Del.HC) WP(C) 6732 of 2007 dt. 1-11-2010

“In view of the recent……….in the present case.” (Page: 382, Para: 26)

Sec. 11A

Rash and Negligent Driving – Is not the criterion to nail a driver but proof of his negligence is Wages – Not paid from the date of accident committed by the driver till his removal cannot be denied though a daily wager in the absence of suspension but 50% reasonable Misconduct – Of rash and negligent driving is not the criterion for dismissal but his negligence alone counts as rules of IPC or inapplicable to domestic enquiry

¥4.330 When the workman a daily waged driver was driving the bus, an accident took place and a person

died. He was not kept under suspension till removal but no work was assigned to him and no wages paid. After an enquiry his services were terminated. The Labour Court reversed the termination to that of reinstatement with full back wages because it is to see whether there was any negligence on the part of driver of the accident vehicle and not to verify whether driver was guilty of rash and negligent driving under the Indian Penal Code and such negligence in this case was not proved against the driver. If a regular driver had committed a similar accident then the order of suspension would have been passed till the final order but the driver in this case being a daily wager he was not kept under suspension nor any

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wages paid and therefore the award for full back wages was modified by High Court into 50% back wages.

Depot Manager, APSRTC, Armoor & Anr. v. M.A. Athiqui & Anr., 2011 II CLR 180 (AP.HC) WP 629 & 1556 of 2004 dt. 30-9-2010

“The Labour Court did……….at the place of accident.” (Page: 182, Para: 8)

“Coming to the other writ……….meet the ends of justice.” (Page: 182, Para: 10)

Sec. 11A

Motor Accident Claims Tribunal – In which once the employer takes a stand of innocence of his workman driver in the accident the same employer cannot change his stand and dismiss his workman Accident – Caused by the workman once held to be due to the negligence of the victim himself by the motor accident claims tribunal to which employer was a party he cannot reverse his stand Employer – If taken a stand before MACT that his workman was not at fault for the accident then said employer is estopped to take a different stand against his workman later

¥4.331 When the employer had contended that it was not the fault of his workman driver but the fault of the

deceased driver himself of another vehicle which had met with accident, in the Motor Accident Claims Tribunal and on factual finding the claim tribunal accepted the said contention on facts, there after the said employer cannot turn back and frame charges and take contrary stand before the labour court against his workman holding him liable for the accident justifying dismissal from service. The employer cannot change his stand from time to time. The High Court in this premise upheld the finding of the tribunal that the workman was not responsible for the cause of accident but slightly modified the award in which the back wages for the period of suspension till his dismissal was reduced to 25% but full back wages from the date of award till the date of reinstatement along with continuity of service and other attendant benefits confirmed.

Managing Director, Tamil Nadu State Transport Corp. (Salem Division II) Ltd., Dharmapuri. v. P. Raja & Anr., 2011 II CLR 354 (Mad.HC) WP 18012 of 2003 dt. 28-3-2011

“In other words, the contention……….responsible for the accident.” (Page: 357, Para: 15)

Sec. 11A

Chaukidar – Who was on weekly off cannot be proceeded with for dereliction of duty Termination – Cannot sustain of a chaukidar if he was on weekly off when theft took place Enquiry Report – If not given to the delinquent the order of termination suffers from violation of PNJ Principles of Natural Justice – Violated upon termination of a chaukidar on weekly off when the theft took place besides due to non furnishing of enquiry report as per rule

¥4.332 A theft of a cash chest took place on Sunday night when the chaukidar, the present delinquent

workman was on a weekly off. Even then the enquiry officer held the delinquent liable and his services where terminated by the disciplinary authority. No enquiry report was given to the delinquent. Upon challenge the tribunal found that the enquiry was not fair and proper. It violated the principles of natural justice and evidence had shown that he was not on duty besides the police have found that he was not criminally liable. Hence he was reinstated with back wages setting aside the termination. The High Court upheld the same.

Kumaon Mandal Vikas Nigam Ltd. through its Managing Director, Nainital v. Presiding Officer, Labour Court Haldwani, District Nainital & Ors., 2011 II CLR 541 (Utt.HC) WP 379 of 2004 dt. 22-4-2011

“The learned Tribunal……….Officer, Industrial Tribunal.” (Page: 543, Para: 15)

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“At the outset, it may be……….order can be examined.” (Page: 543, Para: 22)

Sec. 11A

Jurisdiction – The industrial tribunal/labour court has none u/s. 11A to reduce, modify or substitute the punishment imposed by the management if the same is not in the nature of discharge or dismissal Labour court – Or industrial tribunal has no power to substitute the punishment imposed by the management unless it is in the nature of discharge or dismissal Dismissal – Or discharge alone empowers the labour court/tribunal to modify or substitute the punishment imposed by the management Increment – Stoppage does not give jurisdiction to substitute that punishment u/s. 11A since it is not in the nature of discharge or dismissal

¥4.333 In this case the workman, a driver was proceeded with for contributory negligence to the extent of

20% in causing the death of a scooterist and injuries to two children. After an enquiry and considering an appeal the appellate authority imposed a punishment of reduction of two increments with cumulative effect. His challenge to the tribunal resulted in further relief in which the punishment was modified into reduction of two increments without cumulative effect. The employer contested the award holding that the tribunal had no jurisdiction to modify the punishment when it was not one of discharge or dismissal while exercising the powers u/s. 11A. The High Court allowed the petition and held that the industrial tribunal had no jurisdiction to exercise power in such cases u/s. 11A and substitute the punishment. The award was quashed and set aside.

Bangalore Metropolitan Transport Corp., Bangalore v. BMTC & State Transport Noukarara Sangha, Bangalore, 2011 II CLR 646 : 2011 IV LLJ 400 : 2011 (130) FLR 116 : 2011 III LLN 626 : 2011 LLR 844 (Karn.HC) WP 23512 of 2005 dt. 3-3-2011

“In the instant case, the……….reducing the punishment.” (Page: 648, Para: 11)

Sec. 11A

Compulsory Retirement – Of a government servant for reason of misleading information furnished at the time of his appointment regarding his marital status if based on bona fide belief is disproportionate Shocks the Conscience of the Court – Compulsory retirement of a government servant for misleading information regarding his marital status at the time of appointment if based on bona fide belief Technical Defect – Includes – Furnishing information of marital status with the name of second wife to the exclusion of first wife at the time of appointment if based on bona fide belief on caste custom Bigamy – If entered into before appointing in government service on certain caste custom the misconduct becomes merely technical in nature though second marriage is invalid in the eye of law

¥4.334 An information given to the government at the time of appointment that his second wife was his real

wife was only a technical defect. This is because he had separated his first wife at the pressure of caste community. He had thought that it was a bona fide dissolution. He was an illiterate person. The court held the information given was on a bona fide belief. It is not a case that he committed bigamy after entering the government service the only inference that can be drawn is that without dissolution of the first marriage his second marriage is invalid. Therefore the only charge which can be said have been proved was on a technical ground that his first marriage was not legally dissolved and even then he mentioned the name of his second wife as his legally married wife. For this, the punishment of termination by compulsory retirement shocks the conscience of the court. The punishment and the award confirming the same was set aside. Instead reinstatement with minor penalty of stoppage 3 increments with cumulative effect was ordered.

P. Areya Reddy v. P.O., Labour Court, BBSR & Anr., 2011 II CLR 799 (Ori.HC) WP 14563 of 2007 dt. 20-1-2011

“This Court in the said……….lesser punishment as per law.” (Page: 802, Para: 9)

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“Considering the facts of……….with the alleged misconduct.” (Page: 802, Para: 12)

Sec. 11A

Power of Labour Court u/s. 11A – to apply the Doctrine of Proportionality while dealing with the order of dismissal Doctrine of Proportionality – Is attracted when the punishment of dismissal when weighed with the misconduct is disproportionate a labour court is required to exercise power Unauthorized Absence – For justifiable reasons being a mitigating factor the punishment of dismissal calls for moderation u/s. 11A applying a doctrine of proportionality Sec. 11A – Power is to be exercised by the labour court in appropriate cases of disproportionate punishment if not the High Court has reasons to interfere with

¥4.335 The workman a driver remained in unauthorized absence due to self sickness and also serious

accident to his mother and son. In the enquiry the charges of unauthorized absence having been proved his services were discontinued. The labour court held the charges proved but failed to exercise its power u/s. 11A under the doctrine of proportionality. The workman challenged the award before High Court. During the pendency of proceedings the workman expired. His wife, son and daughter were substituted as parties. The High Court set aside the award for not exercising the power u/s. 11A and gave relief to the widow and her children to the extent of pensionary and gratuity benefits holding his service continuous only for this purpose. Since he had not worked after his dismissal question of paying salary till his age of superannuation or death does not arise.

R. Balavenkatakrishnan (died) & Ors, v. Presiding Officer, Labour Court, Salem & Anr., 2011 II LLJ 48 (Mad.HC) WP 24830 of 2002 dt. 29-10-2010

“This Court in Union of India……….this order. No costs.” (Page: 52, Para: 13)

“Therefore by applying the……….is ordered accordingly.” (Page: 52, Para: 14)

Sec. 11A

Burden of Proof – Initially is on the employer to prove the charges of misconduct Onus – Cannot shift on the workman to prove his innocence unless the employer discharges his initially burden in proof of the charges Admission of Guilt – Only specific admission of misconduct of producing false or bogus certificate is and not mere admitting some error while seeking employment Examination – Of prosecution witnesses cannot be dispensed with unless the workman admits his guilt by a specific averment admitting the guilt

¥4.336 The workman was proceeded with for alleged furnishing of bogus educational certificate at the time

of his employment. The material supporting the allegation was the letter from the head master of the school which purportedly issued the said certificate. The workman had stated that certain error did take place at the time of submitting the certificate and sought pardon. Depending on this averment the employer made out a point that the workman had admitted the charges. In the enquiry the enquiry officer did not examine any of the management witnesses and not even the head master who had issued the incriminating certificate throwing doubts and suspicion into its genuineness. The workman was dismissed holding that he had admitted the charges. The labour court returned a finding that there was no admission made by the workman. The High Court held that the employer failed to discharge the initial burden in respect of the charges. The primary onus left undischarged. Hence it upheld the finding of the labour court holding dismissal unsustainable.

Divisional Electrical Engineer (Operations), A.P. Transco Ltd., Guntur & Anr. v. Labour Court, Guntur & Anr., 2011 II CLR 760 (AP.HC) WP 24231 of 2001 dt. 14-3-2011

“The 2nd respondent……….be set at naught.” (Page: 762, Para: 3)

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“The Labour Court……….establish his defence.” (Page: 762, Para: 4)

Sec. 11A

Writ Court – Cannot sit as an appellate court to apply the doctrine of proportionality when the misconduct was repeated despite warning Unauthorized Absence – For 66 days in a period of one year is regarded as habitual when viewed with the warnings given Doctrine of Proportionately – Does not apply when the misconduct of unauthorized absence was repeated despite warning to the workman

¥4.337 If a workman abstained from reporting to duty frequently without any leave and inspite of warning

continues to adopt the same course of conduct, conscious of the business commitments, the employer’s decision to dismiss him from service cannot be called as disproportionate or arbitrary. In this case the workman remained absent for 66 days from April 1, 1995 to April 30, 1996 without permission. The warning given went unheeded. The labour court upheld the dismissal because it was a fit case not to interfere in exercise of the power u/s. 11A. The High Court also upheld the same since it cannot exercise power as an Appellate Court in a writ jurisdiction especially when the punishment meted out does not appear to be outrageously disproportionate.

V. Manoharan v. The Presiding Officer, Labour Court, Vellore & Anr., 2011 III LLJ 101 : 2011 LLR 144 (Mad.HC) WP 6536 of 2006 dt. 7-10-2010

“Referring to the case……….order does not arise.” (Page: 104, Para: 11)

Sec. 11A

Enquiry – On serious charges could not be ex-parte Ex-Parte Enquiry – Unsustainable on charges of serious nature Security Guard – In case of strained relationship despite illegality in termination could not be reinstated Compensation – In case of strained relationship between a security guard and employer is proper

¥4.338 The workman, a security guard was terminated after an ex-parte enquiry on the charges of assault

on another security guard. It was the case of the workman that no charge sheet was furnished and after the enquiry a show cause notice was only issued to him for which reply was furnished. The labour court exercising power u/s. 11A modified the punishment into one of fresh employment. The same was challenged before the High Court which held that there was no proper evidence substantiated by the employer regarding the misconduct and such a serious misconduct could not have been decided in an ex- parte enquiry. The question of assault was not proved, the enquiry was vitiated. However considering the post of security guard and the strained relationship between employer and the workman reinstatement was held not advisable. Hence a compensation of ` 3 lakhs was awarded in full and final settlement of all his claims.

Techno Electrics, rep. by its Director, Sri D. Krishna Mohan, Hyderabad v. Chairman-cum-Presiding Officer, Addl. Industrial Tribunal-cum-Addl. Labour Court, Hyderabad & Anr., 2011 III LLJ 575 : 2011 (130) FLR 183 : 2011 I CLR 519 (AP.HC) WP 12349 & 15817 of 2010 dt. 2-11-2010

“This Court is of the……….caste would justify it.” (Page: 578, Para: 15)

Sec. 11A

Misconduct – For which valid evidence in the domestic enquiry was produced leading to dismissal cannot be lightly set aside on the subjective satisfaction of the Labour Court Labour Court – Cannot exercise its subjective satisfaction in the face of substantive evidence showing proof of misconduct Enquiry Findings – Cannot be reversed by the Labour Court without any evidence

150

Burden of Proof – Is on the workman to repel the charges of absence refusal to work and low production without which the proved misconduct cannot be diluted by the subjective opinion of the Labour Court

¥4.339 The workman was kept under compulsory wait for 7 ½ months but with full pay and other benefits

due to unavoidable reasons. Later he was legally transferred to another department. Though the job given was less skilled he failed to participate in the training. He absented from duty and persistently refused to work for full shift and refused to sign log book etc. as a result there was low production. He was charge sheeted for willful insubordination, riotious or disorderly behavior or any act of subversive of discipline, negligence or neglect of work, damages willful or due to negligence or carelessness, slowing down in performance of work or abetment or instigation thereof and loitering, idling or wasting time during working hours. Since he failed to rebut the charges against sufficient evidence from the side of the employer he was dismissed from service. The Labour Court, set aside the same, holding that he had shown 75% performance without any evidence. The High Court set aside the award holding that it is not open to it to substitute its subjective opinion in the place of legitimate conclusion of the domestic enquiry based on evidence.

The Management of Sundram Fasteners Ltd. v. The Presiding Officer, II Additional Labour Court, Chennai & Anr., 2011 III LLJ 85 : 2011 LLR 286 (Mad.HC) WP 1264 of 2009 & MP 1 & 1 of 2010 dt. 24-11-2010

“Considering the overall……….lying on the department.” (Page: 89, Para: 13)

“As rightly observed in……….is hereby set aside.” (Page: 89, Para: 14)

Sec. 11A

Res Ipsa Loquitur – Is not a principle of a law but merely guide to help identify when a prima facie case is being made out Onus of Proof – To prove the presumption of res ipsa loquitur lies on the employer in the absence of any evidence of eye witness to establish that presumption Specific Stand – Once taken before motor accident claim tribunal regarding innocence of a driver the employer is estopped from taking a contradictory stand to prove the negligence in another forum

¥4.340 The workman, a driver was dismissed following an accident caused by collision of the bus driven by

him with a car coming from the opposite side in which 3 people had died. In the enquiry the employer led no eye witness and the only evidence was the report of the Motor Vehicle Inspector along with sketch. The workman was not cross examined. On the other hand the workman had led evidence of an eye witness to the effect that the negligence was not on his part but on the driver of the car. The labour court however set aside the dismissal and held the enquiry was vitiated and the findings perverse. The employer challenging the same contested that the tribunal should have held that the principle of res ipsa loquitur applied to the case. Dismissing the plea the High Court held that the onus to apply that principle lies on the employer to establish the said presumption which was not done. Secondly the employer in the motor accident claim tribunal had taken a different stand that his bus driver was not negligent and he was now estopped to take a contradictory stand and hence the presumption under res ipsa loquitur is not applicable.

Management, Pallavan Transport Corp. Ltd. Chennai v. Moorthy & Anr., 2011 LIC 1675 (Mad.HC) WP 47086 of 2002 dt. 9-11-2010

“By applying the above……….illegal or impermissible.” (Page: 1682, Para: 18)

“Further, the Labour Court……….any objection at all.” (Page: 1682, Para: 19)

“In such view of the matter……….the order. No costs.” (Page: 1687, Para: 34)

Sec. 11A

151

Shockingly Disproportionate – Excludes – A punishment of stoppage of one increment with cumulative effect for the misconduct of insubordination Increment – Stoppage of one with cumulative effect for the misconduct of insubordination is not shockingly disproportionate Judicial Review – Is not called for in an administrative decision awarding punishment of stoppage of one increment with cumulative effect for the misconduct of insubordination Punishment – Stoppage of one increment with cumulative effect for the misconduct of insubordinate is not shockingly disproportionate to be interfered with in judicial review

¥4.341 The employer proceeded with the punishment of reduction of one increment with cumulative effect

for the misconduct of insubordination and leaving office before time without permission of the superiors of the workman. The labour court interfered with the quantum of punishment reducing it to loss of one increment without cumulative effect for a year for the reason that the misconduct was not proved beyond reasonable doubt and the entire case was in the realm of suspicion. The High Court set aside the award and restored the punishment holding that there is little justification in judicial review of a punishment of stoppage of one increment with cumulative effect inasmuch as the punishment was not grossly or shockingly disproportionate and hence it is the settled principle of law that the court will not apply the law of proportionality unless in exceptional cases. Besides in domestic enquiry the principle of preponderance of probability will prevail rather th an the one beyond reasonable doubt.

Life Insurance Corp. of India v. General Secretary & 1, 2011 LIC 2387 : 2012 II LLJ 317 : 2011 III CLR 271 (Guj.HC) SCA 16575 of 2010 dt. 21-3-2011

“The above noted……….of the case.” (Page: 2395, Para: 12)

“In this view of the……….of the case.” (Page: 2395, Para: 13)

Sec. 11A

Dismissal – In an ex parte enquiry despite several opportunities to participate cannot be set aside Ex Parte Order – Due to workman’s non participation in enquiry despite several opportunities leading to his dismissal cannot be set aside

¥4.342 Where both the Labour Court and Industrial Court held that even after giving several opportunities

to the petitioner workman to participate in the enquiry held against him for the alleged misconduct of threatening superiors and asking them to clean the premise with the broom, he did not avail the same, his non participation by allowing the enquiry to proceed ex parte required no interference under writ jurisdiction to set aside the punishment of dismissal.

Luthfuddin Tamizoddin Shaikh v. Asiatic Oxygen & Acetylene Co. Ltd., 2008 (5) BCR 134 (Bom.HC) WP 430 of 1996 dt. 13-6-2008

“So far as……….was enough evidence.” (Page: 138, Para: 17)

“In the circumstances……….the Courts below.” (Page: 138, Para: 18)

Sec. 11A

Shockingly Disproportionate – Excludes – Dismissal for a misconduct of threatening to beat the superiors etc. even in an ex parte enquiry Dismissal – For gross indiscipline is not shockingly disproportionate even in an ex parte enquiry

¥4.343 In case of gross indiscipline on the part of workman by threatening to beat the superiors and asking

them to clean the premises with the broom, the punishment of dismissal cannot be termed as shockingly disproportionate where both the Labour Court and Industrial Court had upheld the same. The High court had no reason to differ.

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Luthfuddin Tamizoddin Shaikh v. Asiatic Oxygen & Acetylene Co. Ltd., 2008 (5) BCR 134 (Bom.HC) WP 430 of 1996 dt. 13-6-2008

“In the present……….be shockingly disproportionate.” (Page: 138, Para: 15)

“In the result……….their own costs.” (Page: 138, Para: 19)

Sec.11A

Enquiry – Cannot deemed to have been vitiated merely on the ground that Order- 25(4) of the S.Os are not complied with if the representative was well versed in the English language English Language – If the representative of workman is well conversant enquiry on that ground cannot be held to have been vitiated Standing Order – 25(4) violation does not arise if the workman’s representative is well versed in English though enquiry proceedings are not conducted in Marathi Defence Objection – Regarding the proceedings in English in enquiry if not taken the enquiry cannot said to have been vitiated for violation of S.O

¥4.344 Where there is no material evidence on record to show that the investigating Officer had no

knowledge of Marathi language or knowledge to translate the proceedings in the language known to the workman and where the workman was represented by a representative well versed in English, in the absence of any objection taken by the defense side to the proceedings at enquiry, the same cannot be vitiated for the non compliance of Order- 25(4) of the Standing Orders.

Advani Oerlikon Ltd. v. Shashikant M. Sable & Anr., 2008 I CLR 383 : 2008 (1) BCR 546 (Bom.HC) CAJWP 972 of 1997 dt. 30-11-2007

“In my view……….at the enquiry.” (Page: 387, Para: 10)

Sec.11A

Dismissal – For misappropriation of ticket money by a conductor is justified Conductor – Dismissal for charges of misappropriation of ticket money is justified

¥4.345 Where it was proved from the evidence that the habitual dishonest conductor hurriedly issued 54

unpunched tickets after noticing the squad entering into the bus while there were only 50 passengers boarding at that time and he failed to prove that he could not punch the tickets properly due to rush, the award of Labour Court holding that the charges of misappropriation against him were not duly proved and his termination was illegal was not justified.

Maharashtra State Road Transport Corporation v. Vasant B. Araj, 2008 I CLR 936 (Bom.HC) CAJWP 8884 of 2007 dt. 11-3-2008

“The R & P……….a false plea.” (Page: 939, Para: 7)

“The Labour Court……….the Labour Court.” (Page: 939, Para: 8)

“There is no……….the petition succeeds.” (Page: 940, Para: 10)

Sec. 11A

Workman – Appointed from time to time – Working for almost 295 days – Is entitled to get 100% back wages Intermittent work – Though by break in service followed by completing 295 days of work termination becomes illegal without complying with Sec.25 F

153

Back wages – 100% payable to workman completing 295 days a work in a year though given break in service from time to time

¥4.346 Where in fact the workman has been appointed from time to time and has virtually worked for

almost about 295 days, the award of the Labour Court directing 100% back wages cannot be held unjustified.

Gujarat Pollution Control Board v. Jagadish Nathabhai Chavda, 2008 I LLJ 479 : 2008 (117) FLR 616 : 2008 I CLR 900 (Guj.HC) SCA 1349 of 1999 dt. 12-9-2007

“It was then……….12 calendar months.” (Page: 483, Para: 15)

Sec.11A

Discrimination – Between the similarly situated person in similar circumstances in respect of remaining absent cannot be sustained Misconduct – Of remaining absent for 11 months by one workman in comparison with the other who remained absent for 4 years without punishment should be leniently viewed Termination – Not justified for absence of 11 months when another workman remaining absent for 4 years was reinstated Absence from duty – For 11 months is not as serious as that of another workman remaining absent for 4 years for reinstatement without discrimination between them

¥4.347 When in a similar circumstances, a different treatment is given to a similarly situated person; such

differential treatment cannot be justified. Hence, where the other employee who remained absent for 4 years was retained in the service, the termination of the petitioner for the absence of 11 months cannot be justified but considering the gross misconduct of remaining absent for a long, matter is remitted back to the Labour Court for a lesser punishment u/s. 11A.

Ram Gulam v. Haryana Dairy Development Co-operative Federation Ltd. & Ors., 2008 I LLJ 647 : 2008 (116) FLR 294 : 2008 IV LLN 497 : 2007 LIC 3749 : 2008 I CLR 151 (P&H.HC) CWP 7980 of 1997 dt. 30-7-2007

“It is no……….reappraise the same.” (Page: 650, Para: 11)

“Nothing has been……….the benefit thereof.” (Page: 652, Para: 18)

“In view of……….retirement from service.” (Page: 652, Para: 20)

Sec.11 A

Termination – If held illegal by the Labour Court reinstatement must be ordered Reinstatement – Against illegal termination if not possible due to superannuation compensation should be adequate to ̀ 1,41,000 not ̀ 20,520 Compensation – In lieu of reinstatement in case of illegal termination must be adequate – ` 1,41,000 not ̀ 20,520

¥4.348 Once the Labour Court has arrived at the conclusion that the termination of the employee is illegal,

the reinstatement must be ordered and the ground that some other person is appointed to that place is not sustainable and hence, the compensation awarded instead of reinstatement is not proper but since the employee has already attained the age of superannuation, it is appropriate to enhance the compensation from ` 20,520 to ̀ 1,41,000.

Ms. Aparna Arvind Ambedkar v. Secretary, B.P.T Hammallage Co-operative Canteen Society Ltd. & Ors., 2008 I LLJ 743 : 2008 I CLR 8 : 2008 (1) AIR (Bom.HC) 37 (Bom.HC) CAJWP 1183 of 1997 dt. 26-9-2007

“Having considered the……….to the workman.” (Page: 745, Para: 8)

154

“It would be……….has awarded.” (Page: 745, Para: 8)

“In such circumstances……….toback wages.” (Page: 746, Para: 9)

Sec. 11A

Loss of confidence – As a reason for termination will not sustain unless the employer proves the misconduct giving cogent reasons for the satisfaction of the court Termination – For loss of confidence unsustainable unless supported with proof of misconduct with cogent reasons

¥4.349 Workman was terminated for the loss of confidence by the employer but the Labour Court held it

illegal. The writ petition there against was dismissed holding that mere allegation of loss of confidence in the employee is not sufficient and the employer has to prove the misconduct and give cogent reasons for the satisfaction of the Court.

Gandhi Labour Institute v. Vithalbhai Dayabhai Kataria, 2008 I LLJ 754 : 2008 I CLR 374 (Guj.HC) SCA 10305 of 2001 dt. 27-7-2007

“So far as……….upon or not.” (Page: 756, Para: 9)

“The manner in ……….the correct findings.” (Page: 756, Para: 10)

“So far as……….in the employee.” (Page: 756, Para: 11)

Sec. 11 A

Termination – If illegal – Charges having not proved reinstatement with back wages cannot be questioned Reinstatement – With back wages is justified if termination is illegal charges having not been proved

¥4.350 A workman succeeded before the Labour Court and obtained an award of reinstatement for his

illegal termination. Hence the present petition by the employer in which it was held that when the Labour Court had found that the termination of the workman was illegal and no charges against the workman were found to be true, the order of reinstatement with back wages and all the benefits caould not be said to be unjustified.

Zarin Nozer Desai v. M.S. Rawat & Anr., 2008 I LLJ 957 (Bom.HC) WP 6438 of 1998 dt. 28-8-2007

“The petitioner has……….resigned from duty.” (Page: 960, Para: 10)

“The Labour Court……….on his reinstatement.” (Page: 961, Para: 11)

Sec. 11A

Enquiry report – Non supply to the delinquent workman is not vitiated if the charges of theft, fruad, dishonesty are proved Charges – Of theft, fraud, dishonesty if proved against the workman the non supply of enquiry report is of no consequence

¥4.351 Where the charges of theft, fraud and dishonesty leveled against the workman stood proved, the

argument of the workman that the enquiry report was not supplied to him before inflicting the punishment of termination and Order No. 14(4)(c) of Model Standing was violated could not be sustained. Hence, the findings of the Labour Court could not be interfered by exercising of powers under Article- 226 of the Constitution of India.

Jaipal Singh v. Mohan Hotels (P) Ltd., 2008 I LLJ 964 : 2008 (116) FLR 1164 : 2008 LLR 132 (Del.HC) WP (C) 3993 of 1995 dt. 31-10-2007

155

“However after analyzing……….on this aspect.” (Page: 967, Para: 11)

“However in the……….findings were perverse.” (Page: 968, Para: 13)

Sec. 11A

Reference – Can be widened to include dismissal also though it was only for non employment if the employer takes no objection in his pleas Jurisdiction – The Tribunal has to adjudicate a cause for dismissal though reference was only for non employment if the employer raises no plea in his pleadings Tribunal – Has jurisdiction to adjudicate among others the dispute of dismissal though reference was only for denial of employment if employer does not object in his pleadings

¥4.352 Where no plea is made by the management that the dispute raised in the claim statement is not the

issue referred for adjudication, the Tribunal dealing with the admitted dispute is not without jurisdiction. Therefore though the issue referred to the Tribunal for adjudication is about the denial of employment, it would include the dismissal of the workman as well, as the Sec. 11A of the I. D. Act endows such powers to interpret the provisions of the Act liberally in favour of the workmen as the same is passed as welfare legislation.

M/s. Hindustan Foundry Products, Engineering & Founders, Poothol, Trichur v. General Secretary, Trichur Engineering Workers Union & Anr., 2008 I LLN 634 : 2007 LIC 2276 (Ker.HC) OP 38385 of 2002 dt. 30-3-2007

“The dispute referred……….the Labour Court.” (Page: 640, Para: 12)

“Since Industrial Disputes……….the conciliation officer.” (Page: 643, Para: 17)

Sec. 11A

Collective bargaining – Includes – Confining managing partner to compel him to mark attendance without there being any threat force or harsh language Dismissal – For confining managing partner to mark attendance can be one of the methods of collective bargaining Proportionality – Excludes – Dismissal for confining managing partner for compelling him to mark attendance without accompanied with any threat or harsh language

¥4.353 Where no threat, force or harsh language was used by the workmen who had confined the managing

partner of the establishment to get the attendance marked since they had absented only to attend the funeral of the father of one of the co-workers and that could be regarded only as an mitigating factor including the action nothing but a collective bargaining and cannot be considered as a grave misconduct attracting the penalty of dismissal from the services. Hence the punishment of dismissal was held disproportionate and Industrial Tribunal was justif ied by invoking Sec. 11A of the Industrial Disputes Act.

M/s. Hindustan Foundry Products, Engineering & Founders, Poothol, Trichur v. General Secretary, Trichur Engineering Workers Union & Anr., 2008 I LLN 634 : 2007 LIC 2276 (Ker.HC) OP 38385 of 2002 dt. 30-3-2007

“The whole incident……….of the Act.” (Page: 646, Para: 21)

Sec. 11 A

Back Wages – The workman is disentitled if he fails to report for his duties despite several letters from his employer Reinstatement – Calls for no back wages if a workman fails to respond to letters inviting him to join duties Letters from employer – Calling the workman to join duties if remained unresponded the workman will lose his back wages upon reinstatement

156

¥4.354 In a case of reinstatement, in spite of several letters sent by the management to workman to join the duties, the respondent failed to resume. Hence considering the material on the record, it was held that it was not a fit case to grant back wages where the workman was probably well placed monetarily; otherwise naturally he would have responded to the request of the management to resume his duties. Therefore the reinstatement was confirmed but the order for back wages was set aside.

P.B. Phadke, Proprietor of T. Vikram Electricals, Pune v. Dnyaneshwar Pilaji Erankar, 2008 II CLR 1054 (Bom.HC) CAJWP 2085 of 1997 dt. 14-7-2008

“Considering the aforesaid……….is set aside.” (Page: 1057, Para: 8)

Sec. 11A

Misappropriation – Of ticket money by the conductor being serious misconduct dismissal proper Conductor – Misappropriating ticket money deserves dismissal Harsh and shockingly disproportionate – Excludes – Dismissal of conductor for misappropriation of ticket money Dismissal – Of a conductor proper for misappropriation of ticket money

¥4.355 A conductor was dismissed from the service for the misconduct of collecting fare from the passengers

without issuing tickets. The reference there against was rejected by the Labour Court so the present petition in which it was held that the contention of the workman that the statements of the passengers were not recorded in the departmental enquiry was an afterthought because the statements of passengers as recorded by the checking staff was corroborated by the checking staff but was not subjected to cross examination despite opportunity to do so. Further where there was no finding recorded by the Labour Court that the punishment of dismissal for misappropriation was harsh and shockingly disproportionate, Labour Court was justified in not exercising its discretionary power u/s. 11A of the Act.

Chauhan Jagatsinh Vajesinh v. Gujarat State Road Transport Corporation, 2008 II CLR 156 : 2008 LLR 723 (Guj.HC) SCA 22946 of 2007 dt. 8-2-2008

“As regards the……….constitution of India.” (Page: 159, Para: 6)

“Next contention raised……….on the workman.” (Page: 159, Para: 7)

“In view of……….petition is dismissed.” (Page: 161, Para: 10)

Sec.11A

Procedure in enquiry – Irrespective of any set procedure so long as it does not prejudice the workman it is good Principles of natural justice – Procedure in enquiry being not statutory in nature strict rules are inapplicable so long as no prejudice is caused to the workman

¥4.356 Any procedure which does not prejudice the right of the workman to defend him in the enquiry

would be the valid procedure and mere violation of such procedure does not amount to the violation of the principles of natural justice as the same is not statutory in nature.

High Range Estate Employees' Asociation (CITU) & Anr. v. Industrial Tribunal & Anr., 2008 II CLR 366 (Ker.HC) WP (C) 409 of 2008 dt. 4-1-2008

“The procedure to……….in the enquiry.” (Page: 368, Para: 6)

“In this case……….in their defense.” (Page: 369, Para: 7)

Sec. 11A

Presenting officer – Non appointment will not vitiate the enquiry

157

Enquiry – Not vitiated or non appointment of presenting office

¥4.357 There is no law that in every domestic enquiry, the management has to appoint a presenting officer; therefore non appointment of the presenting officer does not vitiate the enquiry in any manner. Hence the non marking of the charge sheets by the presenting officer or it does not find any place in the enquiry proceedings do not vitiate the enquiry so far as the workmen have not been able to show any prejudice caused to them in that regard, inasmuch as the enquiry procedure is not statutory in nature.

High Range Estate Employees' Asociation (CITU) & Anr. v. Industrial Tribunal & Anr., 2008 II CLR 366 (Ker.HC) WP (C) 409 of 2008 dt. 4-1-2008

“In any event……….is perfectly valid.” (Page: 370, Para: 8)

“That being so……….this contention also.” (Page: 370, Para: 9)

Sec.11A

Admission of guilt – Excludes – Interference in the punishment by the Industrial Court u/s.11A Punishment – Cannot be interfered with u/s.11 A once the delinquent admits his guilt Doctrine of proportionality – Is inapplicable to cases were the delinquent admits his guilt

¥4.358 Interference with the punishment by Industrial Court u/s. 11A of the Act, has to be for a sound

reason and based on legal foundation and relevant material but where in a case where the delinquent himself has pleaded guilty and has prayed for the mercy, in view of charges of misconduct and admission of guilt thereof, he is not entitled for leniency.

State Bank of India & Anr. v. T.M. Solanki, 2008 II LLJ 274 : 2008 (116) FLR 579 : 2008 I CLR 895 (Guj.HC) SA 8493 of 2000 dt. 25-7-2007

“One cannot……….the appellate forum.” (Page: 278, Para: 12)

Sec. 11 A

Double jeopardy – A plea is not available to the workman where the issue was not contested in appropriate forum on passing orders of removal by the appellate authority instead of disciplinary Appropriate forum – The workman should seek if he lies to contest the authority of appellate authority to remove him instead of disciplinary authority on the ground of double jeopardy Appellate authority – If exercises the authority vested with disciplinary authority erroneously thereby later remits to disciplinary authority – The illegality requires to be taken to the appropriate forum

¥4.359 Where the delinquent workman has not challenged the order of dismissal passed by the Appellate

Authority before the appropriate forum or Court, he cannot be allowed to make a plea that the order of the Appellate Authority on the first occasion awarding punishment of removal is without authority and the Disciplinary Authority cannot take up the matter afresh as the Appellate Authority has no power as per Shastri Award to remand the matter exposing him to a double jeopardy.

State Bank of India & Anr. v. T.M. Solanki, 2008 II LLJ 274 : 2008 (116) FLR 579 : 2008 I CLR 895 (Guj.HC) SA 8493 of 2000 dt. 25-7-2007

“So far as ……….leave the sour.” (Page: 277, Para: 9)

Sec. 11A

Doctrine of Proportionality – Is inapplicable to a case where a workman instigates and forces others to go on strike Labour Court – Cannot exercise power to reinstate with back wages the dismissed workman u/s. 11A if the misconduct is one of instigation and forcing others to go on strike

158

Instigation and force – To go on strike do not call for interference u/s.11A Misconduct – Of instigating and forcing others to go on strike does not deserve to be taken leniently in exercise of power u/s.11A

¥4.360 It is necessary for the adjudicator to set out the reasons before interfering with the quantum of

punishment u/s. 11A, but where the misconduct of the workman is nothing short of instigating and forcing other workmen on duty to go on illegal strike, the Labour Court proceeded with the misplaced sympathy for the workman by directing his reinstatement with 50% back wages.

Force Motors Ltd. v. Shrikrishna Shivram Tungar & Anr., 2008 II LLJ 771 : 2008 I CLR 940 : 2008 LLR 528 : 2008 (4) AIR (Bom.HC) 406 : 2008 (3) BCR 53 (Bom.HC) WP 1526 of 1997 dt. 11-3-2008

“It is well ……….from the following.” (Page: 772, Para: 7)

“It is obvious ……….act of misconduct.” (Page: 773, Para: 8)

“I am therefore ……….record of service.” (Page: 773, Para: 9)

Sec. 11 A

Labour Court – Has no authority to exceed its jurisdiction in finding fault with the enquiry report on the plea that subsistence allowance was not paid Subsistence allowance – Is not a ground to grant reinstatement by the Labour Court

¥4.361 Where the report of the enquiry officer is taken note of and permission is accorded to proceed to pass

final orders, it is totally impermissible for the Labour Court to exceed its jurisdiction in granting reinstatement with full back wages by finding fault with such report only on the ground that the subsistence allowance is not paid to the workman. As the said issue is already dealt with in earlier petition, the same is not to be taken into account by the Labour Court. Hence the award is set aside and matter is remanded back to the Labour Court for the fresh disposal.

APSRTC, Rep. by its Divisional Manager & Anr. v. Presiding Officer, Labour Court-III, Hyderabad & Anr., 2008 III CLR 203 (AP.HC) WP 2985 of 2006 dt. 24-7-2008

“It is no ……….was not paid.” (Page: 204, Para: 6)

“Therefore the writ ……….as to costs.” (Page: 204, Para: 7)

Sec. 11 A

IAAI Regulations 1980 – Unless approved by the Central Government any action of termination made there under is non est Award – Upholding termination in terms of regulations of the IAAI is liable to be set aside since no approval of central government ratifying the same was obtained Approval – Of Central Government of the Regulation of IAAI is necessary to make the same valid for terminating a workman Abandonment of the service – In the absence of enquiry held by the management cannot be held proper

¥4.362 A petition is filed by the workman against the award of the tribunal upholding his termination as per

Regulation 31(2) (vi) of the IAAI Regulations, 1980 for the unauthorized absence of 4 months. It is held that since the regulations are not approved by the Central Government, action taken under regulation 31(2) (vi) is illegal and unjustified. Also it cannot be said that there is abandonment of the service in the absence of enquiry held by the management. Hence the said award being unsustainable, reinstatement is granted and matter was remanded back to the tribunal to decide back wages and consequential reliefs.

159

G.K. Pande v. International Airport Authority of India & Anr., 2008 III CLR 557 (Bom.HC) CAJWP 3513 of 1997 dt. 24-9-2008

“Thus in my ……….has been upheld.” (Page: 561, Para: 7)

“However in award ……….cannot co-exists.” (Page: 562, Para: 9)

“It is not ……….be set aside.” (Page: 562, Para: 10)

“In my opinion ……….reinstatement in service.” (Page: 563, Para: 15)

Sec. 11A

Workman – Entitled to all those benefits given to similarly situated persons on the ground of parity Grounds of parity – Workman entitled to all the benefits as given to similarly situated person

¥4.363 A petition was filed by a workman in whose favour the award of reinstatement with 50% back wages

and consequential benefits was passed and confirmed upto the Supreme Court but was not given the benefit of regular pay and regularization on par with his other co -workers. It was held that on examining the law settled on this point, where all those who were appointed along with the workman by the same order in the same manner were granted regular scale of pay as also the regular status, the petitioner workman was also entitled to all those benefits given to similarly situated persons on the ground of parity.

Bhagwan Sahai v. Udyog Bhawan Common Facility Jaipur & Anr., 2008 III CLR 641 (Raj.HC) SBCWP 7257 of 2006 dt. 16-9-2008

“Labour Court in ……….ground of parity.” (Page: 647, Para: 13)

Sec. 11 A

Admission – Before the Investigating Officer cannot be held admissible under Evidence Act – Dismissal illegal Dismissal – On the basis of admission before the Investigating Officer is hit by Sec. 27 of evidence Act Evidence Act – Sec. 27 if attracted for admissions made before investigating officer dismissal made on that basis is non est in the absence of other evidence

¥4.364 Admission before the Investigating Officer not being admissible u/s. 27 of the Evidence Act, the

workman who was dismissed without holding enquiry for alleged theft in view of his admission before him was to be acquitted and since in the absence of other evidence led before the Labour Court, order of dismissal was unwarranted and therefore the award was not sustainable.

K. Shashidhar v. Managing Director Bangalore Electricity Supply Co. Bangalore, 2008 III CLR 702 (Karn.HC) WP 12031 of 2006 dt. 6-3-2008

“If the Criminal ……….passed the award.” (Page: 705, Para: 9)

“This observation clearly ……….is not sustainable.” (Page: 706, Para: 10)

Sec. 11-A

Disciplinary Authority – Has got the discretionary power to impose punishment for the misconduct of starting a bus without issuing tickets to all passengers but only by applying mind Misconduct – Of starting a bus without issuing tickets to all passengers can invite punishment within the discretion of disciplinary authority but only by applying mind Application of mind – Must to impose punishment by the disciplinary authority for the misconduct of atarting a bus without issuing tickets to all passengers

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¥4.365 To start a bus without issuing tickets to all passengers being a technical violation, the Disciplinary Authority has discretion to award the punishment in the background in which the said misconduct is committed. Where the Disciplinary Authority failed to perform its function by applying its mind, no interference can be made in the award of the Labour Court granting reinstatement without back wages.

Depot Manager, APSRTC., Medak Depot, Medak District v. D. Narayana & Anr., 2008 III CLR 753 (AP.HC) WP 34413 of 1998 dt. 29-2-2008

“It is a……….the Labour Court.” (Page: 756, Para: 9)

Sec.11A

Preliminary issue – The validity of enquiry is to be taken up by the Labour Court if challenged Validity of enquiry – If challenged the Labour Court has to consider the same as a preliminary issue for decision Labour Court – Has to frame the preliminary issues regarding the validity of the enquiry if the same is challenged Enquiry – If Unfair and improper opportunity to be given to the employer to lead the evidence before entering into the merit Res judicata – Excludes – Question of jurisdiction that being a pure question of law

¥4.366 When the validity of the enquiry was challenged, the Labour Court has to frame the preliminary

issues in respect of the same and if enquiry held was not fair and proper, opportunity is to be given to the employer to lead the evidence. Hence the Labour Court cannot go into the merits of the case till the aforesaid aspects are decided. Also when the question of jurisdiction is involved and raised in the subsequent proceedings, it being pure question of law cannot be opposed on the grounds of res judicata.

Management of Catter Pillar India Pvt. Ltd., Thiruvallur & Anr. v. Presiding Officer, Principal Labour Court, Chennai & Ors., 2008 III CLR 941 (Mad.HC) WP 18786, 19213 & 19214 of 2007 & MP 1 of 2007 & 1 of 2008 dt. 2-7-2008

“From the law ……….of the charges.” (Page: 946, Para: 19)

“M/s. Hindustan Motors ……….be set aside.” (Page: 946, Para: 21)

“At the same ……….same is perverse.” (Page: 946, Para: 22)

“Relying on the ……….petitioners are maintainable.” (Page: 948, Para: 26)

Sec. 11A

Labour Court – Cannot transgress its own jurisdiction u/s.11A of the Act to grant compensation once the misconduct is held to be serious enough to impose the punishment of dismissal Misconduct – Once proved and held serious by the labour court warranting dismissal it has no jurisdiction to grant compensation

¥4.367 In a reference, the Labour Court held the misconduct on the part of workmen serious and the

punishment of dismissal was proper and yet in exercise of power u/s. 11A of the Act awarded compensation to the workmen which was challenged by the employer in the present petition. High Court held that once the charge of misconduct was held to be serious enough to impose the punishment of dismissal it is not open for the Labour Court to transgress its jurisdiction u/s. 11A of the Act. Hence the award was set aside.

Infomedia India Ltd. v. Tata Press Employees' Union & Ors., 2008 III LLJ 226 : 2008 (117) FLR 984 : 2008 IV LLN 770 : 2008 LLR 704 : 2008 (4) AIR (Bom.HC) 386 (Bom.HC) WP 2599 of 2007 dt. 28-2-2008

“This Court expressly……….with the Court.” (Page: 229, Para: 7)

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Sec. 11A

Defalcation – Committed in banking transaction calls for no leniency to be condoned by modifying the dismissal into reduction of 4increments Misconduct – Of tampering with the fixed deposit records by altering figures is severe enough for a deterrent punishment of discharge Banking sector – Having fiduciary relationship with customers misconduct will invite with deterrent punishment of discharge Discharge – Is proper punishment for tampering with the fixed deposit records in the banking transaction

¥4.368 In case of banking sector, the gravity of the misconduct of the workman tampering with the records

of fixed deposit by altering figures is severe enough for a deterrent punishment; as such misconduct would certainly affect the very performance of the Bank. Hence, the interference with the punishment of dismissal u/s. 11A by ordering reinstatement without back wages but punishing with reduction of 4 increments, being purely a misplaced sympathy. The High Court modified the award of reinstatement into one of discharge considering his imminent nearing age of superannuation.

Perur Service Sahakarana Bank Ltd. v. Industrial Tribunal, Palakkad & Anr., 2008 III LLJ 39 : 2008 (117) FLR 55 : 2008 LLR 1180 (Ker.HC) OP 29953 of 2001 & WP 20922 of 2003 dt. 11-1-2008

“In this case ……….ends of justice.” (Page: 42, Para: 5)

Sec. 11 A

Writ Petition – Not maintainable where there is no jurisdictional error, perversity and illegality in the award passed by the Labour Court High Court – Cannot function as an appellate court in a writ petition to quash an award without any jurisdictional error, perversity and illegality

¥4.369 When there is no jurisdictional error, perversity and illegality in the award passed by the Labour

Court and when there is no error on the face of the record, the award of the Labour Court is not to be interfered with by the High court exercising jurisdiction under Art. 226 of the Constitution as the same can not constitute itself into an appellate Court over the tribunals and its power of quashing an award of the Labour court is very limited.

Amar Chand v. Judge, Labour Court & Anr., 2008 III LLJ 413 : 2008 (117) FLR 959 : 2008 LLR 1238 (Raj.HC) SBCWP 36 of 1999 dt. 19-2-2008

“I have heard ……….the inferior tribunal.” (Page: 416; Para: 11)

“In the present ……….as to costs.” (Page: 416; Para: 12)

Sec. 11A

Delay – In raising dispute disentitles for back wages Back wages – Not payable if workman raises dispute belatedly Gainful employment – If the workman fails to prove he was not in by presumption back wages could be denied Reference – If suffers from delay and latches back wages not payable

¥4.370 Claim for the back wages has to be sufficiently pleaded and proved and the same cannot be regarded

as a matter of right with the order of reinstatement. Therefore where the workman who approached the tribunal long after 10 years seeking the grant of back wages, consequential benefits and reinstatement cannot justifiably claim back wages unless he produces some material on record to prove that he was not in any gainful employment during the period of his absence from work for the last 10 years. The High

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Court agreed with tribunal he is entitled for reinstatement and pensionery and other terminal benefits on notional basis but without back wages.

Devendra Sahu v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Visakhapatnam & Anr., 2008 III LLJ 466 : 2008 LIC 1970 : 2008 III CLR 69 : 2008 LLR 1219 (AP.HC) WP 5095 of 1998 dt. 28-2-2008

“In the instant ……….a substantial relief.” (Page: 469, Para: 11)

“In the absence ……….the interregnum period.” (Page: 470, Para: 12)

Sec. 11A

Loss of confidence – Prevents to exercise power u/s. 11A by the Labour Court in cases of theft Theft – Gives no scope to the Labour Court to exercise power u/s.11A due to loss of confidence Sec.11A – Exercise of power by the Labour Court cannot be for loss of confidence in cases of theft

¥4.371 When the charge of the theft of company’s property though only of worth of Rs. 400 being proved

against the workman conclusively who has been found guilty of the same offence in the past as well, the punishment of dismissal imposed on him by the management after considering the materials on record cannot be termed as disproportionate rather it was commensurate with the gravity of the charge. Hence when the management lost its confidence on the workman, exercise of the power u/s. 11A cannot be proper. The High Court upheld the decision of Labour Court holding the dismissal proper.

Niranjan Singh v. State of Jharkhand & Anr., 2008 III LLJ 68 : 2008 (117) FLR 783 : 2008 LLR 741 (Jhar.HC) WP (L) 6384 of 2007 dt. 1-4-2008

“On going through……….reinstatement is improper.” (Page: 69, Para: 4)

“Taking into consideration……….of the charge.” (Page: 69, Para: 5)

Sec. 11-A

Termination – For illegal gratification proved in fair and proper enquiry cannot be interfered with by the Labour Court u/s.11A sitting as an Appellate Court Sec.11A – Does not confer power on the Labour Court to interfere with the finding of fair and proper enquiry as an Appellate Court Jurisdiction – The Labour Court has none to interfere with a fair and proper enquiry u/s. 11A

¥4.372 The matter pertains to the misconduct of illegal gratification. The same was found proved both in the

enquiry held by the employer and the Labour Court. The workman did not rebut any of the contentions proved by the employer before the Labour Court. In view of this where the enquiry was fair and proper and findings were based on materials and the evidence on record and there was no infirmity or perversity in the procedure there is no scope for interference u/s. 11 A of the Act. The High Court upheld the termination as affirmed by the Labour Court.

Dudhnath Ram v. Management of Tata Iron & Steel Co. Ltd., 2008 III LLJ 772 (Jhar.HC) WP (S) 5477 of 2004 dt. 21-4-2008

“It appears from ……….by the petitioner.” (Page: 774, Para: 7)

“With regard to ……….to suggest victimization.” (Page: 774, Para: 8)

Sec. 11 A

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Certificate of satisfactory service – By the employer is reliable if not falsified by other evidence such as attendance register Attendance Register – Can be submitted by the employer to falsify the certificate of satisfactory service submitted by the workman in the absence of appointment letter

¥4.373 The question referred before the tribunal was regarding employer not allowing the workman in the

employment. The tribunal gave a finding against the management directing him to reinstate without back wages. The plea of employer that the award suffers from estoppel and resjudicata was rejected because though an issue other than that referred to tribunal was disposed of by the High Court that matter related to dispensing with his services without assigning any reason, which was dismissed in the absence of any appointment letter. The High Court upheld the order of tribunal reinstating the workman without back wages. The High Court put emphasis on the point that the workman was granted a certificate of satisfactory service by one Mr. R.K.Saha Assistant Engineer whom the management failed to examine. The employer also failed to produce any attendance register to contest the claim of the workman that he was not employed.

Management, Department of Telecommunication, Post and Telegraph, Ranchi v. Satish Deo Ram, 2008 III LLJ 832 (Jhar.HC) WP (L) 922 of 2007 dt. 25-1-2008

“On perusal of ……….by the management.” (Page: 833, Para: 2)

“It has been ……….of res judicata.” (Page: 833, Para: 4)

“It has been ……….petition is dismissed.” (Page: 834, Para: 5)

Sec. 11 A

Fraud – If practiced to obtain employment the delay in conducting enquiry cannot rescue him Misconduct – Of obtaining employment by practicing fraud if proved the gravity cannot be reduced from the ground of delay in conducting enquiry by the employer False Certificate – For getting employment once proved the workman cannot escape from dismissal merely on the ground that the employer delayed in conducting an enquiry

¥4.374 A charge against a driver of producing false certificate and getting employment was proved. He was

dismissed after an enquiry. The Labour Court found the charges are proved but interfered with the punishment on the ground that there was inordinate delay in conducting enquiry. He was reinstated without back wages. Employer challenged the same in writ petition. The High Court held that a person, who practices fraud for achieving his object, cannot perpetuate much less on the ground of delay. Moreover the delay has not caused any prejudice to the workman. The award of Labour Court was set aside and the punishment of dismissal restored.

Bangalore Metropolitan Transport Corporation v. K.V.S. Ram, 2008 III LLJ 834 : 2008 (117) FLR 1135 : 2008 IV LLN 434 : 2008 II CLR 951 : 2008 LLR 871 (Karn.HC) WP 14340 of 2007 dt. 31-1-2008

“The charge of ……….be set aside.” (Page: 836, Para: 5)

Sec.11 A

Drivers – If both are equally at default dismissal of one to the exclusion of the other is discriminatory Discrimination – On the face of the record if one of the drivers is proceeded with to the exclusion of the other when both of them are equally at fault Reinstatement – With back wages proper if employer discriminates between the two drivers in the imposition of penalty

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¥4.375 A bus driver was dismissed by the employer after enquiry for colliding with another bus. Report of the foremen indicated that both the bus drivers were equally at fault but no action was taken against the other diver. Upon challenge the Labour Court ordered for his reinstatement with full back wages as the employer failed to produce any witness to substantiate their case. In writ petition, High Court upheld the award of Labour Court noting that to penalize the one driver alone to the exclusion of the other would be discriminatory and unfair when the fault lay with both the drivers.

Uttar Pradesh State road Transport Corporation v. Vidya Sagar Dubey & Ors., 2008 IV LLN 164 : 2009 LLR 44 (All.HC) CMWP 41038 of 1997 dt. 10-7-2008

“As regard the ……….establish their case.” (Page: 166, Para: 13)

“In so far ……….full back wages.” (Page: 166, Para: 14)

Sec. 11 A

Back Wages – Upon reinstatement is not automatic Reinstatement – Back wages not automatic

¥4.376 Benefit of the back wages in favour of workman cannot be granted mechanically or automatically as

a sequel to the benefit of the reinstatement as there has to take into consideration various other relevant aspects while granting the same. Therefore in the present case Labour Court has not committed any error of law or jurisdiction by awarding only 50% b ack wages after taking into account relevant aspects in coming to its conclusion. Hence, workman cannot seek direction for payment of balance wages of 50%.

Harivadan @ Haribhai Nandubhaipatel v. Manan Roadways, 2008 IV LLN 365 : 2008 III CLR 436 (Guj.HC) SCA 9351 of 2008 dt. 17-7-2008

“The factors which……….benefit of reinstatement.” (Page: 367, Para: 13)

“In the present……….same is rejected.” (Page: 368, Para: 14)

Sec. 11 A

Misconduct – Though not defined in the Act or Standing Orders deliberately going slow refusal to give agreed output are Standing Order – The misconduct enumerated therein are not exhaustive may include refusal to give agreed output Inefficiency – Excludes – Giving reduced production goes slow etc though not enumerated as misconduct in the SO

¥4.377 Although misconduct is not defined in the Act or in Standing Orders, the reduced production, refusal

to give agreed output, deliberately go slow tactics and not completing job in proper time in terms of a binding settlement are not the cases of “inefficiency” but is breach of duty and amounts to “grave misconduct” even though not enumerated in the Standing Orders.

Management of L&T. Komatsu, Ltd. v. Larsen & Toubro Employees' Association, 2008 IV LLN 391 (Karn.HC) WP 38974 of 1999 & 29500 of 2000 dt. 29-10-2007

“The expression misconduct……….workman.” (Page: 400, Para: 20)

“Therefore reduced production……….cessation of work.” (Page: 401, Para: 23)

“Therefore workman not……….the standing Orders.” (Page: 402, Para: 24)

Sec. 11A

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Tribunal – Is vested with the power to interfere with the quantum of punishment on the basis of proportionality even if misconduct is proved Sec. 11A – Is not confined to the misconducts enumerated in the standing Orders or any of the Regulations framed by the employer Misconduct – Even if proved the tribunal still can reduce the rigour of the punishment if disproportionate

¥4.378 Even if the misconduct of giving less production deliberately than specified in the settlement is

proved, the Tribunal is vested with the power to interfere with the quantum of punishment and impose a lesser punishment than one imposed by the management if the punishment is disproportionate and such a lesser punishment contemplated u/s. 11A is not confined to the Standing Orders or any of the Regulations by the employer but it takes in its sweep all punishments. In this case the High Court upheld the decision of the tribunal to award lesser punishment. At the same time such discretionary powers of the Labour Court or tribunal are amenable to judicial review.

Management of L&T. Komatsu, Ltd. v. Larsen & Toubro Employees' Association, 2008 IV LLN 391 (Karn.HC) WP 38974 of 1999 & 29500 of 2000 dt. 29-10-2007

“This argument ignores……….without any substance.” (Page: 412, Para: 61)

“The power under……….discharge or dismissal.” (Page: 414, Para: 72)

“The discretionary power……….illegal and void.” (Page: 415, Para: 73)

Sec. 11A

Enquiry Report – If not supplied to the delinquent the order of punishment imposed by the disciplinary authority becomes non est Disciplinary authority – Has to supply a copy of enquiry report to enable the delinquent to reply before imposing punishment Delinquent official – If not supplied with a copy of enquiry report the punishment imposed becomes illegal

¥4.379 Where the copy of the enquiry report is not provided to the workman, his right to make

representation against the findings of the Enquiry Officer is infringed. Hence the second show cause notice issued by the Disciplinary Authority after the receipt of Enquiry Officer’s report holding the workman guilty was set aside and direction was given to the Authority to supply copy of the enquiry report and give him opportunity of making representation before initiating proceedings against him.

Probal Gupta v. Burdwan Central Co-operative Bank Ltd. & Ors., 2008 LIC 1078 (Cal.HC) WP 23418 of 2006 with 1835 of 2007 dt. 9-1-2008

“For the reasons……….order for costs.” (Page: 1078, Para: 5)

Sec. 11A

Charge sheet – Not to be read as statutory provisions intention behind it has to be understood Misconduct – If could be understood from the charge sheet it is a sufficient compliance – Charge sheet being not to be rent as a statutory provision Statutory provision – Excludes – Charges contained in a charge sheet

¥4.380 A charge sheet is not to be read as the statutory provisions but the intention behind it has to be

understood in the context of the alleged misconduct of the delinquent employee. Hence the finding that the charge sheet does not refer to the absence of 178 days without permission and therefore the Tribunal has no jurisdiction to go into that question is not tenable. The order of the tribunal was set aside and the parties were directed to appear before the tribunal for fresh orders.

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Delhi Transport Corporation v. Presiding Officer & Anr., 2008 LIC 1090 : 2007 III CLR 884 (Del.HC) WP (C) 5655 of 2001 & 5638 of 2002 dt. 4-10-2007

“Further the conclusion……….the entire procedure.” (Page: 1093, Para: 13)

Sec.11 A

Criminal charges – Being based on different standard of proof acquittal therein cannot save him in departmental enquiry based on preponderant of probability Acquittal – In criminal proceedings based on different standard of proof cannot save him in departmental enquiry based on preponderant of probability Driver – Of a bus causing accident acquitted of criminal charges based on different standard of proof cannot expect relief in departmental enquiry on that basis

¥4.381 A driver of a bus had caused serious accidents in which one person died and several others injured.

He was acquitted on criminal charges. However he was dismissed from service after a departmental enquiry. He raised a dispute u/s. 2A(2). The Labour Court reinstated him with all benefits of continuity of service but without any back wages on the ground of his acquittal. The High Court, where the employer challenged the award, set aside the same and held that if the misconduct is grave and the punishment awarded is proportionate to such misconduct, the fact that the employee was acquitted in the criminal case on similar charges on application of a different standard of proof would not be the guiding factor in deciding the proportionality of punishment. Hence the punishment of removal from the services is proper even if he is acquitted in criminal case.

Regional Manager, APSRTC, Hyderabad & Ors. v. Mohd. Tajuddin & Anr., 2008 LIC 140 : 2008 LLR 295 (AP.HC) WP 24638 of 1998 dt. 29-8-2007

“It is also……….irrational or disproportionate.” (Page: 142, Para: 8)

“It is alternately……….principles of law.” (Page: 144, Para: 14)

“As analyzed supra……….the disciplinary authority.” (Page: 146, Para: 19)

Sec.11A

Circular – If mandate setting aside the order of dismissal upon acquittal in appeal/ revision it follows regularization of service for the period workman remained out of service due to conviction Regularization – Of the convicted workman upon acquittal in revision/appeal to be made in terms of government circular Acquittal – Makes the employer liable not only to reinstate but to regularize the period of absence due to conviction in terms of circular in force

¥4.382 A workman was terminated from the service on the ground of his conviction on criminal charge. In

view of para (iii) of the circular dated 3.9.1975, if an appeal/revision against the conviction was succeeded and the employee was acquitted then the order of dismissal, removal or compulsory retirement based on the conviction was to be set aside. In the present case, the employee was acquitted in appeal/revision. Hence, the termination order remained no longer in existence and the non regularization of intervening period during which the delinquent remained out of service was held improper.

Nathu Ram v. Jaipur Vidyut Vitran Nigam Ltd. & Ors., 2008 LIC 2228 (Raj.HC) CWP 6440 of 2003 dt. 6-7-2007

“On consideration of……….be set aside.” (Page: 2232, Para: 11)

“As regards regularization……….the intervening period.” (Page: 2232, Para: 12)

Sec. 11A

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Departmental enquiry – Can go hand in hand with criminal proceedings should the charges are grave Criminal proceedings – Can go hand in hand with departmental enquiry should the charges are grave Illegal gratification – Is a serious charge allowing departmental enquiry and criminal proceedings to commence simultaneously

¥4.383 The workman is involved in a case of illegal gratification. A criminal case led to his conviction

against which he made an appeal. The employer instituted a departmental enquiry. The workman requested to defer the same until his appeal against conviction was heard and decided. As his request was rejected he filed a writ petition to defer the enquiry. The Court held that there is no bar in conducting departmental proceeding and criminal case simultaneously. Question for deferring with the enquiry arises only when charges are identical and not grave. In this case there were serious charges of acceptance of illegal gratification. The employer therefore is not expected to allow the delinquent to continue in service. Accordingly permitting the departmental enquiry the writ petition there against was dismissed with a rider that should the workman succeeds in his appeal he reserves his right for representation before the concerned authorities.

Pradip Kumar Singh Etc. v. Bharat Coking Coal Ltd. & Ors. Etc., 2008 LIC 2656 (Jhar.HC) WP(S) 5705, 5712, 5720 of 2007 dt. 29-2-2008

“From the decision……….and criminal proceeding.” (Page: 2662, Para: 18)

“In the light……….pending against them.” (Page: 2663, Para: 19)

“For the reasons……….accordance with law.” (Page: 2663, Para: 20)

Sec. 11 A

Appointing authority – Not necessarily need to initiate disciplinary proceedings Subordinate authority – To appointing authority can initiate disciplinary proceedings Disciplinary proceedings – Can validly be initiated by an authority subordinate to appointing authority Dismissal – Cannot be made by an authority subordinate to appointing authority

¥4.384 The question is whether a charge sheet can be issued by an authority below the rank of appointing

authority. It is now well settled initiation of disciplinary enquiry can be made by an officer subordinate to the appointing authority. Only the dismissal or removal shall not be by an authority subordinate to the appointing authority (Transport Commissioner Madras 5- v- A. Radha Krishna Moorthy (1995 LIC 1749 SC).

Smt. Archana Agrawal v. Chairman-cum-Managing Director, National Mineral Development Corporation Ltd., 2008 LIC 3073 (Chhat.HC) WP 2444 of 2000 dt. 7-4-2008

“Having held that……….the appellate authority.” (Page: 3077, Para: 14)

“It is well……….sustainable in law.” (Page: 3077, Para: 15)

Sec.11A

Proportionality of punishment – The tribunal can reduce the punishment of stoppage of increment for 3 years with cumulative effect to stoppage for 6 months without cumulative effect Increment – Stoppage of – With cumulative effect for 3 years can be reduced to 6months without cumulative effect by tribunal on the basis of proportionality

¥4.385 For the alleged misconduct of a conductor for collecting fare from a passenger but not issuing him

the ticket though due to the fault of passenger, the punishment of stoppage of annual increment for a period of 3 years with cumulative effect was imposed by the employer. Tribunal taking note of such

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punishment resulting in denial of fairly good amount of wages to the workman for the rest of his career, reduced the punishment to stoppage of increment for 6 months without cumulative effect which was upheld by the High Court in the present petition.

The Divisional Manager, APSRTC v. The Presiding Officer, Industrial Tribunal-cum-Labour Court & Anr., 2008 LIC 3797 (AP.HC) WP 7296 of 2008 dt. 24-6-2008

“Coming to the……….granted appropriate relief.” (Page: 3800, Para: 13)

Sec. 11A

Burden of proof – Cannot be on the employer to prove that the workman was not faithful in the proceeding against his termination before the Labour Court Misconduct – Leading to loss of confidence is not a fit case for reinstatement Loss of confidence – Disentitles the workman for reinstatement

¥4.386 A workman was removed for unauthorized removal of the company car at night and using it after

filling 50 ltrs petrol without the prior permission . However the Labour Court directed for his reinstatement. The High Court in the present petition filed by the employer held that Labour Court without considering the fact the employer had naturally lost confidence in the workman wrongfully threw the burden on the management to prove that the workman was not a faithful employee. Hence, directions were issued to the Labour Court to consider the matter on question of reinstatement.

Titan Industries Ltd. v. A.S. Nagesh Kumar, 2008 LIC 4227 (Karn.HC) WP 12127 of 2006 dt. 19-3-2008

“In the light………ends of justice.” (Page: 4230, Para: 12)

“In this case……….not been considered.” (Page: 4231, Para: 15)

“In the light……….of this order.” (Page: 4231, Para: 16)

Sec. 11A

Admission – Which cannot amount to – For dispensing with enquiry Enquiry – When cannot be dispensed with on the so called admissions Principles of natural justice – Violates for non conducting enquiry on the basis of unsustainable admissions of charges Termination – without enquiry merely on so called admissions being illegal reinstatement with full back wages proper

¥4.387 The employer contended that the workman had admitted his guilt in his statement. Hence there was

no occasion or need for conducting a full fledged enquiry. Whereas he had only referred that his wife was ill because of which he was mentally upset and did not know how the tickets fell short. This statement is not an admission of allegation of theft or misappropriation of the charges. Hence the Labour Court found that the workman was wrongly held guilty of the charges of misappropriation or theft leveled against him without holding a valid enquiry and giving him an opportunity of being heard. Therefore his termination amounts to breach of principles of natural justice and under such circumstances, interference by the Labour Court with the findings of the fact arrived by the Inquiry Officer is justified. The High Court upheld the award of reinstatement with the continuity of service and full back wages and other consequential benefits.

D.T.C. v. Krishan Kumar, 2008 LIC 511 (Del.HC) WP (C) 17167 of 2004 dt. 12-9-2007

“In the facts……….the respondent workman.” (Page: 514, Para: 17)

“In light of……….vitiated, is upheld.” (Page: 515, Para: 18)

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Sec. 11A

Charge sheet – Follows suspension pending enquiry Suspension – If not followed with charge sheet and enquiry is non est Full wages – Payable for suspension period if it is not followed with charge sheet and enquiry

¥4.388 Where no preliminary enquiry and charge sheet was issued and no enquiry was ensued after putting

an employee under suspension, the suspension order itself would be illegal and without jurisdiction or power. Suspension generally is pending enquiry. But when no charge sheet itself was served then question of pending enquiry does not arise. The High Court upheld the award of Labour Court u/s. 33C(2) to pay full wages.

Surendranagar District Milk Producers Union Ltd. v. Kirtibhai Kasturbhai Punjara, 2008 LIC 670 (Guj.HC) SCA 22607 of 2006 dt. 17-9-2007

“It is necessary……….itself is illegal.” (Page: 674, Para: 9)

Sec.11A

Subsistence allowance – Upon suspension payable full wages in the absence of service rules framed to regulate the same Service rules – If not framed to regulate subsistence allowance Model Standing Orders will apply Wages – Full permissible as subsistence allowance in the absence of service rules in accordance with MOS Model Standing Orders – The provisions will prevail in the absence of service rules for payment of subsistence allowance

¥4.389 The workman was suspended but no subsistence allowance was paid. The establishment did not

frame any service rules regarding eligibility or otherwise for receipt of subsistence allowance. In the absence of Service Rules, Model standing Orders u/s. 10A would be applicable. Hence, in view of Sec. 10A of Model Standing Orders, suspension imposing condition on the workman to report daily for marking presence before the establishment is illegal. Therefore the workman is entitled to receive subsistence allowance in the form of full wages and not at reduced rate from the date of suspension till the date of reinstatement/ revocation.

Surendranagar District Milk Producers Union Ltd. v. Kirtibhai Kasturbhai Punjara, 2008 LIC 670 (Guj.HC) SCA 22607 of 2006 dt. 17-9-2007

“It is necessary……….itself is illegal.” (Page: 674, Para: 9)

Sec. 11A

Increment – Withholding of one without cumulative effect – For misconduct of not stopping the bus to pick up the stranded passengers is proportionate Misconduct – Of not stopping the bus to pick up the stranded passengers attracts withholding of one increment without cumulative effect for negligence Removal – From service is disproportionate to the misconduct of not stopping the bus to pick up the stranded passengers

¥4.390 The bus driver committed a misconduct of not stopping the bus even when 100 passengers were

stranded in a bus stop from a failed bus. After enquiry he was removed from the service. The Labour Court exercising power u/s. 11A modified the punishment into stoppage of two increments without cumulative effect for 2 years. Upon challenge by the workman, the High Court held that even this punishment was disproportionate to the proved misconduct because at the most charges amount to somewhat negligence or indifference or insensitivity which warrants lesser punishment of withholding

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one increment without cumulative effect only. The workman is entitled to entire retirement benefits, back wages and all other benefits.

P. Narsimlu S/o. Sailu & Ors. v. Labour Court-II, Rep. by its Presiding Officer, Hyderabad & Anr., 2009 (120) FLR 817 : 2009 I CLR 174 (AP.HC) SOJWP 18228 of 1999 dt. 19-11-2008

“In the instant……….I. D. Act, 1947.” (Page: 820, Para: 8)

“Ordinarily, this matter……….by this Court.” (Page: 820, Para: 9)

Sec. 11A

Enquiry – If not challenged by the workman, Labour Court cannot go into the findings of the enquiry officer to set aside the punishment Doctrine of proportionality – Cannot be exercised by Labour Court to soften the punishment if the workman has not challenged the fairness of enquiry before it Labour Court – Cannot go into the findings of the enquiry officer, if the enquiry is not challenged by the workman Staff nurse – If not challenges the validity of enquiry the Labour Court suo moto cannot go into the findings of the enquiry officer to set aside the punishment

¥4.391 Termination of a staff nurse due to her misconduct of negligence as proved in enquiry in the

employer’s Hospital was held illegal by the Labour Court and in the exercise of its power u/s. 11A, an award of reinstatement with 50% back wages was passed. In the present petition filed by the employer against the said award, it was held that, when the workman himself had not challenged the validity of the enquiry, it is not open for the Labour Court to go into the findings of the enquiry officer and since the negligence on the part of staff nurse is a serious misconduct, it cannot be subjected to the doctrine of proportionality u/s. 11A. Hence, in the circumstances and considering her past record, punishment of dismissal cannot be said to be harsh. Therefore the award of the Labour Court was quashed and set aside.

Muljibhai Patel Urological Hospital v. Arunaben I. Desai, 2009 (120) FLR 905 : 2009 I CLR 403 (Guj.HC) SCA 6828 of 1998 dt. 9-5-2008

“It is not……….the Inquiry Officer.” (Page: 909, Para: 9)

“Even otherwise the……….and set aside.” (Page: 909, Para: 10)

“The Labour Court……….from 31.3.1999.” (Page: 909, Para: 11)

Sec. 11 A

Technical ground – If exercised by the tribunal for setting aside the punishment of removal enquiry being fair and proper misconduct being grave relief by way of compensation proper Oath – If not taken before rendering statement before the tribunal the violation amounts only technical in nature Misconduct – If proved to be grave reinstatement cannot ensue no matter the employer failed to tender evidence on oath being only a technical error

¥4.392 A helper was terminated from the service for the misconduct after a fair enquiry held against him

but the same was set aside and award of reinstatement with 50% back wages was passed by the Tribunal on the technical grounds of non recording of the statements made by departmental officers on oath. The employer challenged the same in writ petition. It was held that, in view of grave misconduct and fairness of enquiry taking into consideration the technical reason for setting aside the punishment it is fair and proper that instead of reinstatement with 50% back wages, an ad hoc compensation of ` 10,000 would be appropriate relief.

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Rajasthan State Road Transport Corporation v. Raj Singh & Ors., 2009 (121) FLR 214 : 2009 I CLR 643 (Raj.HC) SBCWP 3955 of 1994 dt. 2-2-2009

“Having heard the……….is considered appropriate.” (Page: 215, Para: 3)

Sec. 11A

Misconduct – Of misappropriation and falsification of records being a grave charge warrants no interference in the punishment of dismissal in exercise of power u/s. 11A Misappropriation – Falsification of records by bank employee being serious in nature exercise of power u/s. 11A to reduce punishment is a misplaced sympathy Sec. 11A – Exercise of power to reduce punishment of dismissal is misplaced sympathy in cases of misappropriation and falsification of records by bank employee

¥4.393 In a case of dismissal for misconduct after a fair and proper enquiry, Tribunal in the exercise of its

power u/s. 11A reduced the punishment to reinstatement without back wages withholding only four annual increments with cumulative effects and continuity in service with consequential benefits. Hence the present petition by the bank. It was held that, where the nature of charges proved does not provide sufficient extenuating circumstances to condone the misconduct of misappropriation and falsification of records for being grave in nature warranting the punishment of dismissal, the interference with such punishment is without justification. A bank employee holds a position of trust, honesty and integrity calling for no leniency or misplaced sympathy in the matter of misconduct and hence the award of the Tribunal was set aside.

Syndicate Bank, Bangalore v. M. Hanumanthappa, 2009 (121) FLR 27 (Karn.HC) WP 7313 of 2008 dt. 15-9-2008

“Having regard to……….Bank in jeopardy.” (Page: 32, Para: 13)

“The Tribunal considering……….a Banking Institution.” (Page: 32, Para: 15)

“The writ petition……….the reference stands.” (Page: 32, Para: 16)

Sec. 11 A

Evidence – By workman in proof of employer employee relationship is vital for sustaining his claim against illegal termination Employer employee relationship – Burden of proof lies with the workman who claims illegal termination Burden of proof – On workman to prove employer employee relationship against claim of illegal termination Writ petition – Unsustainable if the award was passed based on some evidence

¥4.394 A driver allegedly claiming employer employee relationship contested his alleged termination before

Labour Court. The Labour Court found on examination of evidence that there was no employer employee relationship in existence. The workman failed to produce any documentary evidence including appointment letter. The employer on the other hand filed attendance sheets contradicting the claim of the workman that he had served the employer for 4 years. The workman contested the dismissal of his claim by Labour Court in High Court which held that the award does not suffer from an error of jurisdiction or vitiated by a manifest or apparent error of law or perverse for interference for issuing a writ in the nature of certiorari. The petition was dismissed.

Anand Prakash v. Godrej Sara Lee Ltd., 2009 (121) FLR 327 : 2009 LLR 564 (Del.HC) WP 17868 of 2005 dt. 20- 11-2008

“In the present……….the present case.” (Page: 332, Para: 8)

Sec. 11 A

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Inquiry report – Need not be furnished to the delinquent if the disciplinary authority himself was Inquiry Officer Domestic Inquiry – Is not vitiated for nonfurnishing of inquiry report if disciplinary authority himself was Inquiry Officer

¥4.395 The Labour Court reinstated the workman with full back wages, a conductor, merely because no

inquiry report was furnished to the delinquent official though the charges were non issue of tickets to several passengers. Setting aside the award the High Court held that in such cases it is well settled that it is not necessary for the disciplinary authority to submit an inquiry report to the delinquent where he himself is the Inquiry Officer, non submission of the inquiry report by the Inquiry Officer being the disciplinary authority in the present case, does not vitiate the domestic inquiry for the violation of principles of natural justice. Hence, the award of the Labour Court holding that the domestic inquiry was not fair and proper for the non furnishing of the inquiry report cannot be sustained. However the workman was reinstated by an interim order of the Court 17 years ago which cannot be disturbed now. The award however was modified to the extent of payment of back wages which he will not be entitled more than what was already paid to him.

U.P. State Road Transport Corporation v. State of U.P. & Ors., 2009 (121) FLR 633 (All.HC) CMWP 4726 of 1989 dt. 19-3-2009

“From the aforesaid……….cannot be sustained.” (Page: 635, Para: 7)

Sec. 11 A

Termination – Unsustainable if there is no evidence connecting the delinquent to the alleged offence Misappropriation – A charge must be founded on evidence not on presumption of conjectures and surmises Reinstatement – Is the natural corollary of a charge of misappropriation not founded on tangible evidence Domestic inquiry – For establishing the charge of misappropriation must provide ample opportunity to the delinquent to defend himself

¥4.396 The charges framed against the workman involved theft and misappropriation of ` 35,000. In the

inquiry the workman refused to participate. An ex parte order resulted in the removal of the workman. The Labour Court found the inquiry unfair. The empl oyer failed to prove the charges before the Tribunal resulting in his reinstatement with back wages. The High Court affirmed the same because there was no sufficient material connecting the delinquent workman with the alleged offence. The workman also did not get ample opportunity to defend himself. Only conjectures and surmises will not be sufficient to nail the workman. Therefore considering the workman had attained the age of superannuation, instead of reinstatement he was granted all back wages i.e. salary, allowances and other admissible amounts modifying the award to that extent.

Oxford Mission Trust Association v. State of West Bengal & Ors., 2009 (121) FLR 673 : 2009 I CLR 959 (Cal.HC) WP 88 of 2001 dt. 3-12-2008

“Having regard to……….might have been.” (Page: 676, Para: 11)

Sec. 11 A

Acquittal – In criminal case does not give justification to the labour Court to exercise its power u/s. 11A of the Act to dilute the punishment in cases of loss of confidence Criminal proceedings – And departmental proceedings cannot be equated with each other for exercising discretion u/s. 11A Departmental proceedings – Requiring different standard of proof than a criminal proceeding acquittal in criminal case does not necessarily exonerate the workman from the charges

¥4.397 In this case the departmental proceedings and the criminal case were not on same set of facts and

same set of evidence. Even otherwise the nature of departmental proceedings and criminal proceedings are distinct and the result thereof is also different. Hence, all the nature and standard of proof is different

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and cannot be equated with each other. Therefore, merely because the workman stands acquitted in the criminal case it would not per se give justification to the Labour Court to exercise its power u/s. 11A of the Act for reinstatement, where the nature of misconduct revolves round the act of theft.

Haryana Roadways Engineering Corporation, Behrampur Road Khands, Gurgaon (Haryana) Through its General Manager v. Industrial Tribunal-cum-Labour Court-I, Gurgaon & Anr., 2009 (122) FLR 1059 : 2009 III CLR 849 : 2009 LLR 1209 (P&H.HC) CWP 16364 of 2008 dt. 14-5-2009

“No finding has……….I. D. Act.” (Page: 1064, Para: 16)

Sec. 11 A

Doctrine of proportionality – While exercising discretion gravity of the proved charges fact of loss of confidence dishonesty and untrustworthiness are the considerations Loss of confidence – Of employer is a factor dissuading the Labour Court to reinstate a workman Theft – Is a deterrent for the Labour Court to exercise discretion for reinstatement due to loss of confidence

¥4.398 The workman, a carpenter was found trying to steal aluminium scrap of employer during the night.

The misconduct was proved in the domestic enquiry leading to his termination. The Labour Court however interfering with the punishment reinstated him without back wages. On challenge the High Court set aside the award and held that the Labour Court while applying the doctrine of proportionalit y in exercise of its discretion should look into the gravity of the proved charges. In this case, obviously the employer had lost confidence in the workman. His past conduct was not clean in which it was an admitted fact that he had stolen a drill machine. Honesty and trustworthiness being the pre requisites for any employer to retain a workman, the Labour Court is not expected to force such workman who is a thief on the employer. The High Court set aside the award and restored the punishment of dismissal.

Haryana Roadways Engineering Corporation, Behrampur Road Khands, Gurgaon (Haryana) Through its General Manager v. Industrial Tribunal-cum-Labour Court-I, Gurgaon & Anr., 2009 (122) FLR 1059 : 2009 III CLR 849 : 2009 LLR 1209 (P&H.HC) CWP 16364 of 2008 dt. 14-5-2009

“In the present……….accordance with law.” (Page: 1062, Para: 12)

Sec. 11 A

Misconduct – Of leaving the bus in the midst of his duty without permission of superior on the ground of ailment of his son warrants reduction to the original pay scale for three years Abandoning the bus – In the midst of once duty warrants reduction to the original pay scale for three years no matter the cause may be the ailment of his son Conductor – Abandoning the bus in the midst of duty without permission warrants punishment of reduction to the original pay scale for three years no matter the cause may be the ailment of his son

¥4.399 The punishment of reduction to the original pay scale for three years as imposed by the employer for

the proved misconduct of a conductor for abandoning the bus in the midst of his duty without seeking permission of his superior allegedly due to ailment of his son cannot be disproportionate. The High Court held that the Labour Court could not have modified the punishment into stoppage of one increment with future effect in view of his grave misconduct. The punishment awarded by the employer could not be said to be disproportionate and discretion exercised by the Labour Court by reducing the punishment could not be said to be just and proper.

Gujarat State Road Transport Corporation v. Anupgar G. Gosai, 2009 (122) FLR 1107 : 2009 II CLR 940 (Guj.HC) SCA 5021 of 1994 dt. 25-6-2009

“The fact remains……….as to costs.” (Page: 1108, Para: 7)

Sec. 11A

Admission of guilt – In an enquiry by inducement of a gullible workman will not support the action of removal from service Gullible workman – Gets an advantage if inducement was led to his admission of guilt to challenge the termination Termination – On the basis of admission of guilt obtained by inducement will not sustain Punishment – Should not be disproportionate to the delinquency of the workman for moulding the relief

¥4.400 The charges against the workman were habitual absenteeism. In the enquiry the I.O. held out a

carrot that if he pleads guilty the employer will take a lenient view. The workman admitted his guilt and apologized. The enquiry was closed and the disciplinary authority inflicted the punishment of removal on the admitted facts. The Tribunal upon challenge set aside the punishment reinstating him with full back wages for the reason that the enquiry was not fair and proper. Meanwhile the delinquent had expired. The High Court upholding the award held that if an inducement to plead guilty was held out, it would be improper to take an admission of a gullible workman and throw him out of employment but since delinquency of workman need not go unpunished, proportionate to the delinquency particularly in view of inducement to plead guilty, in the interest of justice, the award was modified granting 75% back wages instead of full.

Board of Trustees of the Port of Mormugao, Goa & Anr. v. Yamunappa C. Gaudar (since deceased) through his legal representatives (Shavakka w/o. Y. Gaudar & Ors., 2009 (122) FLR 153 : 2009 I CLR 1022 : 2009 (2) Mah.LJ 337 (Bom.HC) WP 118 of 1999 dt. 29-8-2008

“If an inducement……….a lesser punishment.” (Page: 156, Para: 12)

“In these particular……….full back wages.” (Page: 156, Para: 13)

Sec. 11A

Dismissal – Cannot be for minor irregularities Minor Irregularities – Does not warrant removal from service Shockingly Disproportionate – Will be removal from service for minor irregularities

¥4.401 The services of a workman was terminated for the minor misconduct and irregularities such as not

displaying destination board and for not carrying holiday tickets duly proved in the enquiry. Labour Court held the punishment is too harsh and interfering with punishment removal passed an award of stoppage of 3 increments with cumulative effect reinstating him with 50% back wages in exercise of its power u/s. 11A of the Act. In the present petition by the employer against this award, High Court upholding the award held that for some minor irregularities, the punishment of removal from service is shockingly disproportionate. The relief of reinstatement with 50% back wages in such cases could not be termed as evincing a misplaced sympathy, generosity or private benevolence.

Management of Delhi Transport Corporation v. Baljit Singh, 2009 (122) FLR 490 : 2009 II CLR 433 : 2009 LLR 796 (Del.HC) WP 6172 of 2007 CM 1447 of 2009 dt. 3-3-2009

“In the instant case……….of the Court.” (Page: 495, Para: 11)

“The decision of……….not interfered with.” (Page: 495, Para: 12)

“Therefore, from above……….of its decision.” (Page: 494, Para: 9)

Sec. 11A

Enquiry – Which is fair and proper charges having been proved past record being not clean 40% back wages does not deserves to be paid on the ground of superannuation Back wages – For proved delinquency of unauthorized absence is not payable even in cases of superannuation Retiral benefits – Payable even for cases of proved unauthorized absence on superannuation

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Gratuity – Cannot be denied for cases of termination for unauthorized absence being not a case of moral turpitude

¥4.402 Services of a workman who was a driver were terminated for the unauthorized absence without prior intimation and sanction. There were 12 past cases of misconduct. He raised a dispute of illegal termination after a period of five years. Labour Court even while holding the enquiry fair and proper held the punishment of dismissal too harsh. As the workman had reached the age of superannuation Labour Court interfering with the punishment granted 40% back wages with retiral benefits. On challenge by the employer the High Court held that where the charges of misconduct were proved in a fair enquiry there is no reason to grant 40% back wages even when the Labour Court held the enquiry fair and proper. The award granting 40% back wages was set aside. However the relief of retiral benefits including gratuity is maintained because unauthorized absence does not constitute moral turpitude for denial of retiral benefits.

Divisional Controller, GSRTC v. N.K. Makwana, 2009 (122) FLR 87 : 2009 I CLR 761 : 2009 LLR 921 (Guj.HC) SCA 14689 of 2007 dt. 6-8-2008

“It appears from……….or shockingly disproportionate.” (Page: 89, Para: 5)

“From perusal of……….the said direction.” (Page: 90, Para: 6)

Sec. 11A

Labour Court – Cannot give contrary findings than what is recorded by proceeding to question the findings of the enquiry officer Error of law apparent on the record – Includes – Giving a contrary finding to the issue recorded in the proceedings

¥4.403 Labour Court cannot give contrary findings to the issue recorded by it in proceedings. In this case it

gave a contrary finding having held the charges are proved it went on to question the findings of the enquiry officer on the basis of evidence led before it, which in fact is an error of law apparent on the face of the record while passing the Part II award. At the most it has power to consider only the proportionality of punishment inflicted to the proved charges. Hence the said award is liable to be set aside and matter is remanded back to Labour Court to decide afresh.

Bhangar Bros. & Co. Ltd. Thane v. Engineering Workers Union, Thane & Anr., 2009 (123) FLR 1016 : 2009 III CLR 86 : 2009 (5) BCR 643 : 2009 (6) Mah.LJ 65 (Bom.HC) CAJWP 5160 of 1997 dt. 11-8-2009

“In my view……….in this petition.” (Page: 1020, Para: 10)

Sec. 11A

Appellate authority – Can set aside the penalty of dismissal on the basis of inspection report Compensation – Of 2/3rd salary is proper from the date of termination till superannuation if the order of disciplinary authority was set aside by appellate authority Termination – Though illegal due to more fault of employer the conduct of workman if also contributory 1/3rd salary as compensation from the date of termination will be forfeited

¥4.404 A Labour Welfare Officer Grade II was terminated from the service on the charges of writing

defamatory news and for not performing duties. In appeal, the appellate authority reversed and set aside the termination. Hence the present petition in which it was held that if the appellate authority on the basis of inspection report finds that the charges leveled against the workman were not proved and the management was acting mala fide against him, the management was held more at fault. In view of crossing the age of superannuation and totality of the circumstances, 2/3 of amount of ` 9 lacs i.e. ̀ 6 lacs was awarded to him since his salary from the date of termination was in the region of ̀ 9 lacs.

Triveni Engineering Works Ltd. Sugar Unit, Muzaffarnagar v. Special Secretary, Labour Department & Ors., 2009 (123) FLR 1051 : 2009 III CLR 592 (All.HC) CMWP 5663 of 1996 & 40476 of 2006 dt. 14-9-2009

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“The third charge……….by the petitioner.” (Page: 1052, Para: 6)

“As Sri. Saxena……….remand the matter.” (Page: 1054, Para: 13)

“Keeping in view……….old pay scale.” (Page: 1054, Para: 14)

Sec. 11A

Daily wager – Cannot claim back wages Delay – Of 3 to 4 years in raising dispute does not entitle a workman to claim back wages Workman – If declines to do work provided by the employer cannot claim back wages Back wages – Cannot be claimed by a daily wager raising dispute after 3 to 4 years Permanent workman – Entitled for back wages against illegal termination unlike daily wager

¥4.405 Labour Court held the termination of workman was illegal and directed his reinstatement but

without back wages. Hence the present petition by the workman against denial of back wages in which it was held that there was a delay of 3 to 4 years in raising the dispute and during the pendency of proceedings before the Labour Court the employer was willing to provide the work to the workman. He however declined the same. Considering the fact that he had worked with the employer only for three years as daily rated workman and not as a permanent workman, back wages cannot be granted to him. The High Court upheld the award denying back wages.

Kashinath Narayan Gharat & Ors. v. Maharashtra State Electricity Distribution Co. Ltd. & Anr., 2009 (123) FLR 633 : 2009 IV LLN 495 : 2009 (5) BCR 93 : 2009 (5) Mah.LJ 752 (Bom.HC) WP 4132 of 1996 dt. 7-7-2009

“Reliance placed by……….claim of back wages.” (Page: 635, Para: 5)

Sec. 11A

Misconduct – Of not issuing tickets collecting fares warrants dismissal Dismissal – Proper for not issuing tickets collecting fares Reinstatement – Not proper for misconduct of not issuing tickets collecting fares Labour Court – Cannot exercise its power u/s. 11A setting aside the dismissal of a conductor for not issuing tickets but collecting fare Conductor – Collecting fare but not issuing tickets cannot be reinstated in exercise of power u/s. 11A

¥4.406 The services of a conductor was came to be terminated after enquiry for not issuing tickets while

collecting fare. His past records were equally not clean. The Labour Court without discussion and assigning reasons interfered with the punishment of dismissal reinstating him without relief of back wages. The workman challenged the award for back wages. The High Court held that there was no basis to hold that the penalty imposed by the employer was too harsh. No reasons were recorded and discussions were made to prove excessive penalty. Direction reinstate was also quashed and set aside.

Gujarat State Road Transport Corporation v. Raghabhai Zalambhai Talal, 2009 (123) FLR 89 : 2009 III LLN 399 : 2009 LIC 3262 : 2009 II CLR 935 : 2009 LLR 1099 (Guj.HC) SCA 11426 of 1994 dt. 23-4-2009

“In the present……….amount to victimization.” (Page: 91, Para: 8)

Sec. 11A

Labour Court – Is vested with the power of reassessing the evidence available on the record u/s. 11A to set aside the penalty of stoppage of two increments with cumulative effect Increments – If with held for disobeying the instructions on duty controller the penalty is disproportionate

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Penalty – Of stoppage of two increments with cumulative effect for disobeying instructions of on duty controller is disproportionate Sec. 11A – Vests the Labour Court with power of reassessing the evidence available on record to set aside the penalty of stoppage of two increments with cumulative effect

¥4.407 Penalty of withholding two increments with cumulative effect was imposed on the employee for

allegedly disobeying instructions of on duty controller and misbehaving with him. It was set aside by the Labour Court in the exercise of its power u/s. 11A as charges of using unparliamentary language, throwing chart on the table, pulling the chair rashly were not proved. Hence the present petition in which High Court dismissing the petition held that u/s. 11A of the Act, the Labour Court is vested with the power of reassessing the evidence available on the record and in view of this the well reasoned award of the Labour Court does not suffer from any error of law.

Depot Manager, APSRTC, Guntur-II Depot, Guntur v. Depot Secy., APSRTC, National Mazdoor Union, Guntur-II Depot, Guntur & Anr., 2009 (123) FLR 942 : 2009 III CLR 447 (AP.HC) WP 7971 of 2009 dt. 28-4-2009

“Even on merits……….law or jurisdiction.” (Page: 944, Para: 6)

Sec. 11 A

Back wages – Can be denied on the ground that the terminated workmen are entitled to wages as and when tapping of rubber was on Plantation – And tapping of rubber is an ongoing process replantation cannot be a cause for retrenchment of workmen Reinstatement – Is the natural corollary of illegal termination of rubber plantation workmen on the ground of surplusage of plantation workers tapping being an ongoing process

¥4.408 Petitioner management retrenched 15 workmen on account of alleged reduction in work due to

replantation in the rubber estate. Labour Court held it unjustified and passed the award of reinstatement with compensation of ̀ 2000 to each workman for illegal retrenchment. However back wages were denied on the ground that even otherwise wages were payable only when tapping was on. Hence the present petition by the employer in which it was held that in view of the findings recorded by the Labour Court, the award cannot be termed as perverse and called for interference even if another view is possible. Hence the direction for reinstating them with compensation of ` 2,000 to each cannot be held unreasonable or unjust.

Balanoor Plantation Industries Ltd. v. The Secretary, Plantation Labour Union, 2009 I CLR 1027 (Ker.HC) OP 4536 of 1999 dt. 13-3-2009

“The Labour Court……….set of service.” (Page; 1030, Para: 6)

“The Labour Court……….petition is dismissed.” (Page: 1030, Para: 7)

Sec. 11 A

Misconduct – Of carrying excess cash by a conductor deserves dismissal Dismissal – Proper for of carrying excess cash by a conductor Examination of passengers – Who were issued used tickets in an enquiry against the conductor is not necessary Conductor – Carrying excess cash deserves dismissal

¥4.409 A conductor was dismissed for the misconduct of possessing excess amount of ` 105 which was duly

proved in the inquiry but Labour Court held the dismissal illegal for the charges remained unproved due to lack of documentary evidence on record and evidence of the passengers and directed for his reinstatement. Hence the present petition in which it was held that where there was nothing incorrect and perverse in the findings of the Enquiry Officer where the fact of excess amount carried in the official money bag remained unrebutted nor he informed depot manager about this excess amount as per rules.

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Besides this, his past record was also found not clean. Hence the award of the Labour Court suffered from an error of law apparent on the face of record by misdirecting itself in law and developing unnecessary sympathy for the respondent. Hence the award was set aside.

Maharashtra State Road Transport Corporation v. Aasram Reybhan Kolhe & Anr., 2009 I CLR 1041 (Bom.HC) ASWP 3515 of 1997 dt. 16-2-2009

“The finding of……….with the finding.” (Page: 1043, Para: 3)

“In the result……….is hereby upheld.” (Page: 1043, Para: 4)

Sec. 11 A

Writ Court – Cannot go into the factual findings given by the Tribunal Regularization – Of daily rated workman cannot be in public employment Public employment – Does not permit regularization of daily waged workmen Tribunal – Cannot give directions in the matter of regularization of service of daily rated employees in public employment Daily wagers – In public employment cannot ordered to be regularized by the tribunal

¥4.410 Eight workmen purportedly daily waged employees were directed to be regularized by the tribunal

in the public employment in PWD. The same was assailed in writ petition. The High Court setting aside the award held the regularization of daily rated workers possessing no prescribed qualifications, age and in violation of rules of recruitment cannot be made. This is a settled principle of law laid down by Supreme Court in UOI v. Sheela Rani 2006 (13) SCALE 394. Modifying the award the High Court directed that they are to be treated only as daily waged workers for the purpose of payment of their wages and for all other purposes and not as regular workers.

Management of M/s. Chief Engineer, PWD, Zone-II v. Its Workmen, through CPWD Mazdoor Union, 2009 I CLR 143 (Del.HC) WP 282 of 2004 dt. 2-12-2008

“The workman in……….the contractual appointees.” (Page: 144, Para: 2)

“On giving my……….to their engagement.” (Page: 145, Para: 3)

“In view of……….per seniority list.” (Page: 145, Para: 5)

“The directions contained……….of seniority list.” (Page: 6, Para: 6)

Sec. 11A

Misconduct – Of a security guard towards the customers of bank being serious matter, dismissal proper Misbehavior – Towards the customers of bank being serious dismissal is proportionate to the misconduct Proportionality of punishment – In exercise of power u/s. 11A the Labour Court cannot undertake if the misconduct is misbehavior with bank customers by a security guard Security guard – If misbehaves with bank customers his services if removed Labour Court u/s. 11A cannot interfere

¥4.411 A Security Guard employed in a bank was dismissed for the misconduct of misbehavior towards the

customers of the bank. This was challenged by him in a ULP complaint. Labour Court found the misconduct to be proved but punishment harsh. Therefore in the exercise of its power u/s. 11A, reduced the punishment into stoppage of two increments on permanent basis and directed reinstatement which was confirmed by the Industrial Court in revision petition. Hence the present petition in which it was held that misbehavior towards the customers of bank not being a trifling matter, the Labour Court erred in passing the order of reinstatement. Hence the said order as affirmed in revision as well as ULP complaint was set aside.

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Parsik Janata Sahakari Bank Ltd. v. Vishwas Sakharam Gole, 2009 I CLR 36 (Bom.HC) CAJWP 1777 of 2008 dt. 6-10-2008

“The Labour Court……….have been passed.” (Page: 38, Para: 5)

“Counsel appearing for……….procured by coercion.” (Page: 38, Para: 6)

“The misconduct which……….to be allowed.” (Page: 39, Para: 7)

Sec. 11 A

Suspension – Of the workman not allowing him to retire on superannuation in anticipation of his being found guilty in the old pending criminal case and probable conviction is a case of human right violation Human right violation – Includes – Suspension beyond superannuation refusing retirement by employer in order to fix him in a pending criminal case as and when decided Superannuation – Cannot be prolonged by keeping the workman under suspension in anticipation of conviction in an old pending criminal case

¥4.412 The Accounts Officer was unsuccessfully proceeded with various charges at frequent intervals by the

employer from time to time. At last he was kept under suspension anticipating conviction in an old criminal case pending against him. Meanwhile he reached the age of superannuation. The employer refused to allow him to retire. He was kept under suspension notwithstanding his superannuation. The officer challenged the state of affairs affecting him in a writ petition. Disposing of the matter in favour of the officer the High Court held that keeping the officer under suspension even when he reached the age of superannuation is not only illegal harassment but also a case of human right violation. Under the circumstances the court directed to allow him all the retiral dues and other terminal benefits deeming him to have been relieved on superannuation with promotion from the date to which he was entitled to retrospectively.

M. Balan v. Tamil Nadu Water Supply & Drainage Board rep. by its Managing Director, Chennai & Anr., 2009 I CLR 543 (Mad.HC) WP 22664 of 2008 & MP 1 to 3 of 2008 dt. 9-1-2009

“The sum and……….reach its finality.” (Page: 548, Para: 12)

“The action of……….of various investigations.” (Page: 548, Para: 13)

“In view of……….petitions are closed.” (Page: 550, Para: 16)

Sec. 11 A

Speaking order – Must while agreeing with enquiry officer inflicting punishment of dismissal Enquiry report – Cannot be cryptic without reason Principles of natural justice – Violated if disciplinary and appellate authorities fail to apply their mind Dismissal – Of clerk cum cashier will not sustain if the enquiry officer does not summon the account holders

¥4.413 Workman, a clerk cum cashier, was removed from service for alleged making of tainted entries in

saving bank accounts of 3 account holders. But in the enquiry the enquiry officer could not make out the real author of the tainted entries. Account holders were not summoned. Even then the enquiry officer by a cryptic order without assigning reasons held the charges proved against the workman. The disciplinary authority inflicted the punishment of dismissal. The appeal there against was dismissed by the appellate authority. Both of them did not apply their mind to the enquiry report. The High Court while quashing and setting aside the order of punishment held that the order was in violation of the principles of natural justice because it was a non speaking order hence suffers from an error of law apparent on the face of the record and hence not sustainable.

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Bhagirath Singh v. State Bank of Bikaner & Jaipur & Ors., 2009 I CLR 636 (Raj.HC) CWP 807 of 2006 dt. 22-1- 2009

“I have considered……….of natural justice.” (Page: 638, Para: 9)

“Procedure of inquiry……….of natural justice.” (Page: 639, Para: 10)

“From a perusal……….removed from service.” (Page: 639, Para: 11)

“Impugned order of……….removal upon him.” (Page: 639, Para: 13)

Sec. 11 A

Absence from duty – On the date of a fight with failure of employer to connect him saves the delinquent from culpability – Dismissal illegal Burden of proof – If not discharged by the employer before the Labour Court connecting the delinquent to the misconduct, dismissal is illegal Misconduct – If not connected by the employer due to absence on the day of incident dismissal becomes illegal

¥4.414 The employer failed to connect the incident of a fight in the factory premises to the delinquent

workman who was incidentally was absent on the day of incident. Even then the employer held the delinquent workman liable and involved in the incident in which certain injuries were caused to another workman. No enquiry before termination was held holding the atmosphere surcharged. The Labour Court found the termination illegal for violation of procedures prescribed under the standing order 25 and 26 reinstating him with full back wages. The High Court upheld the award and held that a person not involved in the incidence cannot be dismissed from service at the whims and fancies of the employer when he fails to connect him with the alleged incident. The employer also failed to lead any evidence before the Labour Court. Failure to provide opportunity to defend to the delinquent adds to the illegality in his dismissal.

Bhartia Cutler Hammer v. Presiding Officer & Ors., 2009 I CLR 649 (P&H.HC) CWP 21855 of 2008 dt. 6-1-2009

“It is true……….have taken place.” (Page: 651, Para: 4)

“It is true……….accordance with law.” (Page: 652, Para: 5)

“It is true……….a domestic inquiry.” (Page: 652, Para: 6)

Sec. 11 A

Drunk driving – Being a serious misconduct covered in the S.O. dismissal of bus driver needs no interference Bus driver – Driving under the influence of liquor is a misconduct covered in the S.O. dismissal proper Proportionality – Of punishment cannot be entered into against dismissal for drunk driving of a bus driver Shockingly disproportionate – Excludes – The dismissal of a bus driver for drunk driving Dismissal – From service of a bus conductor proper for drunk driving

¥4.415 A workman, driver of a bus was dismissed from service after due enquiry into the misconduct of

drinking alcohol and driving resulting in a brush to another bus endangering the precious lives of the passengers. The Labour Court held the punishment shockingly disproportionate to the charges. Whereas setting aside the said award, the High Court held that the punishment of dismissal in such serious cases is not shockingly disproportionate. The employer in such cases is the best judge. The Labour Court cannot lightly interfere in such serious cases exercising jurisdiction u/s. 11A.

Maharashtra State Road Transport Corporation v. Manikrao Sahabrao Chavan, Malegaon & Anr., 2009 I CLR 740 (Bom.HC) ASWP 6113 of 1997 dt. 21-1-2009

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“Having considered the……….dues if withheld.” (Page: 741, Para; 5)

Sec. 11 A

Fraud – If the contention employer is obliged to unravel the truth before a full fledged enquiry before termination Full fledged enquiry – Cannot be dispensed with to unravel the truth before termination Termination – Of workmen on the basis of entering service by fraud will not sustain without a full fledged enquiry Contract workmen – Once confirmed in service after absorption the plea of fraud weakens Confirmation – Of contract workmen after absorption weakens a later plea of fraud in their entry into service

¥4.416 The bone of contention of the employer was that 7 contract workmen upon prohibition to employ

contract labour managed to be absorbed by means of forged documents playing fraud on the management as they were not working as contract workers on the appointed day. In the dispute regarding termination of their services, the Labour Court reinstating them with back wages directed the employer to conduct full fledged enquiry giving opportunity to them to prove their case. The employer reinstated them and also confirmed them in service but only to be terminated later without affording due opportunity to defend. In the present petition, High Court held that once they are confirmed knowing fully well that in the eyes of the management they had entered service by playing fraud, there is no justification to terminate them without a proper enquiry. It is not that the management noticed fraud only after the date of their confirmation. In the circumstances, they were directed to be reinstated with back wages. The court held that the employer was required to comply with the award regarding conducting fair enquiry if it holds that the workmen obtained employment by fraud. The employer was at liberty to hold a full fledged enquiry in accordance with the tribunal’s direction.

Sanjay C. Patel & 6 Ors. v. Gujarat Urja Vikas Nigam Ltd. & Anr., 2009 I CLR 784 (Guj.HC) SCA 14161 of 2007 with SCA 14163 to 14168 & 17181 of 2007 dt. 29-12-2008

“This Court is……….by those provisions.” (Page: 796, Para: 24)

“This Court is……….be knocked off.” (Page: 797, Para: 26)

“The respondent has……….was false representation.” (Page: 799, Para: 29)

“The petitioners have……….& Service Regulations.” (Page: 800, Para: 32)

“Against this factual……….their own employee.” (Page: 800, Para: 35)

“Special Civil Application……….Notice discharged.” (Page: 801, Para: 44)

Sec. 11 A

Bye laws – Non production of to decide the allotment of work adverse inference against the employer is proper Charges – If remained unproved due to non production of bye laws termination is held illegal Branch manager – Is responsible if the workman’s contentions remained unrebuttal that the bye laws impose duty of maintaining accounts including purchases not on clerk but on him Dismissal – Of clerk for not maintaining accounts charging higher price is held illegal if employer fails to rebut by producing the bye laws for allotment of work Misconduct – Against clerk can be shifted on the branch manager if the employer fails to rebut the allegations by producing evidence contained in the bye laws

¥4.417 Workman, a clerk was dismissed from the service for the misconduct of not maintaining the accounts

properly and purchasing milk at higher rates for the canteen etc. the workman contended before the Labour Court that as per bye laws only the Branch Manager has to maintain the accounts and purchase materials for the canteen. The employer failed to produce the bye laws despite direction. The Labour Court drew adverse inference and held his termination illegal and passed the award of reinstatement with back wages and continuity of service. This was challenged before High Court. It was held that where

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the charges framed against the workman were not proved by the employer by producing the bye laws, the Branch Manager cannot escape from the liability. Hence the award of the Labour Court setting aside the dismissal was confirmed and petition of employer was dismissed.

Tamil Nadu State Transport Corporation (Villupuram Dn. III) Ltd. v. Presiding Officer, Labour Court & Anr., 2009 I CLR 815 (Mad.HC) WP 7726 of 2004 dt. 22-1-2009

“The second respondent……….the Labour Court.” (Page: 818, Para: 10)

“For the reasons……….dismissed. No costs.” (Page: 818, Para: 11)

Sec. 11 A

Service of notice – For domestic enquiry must conform to the service rules to be valid Enquiry – Notice to the delinquent must conform to the service rules to be valid Publication in newspaper – Enquiry notice is improper if the service rules provide different mode and method Termination – For disturbed mental condition leading to absenteeism is bad

¥4.418 The misconduct of the workman was absenteeism. The communication for enquiry sent to his

address by registered post was returned undelivered. The employer chose to publish the notice for enquiry in newspapers though this method was not the method envisaged in the service rules. The service rules provided to deliver the letter to any family member and affixation in the last known address. The workman was mentally disturbed and hence left for his native place. The new address was communicated by him and available in his service records. The Labour Court therefore set aside the termination reinstating him with full back wages. The High Court upheld the same because the mode and method of service of notice was at variance with service rules and the action for absenteeism in the teeth of disturbed mental condition of the workman was unsustainable.

Management, Chennai Metropolitan Water Supply & Sewerage Board v. Presiding Officer, Principal Labour Court, Chennai & Anr., 2009 I CLR 888 (Mad.HC) WP 196 of 2000 & WMP 7449 of 2001 dt. 10-2-2009

“A perusal of……….its own procedure.” (Page: 890, Para: 11)

“The Labour Court……….the service register.” (Page: 891, Para: 12)

“The second contention……….was not proper.” (Page: 891, Para: 13)

Sec. 11 A

Cut-off date – Discriminating between workman joining before and after for extending medical facilities is arbitrary and violative of Art.14 and 21 of the Constitution Medical facilities – Discrimination by deprivation by means of cut- off date between workman and workman is violative of Art.14 and 21 of the Constitution Art. 21 – Right to health flows from Art.21 of the constitution – Discrimination is violative of Art.14

¥4.419 Petitioner Corporation has fixed the cutoff date in respect of extending medical facilities to the

employees of the employer who joined before 1.7.1979 and depriving the same to those who joined after 1.7.1979. The Union raised the dispute challenging the cutoff date. Tribunal held that the cut-off fixed is arbitrary and in violation of Art.14 of the Constit ution. Hence the present petition by the employer in which it is held that where the Courts have repeatedly emphasized the right of health as a right flowing from Art. 21 of the Constitution of India, there is no justification for the introduction of cut-off d ate in the matter of health scheme and hence the petition is liable to be dismissed.

Tamil Nadu State Transport Corporation (Coimbatore Division-I) Ltd. v. The Presiding Officer, Industrial Tribunal, Chennai & Anr., 2009 I CLR 896 (Mad.HC) WP 5226 of 1999 dt. 29-1-2009

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“In this context……….Constitution of India.” (Page: 898, Para: 8)

“Though the learned……….is also dismissed.” (Page: 900, Para: 9)

Sec. 11 A

Enquiry proceedings – Legality propriety are not challenged by the workman relief sought cannot be given Enquiry Findings – If not proved to be perverse or erroneous, writ Court cannot interfere to grant relief

¥4.420 The workman did not challenge the legality and propriety of the enquiry. He failed to prove any

lapse or error in the findings of the Inquiry Officer. And the findings were not shown to be incorrect. It is admitted fact that the Respondent Company had gone into liquidation. Therefore the High Court held that the award of the Labor Court rejecting the reference of the workman could not be interfered with under writ jurisdiction.

Patel Bharatkumar Naranbhai v. Gujarat Steel Tubes Ltd., 2009 I CLR 977 (Guj.HC) SCA 9347 of 2008 dt. 20-2- 2009

“On perusal of……….petition is rejected.” (Page: 978, Para: 7)

Sec. 11 A

Compassionate appointment – Of widow in place of deceased workman not possible if the tribunal awarded compensation unchallenged since 10 years Tribunal – Can mould the relief either to grant compensation or provide compassionate appointment to the widow of the deceased workman

¥4.421 The tribunal in its wisdom awarded compensation to the widow of the workman instead of providing

compassionate appointment in her husband’s place in the bank. The award reached finality being not challenged for a period of 10 years. The bank neither paid compensation nor gave compassionate appointment. Upon challenge the High Court upheld the award and observed that the tribunal has power to mould the relief including framing new contract of service. Since compensation was awarded which remained unchallenged, the plea for compassionate appointment was rejected. However the court directed the bank to pay the compensation with interest quantified at ̀ 1,20,000 including cost.

Savitri Devi v. General Manager (P.A.), Allahabad Bank & Ors., 2009 I LLJ 31 (All.HC) CMWP 34313 of 2001 dt. 8-8-2008

“Upon hearing the………is quoted hereunder.” (Page: 33, Para: 7)

“It is a………the impugned order.” (Page: 33, Para: 8)

“In the light of………of the case.” (Page: 33, Para: 9)

Sec. 11A

Review – Of punishment by the new board of co-operative society once punishment was already imposed by the earlier board is unsustainable Increment – Stoppage is the punishment if imposed demotion cannot sustain by way of review to enhance the penalty Punishment – Of stoppage of increment once imposed the same cannot be reviewed to enhance punishment by the new board of management

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¥4.422 The employer, a co-operative society after fair and proper enquiry imposed the punishment of stoppage of one increment on the delinquent workman, an Assistant Secretary of the society. The workman after resumption of his duties was inflicted another punishment of demotion from the post of Assistant Secretary to the post of clerk upon reviewing the punishment. The question is once after inflicting the punishment of stoppage of one increment whether the society has the power to review its own decision to impose a more harsh punishment. The Labour Court held that the new board of the society has no power to review punishment on the same charges once punishment of stoppage of one increment was already imposed that also without giving any notice to the delinquent. It therefore reinstated the workman with back wages. The High Court upheld the award.

Management of Mettur Chemical Employees Co-operative Society v. Presiding Officer, Labour Court, Salem & Anr., 2009 I LLN 754 : 2009 LIC 544 (Mad.HC) WP 1677 of 2001 di. 29-10-208

“In view of……….the second respondent.” (Page: 759, Para: 14)

“The petitioner society……….9 December 1996.” (Page: 760, Para: 15)

“The order of……….costs. Petition dismissed.” (Page: 760, Para: 16)

Sec. 11 A

Bribe – If accepted and admitted besides with proof termination cannot be successfully contested Misconduct – Of accepting bribe if duly proved by admission and testimony termination cannot be set aside Excess baggage – If permitted to carry by accepting bribe termination on proof cannot be set aside

¥4.423 Where the fact of acceptance of ` 400 by workman as bribe permitting the passenger to carry excess

baggage has been established by the employer, proved in the Enquiry the finding of the Tribunal that termination was proper, the enquiry held being fair and proper and that the workman had confessed in writing that he had accepted the bribe permitting the passenger to carry excess baggage without charges followed with written testimony of the passenger available on record, no interference under writ jurisdiction is required to set aside the award. High Court dismissing the petition upheld the termination being just, proper and legal.

Shrikant R. Palkar v. Indian Airlines & Anr., 2009 II CLR 1078 : 2009 (6) BCR 380 (Bom.HC) CAJWP 5673 of 1997 dt. 23-6-2009

“I have perused……….was not disproportionate.” (Page: 1080, Para: 5)

“Mrs. Doshi submitted……….of the petitioner.” (Page: 1080, Para: 6)

“The scope of……….the Industrial Tribunal.” (Page: 1081, Para: 7)

Sec. 11A

Labor Court – Cannot interfere with quantum of punishment if an enquiry was properly held Sec. 11A – Labour Court need not interfere with the quantum of punishment if an enquiry was properly held Quantum of punishment – Cannot be interfered with for want of adequacy of reasons if enquiry was properly held Fair and proper enquiry – Bars interference in the quantum of punishment

¥4.424 Workman was dismissed from service for the misconduct on 7 counts. He neither submitted any

explanation nor participated in the enquiry to come clean. On the contrary he had requested for pardon assuring to maintain good conduct in future. In this background the Labour Court while holding the enquiry fair and proper and charges proved should not have interfered with the punishment of removal considering it harsh in exercise of its power u/s. 11A of the Act by directing reinstatement without back wages. Hence, this petition, by the employer. The High Court relying on the decision of the Supreme Court in the case of Union of India v. Narain Singh, (2002) 5 SCC11, has held that there was no

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justification for the Labor Court to interfere with the management’s decision regarding the quantum of punishment without any justifiable reasons especially when his past record was also not clean and that if an enquiry was properly held adequacy or reliability of evidence cannot be canvassed. Hence the award of reinstatement was set aside.

Ahmedabad Electricity Co. Employees Co-op. Vividhkarayakari v. Nilesh M. Delhiwala C/o. V.K. Jani, Advocate, 2009 II CLR 1091 : 2009 LLR 1103 (Guj.HC) SCA 7555 of 2008 with CA 2900 of 2009 in SCA 7555 of 2008 dt. 2- 5-2009

“In present case……….is accordingly set aside.” (Page: 1094, Para: 1)

“On the ground……….as to costs.” (Page: 1094, Para: 1)

Sec. 11 A

Ex parte enquiry – Is justified for non participation of the delinquent in the enquiry later furnishing forged medical certificates Past record – If heavily blameworthy with blot in his service including one case of termination and 16 cases of stoppage of increments finding against the workman by Labour Court cannot be called into question Termination – Of conductor proper for present and past bad records

¥4.425 The workman, a conductor was dismissed from service for proved misconduct and past similar

records in which he was once terminated but was taken back on duty on his representation to the appellate authority. The workman unsuccessfully contested his dismissal on the ground of enquiry being not fair and proper. But the Labour Court on the basis of the pleadings and evidence led by the parties had come to a definite conclusion that there was no justifiable reason for the workman to have not participated in the enquiry held against him because the medical certificate for his purported admission in a hospital on the date of enquiry was found forged. Therefore the Labour Court rightly answered the reference against the workman having considered his past record.

Varinder Pal v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Chandigarh, & Anr., 2009 II CLR 131 (P&H.HC) CWP 4781 of 2009 dt. 26-3-2009

“I have heard……….same stands dismissed.” (Page: 132, Para: 3)

Sec. 11 A

Reinstatement – Rejection of on assumption that the workman refused to move transferred place instead granting compensation is unsustainable if the termination was prior to the date of shifting Compensation – Instead of reinstatement on assumption the workman refused to join duties in transferred place is not sustainable if the termination was prior to the date of shifting Evidence – Not proving workman’s unwillingness to join the duties, Tribunal should have allowed reinstatement with back wages in his favour

¥4.426 The Tribunal held termination of a workman of border fencing illegal but instead of reinstatement

only back wages of ̀ 2,500 were awarded on the ground that the workman had declined to join his duties at Jaisalmer upon shifting of work. The contention that the workman was not ready to move to Jaisalmer on 15.5.1993 was not sustainable because he was terminated on 28.2.1993 prior to that date. Hence there was no occasion for him to refuse. Hence this petition by him in which the High Court held that where there was no adequate evidence available to infer that he declined to join his duties, the Tribunal should have allowed reinstatement with back wages. Hence directions were given for his reinstatement.

Ram Niwas v. Industrial Tribunal, Bikaner & Ors., 2009 II CLR 135 (Raj.HC) SBCWP 3792 of 1997 dt. 27-3-2009

“The reason given……….to the workman.” (Page: 137, Para: 8)

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“In view of……….as to costs.” (Page: 138, Para: 9)

Sec. 11A Back wages – Not payable if the workman fails to satisfactorily explain the absenteeism for two and half years Unauthorized absence – If not explained satisfactorily Labour Court can mould the relief denying back wages and continuity of service Dismissal – For unauthorized absence is very harsh Relief – Of reinstatement for unauthorized absence for two and half years is available but not back wages and continuity of service Gratuity – Cannot be denied though the award is not for continuity of service provided the workman had put up 10 years of service

¥4.427 Workman a driver was dismissed from service for the proved misconduct of unauthorized absence

from duty from 21.1.1995 to 8.7.1997 and his appeal was also rejected. Upon challenge, the Labour Court reinstated him but without back wages or continuity of service considering the penalty very harsh. The same was challenged in the present petition by the workman in which it was held that since the workman did not provide any satisfactory explanation for his unauthorized absence from duty even after service of charge sheet, the award of the Labor Court did not suffer any defect and it rightly exercised its discretion in denying back wages and continuity of service which was neither arbitrary nor against the well settled legal position for exercising discretion. However considering he had put up 10 years of service the High Court allowed gratuity notwithstanding the award was not for continuity of service.

Nagdanbhai Hamirbhai Boricha v. Gujarat State Road Transport Corporation, 2009 II CLR 234 (Guj.HC) SCA 10117 of 2006 dt. 6-8-2008

“It is also……….sheet was served.” (Page: 236, Para: 10)

“In the facts……….finding on discretion.” (Page: 236, Para: 12)

“In view of……….continuity of service.” (Page: 237, Para: 14)

“At this stage……….said 10 years.” (Page: 237, Para: 15)

Sec. 11 A

Disciplinary Authority – Once having issued a charge sheet under Regulation-23 for major penalty cannot go back and straight away impose minor penalty under Regulation-23 violating the procedure Charge sheet – Once issued under Regulation-23 for major penalty infliction of minor penalty without enquiry under Regulation-22 is against the procedure Minor penalty – Cannot be imposed once a charge sheet under major penalty is issued violating the procedure prescribed under the relevant Regulations

¥4.428 The Disciplinary Authority having issued a charge sheet under Regulation-23 dealing with the

procedure for imposing major penalty cannot thereafter turn around and impose a minor penalty without enquiry or affording an opportunity to the delinquent workman to defend himself. The workman in such circumstance is unaware of the proposed penalty. The charge sheet was silent regarding the minor penalty. In such cases what was attracted was Regulation-22 and not 23. Even while imposing minor punishment under Regulation-22 the employer must indicate and follow the proper procedure. The High Court set aside the impugned order of Disciplinary Authority and Appellate Authority and remitted the matter for taking action in accordance with law.

H.M. Manjunath v. Board of Directors/Appellate Authority, Bangalore & Anr., 2009 II CLR 363 (Karn.HC) WP 19830 of 2007 dt. 20-1-2009

“Admittedly the charge……….expressing its opinion.” (Page: 365, Para: 7)

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“Admittedly, in this……….Corporation so desire.” (Page: 366, Para: 9)

Sec. 11 A

Domestic Enquiry – Must be consistent with the principles of natural justice for termination to be valid Principles of natural justice – Must be followed in the domestic enquiry for termination to be valid Misconduct – Of not issuing ticket, collecting fare if not proved by the employer termination is illegal

¥4.429 Procedure at domestic enquiry must be consistent with the principles of natural justice. Hence where

the alleged misconduct of respondent conductor has not been proved by the management either before enquiry officer or before the tribunal with due regard to the principles of natural justice no interference warrants to set aside the award granting reinstatement in service with full back wages.

Delhi Transport Corporation v. Nem Singh & Ors., 2009 II CLR 444 (Del.HC) WP 3754 of 2003 dt. 12-3-2009

“Perusal of order……….is as under.” (Page: 446, Para: 7)

Sec.11A

Writ jurisdiction – Has little scope to change the award in the admitted position of proved misconduct Misconduct – If repeated one duly appreciated by the Labour Court does not allow to be interfered with in a judicial review Judicial review – High Court cannot exercise as an appellate authority to set aside an award in cases of repeated misconduct

¥4.430 Where the Labour Court while exercising its power u/s. 11A has taken into consideration the

quantum of punishment meted out to the petitioner workman and concluded that there was no scope for interference in the light of the fact that as many as 20 punishments have been imposed on the workman in the last 19 years of service which included warnings, censures, stoppage of increments and in the instant case also the misconduct of unauthorized absence from duty has been duly proved, the award of the Labor Court upholding the action of dismissal cannot be interfered in writ jurisdiction.

Ramesh Kumar v. State of Haryana & Ors., 2009 II CLR 470 (P&H.HC) CWP 4455 of 2009 dt. 21-3-2009

“The other contention……….the petitioner workman.” (Page: 471, Para: 4)

“Counsel for the……….petition stands dismissed.” (Page: 472, Para: 5)

Sec. 11A

Abuses – Hurling of to the General Manager of a bank by a peon in a drunken state will be met with the punishment of dismissal Unparliamentary language – Abuses hurled by a peon in a drunken state will be met with the punishment of dismissal Peon – Hurling abuses in a drunken state will be met with the punishment of dismissal General Manager – If targeted by his peon by abuses in bank premises by choicest abuses in a drunken state punishment of dismissal is proper Dismissal – For the proved misconduct of using unparliamentary language against the General Manager of the bank in office premises is proper punishment

¥4.431 The services of a workman who was a peon in a bank, was terminated for hurling choicest abuses in

an unparliamentary language in a drunken state to the General Manager displaying disorderly and indecent behaviour in the bank premises after an enquiry. The industrial tribunal upheld his dismissal. The workman challenged the same in a writ petition. Dismissing the petition the High Court held that discipline in any institution reflects the competence and sincerity of the workman and it not only shows the character of the employee but also reflects his dedication and respect for the institution and senior

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officers. The punishment of dismissal for such proved misconduct does not call for interference by the High Court.

Harnek Gill v. State Bank of Patiala, through its General Manager, Head Office, 2009 II CLR 645 (P&H.HC) CWP 3685 of 2009 dt. 9-3-2009

“Discipline in any……….by this Court.” (Page: 648, Para: 6)

Sec. 11A

Sexual harassment at workplace – Can be substantiated by the victim by coming forward herself to give evidence unimpeached in cross examination Termination – Of service for proved misconduct of Sexual harassment at workplace is proper

¥4.432 A workman who was Assistant Field Officer was terminated from the service for misconduct of

misbehavior with a woman plantation worker. But the Labour Court set aside the dismissal and directed for his reinstatement with back wages and other benefits. Hence the present petition in which it was held that where the complaint filed against the workman being a clear case of sexual harassment at workplace, the Management rightly took the action of termination. The victim herself had come forward to give evidence which could not be impeached in cross examination. Hence the award of the Labour Court was set aside.

Management of Tata Tea Ltd. v. Presiding Officer, Labour Court, Coimbatore & Anr., 2009 II LLN 590 : 2009 II CLR 79 : 2009 LLR 645 (Mad.HC) WP 6295 of 2000 dt. 6-3-2009

“In the present……….in its award.” (Page: 592, Para: 20)

Sec. 11A

Labour Court – Cannot exercise its discretion u/s. 11A if the charges are serious in nature like threatening superiors, tampering attendance register Misconduct – Of tampering with the attendance register and threatening the superiors, is sufficient cause for dismissal Proportionality – Of punishment of dismissal to the proved charges of tampering attendance register and threatening superiors being in order Labour Court has no scope u/s.11A to interfere

¥4.433 Where the order of dismissal has been imposed on the workman not only on the basis of proved

misconducts of tampering with the attendance register, threatening his superiors, which are serious charges but also relying on his past records which were not clean, the award of the Labour Court holding his dismissal valid and sustainable and not exercising its discretion u/s. 11A to reduce the punishment is held proper by the High Court.

K. Velusamy v. Labour Court, Coimbatore & Anr., 2009 II LLN 628 : 2009 LIC 1218 : 2009 LLR 597 (Mad.HC) WP 1058 of 2003 dt. 15-12-2008

“The management of……….his past records.” (Page: 632, Para: 19)

“The claim of……….on the petitioner.” (Page: 632, Para: 20)

Sec. 11A

Enquiry proceedings – Cannot be said to have been vitiated merely because the workman was unaware of the assistance available to him if he had studied upto 9th standard Illiteracy – Of a workman studied upto 9th standard cannot be shield against the claim that workman was unaware of the assistance of a co-worker available to him to defend the charges

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¥4.434 The workman contested the fairness of enquiry holding that he being an illiterate person was unaware of the fact that it was open for him to take the assistance of a co-worker. Rejecting his plea the High Court held that the workman had studied up to 9th standard and was holding the post of member of executive committee of trade union and hence his plea that he was not aware of the fact that he could take the assistance of co-worker during enquiry proceedings cannot be accepted and where he has not raised this issue during enquiry proceedings, the objection that enquiry proceedings were not fair and proper cannot be allowed.

K. Velusamy v. Labour Court, Coimbatore & Anr., 2009 II LLN 628 : 2009 LIC 1218 : 2009 LLR 597 (Mad.HC) WP 1058 of 2003 dt. 15-12-2008

“The claim of……….on the petitioner.” (Page: 632, Para: 20)

Sec. 11A

Appreciation of evidence – On record is one of the functions of Labour Court to exercise the power vested in it u/s. 11A Labor Court – If failed to appreciate the evidence on record its decision will be perverse Termination – If illegal compensation of Rs. 8,00,000 each is proper instead of reinstatement following the age of superannuation

¥4.435 The delinquent workmen reportedly attended the funeral of their co-worker without gate passes. The

management’s contention was that they incited other workmen to attend the funeral leaving the work of the factory aside without permission of their superiors. The workmen contended that other co-workers were exonerated the charges though they had attended the funeral without gate passes. After enquiry the services of these 2 workmen were terminated. The Labour Court affirmed the punishment and failed to exercise jurisdiction vested in it u/s. 11A to reduce the punishment and failed to appreciate the veracity of the evidence. Upon challenge the High Court set aside the punishment and held that the Labour Court merely endorsed the findings of enquiry officer without going through the evidence on record. The findings therefore suffer from patent perversity. As the workmen have since superannuated and they had annexed a chart for ̀ 19,00,000 towards 100% back wages, the court held that a compensation of ̀ 8,00,000 each will be adequate to meet the ends of justice.

Ramesh K. Pullellu v. A-Dor Welding Ltd. & Anr., 2009 III CLR 101 : 2009 (5) Mah.LJ 738 (Bom.HC) CAJWP 6462 of 1997 with WP 6486 of 1997 dt. 18-7-2009

“When the matter……….theory of victimization.” (Page: 106, Para: 13)

“The Labor Court……….the said findings.” (Page: 106, Para: 14)

“While exercising its……….are patently perverse.” (Page: 106, Para: 15)

“In my view……….which is recorded.” (Page: 108, Para: 20)

“In my view……….each without interest.” (Page: 109, Para: 22)

Sec. 11A

Disciplinary Authority – If does not record the reasons for its disagreement with the findings of the Enquiry Officer the punishment imposed is liable to be set aside Enquiry report – If the disciplinary authority disagrees with it without recording reasons the punishment is liable to be set aside Punishment – Imposed by the disciplinary authority disagreeing with enquiry officer without recording reasons is liable to be set aside Representation – Of delinquent official is the minimum requirement before the disciplinary authority before imposing punishment if he disagrees with the enquiry officer

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Delinquent official – Has to be given opportunity to represent before the Disciplinary Authority before recording its final finding if he disagrees with the findings of enquiry officer

¥4.436 The charges against the workman were that he was guilty of committing attempt of theft. The

enquiry officer found that the charges are not proved. The disciplinary authority disagreed even when the delinquent workman was not present on the date of alleged attempt of theft. No personal hearing was provided nor any reason for disagreement with enquiry officer, was recorded. The disciplinary authority imposed a minor penalty of stoppage of one increment without cumulative effect. Upon challenge the High Court held that whenever Disciplinary Authorit y disagrees with the findings of the Enquiry Officer, it has to record tentative reasons for such disagreement and delinquent officer is to be given an opportunity to represent before it, before recording its final finding. Hence where no such procedure is followed and where the findings of the Disciplinary Authority are perverse and based on no evidence, the order of the disciplinary Authority will not sustai n and hence set aside.

Anand Kumar Singh v. U.P. State Road Transport Corporation & Ors., 2009 III CLR 490 (All.HC) CMWP 34035 of 2007 dt. 1-9-2009

“From the pleadings……….its final findings.” (Page: 492, Para: 9)

“Besides, it is……….conjectures and surmises.” (Page: 493, Para: 10)

Sec. 11A

Employer employee relationship – Though the Labour Court denied based on no evidence the writ court though not a court of appeal still can rectify the error and grant relief Jurisdiction – Writ Court though not a court of appeal has the power to rectify the error as to evidence and grant appropriate relief Writ Court – Can exercise jurisdiction to rectify the error committed by the Labour Court for a finding based on no evidence on record Labour Court – If findings as to absence of employer employee relationship if based on no evidence the writ court can rectify the error

¥4.437 Though the Writ Court does not sit in appeal, it can definitely exercise its jurisdiction in case a

finding of fact arrived at by the Labour Court is perverse or contrary to the evidence on record and rectify such error. Hence where no reasons are given by the Labour Court for its conclusion that the documents filed by the workman to prove employer employee relationship are of doubtful nature and the witness of the employer has also admitted that the workman was employed by them, the award of the Labour Court rejecting claim of the workman for rei nstatement and holding that there is no employer employee relationship is set aside being perverse and the workman was held entitled to reinstatement with 50% back wages.

Mahesh Chand v. Godrej Sara Lee Ltd., 2009 III CLR 509 : 2010 II LLJ 110 (Del.DB) LPA 321 of 2009 dt. 14-9- 2009

“Though it is……….such an error.” (Page: 513, Para: 12)

“In the present……….by the same.” (Page: 513, Para: 13)

“Consequently the present……….date of reinstatement.” (Page: 513, Para: 14)

Sec. 11A

Departmental enquiry – In which no witness of employer was examined no evidence was led leads to reinstatement with full back wages Full back wages – Reinstatement ensues if the employer in the domestic enquiry, fails to substantiate the charges by examining any witnesses nor led any evidence

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Evidence – if not led in the domestic enquiry to substantiate the charges the punishment of dismissal will not sustain Witnesses – The employer has to examine to prove the charges failing which the punishment will not sustain

¥4.438 Disciplinary Authority passed the order of dismissal against the workman, a conductor for the

misconduct of issuing used tickets to two passengers. His first appeal was allowed setting aside the order of removal and directed for his fresh appointment without continuity of service. His 2nd appeal was dismissed. In reference Labour Court held the enquiry was not legal and valid and passed the award of continuity of service with back wages. Hence the present petition in which it was held that where no witness was examined in the departmental enquiry held by the management and where the management failed to lead any evidence to prove its case against the workman the award cannot be interfered with.

Maharashtra State Road Transport Corporation, though its Divisional Controller, Ahmednagar v. Hamid Ishaq Mirza, 2009 III CLR 733 (Bom.HC) WP 3812 of 1996 dt. 20-8-2009

“In the light……….in the alternative.” (Page: 736, Para: 12)

Sec. 11A

Misconduct – Excludes – An error of judgment Error of judgment – Does not warrant extreme punishment Reinstatement – With 50% back wages is proper for an error of judgment in re-issuing tickets Personal gain – Where not involved the error of judgment does not constitute misconduct

¥4.439 Tribunal held the punishment of removal imposed on workman as disproportionate to the

misconduct and passed the award of reinstatement without back wages. Hence the present petition by the workman in which it was held that in this case the conductor while re-issuing the tickets to others for the distance not travelled by a few passengers to whom the fare was refunded the conductor had only misinterpreted the departmental instructions and he had no intention to make personal gain out of re- issue of tickets. Such an act can be a mere error of judgment and cannot be a misconduct. Hence the award was modified by directing the employer to extend the benefit of continuity of service including notional increments with 50% back wages.

Polam Chenna Reddy v. Industrial Tribunal-cum-Labour Court, rep. by Hon'ble P.O. Warangal & Anr., 2009 III CLR 748 (AP.HC) WP 2620 of 2009 dt. 18-4-2009

“On the strength……….and attendant benefits.” (Page: 750, Para: 4)

“In my considered……….journey from Parkal.” (Page: 751, Para: 7)

“On the above……….re-issue of tickets.” (Page: 752, Para: 9)

“Applying the ratio……….the present case.” (Page: 752, Para: 10)

“Then coming to……….out of employment.” (Page: 753, Para: 11)

Sec.11A

Dismissal – For forming trade union without enquiry for any misconduct is liable to be set aside Labour Court – Can interfere u/s. 11A against termination without enquiry for forming union Proportionality – Of punishment can be looked into by the Labour Court u/s. 11A for dismissal of workmen for forming trade union

¥4.440 The action of the Labour Court to exercise jurisdiction u/s. 11A to reduce the punishment of

dismissal to that of reduction of increment and reinstatement of 2 workmen was under challenge in a writ petition. The High Court held that the only fault of the workmen was that they had formed a union and raised demand. Dismissal from service without enquiry for forming a trade union suffers from violation

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of the principles of natural justice. Interference u/s. 11A is therefore justified. Writ application was dismissed.

Dr. Elizabeth Jean Marsh v. Presiding Officer, Labour Court & Ors., 2009 LLR 618 : 2009 III LLJ 472 : 2009 LIC 1432 (Ori.HC) OJC 6463 of 1993 dt. 10-2-2009

“Coming to the punishment……….service benefit.” (Page: 621, Para: 8)

“Applying……….dismissed.” (Page: 622, Para: 17)

Sec. 11A

Theft – Once proved being an admitted fact is not open for judicial review to reinstate a workman substituting the punishment of dismissal Dismissal – For proved misconduct of committing theft cannot be substituted by reinstatement exercising judicial review Misconduct – Of theft once proved interference with the punishment of dismissal Loss of confidence – Is the result precluding reinstatement of a workman involved in the misconduct of theft

¥4.441 The workman admitted that he had committed the theft of 10 liters of paint. His services came to be

terminated after an enquiry. The Labour Court interfering on the quantum of punishment reinstated him without back wages exercising judicial review u/s. 11A. Upon challenge the High Court set aside the award and held that the misconduct was serious and major one in terms of Certified Standing Orders. Once the Labour Court holds the misconduct as true it is not open to it to substitute its subjective opinion in place of the one arrived at by the employer. Even otherwise there will be deficit of trust and consequential loss of confidence to be considered. Writ petition of the employer was therefore allowed.

M/s. Mangalam Timber Products Ltd. v. Sailesh Kumar Gantayat, 2009 IV LLJ 191 : 2009 (121) FLR 1039 : 2009 LLR 848 (Ori.HC) WP(C) 7401 of 2008 dt. 11-2-2009

“In the present……….cannot be justified.” (Page: 196, Para: 20)

Sec. 11A

Compensation – Proper for award of reinstatement if termination was 12 years ago Reinstatement – Not proper if termination was made 12 years ago

¥4.442 Court held that although termination of the workmen was rightly held to be illegal and unjustified

reinstating the workmen with back wages albeit in an ex-parte award but keeping in view of the facts of the case in which the services were terminated in 1996 more than 12 years ago and this long gap of period between termination and reinstatement will only add to the unrest rather than industrial peace, hence court directed to pay compensation of Rs. 2,00,000 to each workmen in lieu of reinstatement and back wages.

Rajesh Wire Industries v. Umesh & Anr., 2009 IV LLJ 715 : 2009 (121) FLR 1131 : 2009 LIC 2496 (Del.HC) WP(C) 8881 of 2005 dt. 20-3-2009

“This court is……….and the employee.” (Page: 719, Para: 14)

“Under these circumstances……….ends of justice.” (Page: 719, Para: 17)

Sec. 11A

Shockingly disproportionate – Must be the punishment evoking some sense of shock to the conscience of the court giving scope to interfere in the quantum of punishment

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Quantum of punishment – Cannot be interfered with u/s. 11A unless the punishment was shockingly disproportionate to the proved misconduct Misconduct – If not such that the punishment was so much disproportionate it shocks the conscience of the court it permits interference u/s. 11A

¥4.443 Workman was dismissed from service after enquiry in respect of serious misconduct attracting

major penalty. Labour Court held enquiry was fair and proper and that the misconduct was of grave nature justifying imposition of a major penalty. However it modified the penalty of dismissal into one of discharge because it was in its opinion not involving misappropriation of money or commission of fraud. High Court set aside the order of Labour Court and held that u/s. 11A the labour court should only interfere if punishment awarded was shockingly disproportionate to the proved charges. In this case the charges it cannot be said evoke some sense of shock to the conscience in relation to the gravity of the proven misconduct.

Federal Bank Ltd. v. T. Sreekantan & Ors., 2009 IV LLJ 809 : 2009 (122) FLR 252 : 2009 LIC 2872 : 2009 III CLR 221 : 2009 LLR 998 (Ker.HC) WP (C) 24901. 35711 of 2007 dt. 3-4-2009

“The learned counsel……….a different.” (Page: 812, Para: 6)

“The only question……….accordingly is dismissed.” (Page: 812, Para: 7)

“In the case……….above. No costs.” (Page: 814, Para: 8)

Sec.11A

Enquiry – Not vitiated for the reason that the enquiry officer failed to ask the workman regarding assistance of a co- worker as defence assistant in every proceeding Circular – For asking the delinquent his need of assistance of a co-worker as defence assistant is not mandatory but only a rule of prudence Rule of prudence – Is the circular requiring the enquiry officer to ask the delinquent in every proceeding the need of a defence assistant and not mandatory

¥4.444 The terminated workman, a conductor Challenged the fairness of enquiry on the ground that the

Enquiry Officer though asked on the first day whether he likes to have the assistance of a co-worker as a defence assistant but failed to ask on every date of the proceedings in terms of a circular. The fact remains that the workman on the first day of enquiry refused the assistance of a co-worker. The High Court held that the enquiry was not vitiated merely because the enquiry officer did not ask the delinquent on every subsequent enquiry regarding this assistance. The rule framed in this regard was held not mandatory but only incorporates a rule of prudence. In this case the delinquent workman had even cross examined the defence witnesses at length. Hence the High Court upheld the fairness of enquiry and dismissal of the workman finding no fault in the judgments of courts below.

Virender Singh Conductor B.No. 21473 v. Delhi Transport Corporation, 2009 IV LLN 177 : 2009 II CLR 439 (Del.DB) LPA 1189 of 2007 dt. 18-4-2009

“It is thus……….to be rejected.” (Page: 179, Para: 5)

“The next contention……….must be rejected.” (Page: 179, Para: 6)

Sec. 11A

Right to life – Enshrined in the constitution was not infracted if a part time sweeper working for 2 hours daily was not put back in his part time job and instead paid compensation Compensation – Proper against illegal dismissal of a part time sweeper working only for 2 hours daily Part time sweeper – Working only for 2 hours daily cannot claim reinstatement but compensation awardable

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¥4.445 A sweeper who was engaged only for 2 hours of work daily contested his illegal termination claiming reinstatement with full back wages. The Labour Court awarded compensation of Rs. 20,000 only. The workman challenged the same before High Court on the ground that the Labour Court has no power to award compensation when his claim was for reinstatement. By doing so his right to life guaranteed under the constitution was infracted. Rejecting this contention, the High Court held that Sec.11A of I.D. Act vests the Labour Court with discretionary jurisdiction to grant compensation in lieu of reinstatement as incidental to a dispute of dismissal. As to violation of the Article to right to life is concerned it is not outside the rule of law and he cannot insist that if he was not put back in his part time job of 2 hours service everyday his right to livelihood would be unjustly taken away. The grant of compensation was upheld.

Prem Chand v. Management of M/s. The Joint Director, Information & Public Relations, 2009 LIC 1546 (Del.HC) WP (C) 950 of 2008 dt. 6-2-2008

“It is settled……….compensation will suffice.” (Page: 1550, Para: 9)

“The counsel for……….unjustly taken away.” (Page: 1551, Para: 10)

Sec. 11A

Theft – Once proved to have been taken place negligence and carelessness in performing duty could be inferred by preponderance of probabilities if not by direct evidence Negligence and carelessness – Can be inferred by preponderance of probabilities in the absence of direct evidence once it is proved theft had taken place in his duty hours Sleeping on duty – Though not proved the fact of theft during duty hours proves negligence and carelessness can be inferred by preponderance of probabilities

¥4.446 The security guard after an enquiry was terminated for the charges of negligence in his duties

resulting in theft of 26 leather bundles worth ̀ 2.15 lakhs. The contention of the employer was that he was sleeping while on duty. The Labour Court upheld the dismissal on admitted facts that there was no dispute that theft had taken place. Upon challenge before the High Court it was held that once it has been accepted that theft had taken place during the duty hours of the workman it is not necessary for employer to further prove by direct evidence that he was negligent or careless in performing his duty. The contention that the employer failed to prove that he was sleeping while on duty beyond reasonable doubt though could be accepted yet the negligence and careless in performing duty though not by direct evidence but by preponderance of probabilities cannot be ignored. The workman could not rebut either by oral or documentary evidence that there was no negligence or carelessness on his part. The High Court upheld the order of the Labour Court.

K.B. Loknathama & Anr. v. Management Ponds India Ltd. & Anr., 2009 LIC 243 (Mad.HC) WP 3636 of 2001 dt. 8- 9-2008

“On a perusal……….on his part.” (Page: 250, Para: 23)

“It is well……….No costs.” (Page: 250, Para: 25)

Sec. 11A

Admission – Of guilt regarding theft of employer’s property is sufficient for imposing punishment of dismissal Theft – Of the property of employer being admitted categorically there is no escape from the punishment of dismissal Dismissal – Proper for admitted fact of theft by the workman

¥4.447 Theft of one tanker filled with 10,000 liters of milk when apprehended and involvement of 2

workmen came to the fore and when they admitted their involvement but stated that they did it at the instance of their superior, yet the Industrial Court interfering with the punishment of dismissal held that

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they had only helped their In Charge by following his instructions. Hence it passed an order of reinstatement without back wages. Upon challenge, the High Court set aside the order of Industrial Court and held the admission of guilt by the workman was categoric and unambiguous. Upon such admission the punishment of dismissal could not be regarded as disproportionate. Theft involving property of employer is a serious charge warranting dismissal. Judgment of Industrial Court was set aside.

Kolhapur Zilla Sahakari Dudha Utpadak Sangh v. Shivaji Shankar Pharakate & Anr., 2009 LIC 2449 (Bom.HC) WP 6419 of 2008 dt. 19-11-2008

“In this background……….cannot be faulted.” (Page: 2453, Para: 11)

“The Industrial Court……….the revisional jurisdiction.” (Page: 2455, Para: 12)

Sec. 11A

Defence Assistant – Having 2 cases in hand being excluded from representing the delinquent workman does not violate any fundamental right Disciplinary enquiry – In which exclusion of the representation of an union leader for the reason that he had two cases already in hand is not vitiated Workman – Cannot express any qualms for refusal to allow to represent him by an union leader already engaged by two departmental enquiries Enquiry – Is not vitiated merely because the delinquent was not allowed to be represented by a union leader having already two cases in hand

¥4.448 Where as per the Clause 12 of the service conditions, the employee had not been denied the right to

be defended by trade union leader, the only restriction imposed by the employer that the employee could not take the assistance of the defense representative already having two disciplinary cases in hand in which he was giving assistance to departmental enquiry did not violate the fundamental right of the workman in view of the decision of the Honorable Supreme Court in the similar case of Overseas Bank (AIR 2001 SC 4007). Hence the petition was dismissed.

Satish Prakash Bhatt etc. v. State Bank of Bikaner & Jaipur & Ors., 2009 LIC 2697 (Raj.HC) CWP 7110 & 7111 of 2008 dt. 8-12-2008

“In the instant……….to give assistance.” (Page: 2703, Para: 20)

“Keeping in view……….of the petitioners.” (Page: 2703, Para: 21)

Sec. 11A

Prejudice – If said to have been caused due to delay in framing the charges and conducting enquiry the same should be raised at the earliest point of time Disciplinary authority – Can differ from the findings of the enquiry officer if it has sufficient reasons to do so Enquiry – On the misconduct committed 5 years ago can be held if no prejudice was caused to the delinquent workman Delay – In conducting enquiry or framing charges cannot said to have caused prejudice unless the workman raises the same at the earliest point of time

¥4.449 A charge sheet containing three charges was issued in the year 1999 for the misconduct committed in

the year 1994. The enquiry officer held two charges were proved. The disciplinary authority disagreeing with the enquiry officer held all the charges proved and imposed a punishment of reduction in pay by two stages for two years. The workman challenged the same holding that prejudice was caused to him by belated enquiry by five years. The High Court rejecting the petition held that if any prejudice was caused it was for the workman to raise it at the earliest point of time. There was no mention of the delay in the reply submitted by him. He was given the enquiry report with opportunity to submit explanation which

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was availed by him. It was only at the stage of disposal of his appeal he raised the issue of prejudice not at the earliest point of time. The disciplinary authority can differ from the findings of enquiry officer if he has sufficient reasons. Hence the petition was dismissed.

A. Suresh Muthu v. Chief General Manager (Appellate Authority), State Bank of India & Anr., 2009 LIC 2759 (Mad.HC) WP 1855 of 2003 dt. 23-1-2009

“In view of……….respondent Appellate authority.” (Page: 2764, Para: 19)

“It has not……….leveled against him.” (Page: 2765, Para: 20)

“Merely for the……….no. costs.” (Page: 2765, Para: 21)

Sec. 11A

Dismissal – Of a workman without enquiry for alleged misconduct of going on strike being unjust requires payment of compensation if reached the age of superannuation Inquiry – If not held against the workman for participating in illegal strike, his termination is illegal Age of superannuation – Compensation instead of reinstatement and back wages would meet the ends of justice as a relief against termination without enquiry

¥4.450 A workman, working as a salesman for 3 years was not allowed to work since 5.6.1981 on the ground

of participating in illegal strike. No enquiry or notice of dismissal was served upon him or any order of dismissal was passed against him. He raised a dispute in the Labour Court where the employer contended that he remained absent from 11.5.1981 to 5.6.1981 and Labour Court refused to give any relief. Aggrieved, he filed a petition before the High Court which held that it was not bona fide for the employer not to hold an enquiry and hence he deserves to be reinstated with all consequential benefits but since he had already superannuated reinstatement could not be granted. It therefore directed the employer to pay a lump sum amount of ̀ 3 lakhs by way of compensation for termination without an enquiry.

Hardial Singh v. Presiding Officer Labour Court, Bhatinda & Anr., 2009 LIC 2824 (P&H.HC) CWP 1005 of 1988 dt. 8-12-2008

“Adverting to the……….the Labour Tribunal.” (Page: 2826, Para: 9)

“It is conspicuous……….get any employment.” (Page: 2826, Para: 10)

“In view of……….of actual payment.” (Page: 2826, Para: 11)

“Harking back to……….award is modified.” (Page: 2827, Para: 12)

Sec. 11A

Enquiry – If not conducted prior to termination for allegations of embezzlement of money reinstatement with back wages cannot be avoided Misconduct – Of embezzlement of money is to be proved in an enquiry without which termination is illegal Embezzlement of money – If the allegation it requires to be proved in an enquiry without which termination is illegal Evidence – To prove the charges if absent termination without enquiry for allegations of embezzlement of money will be illegal Termination – Of the workman without holding enquiry cannot be held proper for embezzlement of money

¥4.451 A workman was terminated for the misconduct of embezzlement of money of the society for the

alleged receipt of money from the members by signing the receipt but not accounting for an for going on illegal strike for one month. No charge sheet was issued to him. No member of the society was produced

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to prove the charges against the workman and to prove his signatures on the receipts and the copy of the two arbitral awards said to have been passed against the workman was also not produced. Hence his termination without holding the enquiry was not proper and therefore he was reinstated but with 50% back wages only because he was doing some work to maintain his family during which he was out of service. Also his termination on the ground of participation in illegal strike was also not proper since there was no evidence available.

Harnek Singh Dhillon v. The Presiding Officer, Labour Court & Anr., 2009 LIC 2891 (P&H.HC) CWP 1671 of 1987 dt. 19-2-2009

“I have heard……….of original records.” (Page: 2893, Para: 4)

“Now coming to……….to the ground.” (Page: 2894, Para: 5)

“In the light……….cannot be sustained.” (Page: 2895, Para: 7)

“A perusal of……….whichever is earlier.” (Page: 2896, Para: 9)

Sec.11A

Mala fide – Action if could be read into the order of transfer due to unreasonableness it is liable to be set aside Transfer – If proved to be mala fide, can be set aside under Art. 226 of the Constitution Transfer policy – Should be reasonable and should apply to all equally Office bearers – Of a trade union cannot be transferred in a mala fide manner to subvert legitimate agitation

¥4.452 The employer altered certain condition of service regarding the pattern of overtime payment without

complying with Sec. 9A of the Act also there were disputes about short payment of wages and relating to attendance etc. the workmen resorted to agitation and the union succeeded in arriving at a settlement. Immediately after this, 18 active office bearers of the union were transferred to far off places. The transfer was contested being mala fide and motivated. The High Court setting aside the transfer orders held that though a transfer is an incident of service normally the courts are slow to interfere in the administrative orders unless it was mala fide. In this case the 18 workmen were either office bearers or active members of CITU. The employer failed to discharge the onus that this was not a mala fide action or reasonable.

T. Jayapandi v. State Express Transport Corporation Ltd. Chennai & Ors., 2009 LIC 3041 (Mad.HC) WP 20602 to 20606 of 2008, 20899 to 20910 & 21013 of 2008 & MP 1, 2 & 3 of 2008 dt. 13-10-2008

“It is stated……….order of transfer.” (Page: 3042, Para: 7)

“The Supreme Court……….to be made.” (Page: 3045, Para: 9)

“On the narration……….place before transfer. (Page: 3046, Para: 11)

“In view of……….position for ever.” (Page: 3046, Para: 12)

Sec. 11A

Closure – Of the company once proved the award for reinstatement cannot be implemented but compensation proper Reinstatement – As per award cannot be implemented once company was closed but compensation proper Compensation – Alone is payable in lieu of reinstatement once there is proof of closure of the company

¥4.453 In a case of wrongful termination of a workman, the Labour Court passed an award of reinstatement

with full back wages and continuity of service. Hence the present petition by the employer in which it was held that since the evidence of the witnesses proved that the company stood closed in the year 1999, the workman could not be reinstated in such situation and where he failed to produce any evidence

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regarding his salary last drawn and period of termination, the reliance was placed on the statement of Management and he was held entitled for compensation computed to be of ̀ 30,000 for his work with the company from March 1995 to January 1998.

M/s. Jai Jagdambay Deposits Pvt. Ltd. v. Presiding Officer, Labour Court, Jalandhar & Anr., 2009 LIC 3151 (P&H.HC) CWP 19104 of 2006 dt. 6-3-2009

“As regards the……….of gainful employment.” (Page: 3153, Para: 7)

“In view of……….compensation of Rs. 30, 000.” (Page: 3154, Para: 8)

Sec. 11A

Mohd. Ramzan Khan’s decision – Being prospective in nature for prior cases non issuance of a show cause notice before termination does not violate any constitutional provision Show cause notice – Issuance of can be dispensed with in terms of the service rules having overriding effect over the standing orders Mohd. Ramzan Khan’s case being prospective Termination – Without issuing show cause notice cannot be called into question if service rules permit S.O. being subservient to them Service rules – Will have overriding effect over S.O. in so far as the need for show cause notice before termination is concerned Mohd. Ramzan Khan’s case being prospective

¥4.454 The Supreme Court in the case of Managing Director ECIL v. B. Karunakar, 1994 LIC 762 had held

that the judgement in the case of Mohd. Ramzan Khan’s case has prospective operation. For prior cases prior to 20th November 1990, this law that show cause notice and enquiry report should be furnished to the delinquent workman before termination does not apply. Hence where the Rules governing the service did not require for the issuance of the show cause notice before the termination of the workman and the same was admitted by him also and where the enquiry held against him was fair and proper it was held that though as per the Standing Orders issuance of a show cause notice was required, the Rules governing the service would have overriding effect and therefore the award of the Labour Court holding the workman entitled to reinstatement was liable to be set aside.

M/s. Suraj Textile Mills v. Presiding Officer, Labour Court, Bathinda & Anr., 2009 LIC 3334 (P&H.HC) CWP 13946 of 1990 dt. 20-1-2009

“In the light……….an overriding effect.” (Page: 3336, Para: 6)

Sec. 11A

Award – Of compensation instead of reinstatement to the workman who admitted the charges of unauthorized absence leading to loss of production is held proper Loss of Production – Due to unauthorized absence is one of the factors legally disallowing the reinstatement with only payment of compensation Admitted Facts – Of unauthorized absence allows the court to refuse the reinstatement with only compensation Compensation – Instead of reinstatement is justified if workman admits his unauthorized absence leading to loss of production

¥4.455 A workman was dismissed from the service for the proved misconduct of unauthorized absence.

Domestic enquiry held against him was also held proper and fair by the Labour Court but in the exercise of its power u/s. 11A, directed for the payment of compensation to him instead of reinstatement. Hence the present petition was filed by him against the said award in which it was held that since the Labour Court had held that the workman had admitted the charges leveled against him for his unauthorized absence and the consequent loss of production, the award of the Labour Court in consideration of past records could not be said to be perverse and therefore the petition was liable to be dismissed.

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D. Soundarrajan & Etc. v. Presiding Officer, Labour Court, Coimbatore, 2009 LIC 3352 (Mad.HC) WP 1888 & 11704 of 2003 dt. 1-12-2008

“In view of……….no costs.” (Page: 3355, Para: 16)

Sec. 11A

Absence from duty – Though prolonged if to attend the sick daughter does not call for removal from service Removal from service – For prolonged absence to attend the sick daughter will not sustain being harsh Increment – Stoppage with cumulative effect is sufficient for the misconduct of prolonged absence

¥4.456 The employer terminated the services of the workman for the alleged absence though the reason was

that he had to attend to his daughter who was unwell. The Labour Court found the charges are not serious to warrant removal from service. Exercising its power u/s. 11A and setting aside the termination it directed his reinstatement with full back wages and with continuity of service and other consequential benefits but instead imposed a lighter punishment of stoppage of one increment with cumulative effect. Employer challenged the same before High Court which upheld the award because prolonged absence without sanctioned leave was not serious enough to inflict a harsh punishment of removal from service.

Haryana State Federation of Consumer's Co-operative Wholesale Stores Ltd. & Ors. v. Presiding Officer, Labour Court-cum-Industrial Tribunal, Hissar & Anr., 2010 I LLJ 471 : 2009 III CLR 367 : 2009 LLR 1267 (P&H.HC) CWP 12134 of 1999 dt. 30-7-2009

“These two decisions……….No costs.” (Page: 472, Para: 3)

Sec. 11A

Indiscretion – In giving credit of fertilizer without verifying whether member is alive or not that does not amount to embezzlement warranting dismissal Termination – If made 25 years ago though illegal reinstatement is not called for but benefit of terminal benefit allowed Reinstatement – Is not called for if the illegal termination was made 25 years ago Dishonesty – Is not same as indiscretion which does not allow termination

¥4.457 The services of a clerk in the Service Society was terminated without enquiry for the reason that he

had issued fertilizer on credit to a member and passed his cheque bearing his thumb impression brought by his son though the said member was no longer alive. The employer led evidence before Labour Court to justify the termination. The Labour Court did not interfere with the termination. The workman had to knock the door of High Court which held that there was no actual dishonesty or embezzlement but only the indiscretion in granting credit without verifyi ng whether the member was alive or dead. Hence the punishment of removal was very harsh. He has himself not retained any amount of the Society or put the Society into loss. And hence the workman was held entitled to all the terminal benefits instead of reinstatement since the termination order was made 25 years ago and after setting aside the award of the Labour Court it would not be proper to direct reinstatement.

Gurdeep Singh v. Dhadogal Cooperative Agricultural Service Society Ltd. Dhadogal & Anr., 2010 I LLJ 671 : 2009 III CLR 557 (P&H.HC) CWP 3557 of 1998 dt. 10-9-2009

“That leaves for……….the Labour Court.” (Page: 673, Para: 7)

Sec. 11A

Reappreciation – Of evidence without according reasons by the Labour Court even when holding the enquiry fair and proper is not sustainable Subjective opinion – Of Labour Court without assigning reasons to substitute the opinion of the domestic enquiry is unjustified u/s. 11A

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U/s. 11A – Labour Court cannot reappreciate the evidence in every case without assigning reasons Labour Court – Cannot re appreciate and evaluate the evidence recorded in domestic enquiry without reasons even when it holds the enquiry is fair and proper

¥4.458 Labour Court u/s. 11A cannot reappreciate and reevaluate the evidence recorded in the domestic

inquiry in every case to substitute its opinion for that of the domestic enquiry even when it holds the enquiry fair and proper. Hence in the present case where the Labour Court did not come to the conclusion that there was any perversity in the findings of domestic enquiry warranting to reappreciation of the evidence, award passed by the same holding termination of the workman unjustified without according reasons was held unsustainable.

Andhra Pradesh Mills Ltd. Rajahmundry rep. by its Legal Officer N. Srinivasa Rao v. Industrial Tribunal-cum- Labour Court, Visakhapatnam & Anr., 2010 I LLJ 693 : 2010 (124) FLR 448 : 2009 IV LLN 478 : 2009 LIC 4067 : 2009 III CLR 334 : 2009 LLR 1268 (AP.HC) WP 21058 of 1999 dt. 3-7-2009

“A reading of……….quasi judicial body.” (Page: 695, Para: 8)

“In the light……….a possible view.” (Page: 696, Para: 11)

“In the present case……….cannot be upheld.” (Page: 696, Para: 12)

Sec. 11A

Misconduct – Erecting temporary structures by a sweeper for his residence in the terrace of the building does not call for punishment of dismissal Dismissal – Is shockingly disproportionate for the misconduct of erecting temporary structures for residence Shockingly disproportionate – Is dismissal for erecting temporary structures by a sweeper for his residence

¥4.459 The employer found that the workman, a sweeper was guilty of erecting certain temporary

structures in the terrace of the building for use as a residential place for his family. After enquiry his services were terminated. Upon challenge the industrial tribunal held the punishment shockingly disproportionate and reinstated him without back wages. The same was challenged in a writ petition. Dismissing the petition the High Court held that it was pertinent that the temporary structure constructed by him was not for making any wrongful gain. It was for use as his residence to live with his family. In such cases one cannot take a legalistic view. The High Court upheld the award.

Life Insurance Corporation of India & Ors. v. Presiding Officer, Central Government Industrial Tribunal, Kolkata & Ors., 2010 III LLJ 500 : 2009 (123) FLR 1107 : 2010 I CLR 414 : 2010 LLR 296 (Cal.HC) WP 14694 of 2002 dt. 23-9-2009

“In this case……….in illegal activities.” (Page: 502, Para: 12)

“The Corporation decided……….of the Tribunal.” (Page: 503, Para: 13)

Sec. 11A

Misconduct – Shouting and abusing incharge in filthy language is serious misconduct inviting dismissal Fairness of the Enquiry – Issue cannot be taken before High Court if not taken before the lower court Abusive and Filthy Language – Hurled against the superiors while on duty being a serious misconduct dismissal cannot be set aside

¥4.460 A workman was terminated for the misconduct that he showed abject disregard to his work by

making one entry per hour and showing insubordination to his superiors despite the work being a statutory requirement. In another occasion he did not carry out several entries in statutory registers and when asked for the cause he shouted and abused in filthy language for which chargesheet was issued for willful insubordination and disobedience of lawful orders of superiors. After inquiry he was dismissed

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from service. He did not challenge the fairness of enquiry before the industrial court. His challenge having failed before the industrial court, he preferred a petition before the High Court. The High Court upheld the dismissal of the workman as the misconduct was neither minor nor technical in nature being highly abusive, insubordination having been proved to the hilt inasmuch as the workman had not challenged the fairness of enquiry at any stage of the proceedings before the industrial court earlier.

Vilas Vithalrao Takale v. Jaya-Hind Industries Ltd. & Ors., 2009 (1) BCR 385 (Bom.HC) WP 914 of 1997 dt. 8-4- 2008

“In the present……….attracted.” (Page: 390, Para: 7A)

Sec. 11A

Disproportionate – Considering third time repetition of same misconduct being serious act punishment of dismissal cannot be set aside Past Record – If repeated proved misconduct though considered only before labour court dismissal proper Proportionality – Interference by labour court only when punishment awarded is disproportionate not when the misconduct was repetitive

¥4.461 Though the previous record of the workman was not considered while imposing the punishment of

dismissal for unauthorized absence the employer had let in evidence before the labour court that he had committed similar misconduct on two previous occasions and he was issued with suitable memo. The punishment of dismissal in such cases for the third misconduct cannot be considered as disproportionate. The High Court set aside the award of the labour court which had held that the punishment was disproportionate to the gravity of the misconduct and reinstated him with back wages even when it was a fact that the workman was gainfully employed.

Ritz Pvt. Ltd. v. Felix Furtado & Anr., 2009 (1) Mah.LJ 415 : 2009 (2) BCR 391 (Bom.HC) WP 2564 of 1997 dt. 9- 9-2008

“It is no doubt……….full back wages.” (Page: 422, Para: 17)

Sec. 11 A

Perverse – By enquiry officer – Holding workman guilty when not proved Dismissal – Not justified when misconduct is not proved Misappropriation – Cannot be by a conductor if he does not receive money from passengers while in the act of issuing tickets

¥4.462 The termination of the services of a conductor for not issuing tickets to passengers and

misappropriation of money was challenged before the labour court under MRTU Act. The labour Court answered the complaint in favour of the conductor by an order of reinstatement without any back wages. In revision the industrial court reversed the said orders. The workman challenged the revision order in a writ petition. The High Court set aside the order of the Industrial Court and upheld the orders of the labour court holding that the only charge proved was he did not issue tickets to 17 passengers but there was no proof of receipt of money. Without any money having been received there could not be any scope for misappropriation. The passengers under scanner were admittedly tribals whose language being different and localized there is obviously a communication gap and misunderstanding. It is not that any of them had said that the conductor had been paid ticket money by them and yet he failed to issue tickets. He had also did not close the way bill. Hence the charges leveled were not proved. His reinstatement without back wages cannot be faulted.

Mahadeo v. Maharashtra State Road Transport Corporation, Amravati, 2009 (121) FLR 853 : 2009 (2) Mah.LJ 817 (Bom.HC) WP 1012 of 2005 dt. 27-11-2008

“I have perused……….present matter.” (Page: 856, Para: 3)

“Thus, the above……….Shri Wajge also.” (Page: 857, Para: 5)

“The application……….be applied.” (Page: 858, Para: 10)

Sec. 11A

Unauthorized Absence – Though removal from service improper cannot get back wages Back Wages – Employee not entitled for unauthorized absence Termination – For unauthorized absence not warranted but back wages not payable

¥4.463 The services of bus cleaner were terminated for unauthorized absence after a domestic enquiry. The

Labour and High Court reinstated him on the basis of the doctrine of proportionality. The Supreme Court upheld the same but held that he is not entitled to back wages.

Depot Manager, Andhra Pradesh State Road Transport Corpn. & Anr. v. V. Surender, 2008 LIC 3588 : 2009 I LLJ 627 : 2008 (118) FLR 825 : 2008 III CLR 328 : 2009 (1) SCC (L&S) 135 (S.C.2J) CAJCA 3861 of 2006 dt. 21-7- 2008

“An industrial dispute was thereafter raised by the respondent against the said order of removal and finally the Labour Court, Hyderabad by its Award dated 12th of March, 1997 held that the orders of removal for the misconduct was harsh and disproportionate and, therefore, could not be sustained. The Award of the Labour Court was challenged by the Corporation, which by the impugned order was affirmed. However, the High Court by the impugned order directed the Corporation not to pay 25% of the back wages. Feeling aggrieved by the concurrent orders of the Labour Court as well as the High Court, this SLP was filed which on grant of leave was heard in the presence of the learned Counsel for the parties.” (Page: 3588, Para: 1)

“We dispose of this appeal by modifying the award of the Labour Court and by holding that the respondent is not entitled to any back wages from the Corporation. It is made clear that if the respondent has not yet been reinstated, he shall be reinstated within two months from the date of supply of a copy of this order. The appeal is thus disposed of with the aforesaid modification.” (Page: 3588/3589, Para: 2)

Sec. 11A

Evidence Act – Strict and sophisticated rules of evidence not applicable to domestic enquiry Domestic enquiry – Strict and sophisticated rules of evidence not applicable Conductor – Of bus once admitted he did not issue tickets to 20 passengers their examination does not arise

¥4.464 When the conductor of the Bus admitted in the enquiry that he did not issue tickets to 20 passengers,

failure to examine those passengers also in the enquiry does not vitiate the enquiry if led to imposition of the punishment of dismissal from service, after all it is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under Indian Evidence Act may not apply. The Supreme Court confirmed the dismissal setting aside the decision of courts below to the contrary.

North West Karnataka Road Transport Corpn. v. H.H. Pujar, 2008 III LLJ 629 : 2008 (118) FLR 588 : 2008 LIC 3332 : 2008 II CLR 1083 : 2008 (12) SCC 698 : 2009 (1) SCC (L&S) 251 : 2008 AIR (SC) 3060 (S.C.2J) CAJCA 4520 of 2008 dt. 18-7-2008

“In State of Haryana and Anr. v. Rattan Singh MANU/SC/0332/1977 : (1982)ILLJ46SC , it was, inter alia, held as follows:

4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions

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nor text books, although we have been taken through case- law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The `residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.” (Page: 631, Para: 7)

Sec.11-A

Theft – Though serious misconduct provided in Standing Order reinstatement can be only on humanitarian ground Back wages – Not payable in cases of theft

¥4.465 The theft of Drive shaft by the workman was visited with punishment of dismissal in terms of

Standing Order after an enquiry. The labour Court held the punishment disproportionate and reinstated him mainly on humanitarian ground but denied back wages. The employer did not challenge the reinstatement but the workman challenged the denial of back wages. Dismissing the petition the High Court held that the theft being a serious matter cannot be condoned. However as his reinstatement being only on humanitarian ground the denial of back wages was upheld.

Domaji Marotrao Ubale v. Maharashtra State Road Transport, 2008 (1) BCR 767 (Bom.HC) WP 2747 of 1995 dt. 4-7-2007

“Having heard……….order as to costs.” (Page: 768, Para: 5)

Sec.11-A

Doctrine of proportionality – Can be exercised for invitation of dismissal for forcible occupation of quarters by a shelter less woman working in a tea garden for reinstatement Quarters – Even if forcibly occupied by a female workman of a tea garden the dismissal for such misconduct can be waived by exercising the doctrine of proportionality

¥4.466 When the female permanent worker in the tea garden was forcibly evicted by her husband and his

first wife by torturing her she forcibly occupied another quarter without any allotment. The management proceeded against her for the misconduct of forcibly occupying the quarters and terminated her services. In this dispute, exercising the doctrine of proportionality the labour Court held that the workman was shelter less and the employer was bound to provide necessary quarters. It reinstated her with full back wages no matter the enquiry was fair and proper. The High Court upheld the award of reinstatement but so far as back wages are concerned it held that as the workman has violated the discipline of work place and also had not rendered any service pursuant to her dismissal, she cannot be paid full back wages but only 25% of it in the facts and circumstances of the case.

Management, Daisajan Tea Estate v. Presiding Officer, Labour Court, Assam, Dibrugarh & Anr., 2008 (117) FLR 1077 (Gau.HC) WP (C) 4419 of 2002 dt. 17-3-2008

“Section 11–A of the……….the Industrial Dispute Act.” (Page: 1080, Para: 10)

“In view of the above……….full back wages.” (Page: 1080, Para: 13)

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“This modification……….would not be justified.” (Page: 1080, Para: 14)

Sec. 11-A

Subversive of discipline – Includes – Going to the terrace and washing clothes during the duty hours Dismissal – For the misconduct of going to the terrace and washing clothes during duty hours is disproportionate Past Record – Is to be taken into account while granting or denying back wages Back wages – Can be denied in case the past record is not satisfactory

¥4.467 When the only charge proved against the workman, a safaiwala, was going to the terrace and

washing clothes during his duty hours amounting to commission of an act subversive of discipline on the premises of the establishment, the punishment of dismissal from service was held grossly disproportionate. The High Court upheld the award of the Labour Court which while exercising its discretion u/s.11A of the Act had set aside the dismissal but denied the back wages with due regard to his past record which was not satisfactory also it considered his length of service while denying the back wages.

Bajaj Auto Ltd. v. Vijay Pal Singh M. Bhura & Anr., 2008 (117) FLR 651 : 2008 I CLR 916 : 2008 LLR 698 : 2008 (4) Mah.LJ 780 : 2008 (5) BCR 862 (Bom.HC) CAJWP 353 of 1997 dt. 18-2-2008

“The Labour Court in the……….before the enquiry officer.” (Page: 653, Para: 5)

“In the case of U.B. Gadhe……….proved against the workman.” (Page: 653, Para: 7)

“Having considered……….this petition must fail.” (Page: 654, Para: 8)

Sec. 11-A

Labour Court – Has to frame real issues and record findings on the rival pleadings of the parties failing which matter is liable to be remanded under Article 227 Issues – Properly to be framed and findings recorded on the rival pleadings without which the matter is liable to be remanded under Article 227

¥4.468 Where the Labour Court failed to test or scrutinize the rival contentions and also real issues have not

been addressed nor any findings were recorded on the rival pleadings of the parties, it commits an error calling for interference from the High Court under Article 227 of the Constitution. In this case as the real issue regarding the termination of the services of the workman was not addressed the award was set aside and the matter was remanded for framing appropriate issues and to record findings on each of the issues as per law.

Charan Bharatkumar Takhatsinh v. District Collector & Anr., 2008 (119) FLR 1056 : 2008 III CLR 681 (Guj.HC) SCA 8315 of 2008 dt. 23-9-2008

“This Court……….as to costs.” (Page: 1057, Para: 3)

Sec. 11-A

Misconduct – Of misappropriation attracting the punishment to dismissal cannot be modified into a lesser punishment on the doctrine of proportionality Doctrine of proportionality – The Labour Court cannot exercise to award lesser punishment than dismissal for serious charges of misappropriation Dismissal – The Labour Court cannot modify into a lesser punishment if the proved charges are one of misappropriation

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¥4.469 Where the enquiry was fair and proper with due opportunity having been afforded to the workman, his dismissal from service for the proved charges of misappropriation cannot be diluted by awarding a lesser punishment on the doctrine of proportionality. In this case as the depot attendant had committed serious misconduct of misappropriation the Labour Court had rightly rejected the reference and hence non-exercise of the discretionary power by it on the doctrine of proportionality cannot be faulted and hence the High Court refused to set aside the award affirming the dismissal of the workman.

Mohanbhai Ramjibhai Kateshia v. Gujarat State Fertilizer Co. Ltd., 2009 (120) FLR 985 : 2008 III CLR 682 : 2009 LLR 446 (Guj.HC) SCA 24668 of 2007 dt. 24-9-2008

“The petitioner-workman,……….the constitution of India.” (Page: 985, Para: 3)

“In view of the……….order as to costs.” (Page: 986, Para: 7)

Sec. 11-A

Abuse – Of the customers of the Bank dos not call for compulsory punishment but stoppage of 3 increments without back wages or continuity of service proper Bank Employee – Abusing the customer does not deserve to be compulsorily retired but stoppage of 3 increments without back wages or continuity of service proper Misconduct – Of abusing the bank customer does not call for compulsory retirement but stoppage of 3 increments without back wages or continuity of service proper

¥4.470 The charges against the workman of the Bank was abusing the customer inside the bank and chasing

him outside and threatening him to assault. The first charge was proved and the second part was not. Nevertheless he was inflicted with the punishment of compulsory retirement. Upon a reference the Tribunal held that the punishment was harsh and disproportionate to the proved charges of abuse. Modifying the punishment in exercise of its power u/s 11A it set aside the punishment of compulsory retirement and instead imposed the punishment of reduction of 3 increments with cumulative effect without back wages or continuity of service. The award was challenged both by the Bank and the workman. Dismissing both petitions the High Court upheld the award of the Tribunal which properly exercised the discretionary power vested in it u/s 11A of the Act as the misconduct of abuse does not call for extreme punishment.

Syndicate Bank, Bangalore v. V. Varadarajan, 2009 I LLJ 283 : 2008 IV LLN 384 : 2008 III CLR 857 (Karn.HC) WP 17491 of 2007 & 1330 of 2008 dt. 1-2-2008

“In so far as……….proved act of misconduct.” (Page: 286, Para: 11)

“It is well-settled……….interfere with the findings” (Page: 287, Para: 12)

Sec. 11A

Misconduct – Dishonesty if proved labour court cannot interfere u/s. 11A with punishment of dismissal Conductor – Misappropriating Rs. 30 cannot claim leniency from the penalty of dismissal Dismissal – Of a conductor defrauding the employer even Rs. 30 is proper due to loss of confidence Loss of Confidence – Due to fraud dishonesty is a factor discouraging issue of order for reinstatement of a conductor Sec. 11A – No scope for interference in the punishment if the workman was terminated for proved dishonesty defrauding the employer

¥4.471 The workman was a conductor of bus and defrauded the employer with ̀ 30. The charges in enquiry

were proved and he was dismissed. Labour court held enquiry fair and proper but the punishment disproportionate after considering 19 years of service and charge of defrauding ̀ 30 being small, awarded reinstatement and stoppage of two increments. High Court held that labour court should not have interfered by exercising its power under Sec. 11A in cases of dishonesty, fraud or misappropriation of funds especially cases like this where the workman had committed serious defraud of revenue of ` 30

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and particularly the management had lost confidence inasmuch as he was holding a fiduciary relationship with the employer. Since he had already superannuated, after reinstatement in lieu of Sec. 17B the High Court did not direct refund of the amount already paid to him. However he was to be treated as a fresh appointee from the date when he joined duty upon reinstatement.

Pepsu Road Transport Corporation, Patiala, through its Managing Director v. Presiding Officer, Labour Court, Patiala & Anr., 2009 III CLR 854 : 2010 LLR 152 (P&H.HC) CWP 18976 of 1996 dt. 14-5-2009

“The charge having been……….the employee.” (Page: 857, Para: 12)

“Whenever the labour court……….sympathy and compassion.” (Page: 858, Para: 13)

“In the present case……….patiala-II (Annexure A-1).” (Page: 858, Para: 15)

Sec. 11A

Misconduct – Of Head Cashier in refusing to accept cash from the customers deserves stoppage of 2 increments with cumulative effect Head Cashier of Bank – Refusing to accept cash from customers during banking hours deserves stoppage of 2 increments with cumulative effect Increments – Two – reduction with cumulative effect is proportionate to the misconduct of refusing to accept cash during duty hours

¥4.472 The workman, a Head Cashier of the Bank refused to accept cash from the customers during

banking hours despite instructions from the Branch Manager and instead he directed them to the Branch Manager. The Bank, by way of punishment, stopped two increments with cumulative effect after due enquiry affording him full opportunity to defend. T he tribunal found that the punishment awarded was quite proportionate to the misconduct and hence refused to interfere with the punishment. The High Court dismissing the petition of the workman there against upheld the award.

Shambhoo Nath Tripathi v. Presiding Officer, Central Government Industrial Tribunal, Kanpur & Ors., 2008 (117) FLR 401 (All.HC) CMWP 24828 of 1989 dt. 4-2-2008

“Charge –sheet was……….to the petitioner.” (Page: 401, Para: 3)

“The Industrial Tribunal……….or High Court.” (Page: 402, Para: 7)

Sec. 11A

Conductor – If declines the opportunity to examine any defence witness he later cannot say that opportunity to examine passengers was not given Dismissal – Proper of a conductor misappropriating ticket money

¥4.473 A conductor of a Bus if dismissed from service for the misconduct of misappropriating ticket money

by not issuing tickets cannot contest the same on the ground that he was not given opportunity to examine passengers for the reason that earlier he had declined to examine any defence witness when specifically asked by the Inquiry Officer. The punishment of dismissal was not disproportionate to the misconduct since the action was taken after considering his past conduct and the fiduciary relationship he had held.

Kantibhai Manilal Prajapati v. Divisional Controller, S.R.T. Corporation, 2008 (117) FLR 181 : 2007 III CLR 1015 : 2008 LLR 143 (Guj.HC) SCA 25796 of 2007 dt. 18-10-2007

“I have considered……….cannot be accepted.” (Page: 184, Para: 00208)

“Therefore, considering……….required to be dismissed.” (Page: 186, Para: 18)

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Sec. 11A

Burden of proof – Is on the workman who alleges the domestic enquiry was defective Preliminary Issue – Regarding enquiry being defective the burden of proof rests on the workman Enquiry – If the workman alleges vitiated the burden to prove this preliminary issue rests on the workman

¥4.474 The workman challenged his dismissal on the ground that the domestic enquiry was vitiated. The

Labour Court put the burden to prove domestic enquiry whether fair and proper on the employer. The employer challenged the same before the High Court which while referring to Sec.101 and 102 of the Evidence Act held that the onus of proof of such preliminary issue would be on the workman who alleges that the domestic enquiry was vitiated for one reason or other. Such initial burden on the preliminary issue could not have been put on the employer. Only if he proves the enquiry is defective discharging his initial burdens the employer could get an opportunity to prove the misconduct. Hence the order of the Labour Court was set aside and matter remanded.

Punjab Tractors Ltd. v. Presiding Officer, Labour Court & Anr., 2008 (117) FLR 554 : 2008 I CLR 606 (P&H.HC) CR 6337 of 2006 dt. 31-10-2007

However, in case……….if no evidence is held.” (Page: 559, Para: 17)

In the present case……….accordance with law.” (Page: 559 Para: 18)

Sec. 11 A

Termination – Of workman cannot be believed unless the oral evidence of workman was accompanied with documentary in substantiation Oral Evidence – If not accompanied with evidence in substantiation thereof the very plea of termination will not sustain employment itself being questionable

¥4.475 Mere oral evidence of the workman without any contemporaneous record to substantiate the claim of

employment will not be enough to come to the conclusion of illegal termination. The High Court set aside the Award of the Labour Court which had reinstated him with full back wages being manifestly wrong. There was no name of workman in the attendance register and wage musters furnished by the employer for the last 9 years.

Narayan Sukhtankar v. Narayan P. Bhosale, C/o. Janata Kamgar Union & Anr., 2008 (118) FLR 608 : 2008 I CLR 971 : 2008 (4) Mah.LJ 64 (Bom.HC) OOCJWP 2518 of 2004 dt. 15-2-2008

“Suffice it to observe……….in the said documents.” (Page: 610, Para: 6)

Sec. 11A

Enquiry Officer – justified in proceeding ex parte due to consistent absence of the delinquent Ex parte Enquiry – Justified if the delinquent consistently remained absent from enquiry Leading Evidence –The delinquent should against the ex parte enquiry before the Labour Court Assault – On the responsible Official leading to dismissal is proper Service of notice – If returned as unclaimed by the postal authorities it is sufficient compliance of service

¥4.476 The services of a lady workman who was an executive member of the union were terminated after an

ex parte enquiry for the misconduct of assaulting a senior officer of the Company. In her reply, she contended that he tried to outrage her modesty. After attending first day of enquiry, she consistently remained absent on all subsequent dates. The management informed her that if she remained absent yet again the enquiry would proceed ex parte. The two letters sent by Registered AD were returned ‘as unclaimed’. She failed to collect the same without sufficient corroborative reason. As she failed to present herself, the enquiry officer held that her misconduct was proved and thus her services came to be

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terminated. The Labour Court upheld her dismissal. The High Court held that there is no evidence to suggest that she had a genuine reason for not attending the enquiry. If there was credible reason she could have later atleast contacted the enquiry officer to give her one more opportunity. Even before Labour Court or High Court no attempt was made to lead evidence to disprove the charges. In the Criminal proceedings her conviction itself nails her lie. Her petition was therefore dismissed.

R.S. Korvi v. Peico Electronics & Electricals Ltd. & Anr., 2009 LIC 391 : 2008 (119) FLR 60 : 2008 (6) BCR 894 : 2008 (5) Mah.LJ 75 (Bom.HC) WP 1590 of 1997 dt. 29-4-2008

“The argument that………cannot be faulted.” (Page: 395, Para: 24)

“Even on merit ………liable to be rejected.” (Page: 395, Para: 28)

“It is pertinent to note………by the petitioner.” (Page: 395, Para: 29)

Sec. 11-A

Enquiry report – If not supplied to the workman before inflicting the punishment of dismissal prejudice is caused to him Prejudice – Is caused to the workman if no enquiry report was supplied before inflicting the punishment of dismissal Dismissal – Vitiated if no enquiry report was supplied before that

¥4.477 The termination of the workman for misconduct was set aside by the Labour Court by reinstating

him in service but denying him back wages and imposing on him the punishment of deferment of 2 increments. Upon challenge the Single Judge set aside the award and remanded the same to Labour Court for returning a finding as to whether any prejudice was caused to the workman due to non furnishing of enquiry report before inflicting dism issal. This order was challenged by the employer before Division Bench. The Division Bench dismissing the appeal went into the merit of the matter and held that by non supply of a copy of the enquiry report and consequent lack of opportunity to submit an explanation prejudice was caused. The Labour Court thereupon after going into the matter as remanded by Single Judge held that prejudice was caused to the workman. The employer again challenged the order of the labour Court before the Single Judge. Dismissing the petition the Single Judge held that the order of Single Judge in the earlier proceedings had merged in the order passed by the Division Bench and that the copy of the enquiry report ought to have been submitted before the order of dismissal and not thereafter. The matter was remanded to Labour Court with costs.

F.G.P. Limited Rep. by Kishore Shete, Manager v. Presiding Officer, Labour Court-III, Hederabad & Anr., 2008 III CLR 63 : 2009 I LLN 165 (AP.HC) WP 27288 of 2007 dt. 18-3-2008

“It is alleged on……….equivalent to a finding.” (Page: 66, Para: 12)

“The argument that……….with the impugned order.” (Page: 66, Para: 13)

Sec. 11-A

Disciplinary Authority – Order while reviewing the reviewing authority can be enhanced Punishment – Imposed by the Disciplinary Authority can be enhanced by the Reviewing Authority Reviewing Authority – Can enhance the punishment imposed by the Disciplinary Authority

¥4.478 Considering the gravity of the misconduct and his past record, the reviewing authority enhanced the

penalty imposed by the disciplinary authority and placed the workman 3 stages lower in the time scale. But the Industrial Tribunal set aside the order of Reviewing Authority and held that the Reviewing Authority has no power to enhance the penalty imposed by the Disciplinary Authority. The High Court held that since the charges against the workman are proved and the workman was not dismissed, considering the past records of 23 defaults, the penalty imposed by the reviewing authority cannot be said

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to be shockingly disproportionate and the order passed by the Labour Court in interfering with the order of Reviewing Authority is unsustainable and thus the petition of employer was allowed.

Gujarat State Road Transport Corporation v. Hussainbhai J. Saiyed, 2008 III CLR 210 : 2009 II LLJ 43 (Guj.HC) SCA 6694 of 2004 dt. 29-7-2008

“Before the labour court……….of the inquiry officer.” (Page: 213, Para: 10)

“It is pertinent that in……….warrant any interference.” (Page: 213, Para: 11)

Sec. 11-A.

Probationer – Even if continued on expiry of period he has no right for automatic confirmation Termination Simplicitor – Is valid of a probationer continued even on expiry of the probation period Stigma – Excludes –Termination of a probationer for unsatisfactory work even beyond the probation period if continued Automatic confirmation – The workman has no claim if no order extending the probation was issued on expiry of period of probation though he was continued

¥4.479 The issue is whether a probationer can claim automatic confirmation merely because his employer

on expiry of the period of probation of one year has not issued any confirmation letter nor termination letter. In this case he was appointed on probation on May 13, 1975 and continued till his termination on Dec, 1977. He was governed by the Rules of service conditions of appointment. In this case he was only continued beyond probation and no extension of probation was given by specific order and hence he was deemed to have continued on a temporary basis, his service having been terminated on payment of a month’s salary in lieu of notice. Hence the termination simplicitor passed on Dec, 1977 was upheld even on merits. Such termination is not stigmatic no matter it was for unsatisfactory work, and he has no claim for automatic confirmation of service.

Indian Institute of Technology, Kanpur Through its Director v. Presiding Officer, Labour Court-II, Kanpur Nagar & Ors., 2009 II LLJ 180 : 2008 (119) FLR 267 (All.HC) CMWP 11738 of 1999 of 5-8-2008

“It is admitted to the parties……….for further extension.” (Page: 185, Para: 22)

Sec. 11 A

Advocate – Non appearance cannot penalize the party Appearance – Of an advocate in a matter was absent for prosecution it cannot become a reason for ex-parte award amounting to a penalty on the employer Service of Notice – As per Rules of State Acts/Rules if mandatory non service renders the award a nullity Award – Becomes a nullity if the written statement was not served on the employer in terms of Rules framed thereof Nullity – An award becomes if the written statement was not served upon the employer as per Rules framed in this behalf

¥4.480 The employer appointed an Advocate to prosecute the application made u/s. 33(2)(b), who however

failed to appear due to ill health throughout. Though the workman filed his written statement, service of the same under Rule. 20-B (5) of West Bengal Industrial Disputes Rules 1985 was not made. However in an ex-parte award the application was dismissed for non-prosecution. The application of the employer for recall was also dismissed. In a writ petition the High Court restored the application to the file of the tribunal setting aside the ex-parte award which according to the Court was a nullity for failure to make proper service of the written statement and hence it suffers from the vice of non-compliance of the principles of natural justice. Laches of the Advocate on record to appear cannot penalize the employer.

Hindustan Motors Ltd. v. Vth Industrial Tribunal, West Bengal & Ors., 2008 (117) FLR 200 : 2008 II LLN 886 : 2008 II CLR 345 (Cal.HC) WP 1242 of 2007 dt. 21-11-2007

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“Having considered the submissions……….the said order is also set aside.” (Page: 202, Para: 6)

Sec. 11 A

Departmental enquiry – And its findings stand on two different planes amenable to challenge even if one is held legal and valid from the other Writ petition – On a preliminary issue is liable to be dismissed if the matter is still alive before the Lower Court in order to prevent stalling of the same Interlocutory Findings – Being preliminary hardly could be challenged in a writ petition until final outcome

¥4.481 The Labour Court held that the departmental enquiry was legal and proper so the workman filed a

revision application in which it was held that the departmental enquiry was illegal as it was against the principles of natural justice. The employer approached the High Court while the proceedings were still pending in the Labour Court. The High Court relying on with decision rendered by the Supreme Court in the case of Cooper Engineering Ltd. held that challenge by either party is held to be unjustified because it is ultimately stalling further proceedings of adjudication pending before the Labour Court. The parties were at liberty to challenge the enquiry proceedings on one hand and the findings on the other both being distinct and different. Thus, the petition was dismissed on the ground that further proceedings which were pending before the Labour Court cannot be held up or stalled.

Rajkot Peoples Co-operative Bank Ltd. Rajkot v. Bharatbhai Hazare, 2009 (120) FLR 728 : 2008 LIC 3480 : 2009 I CLR 7 (Guj.HC) SCA 6579 of 2008 dt. 28-4-2008

“It is equally important……….binding to other course.” (Page: 750, Para: 28)

“Therefore, I am not……….against the respondent.” (Page: 751, Para: 13)

Sec. 11 A

Subsistence Allowance – Non-payment by itself will not vitiate the enquiry proceedings unless prejudice proved Prejudice – Unless caused by non-payment of subsistence allowance the enquiry proceedings cannot be held vitiated

¥4.482 The issue is whether the non-payment or subsistence allowance during the period of suspension

vitiates the enquiry proceedings. In this case the hospital where he was working had no Rule to pay the same. Even assuming there is a Rule, the High Court held that unless real prejudice was caused, in every case the mere non-payment of subsistence allowance ipso facto will not vitiate the enquiry. In this case there was no evidence that the workman was unable to participate in the enquiry proceedings for want of subsistence allowance or to represent his case or there was financial hardship. In the absence of such like prejudice caused, it cannot be a factor to set aside the award upholding dismissal for the misconduct of abusive language used in the hospital against his superiors.

A.V. Anthony Swamy v. Management of M/s. St. John's Medical College, Bangalore, 2008 LIC 3572 : 2009 I LLN 680 (Karn.HC) WP 27049 of 2003 dt. 26-3-2008

“No doubt, the fundamental right……….on the said ground.” (Page: 3573, Para: 7)

Sec. 11 A

Hospital – Unlike Factories or other workplace is to be distinguished in the use of abusive language against the superiors in respect of proportionality of punishment Abusive Language – Used against the superiors in a hospitals calls for deterrent punishment of dismissal unlike in places like factories or other workplace

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Dismissal – For the misconduct of using abusive language against the doctor attached to a hospital cannot be called into question

¥4.483 The question is whether use of a mere abusive language used against the superior will be invited with

the penalty of dismissal and whether it is proportional to the misconduct so proved in the enquiry. Upholding the award and the punishment of dismissal the High Court held that such abusive language particularly against Doctors working in hospital does not attract lesser punishment inasmuch as the workman in a hospital is required to be sympathetic, pleasant and show love and care to the patients in distress. Hospitals cannot be treated on par with factories or other workplace. Once the misconduct was proved, even if mere abusive language used in such cases, it warrants deterrent punishment.

A.V. Anthony Swamy v. Management of M/s. St. John's Medical College, Bangalore, 2008 LIC 3572 : 2009 I LLN 680 (Karn.HC) WP 27049 of 2003 dt. 26-3-2008

“In so far as the proportionality……….interfere with the award.” (Page: 3574, Para: 9)

Sec. 11A

Show Cause Notice – In addition to enquiry report is not required even after 42nd amendment of the Constitution

¥4.484 The issue is whether the delinquent is entitled for final show cause notice before inflicting penalty.

The High Court held that after the 42nd amendment of the Constitution the only obligation is that the employer has to give only the enquiry report and there is no obligation to give any final show cause notice to him. This is sufficient compliance of the Supreme Court judgement in the case of Mohd. Ramzan Khan (AIR 1991 SC 471)

Kannam Nageswara Rao v. Rashtriya Ispat Nigam Ltd. Visakhapatnam & Ors., 2009 LIC 834 (AP.HC) WP 13723 of 1997 dt. 27-11-2008

“With regard to the……….is, therefore, rejected.” (Page: 836, Para: 11)

Sec. 11 A

Formalities of examining witnesses – Need not be followed if the delinquent stayed away from enquiry Enquiry – If the delinquent stayed away from enquiry formalities need not be observed

¥4.485 The issue is whether it is necessary to observe the formalities of examination of witnesses, adducing

of oral evidence and marking of documents through such oral evidence. The High Court held that where the delinquent had stayed away from the enquiry it is not necessary for the enquiry officer to observe the formalities, after all strict rules of evidence is not applicable to domestic enquiry.

Kannam Nageswara Rao v. Rashtriya Ispat Nigam Ltd. Visakhapatnam & Ors., 2009 LIC 834 (AP.HC) WP 13723 of 1997 dt. 27-11-2008

“As regard the……….such oral evidence.” (Page: 837, Para: 12)

Sec. 11 A

Supply of documents – Where service regulations impose no obligations not warranted Prejudice – Is not caused by non supply of documents the service regulations impose no obligations

¥4.486 The issue is whether the workman was prejudiced by non supply of documents which were marked

after the charged workman was set ex-parte. The High Court held that it is not necessary where service

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regulations impose obligation. In this case the workman had never sought the supply of the same for any prejudice to be caused.

Kannam Nageswara Rao v. Rashtriya Ispat Nigam Ltd. Visakhapatnam & Ors., 2009 LIC 834 (AP.HC) WP 13723 of 1997 dt. 27-11-2008

“Regarding the contention……….prejudice to the petitioner.” (Page: 837, Para: 14)

Sec. 11 A

Unauthorized Absence – For a period of 499 days in 3 occasions amounts to habitual absence Past Record – Can be relied on to find out any mitigating factors to impose lesser punishment

¥4.487 The workman remained absent unauthorizedly for 116 days and 80 days and 303 days in 3 occasions.

He suffered various punishments and his past records were not good. The disciplinary authority relied on his past records. The issue is when no charges were framed for relying on the past records, the punishment is vitiated or not. It was held that the employer can rely past records in order to view whether there are any mitigating factors to impose lesser punishment than dismissal. The High Court held that the successive unauthorized absence can be viewed as habitual and hence the punishment of removal was not disproportionate to the misconduct.

Kannam Nageswara Rao v. Rashtriya Ispat Nigam Ltd. Visakhapatnam & Ors., 2009 LIC 834 (AP.HC) WP 13723 of 1997 dt. 27-11-2008

“With regard to the last……….hardship to any employer.” (Page: 837, Para: 15)

Sec. 11-A

Back wages – Burden of proof that he was not gainfully employed rests on the workman Burden of proof – For back wages rests o the workman to prove not gainfully employed during the period of forced unemployment U.P State Brassware – The judgement of the Apex Court holds the field so far as burden of proof for back wages is concerned

¥4.488 The issue involved is whether the Labour Court was justified in not awarding back wages to a

conductor while reinstating him with all consequential benefits. Upholding the same the High Court relying on the judgement in the case of U.P State Brassware Corporation Ltd. held that the burden to prove that he was not gainfully employed during the forced unemployment rests on the workman and not on the employer. In this case he did not discharge this burden as he did not raise a plea in his written statement and hence the Labour Court rightly denied back wages. Sec. 106 of the Evidence Act supports this legal position.

State of Punjab & Anr. v. Hari Ram & Anr., 2009 LIC 838 (P&H.HC) CWP 5192 of 1984 dt. 5-9-2008

“……….Although earlier the Supreme Court……….Sec 6-N thereof……….” (Page: 841, Para: 9)

“……….the Apex Court held that……….the onus lay upon him.” (Page: 841, Para: 12)

Sec. 11 A

Suspension – Is to be reviewed within 90 days to be valid beyond that period to workmen to whom CCS (CCA) Rules apply

¥4.489 When the Central Civil Services (Classification, Control & Appeal) Rules apply it is mandatory to

the authority suspending the workman to review the suspension order after expiry of 90 days after the

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initial order. Failure to review attracts Sub-rule(7) of Rule-10 of the Rules which mandate that an order of suspension pending enquiry under Sub-rule (1) & (2) of Rule-10 shall not be valid after a period of 90 days unless it is extended after review for further period. In this case the review was made after expiry of 90 days. Therefore the suspension stands automatically revoked. The High Court allowed the petition directing wages to be paid full beyond the period of 90 days, for want of review within 90 days.

A. Hanumantha Prasad & Ors. v. Coal Mines Provident Fund Organization, Dhanbad & Anr., 2009 LIC 96 : 2009 II CLR 237 (AP.HC) WP 14015 of 2008 dt. 4-9-2008

“In view of these clear……….reviewed within 90 days.” (Page: 101, Para: 16)

Sec. 11-A

Disciplinary Action – The employer can discriminate though misconduct of going on strike was on even keel Discrimination – The employer can make between one employee and another in matters of disciplinary action though the misconduct was uniform

¥4.490 The issue is whether the employer can discriminate in proceeding against the erring delinquent

workmen who resorted strike on an equal keel. The High Court held that it is for the employer itself to proceed against them and there is no hard and fast rule that the disciplinary proceeding must be initiated against every employee who resorted to strike or other incongruities.

A. Hanumantha Prasad & Ors. v. Coal Mines Provident Fund Organization, Dhanbad & Anr., 2009 LIC 96 : 2009 II CLR 237 (AP.HC) WP 14015 of 2008 dt. 4-9-2008

“The last ground urged……….any other criteria.” (Page: 103, Para: 23)

Sec. 11 A

Domestic enquiry – Vitiated if the inquiry officer fails to discuss the charges with the oral and documentary evidence in relation to his findings Enquiry Officer – Is bound to discuss the oral and documentary evidence vis-à-vis the charges in relation with the findings Service Law – Excludes – The procedure contemplated under Criminal Law so far as conviction and sentence charge wise is concerned Major Penalty – For major and minor in the same charge sheet for various charges in varying degrees is untenable in Service Law Appellate Authority – Cannot enhance the penalty without notice

¥4.491 Where the Inquiry Officer without discussing the charges and evidence held the delinquent guilty,

charges proved and merely compiled of the evidence at the end, the High Court held such enquiry is vitiated because the Inquiry Officer has to discuss each charge vis-à-vis the evidence. Similarly the High Court held that the disciplinary authority cannot impose charge wise penalty which is unheard of in Service Law but only prevalent in Criminal Proceedings. Similarly the appellate authority cannot enhance the penalty without giving proper notice to the delinquent. For all these reasons the order of dismissal was set aside and the workman was reinstated with consequential benefits. Petition allowed.

J. Srinivasa Rao v. UCO Bank & Ors., 2009 LIC 30 (AP.HC) WP 13052 of 2007 dt. 1-8-2008

“It is only……….the second question.” (Page: 36, Para: 20)

“In the appeal preferred……….in favour of the petitioner.” (Page: 36, Para: 21)

“It has already been pointed out……….at their respective levels.” (Page: 37, Para: 23)

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Sec. 11A

Jurisdiction – Issue is to be raised at the trial stage itself and not at the writ stage Writ Petition – On jurisdiction is untenable unless the same was raised before the Trial Court

¥4.492 When the employer had not taken any objection regarding jurisdiction of the Labour Court and th e

Labour Court has not framed any issue on this count, the employer is estoped to raise this issue before High Court in a writ petition.

Management of Horticulture/Forest Department, Government of NCT of Delhi v. The Presiding Officer & Anr., 2009 LLR 412 (Del.HC) WP (C) 287 of 2002 dt. 22-1-2009

“No issue was framed……….by the Delhi Administration……….” (Page: 414, Para: 5)

Sec. 11A

Back wages – 50% proper manual worker illegally terminated on the ground of medical unfitness Medical fitness – Once produced from the specified hospital the employer is precluded from terminating the services of a manual worker on the ground of improper format Public Body – Back wages payable to illegally terminated workman is 50%

¥4.493 The services of the workmen were terminated on medical ground ignoring the Medical Fitness

Certificate furnished by him from the specified hospitals. The Labour Court considering the evidence found that he was medically fit to perform his duties and yet the employer ignoring not only the SR-4 of Fundamental Rules applicable to him but also the Medical Fitness Certificates terminated his services. It reinstated him but with 50 % back wages. Upholding the award, the High Court held that the workman is entitled for back wages as he was medically fit and conscious of the burden on a public body if full back wages is given the High Court found no illegality or perversity in the award granting 50% back wages to the manual labour who might not have remained totally idle.

Management of Horticulture/Forest Department, Government of NCT of Delhi v. The Presiding Officer & Anr., 2009 LLR 412 (Del.HC) WP (C) 287 of 2002 dt. 22-1-2009

“No issue was framed……….findings of the Labour Court.” (Page: 414, Para: 5)

Sec.11 A

Transfer – Of workmen from one place to another is illegal if there is no provision in the appointment letter or Standing Orders to that effect

¥4.494 The right of the employer to transfer a workman from one establishment to another within the

region or outside the region is circumscribed by the conditions of service between them as adumberated in expressed terms in the Appointment Letter or Standing Orders. If no such condition existed, then transfer of the workmen from one place to another even when the establishment is shifted, becomes illegal. Since these conditions were not met, the Industrial Tribunal directed the employer to reinstate with full back wages, all the workmen who did not join their duties at the transferred place at Bhiwadi (Rajastan) from Delhi and thereby met with dismissal orders. The High Court upheld the same.

Tobu Enterprises Ltd. v. Presiding Officer, Industrial Tribunal & Ors., 2009 LLR 475 (Del.HC) WP (C) 6840 of 2001 dt. 10-11-2008

“I find considerable……….legal nor justified.” (Page: 481, Para: 7)

Sec. 11-A

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Mala fide – If the transfer order id discriminated and loaded against the union members to the exclusion of others Union members – Alone if targeted in the matter of transfer to the exclusion of others such exercise of powers can be termed as Mala fide

¥4.495 In the opinion of the Industrial Tribunal, the transfer order issued to the workmen was enforced only

against the active members of union. The employer withdrew the transfer order in respect of other workmen. Hence the Tribunal termed the same as mala fide exercise of power and hence illegal. The High Court upholding the same observed that the view taken by the Tribunal is not perverse but a possible one. Hence there is no infirmity in the order of the Tribunal in reinstating them with full b ack wages.

Tobu Enterprises Ltd. v. Presiding Officer, Industrial Tribunal & Ors., 2009 LLR 475 (Del.HC) WP (C) 6840 of 2001 dt. 10-11-2008

“Significantly, it is……….certainly not perverse……….” (Page: 481, Para: 8)

Sec. 11 A

Principles of natural justice – Cannot said to have violated merely for non supply of enquiry report unless prejudice shown to have caused Enquiry Report – Non supply of by itself is not the reason for setting aside the punishment unless prejudice resulted Appellate Authority – If considered the matter in appeal then there is little reason for the delinquent to plead vitiation of enquiry

¥4.496 The 12 charges of unauthorized absence, drunkenness and misbehavior with superior were enquired

into and were proved. The disciplinary authority after issuing show cause notice dismissed his services. The Appellate Authority reduced the punishment into one of compulsory retirement. The Labour Court however held that the principles of natural justice were not followed and hence set aside the punishment and reinstated him with back wages. The High Court held that the rules of natural justice cannot be imprisoned within the straight jacket of a rigid formula and violation by itself does not make the punishment non-est, unless prejudice is proved. The non supply of enquiry report cannot by itself make the order of punishment null and void unless he shows prejudice having been caused. Where the delinquent had preferred an appeal and the appellate authority has modified the punishment of dismissal into compulsory retirement, it is not open to him to contend that non supply of Enquiry Officer’s report has caused serious prejudice. The award was set aside and petition allowed.

Commissioner, Corporation of Chennai, Chennai v. L. Jaganathan & Anr., 2009 III LLN 245(Mad.HC) WP 7117 of 2005 WPMP 7776 of 2005 & 488 of 2007 dt. 18-3-2009

“From the ratio……….in miscarriage of justice.” (Page: 250, Para: 18)

“ In the instant case……….serious prejudice.” (Page: 250, Para: 19)

“Proved charges are……….reinstatement with back-wages.” (Page: 250, Para: 20)

Sec. 11 A

Cashier – In the bank is in a fiduciary relationship with the bank loses trust and confidence in matters of shortage of money Loss of confidence –The cashier of the bank cannot be given lesser penalty than dismissal for shortage of money in the bank Proportionality of punishment – Excludes – In cases of misappropriation of money by dismissed bank cashier admitting the guilt

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Sec.11 A – Dismissal of a cashier of the bank for misappropriation of money cannot be interfered with on proportionality

¥4.497 There was admitted shortage of cash in the inspection of the Bank. The Enquiry Officer came to the

conclusion that the allegations of misappropriation against the cashier were proved. The bank after due notice dismissed his services. In the Industrial Tribunal, while admitting the guilt the only relief sought by him was that the punishment was grossly disproportionate and hence wanted the bank to confine its legal submission to the quantum of punishment only. The Tribunal refused to interfere in the punishment of dismissal because the bank had lost confidence and trust in him, he being in a fiduciary relationship, inasmuch as the delinquency has been accepted by filing a memo and re-affirmed in the written arguments.

Bank of India Staff Union, rep. by its General Secretary, Chennai v. General Manager, Bank of India, Chennai & Anr., 2010 I LLJ 191 : 2009 III LLN 824 : 2009 III CLR 242 : 2009 LLR 1235 (Mad.HC) WP 12638 of 2000 dt. 27- 7-2009

“In this case,……….facts of this case.” (Page: 194, Para: 11)

“The Apex Court……….interfered with or reduced……….” (Page: 194, Para: 13)

Sec. 11 A

Doctrine of Proportionality – In matters of fiduciary relationship the Labour Court has to construe stringently Evidence – The Labour Court has to discuss before arriving at a decision on the doctrine of proportionality Fiduciary Relationship – Where exists the doctrine of proportionality is to be construed strictly after discussing the evidence by the Labour Court

¥4.498 Where the labour Court fails to discuss the evidence and materials on record even when the

workman alleged that the enquiry was stage managed and also takes into account his past records without there being any charge framed on that account and decides the proportionality of punishment in which it sets aside the punishment, the High Court held that the Labour Court was erred in reinstating him on one hand and refusing to grant continuity of service and back wages on the other. The High Court setting aside the award remitted the matter to the Labour Court for fresh disposal as the matter involves misappropriation of money by the conductor of a bus, who acts in a fiduciary capacity involving trust, honesty, integrity etc. requiring the Labour Court to apply the doctrine of proportionality stringently after discussing the evidence.

A. Ramaiah v. Honourable Industrial Tribunal-cum-Labour Court, Godavarikhani, rep. by its Presiding Officer & Anr., 2010 (125) FLR 497 : 2009 III CLR 966 (AP.HC) WP 2753 of 2004 dt. 11-9-2009

“Unfortunately, in the present case……….must and unexceptionable.” (Page: 502, Para: 10)

“It is also relevant……….application of the doctrine.” (Page: 502, Para: 19)

Sec. 11 A

Back wages – Awarded in favour of the disabled person if stayed by the employer he is liable to make good of the same with 12 % interest.

¥4.499 D.T.C being a public sector undertaking must be a model employer. Whereas it has refused to

reinstate the driver in the post of a peon under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 despite an award. It has obtained a stay against payment of full back wages from 1991 to 1997 with 9 % interest. It has failed to present a true and correct settled legal position in cases in which D.T.C itself was a party before the Court. Hence for the delay in payment

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the High Court held it is liable to pay interest on the amount so withheld at the rate of 12 per annum during the period of pendency of the writ petition.

D.T.C. v. Suraj Bhan & Ors., 2010 (125) FLR 893 (Del.HC) WP (C) 1628 of 2004 dt. 23-2-2010

“In view of the above……….pendency of this petition.” (Page: 898, Para: 15)

Sec. 11 A

Litigation – If the employer institutes on preliminary issue delaying the justice then employer is liable for exemplary cost Preliminary Issue – Challenging the finding of the Labour Court if the employer files petition delaying justice then matter will be remanded with exemplary costs

¥4.500 When the employer challenges the preliminary finding that the enquiry was defective before the

High Court without coming forward to prove his case before the Labour Court despite opportunity being afforded, and if the matter remains undisposed for a period of 11 years in High Court, though it does not attract the benefit of last drawn wages, the employer cannot escape without the burden to pay the exemplary cost to the tune of ̀ 1, 00,000. The petition was dismissed and matter remanded back to the Labour Court where the party can put forward the same grounds as made in the petition.

Glaxo Smithkline Consumer Healthcare Ltd. v. Presiding Officer, Labour Court IX & Anr., 2010 LLR 900 (Del.HC) WP 7265 of 1999 dt. 14-5-2010

“The respondent No.2……….to the petitioner employer.” (Page: 901, Para: 3)

“The petition is, therefore, dismissed. ………within six months thereof.” (Page: 903, Para: 15)

Sec. 11 A

Acquittal – In criminal proceedings entitles the workman continuity of service and back wages Continuity of Service – The workman is entitled if he was acquitted in Criminal Proceedings Back Wages – The workman is entitled if he was acquitted in Criminal Proceedings Belated Dispute – Even if raised after acquittal in Criminal proceedings continuity of service and back wages cannot be denied

¥4.501 The services of a bus driver were terminated on 16.8.1979 after an enquiry for rash and negligent

driving resulting in fatalities. The Driver was acquitted in Criminal Proceedings. He however raised a dispute on 16.7.1987 after eight years. The Labour Court gave an award reinstating in service but without continuity of service and back wages. Upon challenge for denial of continuity of service and back wages, the High Court held that he was entitled for continuity of service and back wages as he was acquitted in criminal proceedings and that raising of dispute after eight years was not without justifications inasmuch as he raised the same immediately after acquittal.

Sonu Mahadeo Chavan v. Pune Municipal Transport., 2010 II CLR 555 (Bom.HC) WP 2890 of 1999 dt. 14-6-2010

“In my opinion,……….service on his reinstatement.” (Page: 557, Para: 8)

“The award of the Labour Court……….modified accordingly.” (Page: 557, Para: 10)

Sec. 11-A

Proportionality of punishment – Dismissal for remaining present in the protected area near the aircraft is harsh

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Unauthorized presence – Near the aircraft after duty hours in a protected area does not call for the punishment of dismissal being harsh Protected Area – Remaining present unauthorizedly near the aircraft after duty hours though a misconduct does not warrant the punishment of dismissal

¥4.502 Dismissal of service of a Mechanic in the service of Indian Airlines on charges of unauthorized

presence in the operational area near the aircraft and the bus with a card board packet of dutiable items after the duty hours in the protected area after punching out the gate card, is disproportionate to the proved misconduct. The Single Judge had therefore modified the award of paying only a sum of ̀ 1,00,000 lump sum compensation against the order of termination as this punishment was harsh. In the modified orders, it has permitted levy of fresh penalty and pay salary and allowances subject to such punishment. The Division Bench upheld the same and dismissed the appeal.

Indian Airlines Ltd. v. V.K. Gupta, 2009 I CLR 151 (Del.DB) LPA 34 & 36 of 2007, CMW 693, 697 & 698 of 2007 dt. 20-11-2008

“As regards the……….altogether being brought.” (Page: 154, Para: 8)

“Having examined the……….attract a major penalty.” (Page: 154, Para: 9)

“In the light of the law……….for interference.” (Page: 155, Para: 10)

Sec. 11 A

Bias – If not pleaded before the Trial Court cannot be raised for the first time in High Court Plea – Of bias if not taken before tribunal, cannot be taken before High Court for the first time Loss of Confidence – If the issue, the question of bias on the part of Inquiry Officer fades if not pleaded before the Tribunal itself or before Inquiry Officer Enquiry – Cannot be held unfair if based on principles of natural justice, question of bias having not been taken Advocate – If engaged as an Enquiry Officer the question of bias if any is to be pleaded before him or before Tribunal to hold water

¥4.503 The plea of bias of engaging an Advocate as an Enquiry Officer, which was not taken either before

the Inquiry Officer or before the Tribunal at any t ime, cannot be pleaded in a writ petition for first time, as was settled by the Supreme Court in the case of South Indian Cashew Factories Workers Union v. Kerala State Cashew Development Corporation Ltd. (2006 (5) SCC 201). The issue in this case was loss of confidence.

Kewal Krishan v. Presiding Officer, Industrial Tribunal & Anr., 2011 III LLN 544 : 2012 I LLJ 731 : 2011 LLR 1011 (Del.HC) WP 6187 of 2002 dt. 25-7-2011

“This Court finds……….in these proceedings.” (Page: 546, Para: 10)

“Likewise in South Indian……….before the adjudicator.” (Page: 547, Para: 11)

“It was then……….said to be disproportionate.” (Page: 547, Para: 12)

Sec. 11-A

Evidence – Additional cannot be led if the charges framed could not be proved in the enquiry for want of examination of witness in support of the charge Enquiry – If held without any witness to prove the charges the employer has no case to put forward a claim to lead additional evidence before the Labour Court Witness – If absent in support of the charges the employer cannot thereafter lead ay evidence before the Labour Court to prove the charges

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¥4.504 The workman was removed from service on the charges that he had furnished a fake medical certificate pertaining to his father to claim compassionate appointment. But in the enquiry not a single witness was examined to prove the charges. The employer sought leave of the Labour Court to lead further evidence, which was rejected. The High Court held that the Labour Court is not obliged to grant an opportunity to lead evidence afresh where the charges were not proved inasmuch as no person was examined in support of the charges. The award was upheld with direction to reinstate him within four weeks but without back wages as he had received last drawn wages u/s. 17 B.

The General Manager, Singareni Colleries Co. Ltd. v. Mohd. Fareed & Anr., 2011 III LLN 92 (AP.HC) WP 816 of 2004 dt. 21-10-2010

“In the instant case……….any different view.” (Page: 94, Para: 10)

“While admitting the……….the Writ Petition.” (Page: 94, Para: 11)

Sec. 11A

Overwork – Is not a license for negligence Negligence – Cannot inferred due to overwork if the Way Bill was falsified by cutting and over writing Over writing – Cuttings in Way Bill is a misconduct cannot be exonerated on the plea of overload of work Way Bill – A financial document is to be prepared without cutting and over writing to be free from the charges of misconduct in depositing less money

¥4.505 Where the services of a conductor of the bus was terminated for cutting and overwriting on the Way

Bill and depositing less amount, the Labour Court set aside the same on ultra technical/trivial grounds such as due to over load of work resulting in error or negligence due to overwork also for the reason of non supply of some documents. He was reinstated with back wages. This award was set aside in a Writ Petition holding that overwork is no license for negligence. If that is the case, the plea amounted to admission of guilt. The workman had since retired, direction to pay back wages was set aside on the ground that there was no evidence that he was not in service anywhere else.

Managing Director, U.P.S.R.T.C. & Ors. v. Har Prasad Pathak & Anr., 2011 III CLR 281 (All.HC) WC 17863 of 1999 dt. 3-5-2011

“Firstly, such a finding……….the impugned award.” (Page: 282, Para: 4)

“Firstly, termination order……….service of the petitioners.” (Page: 283, Para: 7)

“Accordingly, writ petition is……….payable to the workman.” (Page: 283, Para: 8)

Sec. 11 A

Compensation – Of ` 10,000 in lieu of reinstatement being meagre requires to be enhanced to Rs. 75,000/- in case of a peon putting up service of 21 years long

¥4.506 The workman being a poor, widow serving as a peon for 21 long years was transferred from one

school to another school which was at a distance of almost 18 kms due to which she could not report for duty and her services were terminated. The Labour Court awarded a compensation of Rs. 10,000/- in lieu of reinstatement. In the Writ Petition the same was increased Rs. 75,000/- to be reasonable, as she was in the verge of superannuation.

Rukshmaniben Hiralal Rajpopat v. Rajkot Nagar Primary Education Committee, 2011 III CLR 313 : 2012 II LLJ 404 : 2011 (131) FLR 872 (Guj.HC) SCA 4814 of 2011 dt. 10-8-2011

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“In view of the aforesaid……….(Rupees Seventy Five Thousand only).” (Page: 315, Para: 4.0)

Sec. 11 A

Fraud and Forgery – By fabricating transfer certificate if committed to gain employment the Labour Court cannot exercise its discretionary power u/s. 11 A to modify the punishment of dismissal Discretionary Power – The Labour Court cannot exercise where the workman had committed fraud and forgery by fabricating transfer certificate to gain employment

¥4.507 Once fraud on the employer is detected in which the workman has submitted a forged Transfer

Certificate for gaining employment, the Labour Court has no discretionary power u/s. 11 A to go into the proportionality of punishment since the appointment was based on fraud played on the employer. In such cases the Labour Court cannot hold that the dismissal was disproportionate to the gravity of misconduct so as to disturb the conscience of the Court.

Bangalore Metropolitan Transport Corp., Bangalore v. Nagaraja Naik, s/o. Sakria Naik, Bangalore, 2011 III CLR 407 : 2012 II LLJ 235 (Karn.HC) WP 41044 of 2010 WP 28445 of 2011 dt. 2-8-2011

“In the factual matrix……….consideration or relief.” (Page: 410, Para: 9)

“In the factual matrix……….to claim benefits.” (Page: 410, Para: 10)

“The exercise of……….of the Court, is illegal.” (Page: 411, Para: 13)

Sec. 11 A

Implied Acceptance – Of Leave Application cannot be construed for inaction on it Leave Application – Even if not acted upon it cannot be construed as an implied acceptance

¥4.508 The workman remained unauthorizedly absent consistently from the transferred place and from 11th

March, 1986 more specifically and her application for leave made on 9th April, 1986 cannot be construed as implied acceptance of the leave application merely because there was no positive response from the side of the management. But the Labour Court ignored the fact that there could not have been an implied acceptance in the face of the reply from the side of the management during the pendency of leave application that unless she reports to duty in the transferred place suitable action will be taken as may be deemed fit and proper. The High Court therefore set aside the award as perverse, which had held that there was an implied acceptance of leave application by the management.

Hindalco Industries Ltd. v. Suman Lata Tuteja & Ors., 2011 III CLR 416 : 2012 II LLJ 526 : 2011 LLR 1197 (Del.HC) WP 2113 of 2000 & CM 11466 of 2011 dt. 8-9-2011

“The fact remains that……….cannot be sustained in law.” (Page: 419, Para: 14)

“Having held the SH……….sustained in law.” (Page: 421, Para: 16)

Sec. 11 A

Unauthorized Absence – For considerable period at regular intervals does not call for exercise of discretion Sec. 11A – Discretion cannot be exercised for showing leniency on the principle of proportionality of the punishment if the workman was irregular in his attendance absenting unauthorisedly

¥4.509 The workman a temporary beldar was terminated for unauthorized absence of 28 days between

August and September 1973, 47 days between September and November 1973, 15 days in November

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1973, 65 days between May and July 1974, 80 days between December 1974 to February 1975, 103 days between July to October 1975. After enquiry his services were terminated. The Labour Court held that it was harsh and reinstated him with 20 % back wages. The High Court set aside the award and held that the Labour Court failed to appreciate that he had hardly worked for a year or so for the employer and was also highly irregular. The workman also did not raise any dispute for a period of 4 years. It was only with an eye for pensionary benefits as he had reached the age of superannuation, he raised a dispute belatedly. Hence there is no case for exercising discretion u/s. 11 A. However a compensation of ` 50,000 was given in lieu of reinstatement.

Executive Engineer ‘A’ Div., CPWD v. Radhey Lal, 2011 III CLR 421 (Del.HC) WP 1194 of 2008 dt 1-9-2011

“The findings of fact……….came to be made.” (Page: 423, Para: 11)

“It is thus found………..respondent workman also. (Page: 423, Para: 12)

“Notwithstanding the same……….was highly irregular.” (Page: 424, Para: 15)

Sec. 11 A

Domestic Enquiry – Can be dispensed with considering the extreme tense situation prevailing Assault – And Abuse on the Superior Managerial Official invites punishment of dismissal with no leniency Discrimination – In matters of punishment between one workman and another High Court cannot interfere Dismissal – Without enquiry for assault on superior official in a charged atmosphere does not shock the conscience at the Court Perversity – Including if findings are contrary to law than only High Court can interfere

¥4.510 The workman was dismissed from service without enquiry because of the extreme tense situation

prevailing. The charges of assault on the Superior Officer were proved before the Labour Court. The Labour Court believed the facts of the employer and rejected that of the workman. The High Court did not interfere in the findings and held that only when the findings are perverse and contrary to Statutory provisions of law, the Court has reason to interfere. Regarding discrimination in the quantum of punishment between the workman and another, it was held that this itself, cannot be treated as a ground for interference. In this case the misconduct being assault and abuse on superior Managerial Official punishment is not found shockingly disproportionate.

Parshu Ram Pandey v. State of U. P. through Secy., Labour Department & Ors., 2011 III CLR 561 : 2011 (130) FLR 858 : 2012 LLR 116 (All.HC) WC 24 of 2005 dt. 6-4-2011

“Believing or disbelieving the……….of the Constitution of India.” (Page: 564, Para; 10)

“Normally, in the matter of………. employee concern.” (Page: 568, Para: 32)

“Looking to various……….industrial harmony.” (Page: 569, Para: 35)

Sec. 11 A

Evidence – Burden to prove the anomaly in the charges as against the facts noticed is on the employer Burden of proof – Is on the employer to explain the anomaly in the charges levelled and on proof of misconduct detected Charges – If one of receipt of excess cash due to non issue of tickets the anomaly in the receipt of less cash in the cash bag is to be explained by the employer Back wages – 50% allowed if the workman proves that he was not having gainful employment

¥4.511 The charges against the conductor of the bus was receiving cash from 8 passengers but not issuing

tickets. The evidence in this case totally contradicts the charges because instead of excess cash in the cash

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bag, there was shortage of ` 8.50. The burden for this anomaly was not explained by the checking staff. Whereas, the workman had cogently explained the cause for shortage. Hence the award upholding termination was set aside. As the workman did not get alternative employment, 50% back wages for the entire period was allowed. He was reinstated with all consequential benefits and continuity of service.

Krishan Kumar Nagar v. Management of Delhi Transport Corp., 2011 III CLR 609 : 2012 (132) FLR 140 : 2011 LLR 1191 (Del.HC) WP 3725 of 2000 dt. 5-10-2011

“The above explanation is……….whatsoever to support it.” (Page: 611, Para: 9)

“This Court finds that……….of the Labour Court.” (Page: 611, Para: 10)

“The workman evidence………. wife and four children.” (Page: 611, Para: 11)

Sec. 11 A

Acquittal – Criminal case on charges identical with domestic enquiry the workman has to be reinstated Charges – If identical both in criminal and domestic enquiry acquittal in criminal requires the employer to reinstate him Inconsistencies – In evidence surrounding the charges of theft gives a lease of life to the terminated workman upon acquittal in a criminal case

¥4.512 The charges against the workman were theft of some broken blades of the springs. In the criminal

case he was acquitted. In the departmental enquiry the charges framed were identical with the criminal charges. The employer without waiting for the outcome of the criminal proceedings terminated his services. There were several inconsistencies in the evidence. According to the Controller the bag was opened after the main gate. But according to security guard the bag contained springs even without opening it. The Labour Court upheld the dismissal. The High Court pursuant to his acquittal and inconsistencies in the evidence held, removal from service was harsh. Hence order of dismissal was set aside and the award, reinstating him but without back wages, counting the service for retirement only.

S. Sivaji v. Chairman-cum-Presiding Officer, Labour Court, Visakhapatnam & Ors., 2011 III CLR 761 (AP.HC) WP 1323 of 2004 dt. 24-12-2010

“There is any amount……….somewhat different.” (Page: 763, Para: 9)

“In addition to the……….the ends of justice.” (Page: 763, Para: 11)

Sec. 11 A

Proportionality of Punishment – The Labour Court cannot exercise if the misconduct is grave and does not shock the conscience of the Court Misconduct – Of tearing the Enquiry papers and misbehaving with enquiry Officer being grave exercise of power u/s. 11 A not warranted Dismissal – For misconduct of tearing the Enquiry papers and misbehaving with enquiry Officer cannot be interfered with u/s. 11 A

¥4.513 The workman was dismissed from his service on the charges of interfering with enquiry proceeding

of another daily wage employee, misbehaving with enquiry Officer, tearing the papers of the enquiry proceedings. The Labour Court reinstated him interfering with the punishment on the ground that his financial condition was poor and in the past there was no misconduct committed by him. The Single Judge and Division Bench set aside the same and upheld the dismissal because the offence was grave. Power to interfere with punishment springs, only if it is shockingly disproportionate to the charges. No such reasons are given by the Labour Court.

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Madhavsinh Nagjibhai Solanki v. Gujarat Electricity Corpn. Ltd. & Anr., 2011 LIC 3491 : 2012 I LLJ 811 (Guj.DB) LPA 623 of 2011 in S.C.A. 2777 of 2004 dt. 20-4-2011

“The last question is……….to the charges.” (Page: 3498, Para: 14)

“The Apex Court……….learned single judge.” (Page: 3498, Para: 15)

Sec. 11A

Subsistence Allowance – Payable 100% even if the workman sought and obtained stay of domestic enquiry after one year Interim Orders – Against conducting domestic enquiry simultaneously with criminal proceedings is not indicative of putting hurdles by the workman Domestic Enquiry – Delay caused cannot be attributable to the workman by approaching Court for interim orders to deny him subsistence allowance

¥4.514 The issue is whether the action of the workman in seeking an interim order from the Court in a Writ

Petition to differ the domestic enquiry until the criminal proceedings on same set of facts are concluded, constitutes a delay in enquiry for reasons attributable to the concerned workman so as to deny full subsistence allowance in terms of Clause 5 of the Bipartite settlement of the Bank. In this case the interim order of the High Court prevented the Bank from holding domestic enquiry until a period of 5 years until the Division Bench set aside the interim orders. Relying on the judgement in the case of B.D. Shetty & Ors. v. Ceat Ltd. & Anr., (2002 (93) FLR 785 (SC)) the Court held that denying 100% subsistence allowance will put restraint or clog in the exercise of his legal right to approach the Court for fear of losing full subsistence allowance. The Bank also failed to take steps to vacate the interim orders. Hence she is entitled for 100% subsistence allowance after one year.

Smt. Jayashree Vani v. Bank of India, Bangalore, 2011 (130) FLR 1034 : 2012 I LLJ 684 (Karn.HC) WP 39002 of 2010 dt. 25-2-2011

“Sri M.N. Prasanna……….conduct of such workman.” (Page: 1036, Para: 8)

“The plain reading of……….disciplinary proceedings.” (Page: 1037, Para: 10)

Sec.11-A

Hospitalisation – With no fit person to intimate this fact to the employer does not warrant termination for 10 days absence Intimation of Absence – Should be waived if the workman was hospitalised with no fit person available to report the absence does not warrant termination

¥4.515 The issue is if the workman was admitted to take treatment of hypertension and heart disease in a

Government Hospital and if he was unable to move from the bed and there was no fit person or family to inform this admission to the employer and even after the fact of this admission being genuine, despite the workman submitting the necessary medical certificate to this effect, justifying his absence from 2.11.1991 to 12.11.1991, can the employer terminate his service without enquiry and labour Court can only give relief of reinstatement as a fresh candidate without continuity of service and attendant benefits. The High Court differed and modifying the award held that he is entitled to reinstatement with continuity of service and attendant benefits with 50% back wages in the circumstances.

K.A.K. Babu v. Depot Manager, A.P.S.R.T.C., Madhira Bus Depot, Khammam District & Anr., 2011 (130) FLR 1089 : 2011 LIC 3068 : 2011 LLR 993 (AP.HC) WP 18093 of 2001 dt. 26-7-2010/26-11-2010

“A reading of……….all other attendant benefits.”(Page: 1091, Para: 6)

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Sec. 11 A

Compensation – No plea is permitted in High Court if the employer b his conduct promoted him including confirmation after reinstatement Reinstatement – Cannot be challenged in a Writ Petition pleading rather compensation if the employer had after reinstatement even promoted him including confirmation

¥4.516 The issue is whether the Tribunal is right in reinstating the workman who had rendered service

hardly for a year or so. The High Court held that if the conduct of the employer is such that upon receipt of award in favour of the workman not only the bank reinstated him but also gave him promotion and confirmed him in the post of peon thereby it has estopped from making a plea at the stage of Writ Petition that the workman should not have been reinstated but compensation should have been awarded.

Bank of India v. Union of India & Ors., 2011 (130) FLR 48 (Pat.HC) CWJC 227 of 2001 dt. 29-6-2010

“However, the main issue……….should be set aside.” (Page: 57, Para: 18)

Sec. 11-A

Proportionality of punishment – No discretionary power can be exercised where the workman furnishes consistent evidence for the absence past record being not mitigating

¥4.517 Where the workman remained absent from 6.10.2001 to 28.5.2002 under the guise of taking

treatment in a hospital, but fails to substantiate the same by consistent medical certificates, prescriptions or medical bills or evidence of doctors, Hospital Authorities and his past record does not disclose any extenuating circumstances for showing leniency due to absence from duties during seven spells attracting minor penalties, the Labour Court has no reason to use its discretionary powers u/s. 11 A. The High Court upheld his dismissal and the award in this regard.

A. Ganesh Reddy v. Chief Traffic Manager, B. M. T. C. Central Officers, Bangalore, 2011 (131) FLR 161 : 2012 II LLJ 644 : 2011 LLR 1243 (Karn.HC) WP 11242 of 2010 dt. 25-5-2011

“Having heard the……….evidentiary value.” (Page: 163, Para: 6)

Sec. 11-A

Misconduct – If misbehaving with passengers in a drunken state while on duty .the Labour Court cannot exercise discretion u/s. 11 A Drunken State – While on duty misbehaving with passengers being serious not amenable to the exercise of power u/s. 11 A

¥4.518 When the misconduct of the workman using filthy language and misbehaving with passengers in a

drunken state while on duty is proved in the Criminal Proceedings, the punishment of dismissal imposed by the disciplinary authority cannot be held shockingly disproportionate so as to interfere with in exercise of the discretionary power u/s. 11 A because such misconduct endangers not only the safety of those in the vehicle but also those using the roads and hence has serious consequences. Hence the dismissal in compliance with the staff regulation as upheld by the Labour Court cannot be held disproportionate.

A. Chandrappa, Bangalore North Taluk v. Management of Bangalore Metropolitan Transport Corp., 2011 (131) FLR 542 : 2012 II LLJ 483 : 2011 LLR 1277 (Karn.HC) WP 5205 of 2010 dt. 21-4-2011

“There is no dispute………. Shri S.B. Mukkannappa.” (Page: 543, Para: 7)

“The charge against……….those using the roads.” (Page: 544, Para: 10)

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Sec. 11-A

Unauthorized Absence – For 2 years 5 months with 4 similar past records discloses no mitigating circumstance to exercise discretion u/s. 11 A Proportionality of Punishment – Excludes–For unauthorized absence for 2 years 5 months with similar 4 past incidents Chronic Absence – Includes – Unauthorized absence for 2 years 5 months with similar 4 past incidents

¥4.519 The conductor remained unauthorizedly absent for 2 years 5 months and hence invited the

punishment of dismissal which inter alia took into consideration his past conduct in which in four occasions he was penalized with minor penalty for similar misconduct. Interfering with the same u/s. 11 A of the Act, the Labour Court reinstated him with 40% back wages holding that his conduct does not come within the meaning of chronic absence. The High Court set aside the same and held that the punishment cannot be held disproportionate and the interference u/s. 11 A is perverse and unsustainable.

Divisional Controller, Karnataka State Road Transport Corp., Chikmagalur v. M. Devaraju, 2011 (131) FLR 670 : 2012 III LLJ 85 : 2012 LLR 70 (Karn.HC) WP 10650 of 2010 dt. 3-6-2011

“Applying the authoritative……….unsustainable .” (Page: 673, Para: 8)

Sec. 11 A

Probationer – Services can be terminated at any time without enquiry or reasons for unsatisfactory work Enquiry – Excludes–For termination of a probationer for unsatisfactory work Notings – Made prior to termination of a probationer even if condensed some slur it cannot be taken advantage of for an enquiry

¥4.520 The services of a probationer can be terminated at any time for unsatisfactory work and conduct. He

is not entitled to demand reasons for the action of the employer. So long as the order contains no insinuation, merely because the workman obtained some official notings preceding such termination he cannot demand an enquiry holding that the notings constitute a slur or stigma. It is only when he contends that the act was arbitrary or mala fide and hence illegal, the allegations rest on different footings.

Sarbjit Singh v. Presiding Officer, Labour Court, Amritsar & Ors., 2011 (131) FLR 708 : 2012 I LLJ 734 : 2012 LLR 46 (P&H.HC) CWP 14827 of 1990 & 14829-A of 1990 dt. 20-5-2011

“This judgement really……….petitions are dismissed.” (Page: 711, Para: 5)

Sec. 11-A

Rash and Negligent Driving – Penalty of stoppage of two increments with cumulative effect is adequate Acquittal – In criminal case for rash and negligent driving is no reason for setting aside the penalty imposed in domestic enquiry

¥4.521 The workman, a driver was found negligent of rash driving in which driver took the bus towards

wrong side in which a cyclist was killed. Four increments were stopped with permanent effect as a measure of punishment. In the criminal proceedings, the workman was acquitted. The Labour Court therefore passed an order setting aside the penalty. The High Court held that in the phase of the facts punishment of stoppage of two increments instead of four will be adequate. Hence the penalty was modified.

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Divisional Controller, Gujarat State Road Transport Corp. v. Mohmad Adambhai Mushabhai Bhodiya, 2011 (131) FLR 859 : 2012 II LLJ 401 : 2012 I LLN 206 : 2011 LIC 3393 : 2011 III CLR 834 : 2012 LLR 43 (Guj.HC) SCA 6019 of 2005 dt. 3-3-2011

“When the……….order.” (Page: 862, Para: 17)

“On the overall……….disciplinary authority.” (Page: 862, Para: 21)

Sec. 11-A

Proportionality of Punishment – The Labour Court is devoid of power to exercise the doctrine for misconduct of unauthorized absence in a public service being also inequitable Unauthorized Absence – In a public service does not call for the exercise of power u/s. 11 A Public Transport – Employment being a public service unauthorized absence will not qualify to exercise the power of proportionality in punishment u/s. 11 A

¥4.522 Where the misconduct is remaining unauthorizedly absent for a period of 11 months and 4 days,

workman’s past conduct not being clean wherein he was censured for remaining unauthorized absent for 35 days, the High Court held that such misconduct in a public service like road transport does not qualify for the exercise the discretionary power of proportionality of punishment u/s. 11 A. The workman is also not entitled to the plea of equity under Art.14 of the Constitution. Hence the award which modified the punishment of dismissal into one of reinstatement with stoppage of two increments with cumulative effect was set aside.

Smt. Padma & Ors. v. Chief Traffic Manager BMTC Central Office, Bangalore, 2011 (131) FLR 914 : 2012 II LLJ 307 : 2012 LLR 161 (Karn.HC) WP 37323 to 37325 of 2010 connected with WP 23423 of 2010 dt. 10-6-2011

“The reasoning of ……….award impugned.” (Page: 918, Para: 14)

“In the circumstances……….remains unaltered.” (Page: 919, Para: 15)

Sec. 11 A

Back wages – Cannot be denied on the ground that he earns income by cultivating joint family land or supported by his father in law Gainful Employment – Excludes – Earning by tilling joint family land or support from his father in law Joint family land – Cultivating is not gainful employment Father in law – Support of is not suggestive of gainful employment

¥4.523 The issue is whether the workman can be denied back wages on the basis that he is assisting the

members of his joint family in the cultivation of the ancestral land. The High Court repelled this contention of the Labour Court and held that by this it cannot be legitimately inferred that he was gainfully employed. Secondly the issue is whether the Tribunal can legitimately appreciate the irrelevant facts of the workman’s marriage and financial position of his wife’s parents for denying him back wages. The High Court held it is inappropriate and irrelevant to take into consideration financial position of his father in law to disentitle him the back wages. In this view the employer failed to prove the gainful employment. Consequently back wages allowed.

G. K. Pandey v. Regional Director, International Airport Authority of India, 2011 II CLR 961 : 2012 I LLJ 299 : 2011 LLR 1055 (Bom.HC) CAJWP 1306 of 2011 dt, 11-7-2011

“In the present case……….cannot be rejected.” (Page: 966, Para: 22)

“The learned Presiding ……….is not correct.” (Page: 967, Para: 24)

Sec. 11-A

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Loss of confidence – Reinstatement even in lower post in exercise of discretionary power u/s. 11 A cannot be countenanced Misplaced Sympathy – The Courts should eschew when the charges are serious in nature such as theft, fraud, misappropriation, assault etc. Proportionality of Punishment – Cannot be exercised for Dismissal in case of theft, fraud, misappropriation, assault etc.

¥4.524 If the proved charges against the Secretary of the Milk Society are theft, fraud, misappropriation,

falsification of the books of accounts and assault, the Labour Court cannot evince misplaced sympathy in exercise of its discretionary power u/s. 11 A, charges being serious in nature. Hence the award to reinstate him in the post of a tester in place of Secretary of the Milk Society in the guise of rehabilitation results in destruction of discipline and morality in the factory. The employer having lost confidence in him, his removal from service cannot be held disproportionate. The award was set aside. Removal upheld.

Kammavarpudur Milk Producers Co-operative Society Ltd., rep. by its Special Officer, Karikri P.O., N.A.A. District v. Presiding Officer, Labour Court, Vellore & Anr., 2011 II LLJ 709 (Mad.HC) WP 6173 of 2003 dt. 21-10-2010

“From the above……….cause of justice.” (Page: 723, Para: 52)

Sec. 11-A

Domestic Enquiry – Labour Court should return a finding of fairness of enquiry Enquiry Officer – Cannot submit a report solely relying on the statement of the Presenting Officer Proportionality of Punishment – The Labour Court has to consider including fairness of enquiry

¥4.525 The workman contested his termination on the ground that the employer did not conduct the enquiry

in the manner known to law. The enquiry Officer submitted his report without examining any witness or relying on any document except solely relying on the statement of the Presenting Officer. The Labour Court had not given a finding about the fairness of the domestic enquiry. It also did not go into the proportionality of punishment. The workman was allegedly on continuous treatment for jaundice. Hence the award against the workman was set aside and matter remanded to return a finding on the fairness of the domestic enquiry and to consider the doctrine of Proportionality of Punishment.

K. Raman v. Presiding Officer, The Central Government Industrial Tribunal-cum-Labour Court, Chennai & Anr., 2011 LIC 3737 (Mad.HC) WP 28299 of 2007 dt. 26-4-2011

“It has been……….to prove the charges.” (Page: 3744, Para: 14)

“In such……….accordingly.” (Page: 3746, Para: 21)

Sec. 11A

Preliminary Issue – Prayer whether domestic inquiry conducted fair and proper if rejected the same is justified as there is no provision in law which commands the Tribunal to decide it as one Tribunal – Has power to decide all the issues together as there is no provision in law which commands to decide some issues as preliminary issue Domestic Inquiry – Whether conducted fair or not though a preliminary issue can be decided by the Tribunal together with other issues

¥4.526 Employer’s prayer to frame preliminary issue whether domestic inquiry conducted fair and proper

was rejected by the Tribunal. The employer challenged the rejection. The High Court upheld the rejection because there is no provision in law which commands the Tribunal to decide all the preliminary issue first. Hence the decision of Tribunal to decide all issues together is justified.

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Dhampur Sugar Mills Ltd. Thr F. M. Vijai Kumar Gupta v. Chandra Shekhar, 2010 (125) FLR 533 : 2010 II CLR 186 (All.HC) WC 18264 of 2010 dt. 6.4.2010

“In our considered opinion……….on those issues.” (Page: 437, Para: 20)

Sec. 11A

Condition of Service – Change of which if resisted punishment of dismissal being harsh is liable to be modified into reinstatement with loss of one increment for one year but 50% back wages Dismissal – For resisting change in condition of service being harsh punishment of loss of one increment for one year reinstatement with 50% back wages proper Over Time – If denied for extra work a resistance by the workman cannot be countered by a penalty of dismissal being harsh loss of one increment with reduction of 50% back wages proper Loss of One Increment – At the most is the proper penalty rather than extreme penalty of dismissal for demanding extra wages for extra work

¥4.527 16 workmen demanded extra payment for the 1 hour extra work introduced by the employer. Other

workmen did not demand the same. The employer inflicted serious punishment of dismissal on these workmen. The tribunal after going into the issue exercising powers u/s. 11A set aside the dismissal but denied back wages to the extent of 50% and reduction of one increment. The employer challenged the award. Upholding the award the High Court held that insisting extra payment will not make the action of the management in any way justified. They were only resisting imposition of new conditions of employment by standing together. The tribunal is justified in modifying the punishment into one of reinstatement with reduction of one increment for one year with 50% back wages.

Management of Sundaram Industries Ltd., Madurai v. The Industrial Tribunal & Anr., 2011 II CLR 97 : 2011 IV LLJ 575 (Mad.HC) WP 8019 of 2010, MP 11 & 12 of 2010 dt. 28-2-2011

“Before the Industrial Tribunal……….as Exs. M1 to M248.” (Page: 98, Para: 9)

“In the present case, all that the……….as a sufficient punishment.” (Page: 100, Para: 20)

Sec. 11A

Exemptions – Of specific proviso if in force by virtue of notification the specific authority under the specific Act cannot grant any relief Remedy – If under Shops Act is not open by virtue of exemption, the door under Industrial Disputes Act should be open Shops Act – If not open, the Industrial Disputes Act is Workman – If not, to invoke I.D. Act, door of Shops Act cannot be shut

¥4.528 An award against termination is liable to be upheld if the management had not proved its contention

and charges against workman before the Labour Court. However the back wages were reduced to 50% modifying the award. As the workman attained the age of 70 years, reinstatement did not arise except back wages and attendant benefits.

Management of Arakonam Co-operative House Mortgage Society, rep. by its Special Officer v. T.J. Rangappan & Anr., 2008 II LLJ 637 (Mad.DB) WA 4149 of 2003 & WAMP 6883 of 2003 dt. 7-9-2007

“It is……….against law.” (Page: 642, Para: 28)

“After touching ……….full back wages.” (Page: 643, Para: 29)

“In this view of the matter……….of his dismissal.” (Page: 643, Para: 30)

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Sec. 11A

Delay – In claiming benefit of notional promotion by 10 years will disentitle the workman his rights to the benefit Notional Promotion – From a date much anterior to the date of claim will result in rejection of the same by the conduct of the claimant

¥4.529 The union raised a dispute for the notional promotion of the workman to the post of junior engineer

because the employer had refused to promote him even after he obtained the required C-Licence. The labour court allowed the same from 1987, the date when he obtained the said licence. The employer challenged the same before the High Court which modified the award granting him notional promotion from the year 1995 for the reason that the workman had claimed notional promotion from 1987 only in the year 1997. The conduct of the workman should be relevant consideration for denying this benefit from the year 1987 itself because back wages or notional promotion are not automatic but depends on the conduct of parties. Hence this notional promotion could justifiably be given only from the date when his juniors were promoted i.e. from the year 1995.

Management Salem District Co-op. Milk Producer's Union Ltd. v. Presiding Officer Labour Court, Salem, 2011 LIC 2385 : 2011 3 LLJ 848 (Mad.HC) WP 14140 of 2003 dt. 20-1-2011

“On a reference from……….either perverse or illegal.” (Page: 2387, Para: 6)

“On the facts of the……….petition is closed.” (Page: 2387, Para: 8)

Sec. 11A

Back Wages – Except lump sum compensation was denied as workman slept over his rights Legal Dues – Only payable with lump sum compensation if the workman slept over his rights without espousing the dispute

¥4.530 Though the workman was terminated illegally i.e. without conducting inquiry, the Tribunal found

that he had slept over his rights and kept on making correspondence only. Hence he is not entitled to any back wages but will be entitled to only his legal dues from the date of termination till the date of superannuation. Apart from this a lump sum compensation was also paid to the workman from the date of raising dispute till the date of passing of award, he is not entitled to any separate back wages. The High Court upheld the order of the Tribunal.

Natwarlal B. Bhatt v. Bombay Gorakshak Mandal, 2010 (127) FLR 675 : 2011 I LLJ 148 : 2010 III CLR 349 (Bom.HC) OOCJWP 1298 of 2010 dt. 31-8-2010

“As regards the first……….only his legal dues.” (Page: 677, Para: 12)

“As regards the first……….be sent to Government.” (Page: 677, Para: 12)

Sec. 11A

Delay and Laches – In filing claim statement will result in loss of back wages in the resultant award Back Wages – Not payable for delay and laches in filing claim statement

¥4.531 A conductor was removed from the service for misconduct of possessing excessive cash with him and

two passengers traveling without ticket. Labour Court assuming the punishment of removal being harsh granted reinstatement with back wages for the interim period of 2 years, excluding the period from 1.1.1988 to 31.12.1989. High Court held that where the workman made delay of 4 years to file his statement of claim for no good reasons, the Labour Court erred in awarding back wages for two years. Hence the award was modified to that extent.

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Maharashtra State Road Transport Corporation v. S.Y. Ubale & Ors., 2008 III CLR 360 (Bom.HC) CAJWP 4224 of 1993 dt. 26-8-2008

“In my opinion ……….not been filed.” (Page: 361, Para: 4)

Sec. 11A

Reference – Once made the tribunal has no choice but to adjudicate irrespective whether it is a case of dismissal removal or discharge from service to be dealt with u/s. 11A Proportionality of Punishment – Once reference is made tribunal can enter into irrespective of the fact it is not a case of dismissal removal or discharge from service but reduction of increments Increments – Reduction of – Though the dispute proportionality of punishment is still can be exercised on par with dismissal, removal or discharge from service

¥4.532 The contention that Sec. 11A operates only against an order of dismissal, removal or discharge from

service and not against an order imposing lesser punishment, though laid down by the Division Bench of Andhra Pradesh High Court in Dayanand’s case it is not in consonance with the law settled by Supreme Court in Jai Bhagwan’s case where the Supreme Court held that once a reference is made, a tribunal has no jurisdiction to avoid adjudication in pursuance of the reference. In view of this, the High Court held that there is no error in reducing the punishment of stoppage of increment with cumulative effects u/s. 11A in the face of the findings of the Division Bench in Dayanand’s case, though no dismissal, removal or discharge from service is involved.

The Divisional Manager, APSRTC v. The Presiding Officer, Industrial Tribunal-cum-Labour Court & Anr., 2008 LIC 3797 (AP.HC) WP 7296 of 2008 dt. 24-6-2008

“The contentions of……….some other remedy.” (Page: 3799, Para: 10)

“The judgment of……….cannot be accepted.” (Page: 3800, Para: 12)

Sec. 11A

Enquiry – If not held into the charges of conviction suffered as misconduct dismissal is in violation of the principles of natural justice Principles of Natural Justice – Is violated if no enquiry was conducted into the charges of conviction as a misconduct before dismissal Dismissal – Without enquiry into the charges leading to conviction is in violation of the principles of natural justice Reinstatement – Is proper if no enquiry is made into the charges leading to conviction for violation of the principles of natural justice Back Wages – Cannot be ordered to be paid without a finding of the workman in alternative employment

¥4.533 The workman was convicted and sentenced to a fine of ` 60 and in default to suffer simple

imprisonment for 6 days for drawing an amount of ̀ 75 fraudulently and dishonestly from ESIC. The employer thereupon issued a charge sheet and obtained a reply but conducted no enquiry into the charges. The workman was dismissed. The Labour Court set aside the punishment and reinstated him with 50% back wages for violation of the principles of natural justice. The High Court upheld the same except the back wages because it did not consider the question of alternative employment if any engaged in by them. Hence setting aside the direction to pay back wages, the matter was remanded to Labour Court to decide this issue afresh.

Rajkumar Gandhi & Ors. v. First Labour Court, W.B. & Ors., 2008 III LLJ 775 : 2008 (118) FLR 1032 : 2008 LIC 2242 (Cal.HC) CO 10251 of 1996 dt. 2-5-2008

“In view of ……….dismissal under reference.” (Page: 779, Para: 14)

“But with regard ……….point of time.” (Page: 779, Para: 15)

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Sec. 11A

Conductor – Misappropriating ticket money cannot be awarded lesser punishment than dismissal Misconduct – Of misappropriating ticket money by the conductor deserves the punishment of dismissal

¥4.534 Taking money from the passengers but not issuing tickets, having been proved in the domestic

enquiry dismissal of the conductor from service was approved by the tribunal u/s. 33 (2)(b).The workman had challenged the quantum of punishment. This dispute was referred u/s. 10 of the Act. The reference was answered against the workman holding the dismissal not disproportionate to the proved charges of misconduct. The High Court upheld the award on the ground that the workman had not contested his guilt but only the quantum of punishment that also after a period of 11 years. Since the conductor works in a fiduciary capacity and holds a position of trust, honesty and integrity the punishment awarded cannot be said to be disproportionate to the misconduct.

Bilori v. Delhi Transport Corporation, 2009 (120) FLR 982 : 2008 III CLR 448 : 2009 LLR 446 (Del.HC) WP(C) 12616 of 2006 dt. 3-9-2008

“On a perusal of……….Suresh Pal.” (Page: 984, Para: 9)

Sec. 11A Assault – By a workman to her superior during working hour’s calls for dismissal from service Misconduct – Of assaulting superior cannot be taken lightly and reinstatement cannot be granted to the workman Award – Directing reinstatement to the workman assaulting the superiors cannot be held sustainable Reinstatement – Uncalled for of a workman assaulting her superior during working hour’s

¥4.535 A lady workman was terminated for the misconduct of defying orders of her superior and assaulting

her during working hours. After enquiry she was dismissed but since a dispute was pending the employer sought approval for the dismissal u/s. 33(2)(b) of the Act. The approval for dismissal was granted on merit. However a reference came to be made to the Labour Court after a lapse of 5 years in which an award of reinstatement with full back wages was passed. This award was challenged in the present petition by the employer in which it was held that misconduct on the part of the workman assaulting her superior is serious matter which would lead to indiscipline and chaos. Hence the award of the Labour Court directing reinstatement was held perverse and contrary to evidence on record and therefore set aside.

Management of Daisajan Tea Estate v. General Secretary, Bharatiya Chah Majdoor Sangh & Ors., 2009 LIC 3449 : 2009 LLR 1231 (Gau.HC) WP(C) 2506 of 2002 dt. 24-4-2009

“Assaulting the superior……….her own evidence.” (Page: 3454, Para: 25)

Sec. 11A

Tribunal – Being the final arbiter on the findings of the fact – No interference can be made in its findings Award of Tribunal – If upheld by the Labour Court and Single Judge – Cannot be interefered in appeal Appeal – Against the award of the Tribunal upheld by Labour Court and Single Judge – Is liable to be dismissed

¥4.536 On a reference of dispute raised by the workman, Labour Court finally held that the workman had

fairly tendered his resignation on the basis of a settlement. Hence his services were dispensed with. In writ petition, by the workman Single Judge upheld the award of the Labour Court since there was no evidence to substantiate his contention that his signature was obtained on blank paper. Hence the present writ appeal in which it was held that Tribunal being the final arbiter on the findings of fact, there is little scope for interference and where there is no infirmity in the findings and award of the Labour Court which was upheld by the Single Judge, appeal of the workman is liable to be dismissed.

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Pramod Kumar v. General Export Agencies & Ors., 2009 (122) FLR 620 : 2010 II LLJ 23 : 2009 II CLR 734 : 2009 LLR 1089 (Del.DB) LPA 213 of 2009 & CM 6764 of 2009 dt. 12-5-2009

“It is settled……….Constitution of India.” (Page: 621, Para: 1)

“In view of……….of as well.” (Page: 621, Para: 2)

Sec. 11A

Assaulting a Superior – Is a serious misconduct warranting dismissal Ex-parte Enquiry – Held fair and proper if the workman failed to avail of several opportunities provided Enquiry Report – Need not be provided if the workman consistently remained absent from the enquiry proceedings List of Documents – Need not be provided if the workman consistently remained absent from the enquiry proceedings

¥4.537 The charges against the workman was catching hold of the neck of his Superior Officer and slapping

him besides threatening to see him outside the Factory. The workman failed to participate in the enquiry proceedings despite opportunity provided on 14.5.1979, 25.5.1979, 8.6.1979, 26.6.1979 and 4.7.1979. Hence enquiry was held ex-parte. Such enquiry cannot said to be vitiated. In such cases the workman cannot content that the enquiry was unfair and improper for the reason that he was not supplied with copies of an enquiry report and list of documents. The punishment of dismissal does not shock the conscience of the Court because his misconduct in workplace shows gross indiscipline. The award was upheld and petition dismissed.

Raja Ram v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat & Anr., 2011 III CLR 244 : 2012 II LLJ 215 : 2011 LLR 1164 (P&H.HC) CWP 11972 of 2011 dt. 13-7-2011

“This argument does……….from any infirmity.” (Page: 245, Para: 5)

“Once the inquiry……….not called for.” (Page: 245, Para: 6)

Sec. 11A

Termination – Without compliance of Sec. 25F, held illegal Section 25F – Non-compliance of while terminating – Award of reinstatement would serve justice Completion of Project – A plea not sustainable if there is no evidence that the terminated employee was a project worker Project Worker – Evidence is necessary to justify termination

¥4.538 The plea of the employer that the project for which the workman was appointed got completed was

not acceptable because it was during his leave period that the project was got finished. There was no evidence that the workman was a project worker. Hence the termination of service without any notice of termination or that his services have come to an end upon the project having come to an end or retrenchment compensation was held to be illegal. Therefore the award of reinstatement passed by the Tribunal was upheld.

Uttar Pradesh Bridge Corporation Ltd. Lucknow v. Presiding Officer, Industrial Tribunal, Government of Goa & Ors., 2010 (124) FLR 533 : 2010 LIC 1515 : 2010 I CLR 34 : 2010 LLR 346 (Bom.HC) WP 408 of 2000 dt. 7-5- 2009

“The fact therefore……….cannot be faulted.” (Page: 535, Para: 10)

Sec. 11A

Compensation – In lieu of reinstatement proper on the assumption that he would be working somewhere as he was out of employment for 9 years

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Interest – Awarded – As the workman had suffered not due to his fault during the pendency of the writ Enquiry – If not conducted compensation in lieu of reinstatement is proper

¥4.539 Without issuing any notice or enquiry, the workman was terminated from service. Hence termination

was held illegal. The Tribunal considering that workman was out of employment for 9 years and obviously would have been working somewhere decided to award compensation in lieu of reinstatement. The award was upheld but the High Court directed the petitioner to pay 8% interest as the workman had to suffer not due to his fault during the pendency of the writ.

On-Dot Couriers & Cargo, Ltd. v. Anand Singh Rawat, 2010 (124) FLR 536 : 2010 I LLN 192 : 2010 I CLR 52 (Del.HC) WP (C) 4197 of 2008 dt. 26-10-2009

“In the instant case……….would have superannuated.” (Page: 545, Para: 18)

“In view of the……….date of this order.” (Page: 547, Para: 22)

Sec. 11A

Appointment – If not as per recruitment rules then workmen cannot be regularized but can be appointed if work is available and if the regular recruitment is not resorted Casuals – Are to be considered if the regular recruitment is not resorted and if the work is available

¥4.540 Workmen were appointed casually as and when required and the appointment was not as per the

recruitment rules. But the fact remains that the workmen were working for years together and they were earning their bread out of it cannot be ignored. Hence the Court held that if the work is available and if the regular recruitment is not resorted then the respondent workmen are to be considered.

Indian Oil Corporation Ltd. v. General Secretary-Vadodara Kamdar Union, 2010 (124) FLR 727 : 2010 I CLR 175 : 2010 LLR 366 (Guj.HC) SCA 11959 of 2008 & SCA 12512 of 2008 dt. 11-9-2009

“This Court is unable………taken into consideration.” (Page: 729, Para: 6)

“Therefore, this Court……….the advertisement itself.” (Page: 729, Para: 7)

Sec. 11A

Reference – Is liable to be rejected if charges were duly proved against the punishment Delay – Is a valid ground for rejection of reference Punishment – Of reduction in basic pay by one annual increment for one year imposed if justified reference is liable to be rejected

¥4.541 Punishment of reduction in basic pay by one annual increment for one year without cumulative effect

imposed against the workman was challenged by him. The reference was rejected by the Labour Court on the ground that firstly the reference suffered from delay and laches and secondly the charges against the workman were duly proved and the punishment imposed was justified. High Court rejected the petition there against.

C. Ranganath v. Divisional Controller, K.S.R.T.C., Tumkur, 2010 (125) FLR 764 : 2010 I CLR 991 (Karn.HC) WP 38439 of 2009 dt. 4-1-2010

“The petitioner, aggrieved……….with the said order.” (Page: 765, Para: 2)

“With regard to the second……….by the award impugned.” (Page: 765, Para: 3)

Sec. 11A

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Additional Evidence – Can be lead even at the belated stage even if no plea was taken in the written statement and even after when the inquiry was held to be vitiated Laxmi Devamma – Constitution bench in that case settles the issue of leading additional evidence once the enquiry was found vitiated Leading Evidence – Even at the belated stage is permitted in the interest of justice even if such plea was not taken at the earliest stage by the employer

¥4.542 Though it is a settled position of Law as per majority decision of the constitution bench of the Apex

Court in Laxmi Devamma case and as interpreted in Divyash Pandit’s case that employer has to exercise his right for seeking opportunity to lead additional evidence in the first available opportunity by raising a specific plea, yet from the point of view of tribunal it has still unfettered powers to direct the employer to lead evidence at any stage of proceedings before the hearing was finally concluded to meet the ends of justice. In this case the High Court held that though the employer did not take any such plea at the earliest opportunity the doors cannot be closed for him to lead additional evidence to satisfy the labour court even at the belated stage. Matter remanded.

Delhi Transport Corp. v. Sunil Kumar, 2010 (126) FLR 625 (Del.HC) WP 108 of 2004 dt. 19-4-2010

“Hence, on a ……….the ends of justice.” (Page: 637, Para: 22)

“Applying the aforesaid……….the respondent workman.” (Page: 637, Para: 23)

Sec.11A Adverse Inference – Permissible for payment of bonus if employer fails to produce relevant records Reference – To be answered in favour of workman if the employer fails to produce relevant records declining the claim for bonus Bonus – Claim by workman will be sustained if the employer fails to rebut by evidence before Labour Court

¥4.543 A reference was made to grant the relief of bonus to the workmen. But the employer failed to

produce relevant records to contest the claim of the workman despite all the opportunity given to him. The tribunal granted the bonus as claimed by the workman by an adverse inference. The High Court upheld the same.

Shree Gajanana Industries, Goa v. Workmen represented by Goa Mine Workers Union, Vasco-da-Gama & Anr., 2010 I CLR 31 : 2010 LLR 344 (Bom.HC) OAWP 292 of 2001 dt. 6-5-2009

“The employer having……….failure report was made.” (Page: 32, Para: 6)

Sec. 11A

Res judicata – Excludes – If a peon in a Co-operative Bank having resorted to an appeal though not prosecuted invokes the jurisdiction of labour court under Industrial Disputes Act Civil Post – Excludes – A post under Co-operative Bank being not a State under Art.12 Appeal – In a departmental enquiry though remained unprosecuted is not a bar for a remedy under Industrial Disputes Act being not res judicata

¥4.544 The question was whether the principles of res judicata is attracted to a case of a peon working in a

Co-operative Bank simply because he had made an appeal but failed to prosecute the same in a departmental enquiry and yet he had invoked the jurisdiction of labour court under Industrial Disputes Act. The High Court held that the Co-operative Bank is not State under Art. 12 of the constitution and hence he does not hold a civil post. Hence even though he availed the remedy of appeal in the departmental enquiry under the service rules it will not operate as res judicata and it will not bar the remedy under Industrial Disputes Act. The finding of the labour court to the contrary was reversed.

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Chaman Lal through legal heirs v. Presiding Officer, Labour Court, U.T., Chandigarh, & Anr., 2010 III CLR 567 (P&H.HC) CWP 3303 of 1993 dt. 30-6-2010

“The maintainability of the……….Industrial Disputes Act, 1947.” (Page: 571, Para: 10)

Sec. 11A Perverse – If findings are not court cannot interfere Enquiry – Procedure if not challenged no interference called for Conductor – Suffered punishment of reduction to minimum pay scale has no case to challenge if findings are not perverse enquiry procedure not challenged

¥4.545 Bus conductor when intercepted was found two passengers who did not carry tickets even though the

fare was recovered from them. After the charge sheet and enquiry, he was dismissed from service. In appeal the punishment of dismissal was modified into reduction to minimum pay scale. The High Court held that in absence of challenging the procedure of enquiry and findings which were based on substantial material and were not perverse no interference is called for.

Ghelabhai Chhibabhai Patel v. Divisional Controller, 2009 (122) FLR 1103 : 2009 II CLR 1076 : 2009 LLR 1200 (Guj.HC) SCA 10400 of 2008 dt. 14-7-2009

“It is required……….notice discharged.” (Page: 1104, Para: 6)

Sec. 11A

Striking of the name – From the Rolls being a loss of lien on the service PNJ is to be followed by a speaking and reasoned order Abandonment of Service – Excludes – Taking leave on medical and personal grounds Lien on Service – Affects by striking off the name requires enquiry and observance of PNJ by a speaking and reasoned order

¥4.546 The workman had taken leave for medical and personal grounds from 3.4.1980 to 2.6.1980 and

20.10.1980 to 6.2.1981. Again he absented from 8.2.1981 to 19.5.1981 and from 21.5.1981 to 14.8.1981. He was granted leave upto 6.2.1981 only. Therefore, the employer in terms of the Standing Orders had struck off his name from the Rolls of the Company on the ground of abandonment of service for absence more than 10 consecutive days saying that he had lost his lien on his service. His efforts to get reinstatement failed. The Industrial Tribunal reinstated him with full back wages for the reason that the action of the employer was without compliance with the principles of natural justice as no opportunity of being heard was provided or enquiry held nor the order of retrenchment was one of speaking and reasoned one. The High Court upheld the award with direction to execute the same within a month.

Hindustan Aeronautics Ltd. v. Industrial Tribunal II, Lucknow & Anr., 2008 (117) FLR 324 : 2008 LLR (Sum) 668 (All.HC) WP 4348 of 1984 dt. 30-3-2007

“The respondent no. 2……….and non speaking order was passed……….” (Page: 331, Para: 12)

“It is noteworthy that……….V.M.Mohammad Yaqub.” (Page: 331, Para: 14)

Sec. 11A

Embezzlement – Once proved by an award of the arbitrator refusal to challenge the same will render the further cause of action arising out of his termination futile Arbitrator – An award against the workman for embezzlement of Society’s fund if not contested will become fatal in further proceedings against his dismissal Award – Of an arbitrator in respect of money embezzlement from the society if not challenged by the workman will go against him in his challenge against his termination

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Dismissal – From service for embezzlement of funds cannot be successfully contested if the workman earlier failed to challenged the awards given against him in the same context by an arbitrator

¥4.547 The workman, a secretary of a Society raised a dispute against his termination. The tribunal declined

to answer the reference in his favour, enquiry being fair and proper charges having been proved. His writ petition there against was dismissed on the ground that the employer had lost confidence in him due to embezzlement of Society’s funds. The arbitrator earlier in the case of embezzlement of funds had given several awards against him. He did not care to challenge the same nor deposited the money misappropriated. The conduct of the workman was one of defiance. Hence the employer was justified in terminating his services.

Puran Singh v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Bathinda & Anr., 2011 I CLR 994 (P&H.HC) CWP 4398 of 2011 dt. 11-3-2011

“Before this Court learned……….quantum of punishment.” (Page: 995, Para: 5)

Sec. 11A

Daily wager – Not appointed as per the service rules as against the sanctioned post cannot claim reinstatement with continuity of service in public employment Termination – Of a daily wager not appointed as per the service rules as against the sanctioned post cannot claim reinstatement with continuity of service in public employment Reinstatement – Cannot be of a daily wager not appointed as per the service rules as against the sanctioned post in public employment Public employment – Does not confer in a right for a daily wager to make a back door entry

¥4.548 A reference was made at the instance of a daily wager working under a particular scheme for the

particular period claiming as a peon, challenging the termination of his service which was rejected by the Labour Court. Hence the present petition by him in which it was held that where the workman was not appointed as per the service rules as against the sanctioned post the claim of the workman against termination in a Zilla Parishad cannot be sustained, in view of the Supreme Court judgment in the case of secretary, State of Karnataka v. Umadevi. A daily wager cannot claim reinstatement with continuity of service in public employment. Moreover his claim that he was a peon was not proved by the records instead he was only a daily wager. Hence the award of the Labour Court could not be upset.

Bhagwan Bhikaji Ghorband v. Chief Executive Officer, Zilla Parishad, Parbhani, 2009 (123) FLR 918 : 2009 III CLR 729 (Bom.HC) WP 1976 of 2002 dt. 26-8-2009

“Viewed from my……….Constitution of India.” (Page: 922, Para: 12)

“On careful perusal……….the writ jurisdiction.” (Page: 922, Para: 13)

Sec. 11A

Daily Wager – Working for 2 years only compensation in lieu of reinstatement will proper Compensation – In lieu of reinstatement proper when workman has hardly worked for 2 years as daily wager

¥4.549 Compensation in lieu of reinstatement will serve ends of justice as the workman had hardly worked

for 2 years as daily wager. Hence the award of reinstatement in service with back wages is unsustainable in view of the decision of the Apex Court in Jagbir Singh’s case.

Management of M/s. Hindustani Dawakhana & Ayurvedic Rasayanshala v. Jagdish Singh Rajpoot, 2010 (124) FLR 415 : 2010 LLR 342 (Del.HC) WP(C) 4453 of 2003 dt. 22-9-2009

“In view of the above……….the petitioner management.” (Page: 417, Para: 11)

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“Having regard to the……….vide impugned award.” (Page: 417, Para: 12)

Sec. 11A Civil suit – Excluded – If workman enforces his right under standing order Civil Court – Is not the appropriate forum for enforcing the rights arising out of standing order Standing Order – If violated the rights cannot be enforced by Civil Suit Appropriate forum – Is industrial tribunal / Labour Court for enforcing the right claimed under Standing Order / Industrial Disputes Act

¥4.550 The workman filed a civil suit in the court of additional munsif and judicial magistrate for declaring

that his dismissal order was unlawful, illegal void and ineffective being contrary to the standing orders being devoid of departmental enquiry and therefore entitled to all benefits. The Civil Court allowed the civil suit and High Court did not interfere. The Supreme Court setting aside the order of courts below held that since the workman approached the court for violation of his rights arising out of standing orders or for that matter I.D. Act, jurisdiction of Civil Court is banned. It is the nature of right sought to be enforced is decisive in determining whether the jurisdiction of Civil Court is excluded or not. His remedies lie in raising an industrial dispute and not in the civil suit

Rajasthan State Road Transport Corp. & Ors. v. Deen Dayal Sharma, 2010 II LLN 688 : 2010 III LLJ 15 : 2010 (126) FLR 407 : 2010 II CLR 412 : 2010 LLR 673 : 2010 (6) SCC 697 : 2010 AIR (SC) 2662 (S.C.2J) CAJCA 3027 of 2007 dt. 5-5-2010

“In Bal Mukund Bairwa (2) MANU/SC/0181/2009 : (2009) 4 SCC 299, in para 37 of the report, the position has been explained that if the infringement of the Standing Orders is alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. In our opinion, nature of right sought to be enforced is decisive in determining whether the jurisdiction of civil court is excluded or not. In the instant case, the respondent who hardly served for three months, has asserted his right that the departmental enquiry as contemplated under the Standing Orders, ought to have been held before issuing the order of dismissal and in absence thereof such order was liable to be quashed. Such right, if available, could have been enforced by the respondent only by raising an industrial dispute and not in the civil suit. In the circumstances, it has to be held that civil court had no jurisdiction to entertain and try the suit filed by the respondent.” (Page: 693, Para: 13)

Sec. 11A

Civil Court – Has no jurisdiction to enforce personal service by virtue of Sec. 14(b) of Specific Relief Act 1963 Personal Service – Civil Courts have none Industrial Disputes Act – Can only be a remedy to enforce personal service

¥4.551 A contract of personal service cannot be enforced in a civil suit by virtue of Sec. 14 (b) of Specific

Relief Act 1963. It includes all matters relating to the service of the employee including confirmation, suspension transfer, termination etc. Hence the Civil Court has no power to declare the employee still a workman or to declare that he continues in that capacity or to declare the order of transfer issued against him to be malafide etc. The only remedy open to him is raising an industrial dispute seeking remedy under Industrial Disputes Act which has the power to enforce contracts of personal service and create or change contracts. The Supreme Court set aside the order of High Court and Appellate Court which had held that Civil Court had jurisdiction and upheld t he decision of Trial Court holding Civil Court has no jurisdiction.

Apollo Tyres Ltd. v. C.P. Sabastian, 2010 I LLJ 621 : 2009 (123) FLR 1004 : 2010 II LLN 44 : 2010 I CLR 730 : 2009 (14) SCC 360 : 2010 (1) SCC (L&S) 359 (S.C.2J) CA 7007 of 2003 dt. 30-4-2009

“On the facts of the case, we are clearly of the view that the suit filed by the plaintiff was barred by Section 14(b) of the Specific Relief Act, 1963 which states that a contract of personal service cannot be enforced in a civil suit. In our opinion, if the plaintiff had any grievance and if he is a workman as defined in the Industrial Disputes Act, 1947, he should have raised an industrial dispute and sought relief under the Industrial Disputes Act, 1947 before the labour

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Court or industrial Tribunal. There are many powers which the Labour Court or Industrial Tribunal enjoy which the Civil Court does not enjoy e.g. the power to enforce contracts of personal service, to create contracts, to change contracts etc. These things can only be done by the labour Court or Industrial Tribunal but cannot be done by a civil Court. A contract for personal service includes all matters relating to the service of the employee e.g. confirmation, suspension, transfer, termination etc.” (Page: 622/623, Para: 12)

“In our opinion, the reliefs claimed by the plaintiff were clearly seeking enforcement of a contract of personal service and the civil Court has no jurisdiction to grant such reliefs as held by this Court in the case of Pearlite Lioners (P) Ltd. v. Manorama Sirsi MANU/SC/0016/2004 : (2004)ILLJ1041SC . The High Court and the first appellate Court were clearly in error in holding that the civil court had jurisdiction in the matter and the trial Court was right in holding that the civil court had no jurisdiction and rightly dismissed the suit filed by the plaintiff.” (Page: 623, Para: 13)

Sec. 11A

Back wages – Full cannot be paid if the workman did not diligently raised the dispute without delay Award – For full back wages unsustainable if the workman raised the dispute after a period of 10 years Delay – Of 10 years in raising the dispute will cost the workman dearly so far as back wages are concerned

¥4.552 When the workman was terminated in the year 1986 but raised a dispute only in the year 1996, the

labour court should have taken cognizance of delay while awarding back wages. In this case the labour court holding the termination illegal not only reinstated him but granted full back wages. The employer contested the award before the High Court which held that the labour court erred in granting full back wages and therefore modified the award without the payment of back wages for the delay and laches in raising the dispute. So far as the claim of the workman for regularization is concerned the court held that when the reference was only for reinstatement the question of regularization in this dispute cannot be advanced.

Mahanagar Telephone Nigam Ltd. v. Deepak Sadashiv Shrikande & Ors., 2010 (127) FLR 340 : 2010 III CLR 473 : 2010 (6) BCR 152 : 2010 (5) Mah.LJ 365 (Bom.HC) WP 6456 of 1997 dt. 8-7-2010

“Mr. Rajguru then submits……….demand on 2.1.1994.” (Page: 342, Para: 7)

“In any event, in the present……….with continuity of service.” (Page: 343, Para: 8)

“In my opinion, I need not……….accordance with law.” (Page: 343, Para: 9)

Sec. 11A Misconduct – Of abusive language hurled against the superiors duly proved in enquiry is a sufficient cause for punishment of dismissal Abusive Language – Hurled against superiors is a sufficient cause for dismissal Sec. 11A – Cannot be exercised to set aside the dismissal for the proved misbehavior of hurling abusive language on the superiors Dismissal – Proper for hurling abusive language

¥4.553 The workman was terminated from service for his gross misbehavior and using abusive language

frequently addressed to higher officers threatening them with dire consequences in presence of other employees. The same was upheld by the Labour Court. Hence the present petition by him in which it was held that where charges levelled against the workman stood proved and all facts and enquiry report are properly appreciated by the Labour Court, the punishment of dismissal cannot be said to be shockingly disproportionate in view of his gross misconduct and the sympathy alone cannot be the ground for exercise power u/s. 11A of the Act in absence of any mitigating circumstances.

M.Y. Khan v. M/s. Tata Engineering & Locomotive Co. Ltd., 2009 (122) FLR 439 : 2009 LLR 1039 (Jhar.HC) WP(L) 4087 of 2003 dt. 28-4-2009

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“Having heard the……….Case no. 8 of 1989.” (Page: 443, Para: 4)

Sec. 11 A

Delay – Of 5 years in raising dispute without suitable explanation deprives the relief of reinstating Temporary employment – Given as a special case for 3 ½ months does not entitle the workman for the relief of reinstatement – Back wages proper Reinstatement – Excludes – For temporary employment given as a special case for 3 ½ months

¥4.554 The workman raised a dispute of illegal termination after a delay of 5 years. The Labour Court held

the termination illegal but declined the relief of reinstatement as he had worked for 3 and ½ months only and hence awarded back wages for only the interim period. Hence, the present petition by the workman in which it was held that where the workman was given employment as a special case and he did not explain the delay of 5 years in raising the dispute, having considered all these relevant facts Labour Court rightly denied reinstatement and instead passed the award for wages for limited interim period.

Chandrakant V. Shinde v. Sahayak Sanchalak Arogya Seva (Kushtha Roga), Pune, 2009 I CLR 1019 : 2009 (2) Mah.LJ 396 (Bom.HC) WP 4061 of 1997 dt. 22-9-2008

“In his evidence……….the respondent no. 1.” (Page: 1021, Para: 5)

“There is no……….an inordinate delay.” (Page: 1021, Para: 6)

“The Labour Court……….for 105 days.” (Page: 1021, Para: 7)

Sec. 11-A

Discrimination – Between permanent and daily wager cannot be countenanced when the charges of meat eating in the premises of a temple being the same Permanent Workman – And a daily wager go together so far as the misconduct of eating meat in the premises of a temple is concerned requiring same consideration while reinstating Daily wager – Is not entitled for continuity of service while reinstating on par with permanent workman terminated on same charges Temple – Misconduct committed in the premises if the same no discrimination between a permanent and daily wager could be countenanced except continuity of service is concerned

¥4.555 The two security personnel were dismissed on the charges of eating meat in the premises of a temple

after a departmental of enquiry. Among them, one was permanent and the other was working on daily wage basis. Subsequently the employer reinstated the permanent workman by substituting the penalty with stoppage of one increment but the termination order of daily wager was not reconsidered. Aggrieved by action of discrimination the daily wager raised an I.D. The Labour Court considering the material on record directed his reinstatement with continuity of service on the grounds that employer’s action exhibits discrimination. The employer challenged the same before High Court which upheld reinstatement but set aside the award for continuity of service for the reason that it is unpalatable to grant continuity of service to a daily wager unlike to a permanent workman. Thus the petition was partly allowed.

Aarasuri Ambaji Mata Devasthan Trust v. Gemarji Magan Bhai Raval, 2008 (119) FLR 659 : 2008 III CLR 444 (Guj.HC) SCA 6585 of 2008 dt. 15-7-2008

“It appears from perusal……….reference proceedings.” (Page: 660, Para: 2)

“After considering the material……….preferred the present petition.” (Page: 660, Para: 5)

“Under the circumstances……….as prayed for.” (Page: 662, Para: 13)

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“Considering the facts……….on daily wage basis.” (Page: 662, Para: 14)

Sec. 11A

Res ipsa loquitur – The principle applies for prolonged absenteeism of 3 ½ years without reasons justifying termination Absenteeism – If prolonged for 3 ½ years without reasons termination attracts the principles of res ipsa loquitur Enquiry – Whether fair or proper leaving apart for prolonged absence of 3 ½ years the termination is justified on the principles of res ipsa loquitur Termination – For prolonged absence of 3 ½ years the principles of res ipsa loquitur applies irrespective of fairness of enquiry

¥4.556 Workman, a driver remained absent for a prolonged period of 3 ½ years allegedly went to

Dubai/Abudhabi for better prospects even when he wanted to keep a lien on his job. When he reported for duty, after an enquiry, his services were terminated for absenteeism. Upon challenge the labour Court reinstated him with back wages allegedly for failure of the employer to supply evidence that enquiry was fair and proper. The award was challenged before High Court which setting aside the same held that for this the principle of a res ipsa loquitur applies. The workman gave no reasons which compelled him to remain at Dubai/Abudhabi leave alone any medical certificate for his absence for 3 ½ years. The Labour Court ignored the facts staring on the face.

Indian Coffee Board v. Presiding Officer, Labour Court No. X & Anr., 2010 (126) FLR 430 : 2010 LIC 4263 : 2010 II CLR 428 : 2010 LLR 989 (Del.HC) WP 4195 of 1999 dt. 20-4-2010

“In my opinion the……….from the petitioner.” (Page: 433, Para: 6)

Sec. 11A

Enquiry Report – if not furnished to the workman prejudice will be caused requiring the labour court to consider the same Prejudice – if caused due to non furnishing of enquiry report failure to consider this aspect will make the High Court to remand the matter for reconsideration

¥4.557 The Labour Court failed to consider the prejudice caused to the workmen due to failure on the part

of employer to give enquiry report before inflicting the punishment of dismissal. The Labour Court gave an award in favour of the employer. The workmen contested the same before the High Court. The High Court held that the reference itself was on the ground of enquiry being not fair and proper and hence it was for the labour court to consider the issue relating to prejudice caused to the workmen due to non furnishing of enquiry report. The matter was therefore remitted for fresh decision as per law.

Sh. Chander Shekhar v. State of Haryana & Ors., 2010 III LLJ 855 : 2010 (124) FLR 65 (P&H.HC) CWP 14613 of 2007 with CWP 2453 & 2297 of 2008 dt. 27-7-2009

“The challenge before this……….the punishment inflicted.” (Page: 856, Para: 2)

Sec. 11 A Evidence – Must be credible and truthful for acceptance by the Labour Court against the plea of termination Reference – Against refusal to join duties can be rejected if the unauthorized absence could not be rebutted with truthful evidence Unauthorized absence – If not rebutted with the truthful evidence termination cannot be set aside

¥4.558 The workman was not truthful and changed her version of date of termination before the Labour

Court when confronted with evidence to the contrary and tried to improvise the same. The employer’s contention that she was absent with unauthorized leave was not rebutted. There were holes in her

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evidence in every department. Hence it lacks credibility. The High Court upheld the Labour Courts award rejecting the reference against her termination.

Sarlaben Bhaskarbhai Neve v. Lions Karnavati Shantaben Vishnubhai Patel Eye Hospital, 2009 II CLR 91 (Guj.HC) SCA 11649 of 2008 dt. 10-2-2009

“From the award……….in its hands.” (Page: 94, Para: 6)

“A litigant cannot……….on this count.” (Page: 94, Para: 7)

“The learned Labor……….of any evidence.” (Page: 94, Para: 8)

“It is relevant……….letter dated 7.10.2002.” (Page: 94, Para: 9)

Sec. 11A Negligence – If proved awarding 25% back wages not justified but dismissal is harsh Misconduct – Of negligence if duly proved in the enquiry award of 25% back wages is not payable but dismissal is harsh

¥4.559 A conductor was removed from the service for the misconduct of misplacing original tickets and the

Labour Court held the charges were proved in the enquiry but the punishment of dismissal being harsh directed the reinstatement with 25% back wages. In the present petition by the Employer the High Court partly upheld the award of the Labour Court holding that since the charge of irresponsibility was proved, award of 25% back wages might have serious financial implication for loss of tickets. Hence the order of back wages was set aside.

U.P. State Road Transport Corporation, Agra v. Shyam Singh Solanki & Ors., 2008 III CLR 1059 (All.HC) CMWP 5947 of 2001 dt. 7-8-2008

“In my opinion ……….duty is proved.” (Page: 1061, Para: 8)

“Considering facts and……….as to costs.” (Page: 1061, Para: 10)

Sec. 11A

Date of birth – Correction at the end of service cannot be justified School leaving certificate – For date of birth is more authentic Age of Superannuation – The date of birth cannot be corrected at the fag end of the service

¥4.560 In a case of superannuation of a workman on 31/5/1995 on the basis of his birth date on record, it

was held that as the petitioner himself had taken steps for recording his birth date as 1/6/1935 on the basis of school leaving certificate on the issuance of circular by the employer to inform the date of birth in the year 1988, his representation at the fag end of his service in the year 1995 seeking correction in the date of birth as 1/6/1937 and claiming that his termination was illegal could not be justified.

Dnyaneshwar Sitaram Wagh v. Managing Director, Shree Someshwar Sahakari Sakhar Karkhana Ltd. & Anr., 2008 (2) BCR 148 (Bom.HC) WP 6874 of 1998 dt. 11-12-2007

“The witness examined……….to the Karkhana.” (Page: 150, Para: 4)

“Coming to the……….evidence in toto.” (Page: 151, Para: 5)

Sec. 11-A

Abandonment – Or refusal to take on duty if the issue is the Labour Court without taking a decision by a reasoned order cannot reject a reference

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Termination – Or abandonment if the issues the Labour Court without taking a decision by a reasoned order cannot reject a reference Reference – Against termination cannot be rejected without a reasoned order as to whether it was a case of abandonment of duties or refusal to permit to join duties

¥4.561 The issue involved in dispute is the alleged termination of the workman as according to him he was

not permitted to join his duties and on the other hand according to the employer it was a case of abandonment of his duties. While rejecting the reference the Labour Court has not arrived at a proper reasoning on these material issues. Hence the award was set aside and the matter was remanded to Labour Court with direction to adjudicate according to law on the issues.

Mohanbhai M. Parmar v. Voltamp Transformers Ltd. & 2 Ors., 2009 (120) FLR 73 : 2008 III CLR 677 (Guj.HC) SCA 485 of 2008 dt. 17-9-2008

“This court has heard……….expeditiously as possible.” (Page: 74, Para: 4)

Sec. 11A Powers of Labour Courts, Tribunals and National Tribunals to give

appropriate relief in case of discharge or dismissal of workmen Sec. 11A & 2

Sec. 11A and 2(b)

Arbitral awards – The authors though not examined before the Labour Court it has to be relied on as authentic having with stood before civil courts challenging it Witness – Of the authors of Arbitration awards not required to sustain the charges but awards are to be relied upon as authentic Registrar – Of co-operative societies the authors of Arbitral awards need not be produced as witnesses to sustain the charges

¥4.562 The employer proceeded against the workman who had embezzled bank money by terminating him

on the basis of an enquiry and arbitral awards. The workman fought against the termination before various Civil Courts unsuccessfully. In the Labour Court he was successful because the Labour Court contended that the officers viz. Assistant Registrar, Deputy Registrar of Co-Operative Societies, who were the authors of arbitral awards were not produced for examination before the Labour Court to prove the awards. The employer challenged the award before High Court which set aside the same and held that the arbitral awards had with stood the challenge at 5 levels including Civil Courts therefore the arbitral awards could not have been discarded by the Labour Court for the mere reason that the authors of the award were not examined as witnesses especially when the arbitral awards have not been disputed.

The Central Co-operative Bank Ltd. v. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat & Anr., 2009 LIC 2687 (P&H.HC) CWP 2095 of 2000dt. 2-4-2009

“The copies of……….not been disputed.” (Page: 2688, Para: 5)

“In this view……….and in order.” (Page: 2689, Para: 6)

Sec.11A and 2(b)

Writ Courts – Do not act as an appellate authority in the course of judicial review of an award Judicial review – High Court cannot exercise as an appellate authority to set aside an award

¥4.563 Writ Courts do not act as an appellate authority in the course of judicial review of an award. In this

case though the services of the workman, an office assistant were discontinued on the plea of surplusage,

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the legal dues envisaged under the provisions of the Act were not paid. Hence, the Tribunal has awarded reinstatement with full back wages to the workman, holding his termination illegal. The said award cannot be interfered with by the High Court in a judicial review.

Julien Day School v. State of West Bengal & Ors., 2009 II CLR 45 (Cal.HC) CWJOSWP 1262 of 2004 dt. 6-3-2009

“I fully agree……….in the premises.” (Page: 48, Para: 13)

“In view of……….full back wages.” (Page: 49, Para: 14)

Sec. 2 (k) and 11 A

Date of birth – Cannot be challenged after retirement Service records – Date of birth is final and conclusive PF records – Date of birth if to be challenged it should be in accordance with Dr. Sampurnanand Award of 1962 Industrial Dispute – Raised after the retirement to correct the date of birth cannot be sustained

¥4.564 Workman raised an industrial dispute after his retirement stating that his date of birth was

15.8.1941insted of 1939 as recorded in the company records. Labor Court passed the award in his favour hence the present petition by the Employer in which it was held that it is well settled that date of birth recorded in the service record is final and conclusive and he is not permitted to raise a dispute regarding date of birth at the fag end of service. In this case the workman while on joining service mentioned the date of birth in his bio-data as 1939 and in the E.P.F records also the same date was shown. Further the workman did not raise such dispute before the appropriate forum while in service. He also did not raise the dispute within 6 months of Dr. Sampurnanand Award of 1962 was published for amendment of PF records. A subsequent application made by him after his retirement being highly belated could not be maintained. Hence the award of the Labour Court was set aside.

Lord Krishna Textiles Mill Saharanpur v. Labour Court & Ors., 2009 II CLR 289 (All.HC) CMWP 11357 of 1999 dt. 9-4-2009

“I have considered……….taken into account.” (Page: 291, Para: 9)

“In view of……….of one month.” (Page: 292, Para: 10)

Sec. 2(oo) and 11A Financial constraints – If could be a reason employer is bound to produce evidence therefore before Labour Court Evidence – Towards financial constraints is material such as income and expenditure statement of the relevant year to justify termination Termination – Of the workman without proving insufficiency of funds will not be sustainable

¥4.565 A workman was terminated on the ground of financial constraints but by producing income and

expenditure statement only for the earlier period not relevant to the period of her termination. Upon challenge the Labour Court set aside the same with direction for reinstatement with continuity of service along with 50% back wages. The employer challenged the award before High Court which upheld the award and observed that the employer had failed to produce evidence of financial constraint and if that was the case there was no reason why the termination was targeted only to her when all other workmen were remained untouched. Hence the order of termination of the workman passed due to alleged insufficiency of funds was set aside and the award of the Labour Court upheld.

Red Cross Society, Hisar v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar & Anr., 2009 LIC 3115 (P&H.HC) CWP 8439 of 2001 dt. 3-3-2009

“Thereafter the services……….terminating her service.” (Page: 3117, Para: 9)

Sec. 11A & 2(s)

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Supervisor – Includes – Duties of assistant Matron of Children’s home Assistant Matron of Children’s Home – Is a supervisor

¥4.566 The following duties of an Assistant matron of a children’s home was termed as supervisory and

whatever clerical was only incidental thereto (a) to help the matron in official duties (b) to distribute food from Co-op Society to children, to record the same in register and prepare a list to the cook (c) to supervise the work of cook, to distribute uniform, medicine and maintain stock register (d) to maintain various registers in connection with children lodged in the home. But in this case despite the job being supervisory, she was paid only ` 27 p.m. hence drawing pay not exceeding ` 1,600 p.m. and hence held a workman and her dismissal for misconduct was modified into reinstatement with consequential benefits but without back wages, punishment being harsh and disproportionate. The Division Bench upheld said award of Tribunal and set aside the judgement of Single Judge who had held that Assistant matron was not a workman and observation home for children not an industry.

S. Thilagavathi v. Presiding Officer, Labour Court, Madurai & Anr., 2010 I LLJ 101 : 2009 III LLN 228 : 2009 II CLR 678 (Mad.DB) WA 1375 & 1376 of 2007 dt. 12-5-2009

“Now adverting……….above aspects.” (Page 106, Par: 15)

“The above……….managerial nature.” (Page: 106, Para: 16)

“This has……….aspects.” (Page: 106, Para: 17)

Sec. 2(s) and 11A

Transfer – Cannot be made in violation of the terms of condition of service Condition of service – Dictates the transferability of a post Finding – Of Labour Court regarding status of a workman is final being a question of fact

¥4.567 The employer transferred the services of the workman from Chennai to Ernakulum. He refused to

comply with the orders it being against the service condition. He was subsequently transferred to Punjab but he did not report for the same reasons. He was not allowed to work at Chennai. He raised a dispute u/s. 2A of the Act. The Labour Court reinstated him with back wages and continuity of service the High Court upon challenge of the award held that the findings of the Labour Court as to the status of the workman cannot be interfered because his predominant job was clerical and sales promotion was occasional. Similarly the finding there was nothing in the condition of service enabling the employer to transfer him cannot be interfered with. However the High Court modified the award into one of compensation to ̀ 3,00,000 in full and final settlement of all his claims towards reinstatement.

Management of Holy Faith International Pvt. Ltd. Chennai-17 v. Presiding Officer, I Addl. Labour Court, Chennai, 2009 II LLJ 518 : 2009 II LLN 539 : 2009 LLR 673 (Mad.HC) WP 13107 of 1999 dt. 12-1-2009

“In the present case……….done any work.” (Page: 520, Para: 14)

“But when the……….any satisfactory evidence.” (Page: 521, Para: 15)

Sec. 2 (s) and 11A

Statutory Canteen – Wherein only by contract the contractors came to be changed workmen remaining the same they become the workmen of the company Bogus Contract – If proved so far as statutory canteen is concerned the workmen deemed to be the workmen of the company Back Wages – Payable only 25% if the employer is suffering from heavy losses Heavy losses – Is a relevant factor for reduction of back wages

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¥4.568 Where a canteen in a Government Company was run statutorily u/s. 46 of the Factories Act 1948, workmen continued to work without any change even when only the contractor changed. In another unit of the company, where the workmen engaged through the contractors have been accepted as company employees and the contractor being just a glorified supervisor and the absolute control over the canteen affairs is resting with the company, the canteen employees would be treated as company employees. Hence, the workmen employed in the canteen are entitled for the reinstatement for their unjustified denial of employment. So far as back wages are concerned as the company was running on heavy loss they are entitled for 25 % back wages.

M/s. Kerala Electrical & Allied Engg. Co. Ltd., Kochi & Anr. v. Leemns D'Cruze & Ors., 2008 LIC 4042 (Ker.HC) OP 4755 & 9076 of 1999 dt. 13-6-2008

“From the discussion………including the workman.” (Page: 4049, Para: 18)

“Therefore since more……….in that regard.” (Page: 4049, Para: 20)

“I am of……….all attendant benefit.” (Page: 4050, Para: 21)

“However, I am……….modified as above.” (Page: 4050, Para: 22)

Sec. 2 (s) and 11A

Preliminary finding – Of Tribunal regarding employer employee relation cannot be set aside unless it is perverse or based on no evidence Employer employee Relation – A preliminary finding if not perverse cannot be challenged in writ Order of Tribunal – If neither perverse nor based on no evidence in a preliminary issue is not liable to be set aside

¥4.569 The Tribunal in its preliminary award returned a finding upholding employer employee relationship

between a driver and the company. In the writ petition, employer challenged that preliminary finding of the Tribunal. It was held that, where the order of the Tribunal is neither perverse nor it was based on no evidence, the decision making process of the Tribunal suffered no error of facts or law hence the petition against the preliminary finding is liable to be dismissed.

Alberty David Ltd. & Anr. v. Seventh Industrial Tribunal, W.B. & Ors., 2009 (121) FLR 242 : 2009 I CLR 750 : 2009 LLR 594 (Cal.HC) CWJOSWP 1099 of 1998 dt. 23-12-2008

“In the above……….failure or like.” (Page: 245, Para: 12)

Sec. 11 A and 2(s) Preliminary issue – Whether sales promotion employee is workman or not need not be decided but could be at the time of final award Sales Promotion Employee – Whether a workman or not need not be decided as a preliminary issue but at the time of final award

¥4.570 Though Sales Promotion Employees are not workmen under I. D. Act, under Sec. 6(2) of the Sales

Promotion Employees (Conditions of service) Act, Industrial Disputes Act is applicable to the sales promotion employees as it is applicable to the workmen under the I.D. Act. Hence the employer’s plea that the reference is not maintainable as the respondent is neither sales promotion employee nor a workman. The court held that in view of the above that question is not necessary to be decided as a preliminary issue. It can be considered at the time of final award after taking evidence. Therefore the reference made was held maintainable.

Lupin, Ltd. v. Suresh & Anr., 2008 I LLN 628 : 2008 LIC 163 : 2008 LLR (Sum) 222 (Ker.HC) WP (C) 27780 of 2005 dt. 5-10-2007

“Before considering the……….a preliminary order.” (Page: 630, Para: 2)

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Sec. 2-A (2) and 11A

Proportionality of punishment – For minor lapse in issuing tickets and collection of fare the High Court can exercise jurisdiction if Labour Court fails Termination – For not collecting Rs.0.50p. fare from passengers is disproportion to the alleged misconduct Tickets – If conductor in the process of issuing while checked by the checking staff the punishment of removal from service is disproportionate

¥4.571 A conductor was removed from the service in the year 1993, for the misconduct of not issuing tickets

to two passengers and for not collecting 0.50p. each. In a reference, the Labour Court directed for his reinstatement without back wages in the year 1997. Hence a writ petition was filed by the employer in 1998, against the said award. Allowing the same the High Court remanded the matter to the Labour Court after 10 years of decision to decide the quantum of punishment. Instead of deciding the proportionality the Labour Court dismissed the dispute as a whole in the year 2008. Hence the present petition by the workman in which it was held that, where on the basis of earlier award of the Labour Court the corporation itself had reinstated the workman and nothing objectionable was found thereafter and 10 years has since elapsed before his removal again only on the basis of the judgment of the High Court, it is held that the punishment of stoppage of two increments with cumulative effect and denial of back wages instead of removal would meet the ends of justice.

C. Basaiah v. Depot Manager, APSRTC, Tandur, R.R. District & Ors., 2009 (121) FLR 357 : 2009 I CLR 706 (AP.HC) WP 17118 of 2008 dt. 7-8-2008

“It has already……….ends of justice.” (Page: 359, Para: 10)

Sec. 2 A (2) & 11 A

Preliminary issue – As to validity of enquiry is impermissible at the instance of the disputant without entering into the proportionality of punishment Proportionality of Punishment – The Labour Court cannot side track by allowing the preliminary issue as to the validity of domestic enquiry raised by the dismissed workman Domestic Enquiry – Validity of – by itself cannot become a preliminary issue at the expense of proportionality

¥4.572 The Labour Court took up the question of validity of the domestic enquiry as a preliminary issue at

the instance of the workman who was dismissed from service and held that the enquiry was valid and binding on both parties. It did not exercise its power u/s 11A of the Act by not going into the proportionality of punishment. The High Court held that the labour Court has erred by not entering into the merit of the case itself instead of allowing a preliminary issue as to validity of enquiry by the workman, the very disputant in this case.

G.P. Babu v. Presiding Officer, Labour Court, Guntur & Anr., 2008 (119) FLR 575 : 2009 I LLJ 501 : 2008 III CLR 421 (AP.HC) SOLWP 12426 of 2007 dt. 26-8-2008

“The issue as to whether……….one way or other.” (Page: 576, Para: 4)

Sec. 11A and 7A

Preliminary Issue – Prayer whether domestic inquiry conducted fair and proper if rejected the same is justified as there is no provision in law which commands the Tribunal to decide it as one Tribunal – Has power to decide all the issues together as there is no provision in law which commands to decide some issues as preliminary issue Domestic Inquiry – Whether conducted fair or not though a preliminary issue can be decided by the Tribunal together with other issues

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¥4.573 Employer’s prayer to frame preliminary issue whether domestic inquiry conducted fair and proper was rejected by the Tribunal. The employer challenged the rejection. The High Court upheld the rejection because there is no provision in law which commands the Tribunal to decide all the preliminary issue first. Hence the decision of Tribunal to decide all issues together is justified.

Dhampur Sugar Mills Ltd. Thr F. M. Vijai Kumar Gupta v. Chandra Shekhar, 2010 (125) FLR 533 : 2010 II CLR 186 (All.HC) WC 18264 of 2010 dt. 6.4.2010

“In our considered opinion……….on those issues.” (Page: 437, Para: 20)

Sec. 11A & 9A

Condition of Service – Change of which if resisted punishment of dismissal being harsh is liable to be modified into reinstatement with loss of one increment for one year but 50% back wages Dismissal – For resisting change in condition of service being harsh punishment of loss of one increment for one year reinstatement with 50% back wages proper Over Time – If denied for extra work a resistance by the workman cannot be countered by a penalty of dismissal being harsh loss of one increment with reduction of 50% back wages proper Loss of One Increment – At the most is the proper penalty rather than extreme penalty of dismissal for demanding extra wages for extra work

¥4.574 16 workmen demanded extra payment for the 1 hour extra work introduced by the employer. Other

workmen did not demand the same. The employer inflicted serious punishment of dismissal on these workmen. The tribunal after going into the issue exercising powers u/s. 11A set aside the dismissal but denied back wages to the extent of 50% and reduction of one increment. The employer challenged the award. Upholding the award the High Court held that insisting extra payment will not make the action of the management in any way justified. They were only resisting imposition of new conditions of employment by standing together. The tribunal is justified in modifying the punishment into one of reinstatement with reduction of one increment for one year with 50% back wages.

Management of Sundaram Industries Ltd., Madurai v. The Industrial Tribunal & Anr., 2011 II CLR 97 : 2011 IV LLJ 575 (Mad.HC) WP 8019 of 2010, MP 11 & 12 of 2010 dt. 28-2-2011

“Before the Industrial Tribunal……….as Exs. M1 to M248.” (Page: 98, Para: 9)

“In the present case, all that the……….as a sufficient punishment.” (Page: 100, Para: 20)

Sec. 10 & 11A

Sec. 10 & 11A

Compensation – Proper if unit is closed instead of reinstatement Reinstatement – Not proper if unit is closed instead of compensation Writ petition – If belated can be a reason to dismiss a claim

¥4.575 When the unit is closed down on one hand and when the workman approaches the High Court in

year 1993 against alleged termination made in the year 1987 after five years, the High Court could not have directed the Appropriate Government to make a reference since the power of Government to make a reference is limited confined only to exceptional circumstances. The award of Labour Court and order High Court to reinstate the workman with back wages was therefore not in accordance with settled principles of law. Hence Supreme Court modifying the order directed to pay only compensation of ̀ 50,000 instead of reinstatement and back wages.

Ministry of Textile v. Murari Lal Gupta & Anr., 2008 II LLJ 1084 : 2008 (117) FLR 768 : 2008 II LLN 737 : 2008 LIC 2074 : 2008 II CLR 784 : 2008 LLR 676 : 2008 (5) SCC 759 : 2008 (2) SCC (L&S) 190 (S.C.2J) CA 2509 of 2008 dt. 7-4-2008

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“The primary stand of the appellant is that the unit has already been closed and, therefore, the direction for reinstatement could not have been given. In addition if the termination was in November, 1987 as claimed by the respondent, the writ petition filed was highly belated and no direction could have been given to refer the matter to the Industrial Tribunal.” (Page: 1085, Para: 5)

“……….Be that as it may, writ petition filed by the respondents was allowed by the High Court. But the fact that the project has already been closed cannot be lost sight of. Also relevant is the belated filing of the writ petition.” (Page: 1085/1086, Para: 7)

“In the peculiar facts of the case we direct that the respondent be paid an amount of Rs.50,000/- in full and final settlement of his claim.” (Page: 1086, Para: 10)

Sec. 10& 11A

Employer Employee Relationship – If already fastened on the employer by virtue of the reference itself tribunal should not go into the same Reference – If fastens the employer employee relationship the tribunal should not go into the same Evidence – Before the tribunal if has not gone into in proper perspective the award will be quashed matter will be remanded

¥4.576 An application was made by the workman claiming to be a driver cum sepoy of the Bank against

illegal discontinuance upon closure of the Bank branch. The CGIT answered the reference against him holding that there was no employer employee relationship. The High Court held that the language of the reference was such that it did not brook any doubt as to the post he had held as a driver cum sepoy of the Bank. The reference by its language fastened this on the Bank. What is to be determined is whether his termination was proper or not. In this, out of 12 documents sought the Bank did not submit 6 documents and the tribunal has not examined the impact it will make on the alleged termination. Hence the award was quashed and set aside and remanded back to appreciate the evidence in proper perspective.

Bank of India Workers Organization, through its General Secretary v. Bank of India, through its Zonal Manager & Anr., 2008 III CLR 780 : 2009 (121) FLR 778 : 2009 (1) BCR 650 (Bom.HC) WP 247 of 2005 dt. 1-10-2008

“In present facts,……….and Respondent No.1.” (Page: 786, Para: 13)

“The perusal of the award……….on some occasions.” (Page: 787, Para: 14)

“As I find……….before 30th June, 2009.” (Page: 787, Para: 15)

Sec. 10(1) &11-A

Delay and Laches – Of 12 years in raising a dispute in case of a General Mazdoor is to be condoned Evidence – Alone of hurling abuses without the framing of charges should not be considered by the Tribunal Threat – To publish objectionable material or to report to the police itself will not qualify as sufficient charges to warrant dismissal

¥4.577 A temporary General Mazdoor who worked only for a year was terminated on the charges of

threatening the Project Officer who refused to consider his request to pay Rs. 2,000/- as advance. His threat was to publish some objectionable matters in a newspaper or inform the police department. However for 12 years he was unable to raise an Industrial Dispute because he was illiterate. His first attempt after 12 years was rejected by the Appropriate Government for delay and laches. He was however successful in his second attempt. The Tribunal however dismissed the reference as it was influenced by the evidence of hurling of abuses or filthy abuses at the Project Officer unmindful of the fact that no such charges were framed in the charge sheet. The High Court set aside the award and

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reinstated him with 50% back wages and continuity of service for the reason that there was no domestic enquiry and that upholding of the dismissal was based on evidence for which no charges were framed.

Santosh Kumar S/o. Babulal Gupta v. Sub-Area Manager, M/s. Western Coalfields Ltd., 2010 (124) FLR 223 : 2009 III CLR 564 (Bom.HC) AWP 3618 of 2008 dt. 9-9-2009

“Coming to the merits……….Labour court has not done it.” (Page: 232, Para: 9)

“Taking overall view……….ends of justice.” (Page: 233, Para: 11)

Sec. 11A & 17A and 36

Ex parte award – Valid though the authorized representative failed to appear and conduct the brief Authorized representative – Even if fails to appear and conduct the brief it does not give rise to a sufficient cause to set aside an ex parte award Limitation Act – Sec. 5 cannot be invoked to set aside an ex parte award on the ground that the representative of employer did not appear to conduct the brief

¥4.578 An ex parte award for reinstatement with full back wages was passed by the Labour court as

authorized representative of employer was negligent in appearance and conducting the matter. The application of the employer under Order 9, Rule 13 of the CPC along with application u/s. 5 of Limitation Act for setting aside the ex parte award was dismissed as the Labour Court had become functus officio. The employer challenged the ex parte award in High Court which held that the plea of the employer does not give rise to a sufficient cause within the meaning of Sec. 5 of Limitation Act in the face of gross negligence of employer in conducting the brief as management should have been vigilant and also taken steps to get in touch with him for non appearance. Therefore the plea of the employer to set aside the ex parte award was dismissed.

Rajesh Wire Industries v. Umesh & Anr., 2009 IV LLJ 715 : 2009 (121) FLR 1131 : 2009 LIC 2496 (Del.HC) WP(C) 8881 of 2005 dt. 20-3-2009

“I have gone……….without any merit.” (Page: 718, Para: 10)

“For the reasons……….his non appearance.” (Page: 718, Para: 12)

Sec. 11A & 17-B

Allegations – Made in the claim statement if not controverted or denied the same will sustain Last drawn wages – If paid the workman cannot be granted full back wages but 50% only Back Wages – Payable only 50% if the workman received last drawn wages Enquiry – If not conducted the termination of even a daily wager is liable to set aside

¥4.579 The services of a workman working as lascar were terminated on the ground of abolition of post.

However the workman contended that the termination was punitive because there was some misunderstanding between himself on the one hand and his officer as well as the servant maid on the other hand. This assertion was not disputed or denied before the tribunal. Hence tribunal held malafides have been established in his removal from service. More so because his juniors were still working and he alone was targeted. Further prior to his termination no enquiry was conducted. Even a daily wager appointed on a temporary basis cannot be dismissed without conducting an enquiry. Hence the High Court upheld the order of reinstatement but reduced the back wages to 50% in view of receipt of last drawn wages from the date of writ petition till the date of reinstatement.

Chief Signal & Telecommunication Engineer/Construction, Chennai-600003 v. Presiding Officer, Central Government Industrial Tribunal, Chennai 600 104 & Anr., 2010 II LLJ 429 (Mad.HC) WP 23983 of 2002 dt. 11-12- 2009

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“However the first……….of the writ petition.” (Page: 437, Para: 16)

“Hence on a consideration……….have been confirmed.” (Page: 439, Para: 20)

Sec. 11A & 17B

Misconduct – Howsoever serious and proved the conduct of the employer if soft towards the workman by not taking prompt action disentitles the employer to get rid of the workman Employer – By his conduct permits the workman to work despite gravity of the misconduct the courts cannot interfere to uphold the dismissal Dismissal – Cannot be upheld if the conduct of the employer was not consistent throughout in which he did not hesitate to reinstate him in service from time to time

¥4.580 The employer dismissed the workman, a conductor after belated enquiry for the misconduct of non

issuing tickets and pilferage contending that he had a very poor and bleak history sheet with as many as 41 entries in the record relating to pilferage and hence allowing such chronic misconducting conductor to be in service is most detrimental to the interest of the employer. The labour court exercising power u/s. 11A however set aside the dismissal denying only back wages reinstated him for the sole reason of enquiry being held after 6 years of the cause of action. The single judge upheld the award. The Division Bench held that the conduct of the employer does not permit to reverse the decisions of the courts below despite the proved misconduct of the workman in which the employer had allowed the conductor to work for 6 years before the enquiry and another 3 years during the enquiry and also did not hesitate to reinstate him in service when a stay was granted by the High Court against the implementation of the award in its anxiety not to allow the last drawn wages u/s. 17B.

North West Karnataka Road Transport Corp. Hubli v. A. K. Khazi, Major, 2011 (129) FLR 819 (Karn.DB) WA 5011 of 2008 dt. 30-6-2009

“This appeal by the……….condonation of delay.” (Page: 819, Para: 1)

“In examination of the……….we dismiss this appeal.” (Page: 820, Para: 4)

Sec. 11A and 25B

Back wages – Cannot be granted without discharging the burden of absence of gainful employment Gainful employment – Absence of – A burden to be discharged for the relief of back wages Long service – Alone cannot be a factor for claiming back wages in the absence of discharge of burden of absence of gainful employment

¥4.581 The workman absented for a period of 8 days leading to issue of charge sheet. He did not participate

in the enquiry leading to holding the charges as proved. The show cause notices issued to him by the disciplinary authority were returned unaccepted. His services there upon came to be terminated. The Labour Court upon raising a dispute however by an award reinstated him without back wages. Aggrieved he approached High Court for back wages. Rejecting the same, the High Court held that the primary requirement for back wages was that the workman should discharge the burden that he had not been gainfully employed after termination. Whereas, he did not examine himself as a witness to discharge the burden that he was not gainfully employed, besides failing to participate in the enquiry. Therefore the mere fact that he had served for 26 years alone cannot be a ground for paying back wages.

V. Chakrapani v. M/s. Apollo French Textiles Ltd. & Anr., 2009 LIC 1820 (Mad.HC) WP 5695 of 2003 dt. 12-1- 2009

“Before the Labour……….the first respondent.” (Page: 1821, Para: 3)

“To decide the……….to the petitioner.” (Page: 1822, Para: 7)

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Sec. 25F & Sec. 11A Sec. 25F & 11A

Compensation – Proper even for illegal termination considering the employee out of employment for 27 years Reinstatement – Is not automatic for illegal termination but compensation proper Illegal termination – Does not warrant automatic reinstatement rather reinstatement proper

¥4.582 The services of a clerk appointed purely an temporary basis was terminated within a period of 9

months. The termination was held illegal for want of compliance of Sec. 25F. He was granted reinstatement with back wages. However Supreme Court held that every illegality in the termination of service does not warrant reinstatement. Illegality can only be one of the factors. While reinstating several factors to be considered such as nature of appointment, period for which the workman had worked and the delay in raising the industrial dispute including the total period the workman remained out of employment. In this case the workman remained out of employment for 27 years. The Supreme Court taking into consideration of the above principle granted compensation of ̀ 3 lakhs in lieu of reinstatement.

Rajasthan Lalitkala Academy v. Radhey Shyam, 2008 III LLJ 562 : 2008 (118) FLR 950 : 2008 III LLN 654 : 2008 LIC 3894 : 2008 II CLR 1000 : 2008 LLR 948 : 2008 (13) SCC 248 : 2009 (1) SCC (L&S) 287 (S.C.2J) CAJCA 4331 of 2008 dt. 11-7-2008

“It appears to us that in the present case there has not been due application of mind either by the Labour Court or the High Court on the question of reinstatement and payment of 25% back-wages. The only ground on which reinstatement and continuity of service has been ordered is because the order of termination has been held to be unlawful. Similarly, 25% back-wages have been awarded for the reason that the services of the petitioner were terminated with immediate effect but no specific reason as such has been assigned for the award of the said back- wages. In our opinion, though, illegality of the order of termination is one of the prime considerations for determining the question and quantum of back-wages, but it cannot be the sole criterion therefore. A host of other factors, a few enumerated above, are required to be taken into consideration before issuing directions in that behalf. therefore, the award of the Labour Court to that extent cannot be sustained. However, we feel that at this distant time, it would not be fair to the respondent-workman to remit the matter back to the Labour Court or the High Court for fresh consideration of the issue. In the light of the observations referred to supra and having regard to the nature and the period of services rendered by the respondent and the fact that his services were terminated initially on 4th April, 1981 and then on 31st January, 1985 and the vicissitudes of long-drawn litigation, the respondent has undergone for over 27 years, interest of justice would be met if instead and in place of direction for reinstatement and back-wages--a sum Rs. 3 lakhs is directed to be paid to the respondent by way of compensation. We direct accordingly. The payment shall be made within eight weeks from today, failing which it shall carry interest @ 9% per annum from the date of this judgment till the date of actual payment.” (Page: 566, Para: 19)

Sec. 25F &11A

Back wages – Cannot be denied without assigning reasons Reasons – Are to be given before denying back wages

¥4.583 The Labour Court though held the termination illegal for noncompliance of Sec. 25F while

reinstating the workman it denied the back wages without assigning any reason. The Division Bench remanded the matter to the labour Court to consider the reason for denial of back wages inasmuch as the party has a right to know the reason without which it amounts to violation of the principles of natural justice, fairness and good faith.

Pramod Singh v. Divisional Forest Officer & Ors., 2011 (131) FLR 112 : 2012 II LLJ 202 : 2011 LLR 1242 (MP.DB) WP 5541 of 2004 dt. 10-8-2011

“It is now well settled……….to affected persons.” (Page: 114, Para: 5)

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“On perusal of the……….of the copy of this order.” (Page: 114, Para: 7)

Sec. 25F, 2(s) & 11A

Trainee – Being not a workman termination simplicitor does not violate Sec. 25F Show Cause Notice – For joining duties following unauthorized absence if refused the termination simplicitor issued to a trainee does not violates PNJ Principle of Natural Justice – Is not violated in termination of a trainee if he refuses to accept the show cause notice issued requesting him to join duties Termination Sipmplicitor – Does not violate PNJ if the services of a trainee was dispensed with for unauthorized absence refusing to accept the Regd. Letter to join duties

¥4.584 The termination of the trainee, a primary health worker was challenged for non-compliance with

Sec. 25F. The labour court reinstated him with continuity of service but without back wages and the single judge modified the same in which the continuity of service was discarded and he was permitted to be reinstated as a fresh hand. Upon challenge the Division Bench held that basically he was a trainee and his removal from service was by way of termination simplicitor. The critical point was that the employer had complied with all prerequisites before dispensing with his service. The registered AD letter containing show cause notice was returned with remarks “refused” which indicates that he had no interest to join his duties and hence the LPA was allowed and the termination was upheld.

Surat Municipal Corp. v. Aminesh Chandravadan Bodiwala, 2011 II CLR 780 : 2012 I LLJ 57 : 2011 (131) FLR 1008 : 2011 LLR 905 (Guj.DB) LPA 1598 of 2007 in SCA 423 of 2001 dt. 13-5-2011

“It is also important to……….itself was time barred.” (Page: 784, Para: 10)

“Learned Counsel for the……….counsel for the appellant.” (Page: 785, Para: 11)

“From the above discussions……….at the appellate stage.” (Page: 786, Para: 15)

Sec. 11A and 25F

Reinstatement – Cannot be canvassed where the parties were involved in protracted and acrimonious litigation with an impact affecting the working environment of a hospital Charitable hospital – Reinstatement cannot be advocated if the parties have mutual distrust due to acrimonious litigation Mutual distrust – If the result between the parties due to acrimonious litigation reinstatement is not proper Compensation – Is the best option to the Labour Court even in case of illegal termination if the parties suffer from mutual distrust

¥4.585 Labour Court held the termination of the workman to be illegal and unjustified but awarded

compensation in lieu of reinstatement and back wages. In writ petition Single judge approved the view taken by the Labour Court hence the present letters patent appeal by the workman in which it was held that there was no infirmity in the decision of the single judge that the view taken by the Labour Court was a plausible view in the background of acrimonious conduct of the parties leading to considerable amount of mutual distrust besides employer was a charitable hospital where reinstatement may have adverse impact on the working environment and the atmosphere in the hospital. Hence no interference could be made in the said order and the appeal was dismissed.

Mohd. Shakir v. Sunder Lal Jain Hospital, 2010 I LLJ 245 : 2009 (122) FLR 618 : 2009 II CLR 736 (Del.DB) LPA 240 of 2009 & CM 7284 of 2009 dt. 19-5-2009

“The learned single……….to harass him.” (Page: 246, Para: 3)

Sec. 11A& 25F

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Plea – Totally new taken before High Court is liable to be rejected Evidence – To substantiate the assertions of employer if not forthcoming the courts have reason to reject the same Termination – Cannot be upheld if the procedure prescribed were not adhered to

¥4.586 The contention of the workman was that he was removed from service without following the

procedure prescribed in this behalf though he had put up a service of 6 years. The employer contended that he had left the service on his own volition and that he had paid all his dues in full and final settlement. Since the employer did not prove any of his assertions the labour Court held the termination illegal and instead of reinstatement awarded compensation. Upon challenge, the employer tried to set up a new case in which it was contended that the Company itself was established only recently which precludes serving for 6 years. This new plea was rejected as untenable. Upon challenge the Division Bench upheld the same as the employer at no stage proved that the workman had left his service on his own volition, settled the accounts and his establishment was closed. The award of Compensation was upheld and the LPA was dismissed.

K.M. Industries v. Karan Kumar, 2009 II CLR 1085 : 2009 IV LLJ 739 (Del.DB) LPA 249 of 2009 & CM 7714- 7715 of 2009 dt. 25-5-2009

“Keeping in view the fact……….Award was passed in those terms.” (Page: 1086, Para: 4)

“The contention of the Management……….rebut the said contention/allegation.” (Page: 1086, Para: 5)

Sec. 11A & Sec. 25F

Closure – Is one of the grounds under which there is no cause for reinstatement in case of illegal termination Loss of confidence – Can be a ground for refusal to reinstate Illegal termination – The relief of reinstatement and back wages consequential benefits automatic Award – Is liable to be modified if no reinstatement is given even after finding termination is illegal Section 25F – If violated reinstatement with back wages is the natural corollary as relief

¥4.587 Where the labour court though held that the termination of the workman is void for non compliance

of the provisions of Sec. 25F of the Act, it only gave relief of 15 days wages for each completed year of service and one month’s notice pay but no orders of reinstatement, back wages, consequential benefits granted. The employer implemented the award which attained finality. The workman challenged the same. The Single Judge modified the award, thereby reinstated the workman with 25% back wages and consequential benefits. The Division Bench upheld that order of Single Judge and held that reinstatement can only be denied if the place of employment is closed or the employer lost confidence in the workman. In the absence of any such pleading and proof the decision of Single Judge cannot be set aside.

Tamil Nadu Handloom Weavers Co-op. Society, rep. by its Managing Director, Chennai & Ors. v. K. Senthilvel & Anr., 2008 II LLJ 463 : 2008 III LLN 229 (Mad.DB) WA 1361 of 2003 dt. 23-8-2007

“The effect……….held when terminated.” (Page: 465, Para: 11(a))

“In view……….confirmed.” (Page: 465, Para: 13)

“In so far as……….computation petition.” (Page: 466, Para: 14)

Sec. 25-F &11 A

Daily Wager – 9Is not entitled for reinstatement but only for compensation in case of illegal termination Compensation – A daily wager is entitled in lieu of reinstatement

¥4.588 The illegal termination of a daily wager, no matter he had worked continuously for more than 240

days in the preceding year does not create any right for him to claim reinstatement. The High Court

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relying on the judgement in the case of Jagbir Singh (2009 (122) FLR 665 (SC)) upheld the award for payment of compensation for ̀ 50,000 in lieu of reinstatement.

Mohd. Zakir s/o Sheikh Rahmatulla v. Divisional Controller, Maharashtra State Road Transport Corp., Amravati & 2 Ors., 2011 (131) FLR 92 : 2012 I LLJ 653 : 2011 II CLR 1000 (Bom.HC) WP 1696 of 2011 dt. 22-6-2011

“The parties led……….compensation of ` 50,000/-.” (Page: 93, Para: 2)

Sec. 11-A & 25-F

Termination – Illegal does not warrant reinstatement with full back wages in all cases but the labour court can decide u/s. 11A reasonable relief Back Wages – Full – With reinstatement is not automatic for illegal termination but a long handle is given u/s. 11A to labour court with power of discretion

¥4.589 There is no golden rule that all illegal termination without compliance of Sec. 25F will result in

automatic reinstatement with full back wages. Therefore the Labour Court granted 50% of the back wages as compensation in lieu of reinstatement. The High Court upheld the same but granted a further sum of ̀ 75,000 in full and final settlement of all his claims.

Ramesh Singh Rajput v. Castrol India Ltd. & Anr., 2011 I CLR 466 : 2011 III LLJ 718 : 2011 (129) FLR 49 : 2011 LLR 505 (Del.HC) WP(C) 16670 of 2006 dt. 6-1-2011

“I am unable to agree……….circumstances of this case.” (Page: 468, Para: 6)

“Keeping in view the……….compensation of ` 75000.” (Page: 469, Para: 9)

Sec. 11A & 25F

Reinstatement – Is not proper for illegal termination of a workman not permanent working for short period with disputed status Compensation – Is proper relief for a workman illegally terminated not holding permanent post working for a short period belatedly raising dispute

¥4.590 High Court held that while awarding reinstatement for breach of Sec. 25F, the Labour Court needs

to consider various factors like procedure for recruitment, nature of appointment whether ad hoc or for a short term or on daily wage, period of service rendered and delay in raising dispute, etc. The Labour Court ignored the fact that the workman was not a permanent employee and there was delay of one year in raising dispute and he worked only from 11.10.1996 to 1.7.1998. There was serious dispute about his status. The High Court considering these factors modified the award into one of compensation of ̀ 4 lakhs instead of reinstatement with continuity of service and 40% back wages.

International Tractors Ltd, Hoshiarpur & Anr. v. Presiding Officer, Labour Court, Jalandhar & Anr., 2011 I CLR 565 : 2011 IV LLJ 356 : 2011 (129) FLR 548 : 2011 LIC 2933 : 2011 LLR 406 (P&H.HC) CWP 16839 of 2009 dt. 13-1-2011

“It can, thus, be seen……….lieu of the reinstatement.” (Page: 569, Para: 10)

“Neither the nature of……….to direct reinstatement.” (Page: 570, Para: 12)

Sec. 25F & 11A

Daily Wager – Notwithstanding the illegal termination cannot be reinstated with back wages but compensation proper Reinstatement – Against illegal termination of a daily wager is not the mandate of the law but compensation proper

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Compensation – In lieu of reinstatement serves the ends of justice in case of retrenchment of daily wager in violation of Sec. 25F

¥4.591 It is now in the recent years it is the settled principle of enunciation of law that reinstatement with

back wages for illegal termination cannot be invariably awarded but it depends on each facts and circumstances. So far as a daily wager is concerned it is settled that only compensation and not reinstatement could be awarded. In this case the workman was a daily wager who had hardly served for 2 years before termination. The labour court had reinstated him with back wages. Relying on the recent judgement of the Supreme Court in the case of Incharge Officer & Anr. v. Shankar Shetty, 2010 IV LLJ 617 (SC), the High Court modified the award by granting compensation to the extent of last drawn wages already received inasmuch as 25 years have since elapsed from the date of termination.

Delhi Development Authority v. Presiding Officer, Labour Court No. 1, Delhi & Ors., 2011 (128) FLR 250 : 2011 III LLJ 565 (Del.HC) WP(C) 4309 of 1996 dt. 26-10-2010

“Much water has flown……….the ends of justice.” (Page: 250, Para: 2)

Sec. 25F & 11A

Public Body – Appointment of daily wagers does not call for reinstatement upon illegal termination Compensation – Is only payable to daily wagers for illegal termination in a public corporation appointed de hors the rules Daily Wager – Appointed not in accordance with law in a public body can only get compensation Reinstatement – Of daily wagers appointed de hors the rules in a public body is not possible even if their services were illegally terminated

¥4.592 Order of compensation ̀ 40,000 in lieu of reinstatement was held would serve the ends of justice in

case where the workmen were casual labourers and their appointment was not regular and neither any advertisement was issued nor their names were called for from any employment exchange and since more than 25 years had passed from the date of their illegal termination. Reinstatement in such cases did not arise in a public body. Hence the High Court upheld the award of the labour court to pay only compensation.

Bachsangji Chehraji Thakur & Ors. v. Deputy General Manager & Ors., 2011 I CLR 862 : 2011 III LLJ 631 (Guj.HC) SCA 10041, 10235 of 2010 dt. 8-12-2010

“Having hear learned……….by the Industrial Tribunal.” (Page: 868, Para: 17)

Sec. 11A & 25F

Compensation – Proper for illegal termination if there is strained relation between the employer and workman Strained relation – Between the workman and the employer does not permit reinstatement no matter termination was illegal but compensation proper Reinstatement – In the wake of strained relation not conducive but compensation awardable

¥4.593 The sole workman who did not report for work after going out of station in the printing press was

not engaged on his return to work despite sending lawyer’s notice. The printing press was reportedly closed down according to the employer. The labour court on appreciation of the material on record found that the printing press was not completely closed and some marriage invitation cards were printed. But considering the strained relation between the employer and the workman awarded compensation of ̀ 75,000. The High Court upheld the same because the employer did not observe the provision of law before terminating him and no notice was issued for reporting his duties.

Management of Theni Printers, rep. by its Proprietor S. Naganathan, Trichy v. Presiding Officer, Labour Court, Tiruchirappalli & Anr., 2011 III LLJ 113 (Mad.HC) WP 10693 of 2005 dt. 22-12-2010

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“Coming to the aspect……….Writ Petition sans merits.” (Page: 118, Para: 34)

Sec. 25F & 11A

Closure – The employer has to lead evidence to substantiate his plea that his business was closed and burden is not on the workman Burden of Proof – To substantiate the plea that the business was closed cannot be on the workman but on the employer Labour Court – Cannot impose the burden on the workman to prove that the employer’s business was running against the plea of the employer that it was closed

¥4.594 The Labour Court though held the termination illegal, it failed to give any relief to the workman on

the ground that the establishment was closed and hence his reinstatement does not arise. It also held that the workman failed to substantiate the fact that the establishment was still in business. Upon challenge the High Court set aside the award on the ground that the burden to prove the closure was not on the workman but on the employer. Though the employer did not lead any evidence to substantiate the closure, the view of the labour court was found hyper technical. It was required to give notice to the workman that he was required to prove or rebut the plea taken by the employer. Without doing so the labour court could not have been non-suited him. Since the burden of proof that the business was closed was not discharged by the employer the labour court had committed an error of law in holding that the business was closed. The High Court hence compensated him till the date of award for a period of ten years granting a sum of ̀ 1 lakh in lieu of reinstatement and back wages.

Ramjag Singh v. M/s. Rattan Metal Corporation, 2011 LIC 1031 (Del.HC) WP 2925 of 2003 dt. 22-2-2010

“In the present case, the……….has been closed down.” (Page: 1033, Para: 9)

Sec. 25F & 11A

Compensation – The computation must take care of the balance future period of service Computation – The principle settled by the apex court in the case of O.P. Bhandari is to be applied Service Period – Regard should be given to the balance period of service left while computing compensation against illegal termination – 1/3 proper One Third Pay – As compensation for the balance period of service left after illegal termination is proper in terms of settled principle of law laid down in O.P. Bhandari’s case by Supreme Court

¥4.595 It is the settled principle of law that in every case of wrongful discharge or dismissal though the

normal rule is to award reinstatement yet the industrial adjudicator has the discretion to award reasonable compensation. While awarding compensation as set out in the case of O.P. Bhandari v. Indian Tourism Development Corporation Ltd. & Ors., 1987 AIR (SC) 111, the important criteria is among others to see also the future term of service of illegally dismissed workman. In this case the labour court had granted only ` 15,000 as compensation in lieu of reinstatement. Modifying the award, the High Court adhered to the above settled principle and considering the age of the workman being only 25 years, he would have served the employer for the next 35 years and his wages being ` 10,000 he would have earned ` 3,50,000. It is reasonable therefore to compensate him by 1/3 of this amount which comes to ` 1,16,666. Petition was partly allowed.

Suresh Chander v. Nagar Palika, Rajsamand & Anr., 2011 LIC 1736 : 2011 (130) FLR 180 : 2011 II CLR 134 (Raj.HC) SBCWP 672 of 2005 dt. 8-3-2011

“In the instant matter………..that requires enhancement.” (Page: 1739, Para: 5)

Sec. 25F & 11A

Driver – Bringing genuine medical fitness certificate from government or ESI hospital cannot be asked to appear before a private doctor to get a unfit certificate

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Physical Unfitness – If a ground for dismissal then the same should be supported by evidence Compensation – Of ` 5 lakhs payable for illegal termination of a driver though having fitness certificate from government hospital by compel him to undergo private medical examination

¥4.596 The workman a driver underwent treatment in the Department of Neuro Surgery at the Government

Medical College Hospital. Upon discharge he brought medical fitness certificate and was driving thereafter light vehicles and also some time heavy vehicles. Whenever he went on medical leave he brought fitness certificate from ESI hospital, which was accepted by the employer. However he was asked to undergo medical examination with one private doctor who gave medical unfitness to drive consequent of which he was discharged from service without complying with the provisions of Industrial Disputes Act. Upon challenge the labour court relied upon the certificate of the private doctor and upheld his discharge. The High Court set aside the award and held that the medical opinion must be based on medical records and in this case he had not examined the medical record and also did not take any x-ray or scan and there was no external manifestation of the medical problem faced by the workman. Hence his discharge in violation of Sec. 25F was held illegal and since he attained the age of superannuation a compensation of ̀ 5 lakhs was ordered to be paid.

Somasundaram v. Labour Court, Coimbatore & Anr., 2011 II LLJ 785 : 2010 (127) FLR 136 : 2010 IV LLN 237 : 2010 II CLR 738 : 2010 LLR 919 (Mad.HC) WP 25309 of 2001 dt. 8-6-2010

“As held by the Division……….required under law.” (Page: 789, Para: 17)

“In the present case……….respondent to the petitioner.” (Page: 789, Para: 18)

Sec. 25-F and 11A

Section 25-F – If violated award of reinstatement proper since there was no particular circumstance to deny the right of re-entry into service Back-wages – reduceable – If the workman failed to prove that he wasn’t gainfully employed

¥4.597 A daily rated workman though appointed purely on temporary basis and muster roll but continued

in service for many services cannot be terminated without complying with the provision of Sec. 25F. Hence his termination was held illegal. Workman was awarded reinstatement as there were no particular circumstances that shall deny the right of re-entry to the workman but back wages were reduced because the workman had failed to prove that he wasn’t gainfully employed after his termination.

Mahesh v. Presiding Officer, Labour Court-III, Faridabad & Ors., 2010 (124) FLR 501 : 2010 LLR 322 (P&H.HC) CWP 21673 of 2008 dt. 10-9-2009

“That leaves us with……….as claimed by him.” (Page: 502, Para: 2)

“The workman has……….to the workman.” (Page: 503, Para: 3)

Sec. 25F & 11A Compensation – In lieu of reinstatement justified when daily wagers were appointed not as per due process of law without sanctioned post Daily Wager – Appointed de hors the rules without sanctioned post cannot be reinstated compensation proper Reinstatement – Not proper of a daily wager not appointed with due process of law compensation proper for violation of Sec. 25F

¥4.598 Daily wagers who were appointed without due process of law and not against sanctioned post cannot

be reinstated merely because the employer did not comply with Sec. 25F. In all such cases proper course is to award compensation in lieu of reinstatement. The High Court upheld the award of labour Court being appropriate under the circumstances.

Aniruddhsinh Vajubha Zala & Anr. v. Sarpanch, 2010 III CLR 763 (Guj.HC) SCA 406 of 2003 dt. 17-9-2010

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“Having heard the learned……….compensation to the petitioners?” (Page: 764, Para: 4)

“Identical question came……….the Constitution of India.” (Page: 764, Para: 5)

Sec. 25-F & 11A

Permanent Employee – Cannot be terminated relying on the clause in the Standing Orders without enquiry and complying with Sec. 25F Standing Orders – Not the basis for dispensing with the services of a permanent employee without enquiry show cause or compliance with Sec. 25F of the Act Principles of Natural Justice – Is violated if a permanent employee was terminated without compliance with Sec. 25F enquiry show cause merely on Standing Orders Enquiry – Or show cause if not conducted termination for absence on the basis of Standing Orders will be nonest Back Wages – Not payable to the workman without leading evidence by affidavit or otherwise regarding absence of gainful employment Closure – Of the company is a factor for modifying the award of reinstatement into compensation

¥4.599 A permanent employee was terminated in terms of Standing Orders for remaining absent holding

that he had abandoned his services. While terminating neither show cause nor any enquiry was conducted. Neither the provisions of Sec. 25F were complied with. The workman contested his termination before labour court which held that he was continuously intimating with medical certificates for extension of sanctioned leave from time to time. Hence it does not amount to willful abandonment of service under Clause 17C of Standing Orders. His communications were received by the employer who was aware his inability to report back on duty due to sickness. The labour court reinstated him with full back wages as principles of natural justice were violated. The High Court however modified the relief by disallowing the full back wages for the reason that the workman never pleaded that he was not gainfully employed. Since the company has since been closed, the High Court directed that a lumpsum compensation of ̀ 1 lakh in lieu of reinstatement will meet the ends of justice.

Universal Cylinders Ltd., Alwar v. Judge, Labour Court, Bharatpur & Dena Nath Mehto, 2010 III LLN 309 : 2010 II CLR 812 (Raj.HC) CWP 5616 of 1995 dt. 27-1-2010

“This Court has considered……….of his own accord.” (Page: 313, Para: 17)

“In the instant case……….manner sustainable.” (Page: 314, Para: 23)

“In the instant case, it……….lieu of reinstatement.” (Page: 315, Para: 28)

Sec. 11A & 25F Abandonment of Service – The burden of proof is on employer Burden of Proof – Regarding abandonment of service is on employer Representation – If the workman makes all along for reemployment that evidence is clinching against the allegation of abandonment of service Notice – If none has been issued then unauthorized absence remains unsubstantiated Delay – in raising the dispute a plea will have no legs to stand if the workman was making a series of representation for his reemployment a fact not denied by the employer

¥4.600 The employer contended that the workman had abandoned his duties and hence there was no

question of compliance with Sec. 25F of the Act. The labour court upon challenge held that there was no cogent evidence to substantiate the plea of abandonment. There was no evidence that the employer sent notice directing the workman to join his duty or any show cause notice was issued for unauthorized absence. On the contrary there was evidence that the workman submitted a series of representation to the employer to reemploy him. The High Court upheld the finding of labour court reinstating the workman without back wages holding that there was no evidence to sustain the plea of abandonment. Hence the termination for non compliance of Sec. 25F was held illegal. The plea of limitation in

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approaching the appropriate forum was rejected because the workman was all along making representation for his reemployment.

Divisional Manager, Boudh Commercial Division, Orissa Forest Development Corporation Ltd. v. Godabarish Badajena & Anr., 2010 LIC 3926 : 2011 LLR 181 (Ori.HC) WP 12419 of 2006 dt. 21-5-2010

“Having perused……….Sec. 25F of the Act.” (Page: 3928, Para: 6)

“Also the……….ground of delay.” (Page: 3929, Para: 7)

Sec. 25F & 11A

Writ Petition – Is maintainable against illegal termination violating fundamental rights and I.D. Act need not be resorted to as an efficacious alternative remedy I.D. Act – As an alternative efficacious remedy in all cases of illegal termination need not be resorted to if the termination is in direct conflict with Art. 21 of the constitution Principles of Natural Justice – If violated – Invoking writ petition on the basis of violation of the fundamental rights is maintainable Fundamental Rights – If violated due to non observance of principles of natural justice resort to writ petition rather than the provisions of I.D. Act is proper

¥4.601 A vigilance enquiry was held into certain charges of fraud against the delinquent workmen who

however did not participate. Their services were terminated without holding a proper departmental enquiry into the allegation without serving charge sheets, show cause notices and providing proper opportunities to defend themselves. Though their writ petition against illegal termination was allowed by the single judge the same was reversed by the division bench and the Apex Court for want of jurisdiction. Their second round of litigation by filing writ petitions was answered in their favour primarily on the basis that the violation of principles of natural justice is also in of violation Art.21 of the constitution. Where there is a violation of fundamental rights a writ petition is maintainable. Hence the court rejected the argument that the workmen should seek the alternative remedy of I.D. Act in all cases of illegal termination. The termination order was set aside.

Gopal Chandra Mondal & etc. v. Coal India Ltd. & Ors., 2010 LIC 541 (Jhar.HC) WP 5913 & 5923 of 2006 dt. 8- 5-2009

“As submitted……….the petitioners.” (Page: 544, Para: 17)

“The fact that……….their grievance.” (Page: 544, Para: 19)

“The grounds……….fair defence.” (Page: 545, Para: 21)

Sec. 25F and 11 A

Reinstatement – Cannot be granted as a matter of course without a finding regarding availability of work in all cases of illegal termination of service Compensation – Is proper even in cases of illegal termination unless there is a finding as to availability of work and other factors Section 25F – If violated, reinstatement cannot be granted as a matter of course in all cases of illegal termination of service with due regard to the availability of work

¥4.602 Reinstatement of a workman cannot be granted as a matter of course in all cases of illegal

termination of service for not following the provisions u/s. 25F without a finding regarding availability of work. Hence in the present case where the reference was raised in the year 1988 and the award was made in the year 1997 and thereafter the last drawn wages were paid to the workman, in view of this, compensation of one lakh rupees to workman in full and final settlement towards the retrenchment

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compensation and damages instead of reinstatement would be proper. The award for reinstatement with back wages was modified to this extent.

Punjab National Bank & Anr. v. Union of India & Ors., 2010 I LLJ 345 : 2009 (122) FLR 875 (All.HC) CMWP 12182 of 1998 dt. 15-7-2009

“In the light……….of the bank.” (Page: 347, Para: 12)

“In the light……….petition is allowed.” (Page: 348, Para: 15)

Sec. 11A and 25F

Formula – As an authoritative pronouncement for calculation of compensation is not available but depends on various factors Compensation – Of ` 45,000 is adequate if the service rendered was only for 2 years prior to illegal termination

¥4.603 The question is while granting compensation in the absence of any authoritative pronouncement with

regard to formula for calculation of compensation can the yardstick for calculation from the date of termination till the date of award can be set up. The High Court held such straight jacket formula cannot be set up. This depends on the quantum of wages; the number of years of service rendered which are the primary factors to be considered. Hence the Labour Court considered this and found that he had put up only 2 years of service. In this case the Labour Court awarded compensation of ̀ 45,000 which was practically his 2 years monthly salary. The discretion exercised by the Labour Court was held fair and proper. The application for higher compensation was rejected.

Paras v. Lovely Ticket Wala & Ors., 2010 I LLJ 35 : 2009 (122) FLR 918 : 2009 IV LLN 569 : 2009 LLR 1132 (Del.HC) WP(C) 8979 of 2006 dt. 21-4-2009

“The petitioner is……….in the order.” (Page: 36, Para: 7)

Sec. 11A and 25F

Deficit of trust – If perceived reinstatement could be dispensed with in favour of compensation Ex-parte award – Cannot be set aside if the employer negligently fails to contest the matter Reinstatement – Can be dispensed with if employer has lost confidence and trust – Compensation proper

¥4.604 The services of a workman, a gunman in a security agency were terminated. The employer failed to

contest the case. An ex parte award came to be passed against the employer. It was to the effect of reinstatement with70% back wages and continuity of service. The employer challenged the same in a writ petition on the ground that due to an accident he could not appear before the Labour Court and submitted a medical certificate purportedly from a District hospital. The High Court was sceptical about the authenticity of the same because it was on a plain paper. Besides, the alleged accident was not so serious as to disable him from appearing before the Court. However it modified the award into one of compensation considering the fact that the workman has a gun license and there is deficit of trust which may endanger peaceful co-existence if reinstated after a period of 9 years.

M/s. Bajrang Security Services v. B.S. Chauhan & Anr., 2010 II LLJ 628 : 2009 LIC 2987 (Del.HC) WP(C) 3929 of 2006 dt. 8-4-2009

“On June 11……….the respondent/workman.” (Page: 631, Para: 9)

“Therefore I feel……….award is concerned.” (Page: 631, Para: 10)

“Keeping in view……….is disposed of.” (Page: 631, Para: 12)

Sec. 25F and 11A

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Liquidation – Of the company is a mitigating factor for modifying the award from reinstatement with 75% back wages to 25% back wages Back wages – And reinstatement award is liable to be modified with due regard to the cumulative effect of liquidation of the company and gainful employment of the workman Gainful employment – Of the workman is a mitigating factor for modifying the award from reinstatement with 75% back wages to 25% back wages

¥4.605 Where the workman was dismissed from service without affording an opportunity of hearing merely

because he had filled a nomination form even before any proof that he had actually contested election, it is not proper to award reinstatement with 75% back wages to him. This is because the company was put in possession of official liquidator and was out of operation since pretty long. The Labour Court also disregarded the evidence of workman’s gainful employment. There were indications that the workman had secured employment through misrepresentation. The Labour Court ignored to appreciate the cumulative effect of all these factors. The High Court therefore modified the award into only to pay 25% of wages for illegal termination in lieu of reinstatement with 75% back wages.

Manor Investment Co. Ltd. v. Haribhai Dahyabhai Patel, 2009 IV LLJ 89 : 2009 II CLR 481 : 2009 LIC 2351 (Guj.HC) SCA 3170 of 1999 dt. 20-1-2009

“From the evidence……….since Setember, 1993.” (Page: 91, Para: 9)

“While passing the……….was gainfully employed.” (Page: 10)

“It transpires that……….respondent is justified.” (Page: 92, Para: 11)

“There is however no……….the Official Liquidator.” (Page: 92, Para: 12)

Sec. 25F and 11 A

Transfer – Non reporting of – Back wages not payable Back Wages – For non reporting in the transferred place not payable Reinstatement – Of a workman failed to report to the transferred place cannot be in a place other than the place to where he was transferred

¥4.606 The workman, a peon, failed to report to the place of transfer. The award of the Labour Court

reinstating him with 25% back wages did not take into consideration the fact of transfer but merely took it as a case of retrenchment. The employer contended that they are not averse to take him into employment at the transferred place even now. The workman never contended that the transfer was malafide or in victimization and hence, there is no foundation to challenge the same. Employer challenged the award of back wages. The High Court set aside that part of the award granting 25% back wages as the workman himself was at fault in not reporting and discharging any duties in the transferred place. It also clarified that the award so far as reinstatement is concerned it can only be at the transferred place since his job cannot be said to be non transferable.

Natraj Ceramic & Chemicals Industries Ltd. v. Manibhai G. Bhatt, 2009 (121) FLR 64 : 2009 I CLR 369 (Guj.HC) SCA 5024 of 2008 dt. 19-12-2008

“This Court is……….as to costs.” (Page: 67, Para: 8)

Sec. 25F and 11 A

Agricultural work – If engaged the illegally terminated workman is entitled to 50%back wages Back wages – 50% payable if the illegally terminated workman is employed in agricultural work

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¥4.607 The question is in illegal termination where the workman was able to maintain himself by engaging in agricultural activities whether the award of Labour Court to grant the workman 50% back wages was justified. The High Court held that the fact the workman was partially employed in carrying on the agriculture work justifies grant of only 50% back wages. There is no justification to deny him the back wages in full once it was proved the termination was illegal.

Haryana Roadways v. Ramesh Kumar, 2009 (121) FLR 969 : 2009 II CLR 441 : 2009 LLR 754 (Del.HC) WP(C) 4457 of 2000 dt. 1-4-2009

“In the facts……….to the Respondent.” (Page: 971, Para: 9)

Sec. 25F and 11 A

Leading evidence – Before the Labour Court being one of the functions of employer in default reinstatement made cannot be challenged in writ Written statement – Before the Labour Court being one of the functions of employer in default reinstatement made cannot be challenged in writ Delay – Of 4 years in filing writ petition will entail dismissal of the petition Writ petition – Filed belatedly after four years of award of Labour Court without any explanation is to be dismissed

¥4.608 The workman who was a labourer was not continued in service. His dispute was referred to Labour

Court which reinstated him with continuity of service without back wages following failure of employer to file written statement or to lead evidence. The employer challenged the same after a lapse of 4 years without offering any explanation for delay. The workman was already reinstated by then and by that time he had almost put in 10 years of service. The High Court dismissed the petition for the lapses on the part of employer as stated above. The award was upheld.

Deputy Director, Social Forestry Division v. Laxman Janardhan Chandratike, 2009 (123) FLR 902 : 2009 III CLR 709 : 2010 (2) BCR 489 (Bom.HC) WP 705 of 2002 dt. 2-9-2009

“In the present……….dismissed on 29.09.2006.” (Page: 908, Para: 18)

“Since the petitioner……….facts or documents.” (Page: 909, Para: 19)

“It is relevant……….to be rejected.” (Page: 910, Para: 27)

“Viewed from any……….as to costs.” (Page: 911, Para: 28)

Sec. 25F and 11A

Termination – If illegal the Labour court erred in granting only a paltry compensation instead of the rightful reinstatement Compensation – Paltry is not proper for illegal termination but reinstatement or adequate compensation proper

¥4.609 The services of the workman were terminated without compensation or notice. The Labour Court

held the termination illegal. But it failed to grant relief of reinstatement. Despite the workman having been worked for a period of 4 years it awarded a paltry compensation of ̀ 3,000. The High Court held that such an award is without jurisdiction. The Labour Court has failed to exercise its jurisdiction to reinstate him. However, the employer corporation has since wound up, the High Court held that the workman be compensated with adequate relief. It enhanced the compensation to ` 50,000.

Gyanendra Dutt Trivedi v. Labour Court UP Lucknow & Anr., 2009 II LLJ 620 : 2009 (121) FLR 353 : 2009 I CLR 716 (All.HC) WP 3740 of 1984 dt. 22-1-2009

“Sri. Masoodi learned……….reinstatement in service.” (Page: 623, Para: 13)

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“In view of……….him in service.” (Page: 624, Para: 17)

Sec. 25F and 11A

Termination – though illegal it is proper to confine to the payment of back wages already deposited in court instead of reinstatement following closure of business and settlement Closure – Of business 27 years ago enables the court to grant only back wages deposited in court and not reinstatement in difference with the award Back wages – Deposited in court alone will be entitled to be withdrawn if the business was closed with appropriate settlement

¥4.610 The Labour Court reinstated the 2 workmen with full back wages holding the termination illegal in

an ex parte award. The employer made a prayer for recalling the ex parte award which was allowed permitting the parties to advance arguments since employer had given a concession not to cross examine the workmen but the employer got no relief. The employer challenged the same in a writ petition. The High Court held that since the workmen were terminated in the year 1978 and the establishment was closed in the year 1982 and a settlement had been reached to pay the closure compensation including bonus thereafter it is only proper to permit the workmen to withdraw the amount deposited towards the back wages with accrued interest only and the award of the Labour Court directing reinstatement was set aside.

Management of M/s. Electric Control Switchboards v. Presiding Officer & Anr., 2009 III LLJ 426 : 2009 I CLR 842 (Del.HC) WP (C) 2580 of 1986 dt. 13-2-2009

“During the course……….is ordered accordingly.” (Page: 430, Para: 16)

“The impugned award……….the above terms.” (Page: 431, Para: 17)

Sec. 11A and 25F

Termination – If held illegal, denial of relief u/s. 11A cannot be justified Workman – Terminated from service – Is entitled to benefit u/s. 11A Employment – Under another employer does not disentitle the workman from the relief u/s. 11A for illegal termination Reinstatement – Cannot be denied on the ground of taking employment with another employer during the period of illegal termination

¥4.611 The workman was illegally terminated. But the Labour Court gave no relief because the workman

was already in employment with another employer. Whereas the High Court held that this itself would not disentitle the workman to the relief of reinstatement. At the most it could have moulded the relief by denying the back wages. The award was set aside. But now 15 years has already been elapsed and the workman was no longer willing to be reinstated with the employer, the Court held that it will be proper if the workman was paid adequate compensation of ` 30,000 though he had worked only for 3 years to compensate against illegal termination.

Mahavir Singh v. Narang International Hotel (P) Ltd., 2009 III LLJ 439 : 2009 (121) FLR 506 (Del.HC) WP (C) 16580 of 2006 dt. 11-2-2009

“Merely on account……….the Labor Court.” (Page: 441, Para: 8)

“For the forgoing……….of Rs. 10, 000.” (Page: 441, Para: 11)

Sec. 25F & 11A Back Wages – Liable to be denied for short period of service provided the reasons and justifications granting for the same if silent on the part of the Labour Court

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Reinstatement – Of a workman working for more than 240 days cannot be prevented if the courts fails to adduce proper reasons and justifications Prescribed Procedure – If not followed while terminating the workman his reinstatement is a fait accompli

¥4.612 The Nagarpalika terminated the services of a clerk without following the procedure prescribed in

this regard. The dispute raised by the clerk eventually answered in his favour by an order reinstating with 20% back wages as the employer could not dislodge any of the contentions of the workman in the proceedings before the labour court. Upon challenge the High Court however modified the award to the extent of denying the back wages keeping rest of the award undisturbed. Back wages were denied because not only the workman served only for a very short period but also no reason or justification whatsoever was given for the award of back wages. Under the circumstances, the petition was partly allowed.

Chief Officer, Savarkundla Nagarpalika v. Vipulbhai Balwantrai Dave, 2009 I CLR 978 (Guj.HC) SCA 422 of 2009 dt. 18-2-2009

“During the proceeding……….cross examination.” (Page: 980, Para: 4)

“As recorded……….from today.” (Page: 981, Para: 19)

Sec. 25-F & 11 A

Abandonment of Service – Will not survive without proof of communication for joining duties Back wages – Not payable if the proof available for repayment of loan taken from Banks during forced unemployment Loan – Repayment during the period of forced unemployment is proved it is a reason for the rejection of back wages Interim Order – Validly can be issued by the Labour Court for reinstatement on account of illegal termination

¥4.613 In cases of abandonment of service, the plea of the employer cannot survive unless he proves to the

satisfaction of the Court that he had issued written communication for his immediate joining of duties no matter he may be an unskilled labour alleging oral termination. Similarly if there is evidence that the said terminated workman had repaid the loan taken from the financial institution then it has to be construed that he has sufficient income, disentitling him for any claim for back wages. Similarly for illegal termination the Labour Court can reinstate him by an interim order.

Bharat Kumar Motilal & Co. v. Balu Baburao Mhatre, 2009 I CLR 127 (Bom.HC) OOCJCWP 1952 of 2003 dt. 5- 9-2006

“……….however, in the latter……….the said finding.” (Page: 129, Para: 7)

“Thus, the evidence……….31st December, 1995.” (Page: 131, Para: 12)

“In the examination in chief……….31st December, 1995 is rejected.” (Page: 131, Para: 14)

Sec. 2 (oo), 25F and 11 A

Sec-2 (oo) – Does not include Striking off the name from the muster roll being illegal Striking off the name – Is not covered u/s. 2(oo) from the muster roll being illegal Reinstatement – After a period of 30 years from the date of his termination not proper – Compensation payable Certified Standing Orders – Though vests with power to terminate for absence yet striking off the name from the muster roll is illegal being in violation of Sec. 2 (oo) and 25F Workman – Shall be given an opportunity of being heard before striking off his name under clause 24 (f) of the Certified Standing Orders

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¥4.614 The employer, following the workman’s continued absence exercising the power vested under clause 24 (f) of certified Standing Orders struck of his name from the muster roll. It was transpired that the workman was arrested and was under detention unconnected with his employment. Later he was acquitted of the charges by the Criminal Court. The question is whether the action of the employer was consistent with the provisions of Sec. 2 (oo) and 25 F. The High Court held that it was not. Secondly the stand of the Labour Court that the charges were proved and termination was legal and proper and even then reinstating him with full back wages when no issues on that count were raised could not be upheld. In the circumstances the High Court interfering with the award modified the same into payment of lump sum amount of ̀ 8 lacs with due regard to the fact that the workman was out of employment for a period of 30 years from the date of his termination giving little scope for reinstatement at this belated stage.

Maruti Bhanudas Kamble v. Bajaj Auto Ltd. Pune & Anr., 2009 (123) FLR 66 : 2009 III LLN 683 : 2009 II CLR 909 : 2009 LLR 1074 : 2009 (6) BCR 247 : 2009 (5) Mah.LJ 414 (Bom.HC) CAJWP 6348 of 1997 with WP 1874 of 1998 dt. 25-6-2009

“Perusal of the……….the departmental enquiry.” (Page: 71, Para: 8)

Sec. 25F,11A and 2(oo)(bb)

Resignation – Tendered in own handwriting cannot be held as void ab intio Anganwadi worker – Resigning no matter worked for 4 years cannot be reinstated Appointment letter – If indicates services can be terminable at any time acceptance of the terms is sufficient cause for rejecting the claim of illegal termination Award – Directing reinstatement with back wages indicating no reasons for holding resignation void ab intio cannot sustain

¥4.615 Where the appointment order showed that the services of the workman, an Anganwadi worker was

terminable at any time without notice receiving fixed honorarium cannot be restored no matter she worked for a period of 4 years if she had tendered her resignation in her own handwriting which was accepted on the same day. The Labour Court while granting reinstatement with 60% back wages holding her resignation void ab intio did not indicate the reason therefore. The award therefore was quashed and set aside.

Integrated Child Development Service Officer v. Hemangniben Bakulbhai Vyas, 2009 III CLR 51 : 2009 LLR 1184 (Guj.HC) SCA 1798 of 1999 dt. 15-7-2009

“The Labour Court……….withdraw her resignation.” (Page: 53, Para: 10)

“This Court is……….to be considered.” (Page; 53, Para: 11)

“Be that as……….Rule is discharged.” (Page: 53, Para: 12)

Sec. 25B, 25F and 11 A

Abandonment of service – The theory to be reliable should be substantiated with evidence Continuous service – Can be calculated backwards from the date of alleged abandonment of service Relief – Labour Court can give only reinstatement not back wages or continuity of service though theory of abandonment of service was not proved

¥4.616 Employer contending that the workman had abandoned his duties and challenging the award passed

by the Labor Court directing them to reinstate the workman in service but without back wages and continuity of service filed this writ petition. It was held that where the employer failed to substantiate its theory that the workman had abandoned his services, the calculation of continuous service rendered by the workman for more than 240 days on the basis of documents produced by the employer could not be faulted and no interference could be made in the said award of the Labor Court.

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Executive Engineer, Gujarat Water Supply & Sewerage Board v. Shiyan Rajmibhai Jinbhai, 2009 II CLR 25 (Guj.HC) SCA 13284 of 2008 dt. 4-2-2009

“Besides the aforesaid……….of the Board.” (Page: 27, Para: 5.6)

“On this count……….same is rejected.” (Page: 28, Para: 6.1)

Sec. 25F, 25B and 11A Nurse cum Dai – Subjected to dismissal in an orphanage in violation of Sec. 25F are to be reinstated with back wages Orphanage – Being an industry termination of workman, Nurse cum Dai requires compliance of Sec. 25F

¥4.617 Dismissal of Nurses cum Dai of an orphanage who had worked for more than 240 days without

following provisions of Sec. 25F of the I.D. Act was held illegal and orders were issued for their reinstatement with back wages by the Labour Court. Upholding the same the High Court however reduced the back wages from full as awarded by the industrial court to that of 25% till the award and 50% from award till reinstatement.

Shradhanand Anathalaya, Nagpur through its Secretary v. Asha Bhojraj Shende & Anr., 2009 IV LLJ 101 (Bom.HC) WP 539 of 2008 dt. 26-2-2009

“Learned Counsel for……….days or more.” (Page: 106, Para: 12)

“From this affidavit……….and thus perverse.” (Page: 108, Para: 14)

“Coming back to……….the said finding.” (Page: 108, Para: 15)

“Therefore I am……….right the situation.” (Page: 110, Para: 17)

Sec. 11A, 25F, 25G

Back door entry – name having not being sponsored by the employment exchange and not completing 240 days of service does not protect the workman from termination Employment Exchange – If name is not sponsored the termination from Nagar Palika cannot be called into question Compensation – Not proper for a workman terminated for irregular appointment not completing 240 days of service

¥4.618 The services of workman was terminated from the Nagar Palika since his was a case of back door

entry without following recruitment procedure invit ing names from the Employment Exchange and/or after inviting applications and conducting interviews etc. The Labour Court however granted compensation of ̀ 40,000 assuming that he might have completed 240 days of service, denying him reinstatement and back wages. His challenge before High Court became futile because of his back door entry. The High Court even held that he did not deserve for compensation of ̀ 40,000 as he was not protected u/s. 25F for want of completing 240 days of work. So far as violation of Sec. 25G is concerned such objection was never raised before in the Labour Court and hence held devoid of merit.

Prakashchandra Chandulal Chauhan v. Chief Officer, 2009 I CLR 765 (Guj.HC) SCA 9162 of 2008 dt. 29-8-2008

“Affidavit is made……….to the petitioner.” (Page: 767, Para: 7)

“The petitioner has……….even prima facie.” (Page: 767, Para: 8)

“The petitioner has……….as to costs.” (Page: 767, Para: 9)

Sec. 25-F & 11A

Re instatement – Offer of employer if not accepted by the workman he is not entitled for it

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Offer Letter – For reinstatement in the face of allegations of termination of service though it is a case of abandonment renders the award for back wages & reinstatement erroneous Award – For reinstatement suffers from an error of law apparent on the face of the record if the employer has taken an unconditional stand offering employment which the workman did not accept Apparent on the face of the record – Award of reinstatement with back wages becomes if the workman neglects the offer of the employer for reinstatement

¥4.619 The Labour Court passed an award directing that the workman be reinstated with full back wages as

his services having been terminated without enquiry or notice and hence it was in violation of section 25- F of the Act. This was in the face of employer’s claim that the workman abandoned his duty after some dispute about the number of pieces he should produce and even in the face of an offer for reinstatement made by the employer. Ostensibly the workman did not accept the offer having regard to the age of retirement. The High Court held that since the unconditional and consistent offer of reinstatement made by the employer in the written statement having not been accepted by the workman he was not entitled to get reinstatement with back wages and hence the award was quashed as it suffered from an error of law apparent on the face of the record.

NRK House, Mumbai v. P.V. Tommy C/o. Akhil Bhartiya General Kamgar Union & Anr., 2008 (119) FLR 540 : 2008 III CLR 335 : 2009 (2) Mah.LJ 358 (Bom.HC) OOCJWP 1443 of 2006 dt. 27-8-2008

“In this view……….report to work.” (Page: 542, Para: 7)

“In the circumstances……….on this count.” (Page: 544, Para: 11)

Sec. 25-F; 11-A Resolution – If is the basis for the recruitment it cannot be said the employer not followed the rules Service – If short before illegal termination the award after a period of 13 years cannot be for reinstatement but for compensation Compensation – Only grantable if the period elapsed between termination and award is considerable besides short period of service

¥4.620 A workman was appointed by a resolution as an accountant and thereafter as an auction clerk till his

termination after completing around 2 years of service. Upon challenge, the employer contended that he was not appointed by following the recruitment rules. The labour court held that as the workman proved that he was appointed by a resolution, it cannot be countenanced. However at the time of award already 13 years have since elapsed and the workman had hardly put up two years of service, exercising discretion it granted compensation of ̀ 60,000 in lieu of reinstatement and back wages. In writ petition by the employer the High Court upheld the award and held that it had rightly exercised the discretionary power in favour of workman as the employer had failed to comply with Sec. 25-F while dispensing with his services. Hence petition dismissed.

Agricultural Products Market Committee v. Piyush M. Sukhadia, 2008 (117) FLR 672 : 2008 I CLR 958 : 2008 LLR 749 (Guj.HC) SCA 3644 of 2008 dt. 26-2-2008

“It is necessary to note………. of respondent workman” (Page: 674, Para: 4)

Sec. 11A and 25F Compensation – In case of illegal termination where reinstatement is not possible due to age of superannuation only payable but to be reasonable Reinstatement – Is natural corollary of illegal termination but for superannuation compensation proper

¥4.621 A workman was terminated from the service for the misconduct of theft. Labour Court held it illegal

for want of proof and passed an award of compensation for ` 5000 along with the retrenchment compensation which was challenged by the workman in the present petition. Single Judge held that in such cases reinstatement can be granted only if the workman is physically and mentally fit but looking at

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the age of 68 yrs of workman, it is fit and proper to grant only reasonable compensation. Hence a compensation of ̀ 1,00,000 was granted.

Balasaheb Rodoba Nagpure v. Ashok Card Centre & Anr., 2008 III CLR 354 (Bom.HC) CAJWP 2529 of 1997 dt. 21-8-2008

“In my opinion ……….passing the award.” (Page: 356, Para: 7)

“The age mentioned ……….can be enhanced.” (Page: 356, Para: 8)

“In my opinion ……….weeks from today.” (Page: 356, Para: 10)

Sec. 25F and 11 A Reinstatement – Excludes – If the workman did not join duty when called to do so – Compensation proper Compensation – Reasonable payable in lieu of reinstatement for the reason workman did not join duty when called for to do so

¥4.622 A storekeeper was removed from the service without complying with Sec. 25F of the Act. Labour

Court held it illegal and passed an award of compensation of ̀ 25,000 in lieu of reinstatement and back wages. Hence the present petition by the workman in which it is held that as he did not join the duty when called upon by the management and he did not make out any case for the grant of back wages, but taking into consideration the service put by him and other relevant facts the amount of compensation is enhanced to ̀ 75, 000.

Roop Singh v. Government of NCT of Delhi & Anr., 2008 III CLR 612 (Del.HC) WP(C) 2770 of 2007 dt. 23-9-2008

“We therefore are……….to the workman.” (Page: 614, Para: 13)

“In the facts ……….of actual payment.” (Page: 616, Para: 20)

Sec. 25F and 11A

Back wages – In full payable for violation of Sec. 25F if there is no evidence to prove that the workman was not in gainful employment Interest – At the rate of 9% admissible with full back wages for illegal termination with proof that workman was not in gainful employment

¥4.623 Where the retrenchment of the workman was without holding enquiry and issuing one month’s

notice, his termination was held illegal and violative of Service Rules and Sec. 25F of the I. D. Act and where the workman has filed an affidavit that he was not gainfully employed after his retrenchment and the same is not rebutted by the employer by placing any evidence on the record, the workman is entitled for the reinstatement with full back wages with the interest at the rate of 9% per annum from the date he was retrenched.

Dehra Friends Co-operative Transport Society Ltd. v. Presiding Officer & Anr., 2008 LIC 322 : 2008 LLR 284 (HP.HC) CWP 411 of 2006 dt. 14-9-2007

“The Labour Court……….I. D. Act, 1947.” (Page: 324, Para: 10)

“The workman in……….after his retrenchment.’ (Page: 324, Para: 12)

“In the present……….any other office.” (Page: 325, Para: 17)

Sec. 25-F and 11A

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Sister Concern – Termination of service for refusal to join there will result in reinstatement with consequential benefits Termination – Illegal on the ground that the workmen refused to join the sister concern Back Wages – Whether payable or not following refusal to join the sister concern is a disputed question to be decided by the Labour Court

¥4.624 The workmen were given an offer to work in the sister concern of the employer from 1.7.1986 failing

which they would be retrenched. According to the employer, the workmen did not report to work on the said date. The Union claimed that the services of the workmen were terminated without paying retrenchment compensation under the provisions of Section 25-F.The Labour Court concluded that the services were terminated in violation of the provisions of I.D Act .The jobs offered in the sister concern did not interest them. The Labour Court set aside the termination and awarded reinstatement with continuity of service. The High Court upheld the same and remanded the matter to Labour Court to decide the entitlement of back wages in the wake of their refusal to join the sister concern.

Amarsey Damodar v. Rashtriya Cotton Kamgar General Union & Anr., 2007 (115) FLR 928 : 2008 I LLJ 367 : 2007 III CLR 660 : 2008 (2) BCR 317 : 2007 (6) Mah.LJ 840 (Bom.HC) CAJWP 6190 of 1996 with WP 1286 of 1997 dt. 19-9-2007

“On perusal of the……….reinstatement in service.” (Page: 931, Para: 9)

“The impugned award……….from today.” (Page: 932, Para: 11)

Sec. 25FFF, 2(s) & 11A

Master-Servant Relationship – Existed – Between the workmen of the canteen and the company for the reason that no agreement disclosing relationship between society and workmen proved Agreement – Clearly stating relationship of master-servant between the society and the canteen workmen to the exclusion of the company is required to free from liability Canteen – Within the factory premises without any specific agreement for running the canteen by a society binds the company and the canteen workmen in master-servant relationship Back Wages – 50 % payable or closure compensation whichever is higher for illegal termination of canteen cook

¥4.625 The employer challenged the award of reinstatement with full back wages passed by the Labour

Court on the grounds that the canteen was run by the Society and there was no master-servant relationship between the employer and the workman, cook. The High Court held that the canteen is situated inside the factory and the real employer of the workmen of the canteen was not society and hence there exists master-servant relationship between the company and the workmen of the canteen for the reason that there was no trace of an agreement between the Company on one hand and the society on the other to the effect that the canteen was managed by the members of the said Society. This is evidenced more so by the fact that the canteen was situated in the factory premises itself. Further the Society in question was not made a party in the proceedings hence reinstatement could be proper had the establishment was not closed. Since it is closed proper relief could be paying compensation u/s. 25FFF or 50% back wages from the date of termination till the date of closure whichever is higher.

Baroda Electric Meters Ltd. v. Makanbhai Kanjibhai Makwana, 2010 III CLR 333 : 2011 III LLJ 82 : 2010 LLR 1225 (Guj.HC) SCA 4765 of 2000 dt. 15-7-2010

“In fact, from the evidence……….terminating his services.” (Page: 335, Para: 6)

“Looking to the entire evidence……….continuity in service.” (Page: 335, Para: 7)

Sec. 33 and 11 A

Enquiry – Is sine qua non under the Act or cogent reasons for not conducting necessary before dismissal

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Cogent Reasons – For not conducting enquiry is necessary before dismissal to be sustainable under the Act Conciliation – If in process it is an embargo for dismissal u/s 33 Sec.33 – Puts an embargo against termination when the conciliation is under way

¥4.626 If the workmen’s conditions of service are regulated under the Industrial disputes Act, then if their

services are to be dispensed with on the grounds of misconduct, a regular departmental inquiry is required to be held and if at all it is not possible in that eventuality cogent reasons are to be recorded for not holding such enquiry. Further, the management cannot dismiss or terminate the workmen during the conciliation proceedings in violation of Sec. 33 of the Industrial Disputes Act. The dismissals were set aside for the above twin reasons.

Him Ispat Mazdoor Sangh & Ors. v. Presiding Officer & Ors., 2008 III LLJ 453 : 2008 LIC 2132 (HP.HC) CWP 1787 of 1993 dt. 25-2-2008

“It is evident ……….achieve higher production.” (Page: 457, Para: 10)

“Mr. M.C……….Constitution of India.” (Page: 458, Para: 13)

“The workmen’s conditions……….it a stigmatic.” (Page: 459, Para: 16)

“The management could……….the conciliation proceedings.” (Page: 460, Para: 20)

“Consequently, the writ……….the following extent.” (Page: 460, Para: 21)

Sec. 33(2)(b) & 11A

Enquiry – The tribunal cannot without framing issues decide in a summary manner the same is perverse Framing of Issues – The Tribunal has to before arriving at enquiry is vitiated Approval Application – Cannot be cited for upholding dismissal by the tribunal Reference – Adjudicator has to independently arrive at a finding whether the enquiry was fair and proper without going into the proceedings in the approval application u/s. 33(2)(b) Industrial Tribunal – Has to decide the validity of the enquiry even if the Approval Application was allowed based on findings made by the enquiry officer

¥4.627 The dismissal of a workman was approved u/s. 33(2)(b) by the labour court for participating in an

illegal strike. Meanwhile a reference was came to be made to the tribunal. The tribunal held the enquiry fair and proper without any finding before arriving at this decision. The union insisted that the enquiry officer may be examined to find out the fairness of the enquiry. The tribunal rejected the request and held that the enquiry officer was old and no purpose would be served if he was directed to lead the evidence in respect of the enquiry. The tribunal upheld the dismissal. Upon challenge the High Court set aside the award for tribunal’s convoluted reasoning it being perverse. The High Court took exception for not framing proper issues. The high court held that the tribunal did not apply its mind when it held that once the industrial tribunal granted approval it will bind the adjudicator in a reference for reinstatement with continuity of service with full back wages. This principle is analogous to res judicata and hence erroneous. Such summary decision was set aside and matter remanded for fresh hearing.

General Secretary, General Kamgar Union v. Noble Paint & Varnish Co. Pvt. Ltd., 2011 I LLJ 873 : 2011 (128) FLR 42 : 2010 III CLR 911 : 2010 (6) Mah.LJ 309 (Bom.HC) WP 3931 of 1996 dt. 30-8-2010

“The Tribunal then observed……….in respect of the enquiry.” (Page: 874, Para: 7)

“In the present case, the Tribunal……….of mind by the Tribunal.” (Page: 875, Para: 8)

“Regarding the perversity of the……….and is therefore unsustainable.” (Page: 875, Para: 9)

Sec. 11 A and 33(2)(b)

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Leave without pay – Sanctioned against unauthorized absence is only towards regularization of leave but not in exoneration of misconduct Exoneration of misconduct – For unauthorized absence cannot be read into by the fact of regularization of leave by sanctioning leave without pay Dismissal – After an enquiry for unauthorized absence cannot be contested on the ground that employer regularized the absence by granting leave without pay Industrial adjudicator – Cannot reject approval application for dismissal on the ground that the employer regularized the absence by granting leave without pay

¥4.628 Where the delinquent workman sent his leave application for his unauthorized absence after two

months, his habitual absence could establish his lack of interest in work and a ground to arrive at the adverse conclusion against him. Merely, treating his absence as leave without pay could not be equated with sanctioned and /or approved leave so as to exonerate him of charges of misconduct and the findings of the Tribunal that once absence of an employee is treated as leave of any kind, his absence becomes stingless and does not remain misconduct could not be sustained. The High Court set aside the order of Labour Court rejecting the approval application for dismissal made u/s. 33(2)(b) and remanded for fresh disposal.

Delhi Transport Corporation v. Presiding Officer & Anr., 2008 LIC 1090 : 2007 III CLR 884 (Del.HC) WP (C) 5655 of 2001 & 5638 of 2002 dt. 4-10-2007

“In the light……….the departmental proceedings.” (Page: 1093, Para: 12)

“Also the very……….of the employer.” (Page: 1093, Para: 14)

‘For the aforesaid……….charges of misconduct.” (Page: 1094, Para: 16)

Sec. 11A and 33(2)(b) and 33(2)(a).

Insubordination – Is a misconduct arising out of consistent refusal to handover charge against the orders of Head of Department Misconduct – Includes – Insubordination arising out of refusal to handover charges against the order of Head of Department Non handing over of charge – Against the orders of Head of Department is a misconduct Compulsory Retirement – Permissible for consistent defiance of the order of head of department to handover the charges

¥4.629 An act of consistent refusal to handover the charge of stores in defiance of the order of Head of

Department is deemed to be an act of insubordination and hence a misconduct. The workman could not have prejudged the legal nature of the command even if he had some legitimate grievance against it. The compulsory retirement was upheld by the Labour Court as in its view the provisions of Sec. 33(2)(b) was complied with because the proceedings set in motion by the management was due to refusal to handover the charges and the proceedings set in motion by the workman was only refusal to grant increments upon crossing the efficiency bar. Both are not connected. The Single Judge and Division Bench upheld the compulsory retirement approved by the Labour Court u/s. 33(2)(a).

R.K. Singhal v. Presiding Officer, Industrial Tribunal, 2009 II LLJ 467 : 2009 I CLR 132 (Del.DB) LPA 26 of 2007 dt. 3-12-2008

“In our view……….order is concerned.” (Page: 470, Para: 12)

“We accordingly……….technical Assistant.” (Page: 470, Para: 13)

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Sec. 11 A Sec. 4-K- U .P. Industrial Disputes Act

Sec. 11 A – Scope of the Act is limited and different from Section 4-K of U .P. Industrial Disputes Act Sec 4 K of U .P. Industrial Disputes Act – Scope is different from Sec.11A of the Act Concurrent Findings – Of domestic enquiry and the Labour Court if is to the effect that charges not proved on a fact there is little scope to award punishment

¥4.630 The workman, a conductor raised an industrial dispute after being terminated from his services, on

charges of not issuing tickets and refusing to give the way bill to the checking staff even though they were not proved before the domestic enquiry or before the Labour Court. The Labour Court held that the way bill was filled up and only totaling remained to be done when the bus was checked and hence charges against the workman are not proved beyond doubt and accordingly discharged the workman of both charges. The High Court upheld the decision .Besides the scope of Sec.4-K of the U. P. Industrial Disputes Act is different from that of Sec.11-A of the Act.

U.P. State Road Transport Corporation through Regional Manager, Ghaziabad v. State of U.P. & Ors., 2008 (119) FLR 710 (All.HC) CMWP 15959 of 1997 dt. 12-8-2008

“With regard to……….punishment to him.” (Page: 713, Para: 6)

Sec. 11A & Bombay civil service rules (Rule 33A(1), (2) and (5)

Midwife – Being a panchayat employee she cannot withdraw a resignation after one month it has become effective by Rule 33A(2) of Bombay Civil Services Rules Panchayat Employees – Bombay Civil Services Rules apply Bombay Civil Services Rules – Apply to Panchayat employees Resignation – Of a panchayat employee comes to effect on completion of one month from the date irrespective of its acceptance by operation of the statutory rules

¥4.631 The employees of Panchayat service are State employees or / are in State Civil Service. The Bombay

Civil Services Rules 1959 applies to the Panchayat servants subject to certain conditions. In this case an assistant midwife nurse was subjected to transfer to another place, upon which she tendered her resignation on 27.7.1975 due to mental illness or her mother’s illness and domestic problems. The said resignation remained unaccepted for considerable time until on 5.5.1979. After 4 months of resignation she withdrew her resignation by letter dated 30.12.1975. It appears on casual look that she did withdraw the resignation well before its acceptance. However the employer refused to allow her to join her duties. Her dispute before the tribunal had answered in her favour by an award of reinstatement and 25% back wages. Upon challenge the High Court held that in her case Rule 33A(1)(a), 33A(2) and 33A(5) of Bombay Civil Services Rules are applicable. In this as per Rule 33A(2) the resignation had become effective one month after its tender and it was deemed to have been accepted even if there was no positive action on the part of employer. Hence there was no cause to withdraw the resignation after one month since the employer employee relationship ceased after a period of one month from the date resignation by the operation of the statutory rules. The award was set aside and action of the employer was upheld.

District Panchayat, Kheda through Chief Medical Officer v. Pushpaben Gordhandas Pandya, 2009 III CLR 516 (Guj.HC) SCA 7689 of 1999 dt. 21-1-2009

“At this stage……….local cadre only.” (Page: 520, Para: 7.6)

“The said legal……….public interest.” (Page: 521, Para: 7.7)

“In the present case……….notice period).” (Page: 522, Para: 7.10)

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Sec. 10 A of Industrial Employment (Standing Orders) Act Sec. 11A of I.D. Act

Subsistence allowance – Not admissible during an enquiry before the Labour Court to prove the charges of misconduct once the court holds enquiry not fair and proper Suspension – Although the industrial employment Standing Orders permits subsistence allowance during pendency of a domestic enquiry no such allowance is permitted before an enquiry in the labour court Labour Court – Cannot direct payment of subsistence allowance in terms of Sec. 10A of Standing Orders Act to meet financial stringency of the workman during a fresh enquiry before it Domestic Enquiry – And enquiry before the labour court are different so far as subsistence allowance in concerned being not admissible in an enquiry before labour court

¥4.632 The normal rule of granting subsistence allowance to workmen suspended during pendency of an

enquiry does not apply to cases where de novo enquiry was being conducted before the labour court while holding the domestic enquiry not fair and proper. Art. 10A of Employment Standing Orders Act for subsistence allowance will not apply to an enquiry being held before the labour court where the employer is leading evidence to prove the charges of misconduct against a workman. In this case the labour court erroneously held that the enquiry before the court is equivalent to an enquiry into the charges by an employer and the principles permitting subsistence allowance should be applied to an enquiry de novo before the labour court also and directed the employer to pay 75% of last drawn wages as subsistence allowance. The High Court held that there is no law permitting the labour court to grant such subsistence allowance and this would be untenable. If the charges of misconduct are grave or serious then paying subsistence allowance would mean that he was allowed to resume work although the employer had already dismissed him. It would amount to putting a premium on his misconduct and in this case a fraud. The order of labour court was set aside.

Mumbai Cricket Association v. Pramod G. Shinde, 2011 I CLR 745 : 2011 (129) FLR 179 : 2011 LIC 2691 : 2011 (3) BCR 52 (Bom.HC) OOCJWP 2606 of 2010 dt. 12-1-2011/24-1-2011

“Therefore, on spacious……….unsustainable in law.” (Page: 756, Para: 25)

Sec. 11A and Art. 141 of the Constitution of India

Precedent – A decision of Apex Court on a question of law alone will have precedential value and not question of fact Question of fact – Decided by Supreme Court will not bind on the subordinate courts as a precedent under Art.141 of the constitution Art.141 of the constitution – Though mandates a binding force on the subordinate courts the decision of Supreme Court it has several exceptions Question of law – Alone has a precedential value for a binding effect on the subordinate courts in terms of Art.141 of the constitution Merger – Of a decision of Division Bench with that of Apex Court does materialize unless the law propounded by the Supreme Court leans on the question of law Legal heirs – Are entitled for back wages if the workman and his wife have expired as per award

¥4.633 The workman who was a driver suffered heart attack and after recovery he requested for light work

on the basis of medical certificates. The employer instead terminated his service relying on the standing orders. He contested his termination. The Labour Court allowed the reference reinstating him with full back wages. But the workman and his wife did not survive to claim the benefit. The legal representatives claimed the benefit. The employer contested the same relying on the Apex Court judgment in the case of DTC v. Prakash Chand in which according to the employer the judgment of Division Bench merged with it and on that basis the legal heirs are not entitled for this benefit. Rejecting this proposition of law the High Court held that it is not that every decision is binding on subordinate courts under Art. 141 of the constitution. It is only the question of law and not a question of fact that also given on a concession is binding. Hence the Court held that the decision did not merge with the Supreme Court decision to have

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any precedential value. The question of law laid down by the Division Bench will therefore prevail. Hence the legal heirs are entitled for full back wages.

Delhi Transport Corporation v. Mrs. Vidyawati & Ors., 2009 III LLJ 738 : 2009 IV LLN 808 : 2009 II CLR 227 (Del.HC) WP (C) 1641 of 1999 dt. 6-2-2009/23-3-2009

“In the light……….from this order.” (Page: 743, Para: 19)

Sec. 11A & Art. 226 Sec. 11A & Art. 226

Modification of award – By High Court is circumscribed by disregard of employer’s plea by Labour Court while awarding reinstatement Reinstatement – With back wages are normally not to be interfered with by High Court unless the objections / pleadings are ignored

¥4.634 High Court cannot interfere with the award of reinstatement with 50% back wages unless the

employer takes objection that the post is not sanctioned or the engagement is against the statutory rules or he has been employed elsewhere and there is no vacancy and yet only if Labour Court disregarded the evidence and pleadings. In this case, no such pleas were taken. Hence Supreme Court set aside the order of High Court which had modified the award of reinstatement with 50% back wages into one of compensation of ̀ 50,000 and restored the award.

Krishan Singh v. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), 2010 II LLN 634 : 2010 II LLJ 678 : 2010 (125) FLR 187 : 2010 LIC 1723 : 2010 LLR 450 : 2010 (3) SCC 637 : 2010 (1) SCC (L&S) 890 (S.C.2J) CA 2335 of 2010 dt. 12-3-2010

“In the present case, the respondent has not taken any stand before the Labour Court in his objections that the post in which the workman was working was not sanctioned or that his engagement was contrary to statutory rules or that he was employed elsewhere or that there was no vacancy. In the absence of any pleadings, evidence or findings on any of these aspects, the High Court should not have modified the Award of the Labour Court directing re- instatement of the appellant with 50% back wages and instead directed payment of compensation of Rs. 50,000/- to the appellant.” (Page: 637, Para: 21)

“In the result, we allow this appeal and set aside the impugned order dated 09.12.2008 of the High Court of Punjab and Haryana in C.W.P. No. 5257 of 2007 and direct that the appellant will be re-instated as a daily wager with 50% back wages forthwith.” (Page: 637, Para: 23)

Sec. 11A, Art.226

Reason – While exercising jurisdiction of High Court in writ petition is imperative Writ jurisdiction – Is not same as SLP under Art. 136 of the constitution so far as reason is concerned

¥4.635 If the High Court dismisses a petition summarily without a reasoned order, its order will not be

sustained because the inscrutable face of sphinx is ordinarily incongruous with a judicial or quasi ju dicial performance. The matter remitted to High Court. The Supreme Court while remitting held that the exercise of power under Art.136 cannot be equated with power under writ petition which cannot be exercised without setting forth its reasons, howsoever brief.

U.P.S.R.T.C. v. Jagdish Prasad Gupta, 2009 II CLR 8 : 2009 III LLJ 203 : 2009 (122) FLR 734 : 2009 (12) SCC 609 : 2010 (1) SCC (L&S) 156 : 2009 AIR (SC) 2328 (S.C.2J) CAJCA 1883 of 2009 (AOS (C) 4465 of 2006) dt. 25-3-2009

“Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union 1971 (1) All E.R. 1148 observed "The giving of reasons is one of the fundamentals of good administration". In Alexander

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Machinery (Dudley) Ltd. v. Crabtree, it was observed: "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.” (Page: 10, Para: 9)

“In the circumstances the impugned order of the High Court is clearly unsustainable and is set aside. The matter is remitted to the High Court to hear the Civil Misc. Writ Petition No. 52959 of 2005 to be disposed of by a reasoned order. There shall be no order as to costs.” (Page: 10, Para: 13)

Sec. 11A, Art. 226

Inscrutable face of the sphinx – Should not become the summary dismissal of the petitions by High Court Reason – If not given in summary dismissal of petition it amounts to “Inscrutable face of the sphinx”

¥4.636 In a matter of termination of services of a workman illegally, the Labour Court reinstated him with

50% back wages. The employer challenged the same contending that the employee failed to discharge his burden that he had worked for 240 days. The High Court without giving reason summarily dismissed the petition. The Supreme Court held that the result of not giving reasons is like the “inscrutable face of the sphinx”. The “inscrutable face of the sphinx” is incongruous with a judicial or quasi judicial performance. Hence matter remitted.

State of Haryana v. Ramesh Kumar, 2008 III LLJ 609 : 2008 (118) FLR 694 : 2008 III LLN 716 : 2008 II CLR 1089 : 2008 (11) SCC 435 : 2008 (2) SCC (L&S) 1016 (S.C.2J) CAJCA 4325 of 2008 dt. 11-7-2008

“Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union 1971 (1) All E.R. 1148 observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 LCR 120 it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.” (Page: 610, Para: 7)

Sec. 11 A & Art.226

Writ Petition – Is not efficacious remedy in a challenge to be dismissal from service of a workman Dismissal – Remedy under I.D. Act proper instead of Writ Petition

¥4.637 Where there is efficacious alternative remedy under Industrial Disputes Act, the workman cannot

seek without exhausting this remedy, the jurisdiction of Writ Court. The challenge to the disciplinary proceedings can be addressed by invoking the power u/s. 11 A of the Act.

Kamlesh Sharma v. Divisional Manager & Anr., 2011 (131) FLR 294 (MP.HC) WP 17081 of 2010 dt. 14-12-2010

“The Karnataka……….is not warranted.” (Page: 294, Para: 2)

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“Petition is disposed……….as per rules.” (Page 295; Para: 5)

Sec. 11 A and Art. 226

Transferability – Being an administrative function cannot be reviewed by the High Court particularly if the employer is a purely private industrial establishment Writ petition – To challenge a transfer of workmen working in a private industrial establishment is not maintainable Private industrial establishment – Is not amenable to writ petition in matters pertaining to transfer of its workmen Administrative orders – Are not the subject matter for judicial review Certified Standing Orders – Can provide for transfer of workmen as one of the items

¥4.638 The question is whether the transferability of a workman falls under the condition of service for

including that matter in the Certified Standing Orders. In this case the services of the workman were transferred from his industrial establishment being a hotel from Hyderabad to Chennai. The High Court held that the power exercised by the certifying officer duly certifying Clause-7(h) providing transferability was perfectly legitimate and valid in consonance with Entry 10-B of the schedule. Therefore a transfer from one post to another from one department to another from one unit to another does not normally amount to violation of condition of service since it is purely incidental to their employment itself. So long as the status pay and perquisites and any other tangible benefits are not adversely impacted, transfer does not call for question in a judicial review. In this case the employer is purely a private industrial establishment. If so a transfer of its employees does not call for judicial review under Art.226 of the constitution.

P. Nani, Hyderabad & Anr. v. Certifying Officer-cum-Deputy Commissioner of Labour, Hyderabad & Anr., 2009 (123) FLR 880 (AP.HC) WP 17269 of 2008 dt. 21-7-2009

“In my opinion……….of the Act.” (Page: 891, Para: 36)

Art. 226 and Sec. 11 A

Appellate Authority – Or Review Authority cannot associate themselves with the proceedings whenever the order passed by them are challenged in any forum or court Reviewing Authority – Or Appellate Authority cannot associate themselves with the proceedings whenever the order passed by them are challenged in any forum or court Writ Petition – In which it is not permitted to array the adjudicating agencies either as petitioners or respondents

¥4.639 The Depot Manager was the disciplinary authority. As such he exercised his power and terminated

the workman. The Divisional Manager was the appellate authority. He interfering with the punishment instead of termination stoppage of annual increment for a period of 3 years with cumulative effect was imposed. This was challenged by the workman. The Labour Court made the Divisional Manager who was an appellate authority as a party in the proceedings. The Labour Court held the punishment imposed was not justified and he deserves a lesser punishment. The Divisional Manager challenged this award in a writ petition. The High Court held the Divisional Manager being an appellate authority could not have been made a party to the proceeding because appellate authority or a reviewing authority can never associate themselves with the proceedings whenever the orders passed by them are challenged in any forum or Court. The High Court directed the registry to issue instructions to the concerned not to array the adjudicating agencies either as petitioners or respondents in the writ petitions.

The Divisional Manager, APSRTC v. The Presiding Officer, Industrial Tribunal-cum-Labour Court & Anr., 2008 LIC 3797 (AP.HC) WP 7296 of 2008 dt. 24-6-2008

“A serious question……….the writ petitions.” (Page: 3799, Para: 7)

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Sec. 12 - Duties of Conciliation Officers

Sec. 12

Labour Commissioner – Has no power to decide the disputed question whether a person is a workman or not as an ancillary to the issue of applicability / interpretation of Standing Order Workman – A person is or is not cannot be decided by Labour Commissioner as an ancillary issue of interpretation, applicability of Standing Order Ancillary issue – Whether a person is a workman cannot be decided while deciding the applicability and interpreted of Standing Order by Labour Commissioner

¥4.640 Upon refusal to go to the transferred place, the employees’ services were terminated. The matter of

transfer and termination came to be agitated before the Labour commissioner. The employer contested the same holding that the employee is not a workman. The Labour Commissioner and single judge held that as the matter involves the disputed question, whether the employee is a ‘workman’ the Labour Commissioner who is only a conciliation officer under U.P. Industrial Disputes Act, 1947 and certifying officer under standing orders under clause ‘W’ can only decide the applicability and interpretation of standing orders. The Division Bench disagreed. Setting aside the order of Division Bench and upholding the decision of Labour Commissioner and single judge the, Supreme Court held that the issue whether or not a person is a workman under U.P.I.D. Act, 1947 cannot be decided by Labour Commissioner while exercising the power of ‘summary nature’ only Competent Court, Labour or Industrial Tribunal, have the power of adjudication. The Division Bench is therefore in error to hold that the issue is ancillary to the issue of applicability and interpretation of standing orders vested with commissioner.

Triveni Engineering & Industries Ltd. v. Jaswant Singh & Anr., 2010 IV LLJ 579 : 2010 (127) FLR 22 : 2010 LIC 3711 : 2010 III CLR 240 : 2010 (9) SCC 151 : 2010 (2) SCC (L&S) 736 : 2010 AIR (SC) 2939 (S.C.2J) CAJCA 6523 of 2010 dt. 11-8-2010

“We are faced by the question as to whether a person is a workman or not could be said to be related to the applicability and interpretation of the Standing Orders along with the issue of whether the orders of transfer and subsequent termination were justified or not. As far as the Labour Commissioner is concerned, he is only a `Conciliation Officer' as envisaged under the U.P. Industrial Disputes Act, 1947 and `Certifying Officer' under the Standing Orders. The Standing Orders, particularly Clause `W', vests the Labour Commissioner with the jurisdiction and power to decide on the applicability and interpretation of the Standing Orders. On the other hand, Section 11-C of the U.P. Industrial Disputes Act, 1947 and Section 13A of the Industrial Employment (Standing Orders) Act, 1946 grant the power and jurisdiction to render a decision on the issue of interpretation and application of the Standing Orders to the Labour Court.” (Page: 582, Para: 13)

“Without going into the issue as to whether such a power and jurisdiction could be vested on the Labour Commissioner, we may decide the issued raised herein from another angle. The issue of whether or not a person is a `workman' within the meaning of U.P. Industrial Disputes Act, 1947 is a matter to be decided by a competent court, after allowing the parties to lead evidence. Thereafter, on proper appreciation of the materials on record including the oral evidence, a decision could be rendered and the issue could be determined. The enquiry before the Labour Commissioner is of a summary nature and while exercising such a power of summary nature, the Labour Commissioner cannot decide and examine factual matters relating to an issue as to whether or not the person concerned is a workman or not.” (Page: 582, Para: 14)

“Whether or not a person is a workman is a matter that relates primarily to facts and circumstances of the case. The same has nothing to do with the application and interpretation of 11 the Standing Orders. What needs to be examined and looked into for deciding the aforesaid issue is the nature of job performed by the concerned person, duties and responsibilities vested on him and other such relevant material. In our considered opinion, the Division Bench of the High Court committed a mistake in determining the said issue as an ancillary to that of the applicability and interpretation of the Standing Order. A perusal of the earlier Writ Petition filed by the respondent No. 1 numbered as Writ Petition No. 8630 of 2008 would indicate that what was also challenged in the said writ petition was the order of termination passed against the respondent. The order of termination also could not have been

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examined and scrutinized as such power and jurisdiction is not vested with the Labour Commissioner.” (Page: 582/583, Para: 16)

Sec. 12

Settlement – Holds the field until a new settlement between workmen and employer is entered into

¥4.641 A settlement entered between employer and workmen continues to regulate the condition of service

of the workmen covered there under, until a new lawful settlement is brought into being.

Gujarat Agricultural University v. All Gujarat Kamdar Karmachari Union, 2009 IV LLJ 382 : 2009 (123) FLR 377 : 2010 LIC 2093 : 2009 III CLR 30 : 2010 (1) SCC (L&S) 580 : 2010 AIR (SC) 2507 (S.C.2J) CAJCA 7358 with 7427-7490 of 2002 dt. 31-7-2009

“It is an admitted position that no new settlement has been entered between the employer and the workmen subsequently nor any award has replaced the settlement dated August 22, 1980. In this view of the matter, it has to be held that the settlement dated August 22, 1980 continues to regulate the conditions of service of the workmen covered thereby. The contract of service or the conditions of service provided in the settlement holds the field until new lawful settlement is brought into being. As a matter of fact, the employer was well aware of this legal position and, therefore, the daily rated labourers governed by the settlement were continued to be given only a day off in a week until the change was effected vide circular dated October 3, 1991. Thus, the Industrial Tribunal as well as the High Court cannot be said to have erred in relying upon the settlement dated August 22, 1980.” (Page: 387, Para: 20)

Sec. 12

Conciliation – Of a dispute arising out of a wage award cannot be refused on the ground of mere implementation “Manisana Award” – If faced with dispute as to higher or lower wages, conciliation officer cannot refuse to conciliate the dispute Conciliation Officer – Requires to conciliate the dispute arising out of Manisana award

¥4.642 The question is whether the ‘Manisana Wage Award’ applicable to Hindi daily newspaper

“Navbharat” under Working Journalist and Other News Paper Employees (Condition of service) and Misce. Provisions Act, 1955 is only a matter of implementation and no dispute there against could have been arisen for admission in a conciliation proceeding. The conciliation officer refused to conciliate on the ground that it is merely a questing for implementation. The High court set aside the said order and held that when there crops up a dispute as to the basic question that in which class the News paper ‘Navbharat’ falls i.e. in class II or class IV of clause 6 of the said award in the face of refusal of the company to produce ‘Balance Sheet’ etc. it takes the form of an Industrial dispute, requiring conciliation. The refusal to conciliate is therefore unsustainable. Whether the workmen are entitled for higher wages than offered by management requires to be adjudicated if conciliation fails and hence the matter was remanded to conciliation officer to admit in conciliation.

Navbharat Press Employees Union, Thane v. State of Maharashtra & Ors., 2010 II LLJ 76 : 2009 (123) FLR 1075 : 2009 IV LLN 498 : 2009 III CLR 782 (Bom.DB) WP 3340 of 2009 dt. 8-10-2009

“The dispute……….that purposed.” (Page: 82, Para: 15)

“The impugned……….with law……….” (Page: 82, Para: 18)

Sec. 12 Conciliation – Only conciliation officers as the authority and jurisdiction to arrive at a settlement and not the clerk Clerk – Of the Conciliation Officer cannot substitute the functions of arriving at a settlement between the parties during his absence

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¥4.643 The issue is whether the notings made by the clerk of Conciliation Officer purporting to be a settlement during his absence will have any authority in law. In this case during the absence of Conciliation Officer, the clerk of the said office made certain notings purported to be a settlement between the parties. The said notings which reportedly allows the workman to join duties at Head Office after unauthorized leave from the transferred place of staff house, are held to be without authority and jurisdiction because the conciliation proceedings could only be drawn up by the Conciliation Officer and sec. 12 (3) mandates that the settlement if any made has to be sent to the Appropriate Government signed by the parties to the settlement. The notings made by the clerk is therefore had no authority in law and hence could not be taken to be a settlement.

Hindalco Industries Ltd. v. Suman Lata Tuteja & Ors., 2011 III CLR 416 : 2012 II LLJ 526 : 2011 LLR 1197 (Del.HC) WP 2113 of 2000 & CM 11466 of 2011 dt. 8-9-2011

“As regards the period……….is plainly erroneous.” (Page: 420, Para: 15)

Sec. 12

Conciliation Officer – Has no power to determine whether a person is a workman or not

¥4.644 The High Court quashed and set aside the order passed by the Conciliation Officer who by an

administrative order held that the person is not a workman but a manager. Relying on the settled preposition of law laid down by the Supreme Court in the case of Telco Convoy Drivers Mazdoor Sangh (1989 (59) FLR 734), the High Court held that the Conciliation officer has exceeded his power and directed the conciliation Officer to consider the case in accordance with Law.

Bikraditya Singh @ B.D. Singh v. Civil Judge (J.D.), Shrawasti & Ors., 2009 LLR 50 (All.HC) WP 57 of 2008 dt. 15-1-2008

“I have gone……….1989 (59) FLR 734 (SC).” (Page: 51, Para: 6)

Sec. 12

Conciliation Officer – Has no power to adjudicate Adjudication – Conciliation officer has no power Complaint – Conciliation officer has no power to adjudicate and reject stating he is a contract worker

¥4.645 A complaint u/s. 2(ra) read with Schedule IV Item 10 made by workmen regarding unfair labour

practice to conciliation officer being an industrial dispute is amenable to be dealt with u/s. 12 of the Act. However, conciliation officer has no power to adjudicate on the matter stating that the so called workman being contract labour, has no locus standi to make such complaint of unfair labour practice. He can only send the report either of settlement or failure. The order of rejection of complaint was quashed with direction to take appropriate action in accordance with law.

Yad Ram v. Govt. of NCT of Delhi, 2008 (116) FLR 478 : 2007 LIC 2373 : 2008 LLR 38 (Del.HC) WP 6209 of 2006 dt. 25-5-2007

“Further more……….Bombay and another.” (Page: 483, Para: 15)

Sec.12 Amendment in object clause – Of a trade union extending area of operation to entire territory of India does not empower conciliation officer to refuse participation limiting operation within the state Trade union – Whose area of operation extends to entire territory of India does not allow

¥4.646 Where an amendment was brought in the object clause of the trade union clarifying its area of

operation extending to the entire territory of India, the first respondent, Labour and Enforcement

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Officer manifestly erred in declining to allow the petitioner union to participate in the conciliation proceedings on the basis that the area of operation was extended only to the state. Hence the said order is unsustainable in law and therefore liable to be quashed.

Krantikari Kamgar Union v. Labour & Enforcement Officer Dadra & Nagar Haveli & Ors., 2008 (6) BCR 55 (Bom.HC) WP 3197 of 2008 dt. 18-6-2008

“In the present……….the following effect.” (Page: 58, Para: 6)

“The first respondent……….territory of India.” (Page: 58, Para: 8)

“In these circumstances……….available in law.” (Page: 59, Para: 9)

Sec. 12. & Art. 226.

Quasijudicial & judicial order – Petition lies to Single judge under Bombay H.C. Appellate side Rules. Administrative Orders – Petition lies to Division Bench under Bombay H.C. Appellate Side Rules Conciliation Officer’s Order – Can be quasijudicial and not always administrative Bombay H.C. Appellate Side Rules-Explained

¥4.647 Under Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules a petition under Art.

226 and 227 lies to the Single Judge from any judicial or quasi judicial orders but if the order is of public administrative authorities, then the said petition is to be heard by the two judges and hence lies only to the Division Bench. However, all decisions of conciliation officer cannot be administrative and in some cases where he hears all parties in matters of a settlement, the petition can lie to a Single Judge as it is in the nature of quasi judicial one and not necessarily administrative order.

Akhil Dadra & Nagar Haveli Kamgar Sangh, Silvassa, Dadra & Nagar Haveli v. Krantikari Kamgar Union & Ors., 2011 III CLR 26 : 2012 III LLJ 528 : 2012 (135) FLR 8 : 2011 (6) BCR 180 : 2011 (5) Mah.LJ 88 (Bom.DB) CAJLPA 197 of 2008 in WP 3197 of 2008 with LPA 156 of 2011 in WP 6184 of 2008 & WP 5911 of 2010 dt. 28/29-6-2011

“Considering the aforesaid……….required to be set aside.” (Page: 30, Para: 12)

“Apart from aforesaid……….rightly exercised his jurisdiction.” (Page: 31, Para: 15)

Sec. 12 & Art. 226

Writ – To straight away refer a dispute pending in conciliation cannot be issued to the Appropriate Government Conciliation Proceeding – Contemplated in Sec. 12(1) to 12(6) if not exhausted no direction by means of a writ can be issued to the Appropriate Government to make a reference Reference – A direction to make by way of writ to the Appropriate Government cannot be issued pending the matter in conciliation

¥4.648 The High Court in a writ petition cannot direct the Appropriate Government to refer straight away a

dispute which is under conciliation. The Industrial Disputes Act contemplates several statutory steps to be completed before the Appropriate Government makes up its mind to make or refuse to make a reference. In this case conciliation was pending regarding the shifting of the unit and the dispute was regarding payment of certain sum for maintaining double establishment till the end of academic year. Since the procedure prescribed u/s. 12(2) to 12(6) was not completed, it is the settled position of law that the High Court cannot direct straight away the Appropriate Government to make a reference. The petition of the union to make a reference was dismissed with direction to the parties to appear before the conciliation officer.

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SPIC Pharma Employees Union (SPEU), rep. by its Vice President, Cuddalore v. State of Tamil Nadu, rep. by its Principal Secretary, Labour & Employment Department, Chennai - 600 009 & Ors., 2011 III LLJ 72 (Mad.HC) WP 22183 of 2010 & MP 1 of 2010 dt. 18-1-2011

“It is more useful……….is a premature one.” (Page: 74, Para: 8)

Sec. 33(1) (b) & Sec. 12

Conciliation – Even if an enquiry notice was only issued it is deemed to be a conciliation notice binding the employer to respect Sec. 33(1) (b) before dismissal Enquiry Notice – Issued by the Conciliation Officer includes conciliation proceeding for purposes of Sec. 33 Sec. 33(1) (b) – Attracts to even a matter in which only notice of enquiry was issued by the Conciliation Officer Conciliation Notice – Includes – Enquiry Notice

¥4.649 The workman who is the President of the Union was suspended on 9th September, 2006 and this

matter with other general demands was pending before conciliation. The said workman was later dismissed on 22nd April, 2007. The Conciliation Officer meanwhile issued notice on 30th April, 2007 for enquiry fixing the date on 10th May, 2007. The Union filed an application u/s. 33-A for violation of Sec. 33-(1) (b). The employer resisted the application on the ground that no conciliation was pending when the workman was dismissed because according to the employer the conciliation officer had issued only an “Enquiry Notice” and not “Conciliation Notice”. Rej ecting the contention, the High Court held that it is the substance of the proceedings and not the form is to be considered. Hence there was a statutory obligation u/s. 33(1) to obtain express permission from the conciliation officer and hence the order u/s. 33-A was upheld. Writ petition of the employer dismissed.

Management of Bharathan Publications (Pvt.) Ltd. Chennai v. Labour Court III, Chennai & Anr., 2009 III LLN 187 : 2009 LIC 4360 : 2009 LLR 885 (Mad.HC) WP 18954 of 2008 dt. 8-6-2009

“On the factual matrix,……….cannot be brushed aside.” (Page: 197, Para: 28)

Sec.2 (e), 12(1) &22(1)(a)

Conciliation Officer – If conciliates after a strike notice there is no error on his part Public Utility Service – Any strike notice if followed by a notice by the conciliation officer for conciliation the same cannot be faulted Strike – Notice in a public utility service can be dealt with by a notice for conciliation

¥4.650 As the employer was a public utility service the conciliation officer had set in motion the machinery

of conciliation u/s. 12(1) by notice to the employer and the union following a strike notice issued u/s. 22(1)(a). In the notice it had been directed that status quo should be maintained. Whereas the employer had suspended a few workmen and also dismissed a few others. The workmen however differed their strike. The employer however challenged the notice for conciliation. The single judge upheld the notice issued for conciliation. The employer challenged this decision before the Division Bench. Upholding the said judgment the Division Bench held that the definition of Sec. 2(e) is very wide. Sec. 12(1) of the Act authorize a conciliation officer to hold a conciliation proceeding where any industrial dispute exists or apprehended or where a dispute relates to a public utility service and a notice u/s. 22 has been given. Here the conciliation officer had not committed any error of law to interfere with. The employer was a public utility service where a dispute do exists and strike was differed following notice and hence strike is not an issue.

Pradeep Stainless Steel India (Private) Ltd. Tambaram, Chennai (represented by its Chairman B. Ramesh Chand) v. Joint Commissioner of Labour (Conciliation), Chennai, & Anr., 2009 II LLN 636 (Mad.DB) WP 1195 of 2008 & MP 1 of 2008 dt. 5-11-2008

“In the instant case……….of the present case.” (Page: 639, Para: 14)

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“In the instant case……….Sec. 22 has been given.” (Page: 640, Para: 16)

“Therefore, in a case……….Sec.12 (1) of the said Act.” (Page: 640, Para: 20)

“It is well known……….circumstances of the case.” (Page: 640, Para: 23)

Sec. 12(2)

Conciliation Officer – Has no power to adjudicate the matter Adjudication of Dispute – Could not be by the Conciliation Officer Settlement – The conciliation officer should induce by fair and amicable means without subjecting to adjudication

¥4.651 Duty of the Conciliation Officer is to induce parties to go for fair and amicable settlement and not to

adjudicate the dispute. Hence the order of the conciliation officer holding that the petitioners are not workmen was held to be perverse. Hence the impugned order was set aside and the matter was remitted back to the Conciliation Officer with a direction to send a failure report in terms of Sec. 12(2) of the Act.

S. Ramesh & Ors. v. Commissioner of Labour, DMS Complex, Chennai 6 & Ors., 2010 I LLJ 348 : 2010 LIC 638 (Mad.HC) WP 506 to 508 of 2006 & 591 to 593 of 2006 dt. 7-8-2009

“While so, the power of……….merits of the case.” (Page: 355, Para: 18)

“While the argument advanced……….petitions are closed.” (Page: 358, Para: 26)

Sec. 12(3)

Sec. 12(3)

Pleadings – If absent that death of the workman occurred due to stress at work place the causal connection as accident cannot be inferred for compassionate appointment Compassionate Appointment – Governed by settlement predisposes a situation of accident out of and in the course of employment to be property pleaded

¥4.652 When the workman who was in 3 shifts was asked to continue in the next morning shift, he did not

refuse. But after some time he collapsed and died. The question is whether his dependents are entitled to the compassionate appointment as per settlement or not. The Division Bench although held yes, the Supreme Court set aside the same on the ground that the right arises out of settlement and the settlement clause specifies that the right accrues only if death occurs due to an accident arising out of and in the course of employment. But in this case there is no pleading that the death was because of stress in the work or his work was otherwise hazardous in nature. There was neither pleading nor evidence that there is such an accident falling within the ambit of settlement.

Steel Authority of India Ltd. v. Madhusudan Das & Ors., 2009 III LLN 591 : 2009 III LLJ 54 : 2009 (122) FLR 677 : 2009 II CLR 665 : 2008 (15) SCC 560 : 2009 (2) SCC (L&S) 378 : 2009 AIR (SC) 1153 (S.C.2J) CAJCA 6159 of 2008 dt. 20-10-2008

“The averments made in the writ petition, therefore, did not suggest that any accident had taken place resulting in death of the said Bhagirathi Das. It was also not suggested that he died as a result of stress of work. It has also not been pointed out that he was employed in a hazardous job which resulted in his death.

It is true that he was asked to work in continuous shift. We are informed at the bar that the rule covering the subject is that it was upto the employee concerned to accept the offer of the management or not to accept. The management, thus, could not force him to continue to perform his duties in the morning shift. It was, therefore, necessary for the respondent No. 1 to plead in the writ petition that the death of Bhagirathi Das occurred because of stress in the work or his work was otherwise hazardous in nature.” (Page: 594, Para: 12)

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“Appellant being a State within the meaning of Article 12 of the Constitution of India, while making recruitments, it is bound to follow the rules framed by it. Appointment of a dependant of a deceased employee on compassionate ground is a matter involving policy decision. It may be a part of the service rules. In this case it would be a part of the settlement having the force of law. A Memorandum of Settlement entered into by and between the Management and the employees having regard to the provisions contained in Section 12(3) of the Industrial Disputes Act is binding both on the employer and the employee. In the event, any party thereto commits a breach of any of the provisions thereof, ordinarily, an industrial dispute is to be raised. We would, however, assume that a writ petition therefore was maintainable. It is in that sense of the term, the learned Single Judge opined that the question as to whether there has been a breach of the Memorandum of Settlement on the part of the employer or not involves a disputed question of fact. The Division Bench of the High Court, however, proceeded on the premise that the employer was bound to provide appointment on compassionate appointment in all cases involving death of an employee. The Division Bench, in our opinion, was not correct in its view.” (Page: 594, Para: 14)

Sec. 12 (3)

Settlement – A plea of – cannot be raised to thwart implementation of an award if such settlement contains no such stipulation as to nullity

¥4.653 A settlement made u/s. 12(3) of the Act in the year 2005 cannot make the award passed in the year

2000 unenforceable because, there is nothing in the settlement making a stipulation which may nullify the award. In this case it is found that the workman is not a party to the individual settlements nor he had received any payment towards full and final settlement and hence employer is bound to make payment as computed u/s. 33C(2) of the Act passed.

East India Cotton Manufacturing Company Ltd. v. Parsu Ram Singh & Anr., 2010 IV LLJ 603 : 2010 II CLR 970 (P&H.DB) LPA 744 of 2010 dt. 2-7-2010

“In the present case……….individual workers.” (Page: 608, Para: 13)

Sec. 12(3)

Settlement – When does not speak about non employment, retrenchment on the basis of settlement is illegal Termination – Of daily wagers in continuous service without complying with Sec. 25F is illegal

¥4.654 When services of 33 daily wagers, working in State Farm Corporation as Mates, Pump operators and

helpers, were terminated following a settlement u/s. 12(3) in the wake of strike by 800 workmen, the Labour Court held that the action was unsustainable for not complying with Sec. 25F of the Act. The settlement was not related to non employment, to amount to retrenchment. Therefore the corporation could not have relied on the terms of settlement to justify the termination of workmen. Hence the Division Bench upheld the award of Labour Court and set aside the judgement of Single Judge and held that if workman of an industry continuously works for more than 240 days in one calendar year and if he was retrenched from service there after without notice or notice pay, the management cannot deny the benefit under Sec. 25F on the ground of settlement. Hence Division Bench ordered to treat them on par with other workmen of the corporation for benefits.

M. Rajamanickam v. Management of State Farm Melchengam West Post N.A. District & Anr., 2010 I LLJ 54 : 2009 III LLN 831 : 2009 III CLR 230 (Mad.DB) WP 1367 to 1399 of 1998 WP 1367 of 1998 dt. 24-7-2009

“So far as the settlement………. their higher Ups in in Delhi.” (Page: 57/58, Para: 19)

“It is settled……….of the Act.” (Page: 58, Para: 20)

“The learned……….Single Judge.” (Page: 58, Para: 21)

Sec. 12(3)

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Settlement – Benefit of – accrues to future employees also Srilankan repatriates – Doing same work in spinning mills like regular, cannot be denied the benefit of settlement made u/s. 12(3) Equal pay for equal work – Srilankan repatriates entitled occupational wages with regular workmen enjoying the benefit of settlement

¥4.655 Question is whether Srilankan repatriates who are rehabilitated by providing employment in the

spinning mills are entitled to occupational wages on par with other regular workmen. Because the occupational wages came to be paid by virtue of a settlement u/s. 12(3) at a time the Srilankan repatriates were not employed. On their employment, they were denied this benefit. Their demand was conceded by Industrial Tribunal and affirmed by Single Judge. The writ appeal by management was also came to be rejected because Sec. 12(3) provides a clause for payment which entails liability to pay to future employees who may join the company subsequently. The mere fact that Srilankan repatriates get some other benefit cannot nullify their claim for the benefit of settlement especially when they also carry out the same work like other workmen enjoying the occupational wages.

Management of the Kanyakumari District Co-operative Spinning Mills Ltd. Aralvoymozhi v. Presiding Officer, Industrial Tribunal, Madras & Ors., 2009 LIC 37 (Mad.DB) WA 3246 of 2004 dt. 27-8-2008

“Mr. K.M. Ramesh……….in to service.” (Page: 40/41, Para: 14)

“In the light……….suffers dismissal.” (Page: 40/41, Para: 15)

Sec. 12(3)

Settlement – U/s. 12(3) excluding liability of PF on canteen subsidy and performance linked compensation could be enforced Canteen subsidy – A settlement excluding liability to pay EPF on it is enforceable Performance linked compensation – A settlement excluding liability to pay EPF on it is enforceable

¥4.656 A settlement arrived at before Asst. commissioner of Labour (Conciliation) u/s. 12(3) which among

others sets out canteen subsidy and performance linked compensation as being free from liability to pay PF on such payments is amenable to be enforced and binding. While settling the disputes it is legitimate for the employees to come to a settlement that certain payments shall not be reckoned for purpose of P.F. etc.

Regional Provident Fund Commissioner, T.N. & Pondicherry State Employees' Provident Fund Organisation v. Wipro Ltd. & Anr., 2009 IV LLJ 513 : 2009 II CLR 416 (Mad.DB) WP 706 of 2008 dt. 17-4-2009

“The learned……….provident fund.” (Page: 521, Para: 20)

Sec. 12(3)

Pension – Can be two, one by the corporation another from State Government Settlement – If permits pension it should be paid to all employees including transferees from state transport department no matter they are also entitled Government pension for service rendered in Government

¥4.657 A cutoff date for absorption of the employees of erstwhile transport department transferred to the

transport corporation has since been fixed as 1st April 1982 by the Supreme Court. There after the Transport corporation by a settlement u/s. 12(3) of the Act, fixed the pension payable to corporation employees. It is contended that the transferee employees will get only one pension that is pension fixed by State Government as per eligibility and if that is the case they are not eligible to pension fixed by the corporation. Turning down the same the Division Bench, upheld the decision of Single Judge that the pension fixed till absorption by State Government is different than that paid by corporation for service rendered. One is paid by consolidated fund and the other is from the resources generated by the

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corporation and bound by settlement u/s. 12(3) of the Act. Hence it cannot be said employee is being paid two pensions. The appeal against, was dismissed.

Government of Tamil Nadu (represented by its Commissioner & Secretary to Government (Transports) Department), Chennai, & Ors. v. Tamil Nadu Government Transport Retired Employees Welfare Association (represented by its General Secretary, Sri. M. Rajagopal), & Ors., 2008 II LLN 216 (Mad.DB) WA 111-113 of 2007 dt. 9-1-2008

“If the argument……….27 May 2005.” (Page: 223, Para: 13)

“There is a……….Rules.” (Page: 223/224, Para: 14)

Sec. 12(3)

Legitimate expectation – Include – Providing seniority while absorbing the contract workmen Seniority – Provision of while absorbing contract workmen is sine qua non Settlement – Made for absorption without any consideration to seniority is hit by Art 14 and 16 of the constitution Absorption – Should be as per seniority no matter settlement did not include it

¥4.658 A settlement for absorption of contract workmen organized as a registered union working with no

difference in their work with that of regular workm en without any consideration for the seniority is deemed to be against the principles of legitimate expectation and also hit by article 14 and 16 of the constitution in as much as the right to seek seniority has fructified as an acquired right. The Division Bench upheld the judgement of single judge that absorption of workmen should take into account the seniority of all workmen including contract workmen according to the eligibility. Seniority is to be given by the date of entry into service as per labour laws (last come first go) on a reasonable basis. The absorption contemplated as per settlement without any consideration to seniority by which contract employees were hit, was rejected. Appeal of employer was dismissed.

Neyveli Lignite Corporation Ltd., rep. by its Chairman, Neyveli & Ors. v. N.L.C. Indco Serve Thozhilalar Uzhiyear Sangam, rep. by its President K. Paramasivam, Neyveli & Ors., 2008 II LLJ 897 : 2008 (118) FLR 731 : 2008 II LLN 530 : 2008 II CLR 717 (Mad.DB) WA 2045 & 2529 of 2002 & MP 3458 & 4266 of 2002 & 4190 of 2003 & WVMP 2149 of 2003 MP 2458 of 2002 dt. 16-2-2008

“The Hon. Supreme Court……….ignore the settlement.” (Page: 904, Para: 23)

“We have given……….the establishment.” (Page: 904, Para: 27)

“When the……….seniority to their.” (Page: 905, Para: 31)

“No doubt……….valid.” (Page: 905, Para: 32)

“Concededly, in this case……….determine the seniority.” (Page: 906, Para: 36)

Sec. 12(3)

Settlement – If results in lump sum wage payment merely for reason of mentioning as adhoc it will not alter the character of basic wage Lump sum payment – Made after a settlement named as adhoc still qualify for contribution to PF being basic wages Basic Wages – Includes – Payment made by settlement though named as adhoc

¥4.659 When a wage settlement between the workmen and management, interalia results in lump sum

payment and for subsequent years the monthly payments for all employees are paid, the wages so settled will qualify for contribution to PF no matter, the settlement has stated that these are adhoc lump sum payments. The commissioner RPFC can proceed to demand contribution u/s. 7A against the amount paid

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pursuant such settlements as its character as basic wages is not altered, no matter it is named as ‘adhoc’ payments.

Dalmia Cement (Bharat), Ltd. v. Regional Provident Fund Commissioner, Trichirapalli, 2008 IV LLN 314 : 2009 I LLJ 257 : 2008 (119) FLR 635 (Mad.DB) WA 1500 of 2005 & WAMP 2780 of 2005 dt. 8-9-2008

“The workmen……….10th May, 1989.” (Page: 319, Para: 15)

Sec. 12 (3)

Settlement – U/s. 12(3) is sacrosanct and cannot be nullified by any party in a self-serving manner or unilateral fashion unless obtained by fraud Section 12(3) – A settlement arrived at cannot be nullified by any party in a self serving manner

¥4.660 Employer and workman entered into a settlement u/s. 12(3) of the Act for reinstatement with

continuity of service and back wages. But the employer didn’t implement the settlement and the workman did not get the benefits under it and she prayed in this petition for a writ of mandamus to implement the settlement. The High Court held that the Settlement u/s. 12(3) is sacrosanct and cannot be nullified by any party in a self-serving manner or unilateral fashion unless obtained by fraud. The High Court allowed the petition directing the employer to scrupulously implement the settlement.

Valliammal v. Block Development Officer & Ors., 2010 IV LLJ 383 : 2010 (125) FLR 175 : 2010 I LLN 593 : 2010 I CLR 663 : 2010 LLR 402 (Mad.HC) WP 35672 of 2003 dt. 4-2-2010

“In Law, Sec. 12 (3)……….has signed.” (Page: 384, Para: 7)

Sec. 12(3)

Government Letter – Will have no impact on the settlement seeking to change or modify Settlement – Will survive despite government letter seeking to alter change or modify Modification – Of a settlement by government letter is not possible only by a new settlement being the dictum of law

¥4.661 The question is whether the government can seek modification or change through a letter issued by

Secretary to the government a mutual settlement arrived at u/s. 12(3) of the Act. The High Court held that such letter will have no legal impact on the settlement reached between the parties unless and otherwise a new settlement was arrived at modifying or replacing the terms of earlier settlement.

Management of the Coimbatore District Central Co-operative Bank Ltd. Coimbatore v. Joint Commissioner of Labour/Appellate Authority, under payment of Gratuity Act Coimbatore & Anr., 2010 III LLN 412 : 2010 LIC 2449 (Mad.HC) WP 38830 of 2003 with 5546 & 5547 of 2004 dt. 30-3-2010

“Firstly……….parties.” (Page: 415, Para: 12)

“……….therefore……….settlement……….” (Page: 416, Para: 15)

Sec. 12(3) Payment of Gratuity Act – Sec. 4 is not an embargo for better benefits by a settlement Settlement – If it is better will prevail over the provisions of Payment of Gratuity Act

¥4.662 Since Sec. 4 of the Payment of Gratuity Act would not affect a right of an employee to receive better

terms of gratuity under an award or agreement or contract with the employer, the management and the workman can enter in to an agreement for better terms of gratuity beyond the scope of the Payment of Gratuity Act, 1972. Hence the High Court held that the settlement made will survive the statutory provisions regarding length of service on one hand and notice of change given u/s. 9A of the Industrial Disputes Act on the other.

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Management of the Coimbatore District Central Co-operative Bank Ltd. Coimbatore v. Joint Commissioner of Labour/Appellate Authority, under payment of Gratuity Act Coimbatore & Anr., 2010 III LLN 412 : 2010 LIC 2449 (Mad.HC) WP 38830 of 2003 with 5546 & 5547 of 2004 dt. 30-3-2010

“Payment of gratuity……….of Tamil Nadu.” (Page: 414, Para: 7)

Sec. 12(3)

Settlement – Regarding non recovery from conductor for loss of bag containing tickets due to theft if in force the employer cannot resort to recovery for theft Conductor – Even if loses the bag containing tickets recovery from his pay the value of the tickets will be in derogation of the settlement if it prohibits the same Theft – Of ticket bag of the conductor will not render the conductor to penal action if a settlement is in force against such recovery binding the employer to comply with Ticket Bag – Even if lost by the conductor due to theft it still insulates him from any action if a settlement there against is in force u/s. 12(3)

¥4.663 There was an existing settlement between the workmen and the employer to the effect that in case of

loss of ticket bag due to theft, riot, accident etc. no recovery shall be initiated against the conductors. But in this case the conductor lost his ticket bag kept in dash board due to theft resulting loss of tickets to the tune of ̀ 10,187, though there was no actual loss of money. The employer despite the settlement resorted to recovery from his pay an amount of ̀ 10,187. The workman challenged the same in a writ petition. The High Court setting aside the recovery directed the employer to refund the same immediately because the recovery was specifically in violation of the existing settlement between the workmen and employer and hence not sustainable.

N. Palanisamy v. General Manager, T.N. State Transport Corporation (Coimbatore Division-II) Ltd., 2010 LIC 1517 (Mad.HC) WP 8295 of 2003 dt. 4-1-2010

“It is to be……….of this Court.” (Page: 1519, Para: 9)

“On a careful……….without costs.” (Page: 1519, Para: 12)

Sec. 12 (3)

Majority Union – Enjoys the right to discuss and negotiate the settlement with employer to the exclusion of the minority union Minority Union – Has no exclusive right to challenge the settlement entered into with majority union by the employer while there is no dispute pending Settlement – Made u/s. 12 (3) with the majority union is not liable to be challenged by the minority union Dispute – If not pending in conciliation or in tribunal a settlement made u/s. 12(3) with majority union is not liable to be challenged by the minority union

¥4.664 The employer and the majority union have entered into a settlement u/s. 12(3) of the Act. The

minority union which had raised similar dispute which had resulted in failure and the failure report having reached the Appropriate Government, has now challenged in a writ petition the settlement made u/s. 12(3) with the majority union. Dismissing the writ petition, the High Court held that it is well settled by the judgement of the Apex Court in the case of Chairman S.B.I & Anr. v. All Orissa State Bank Officers Association & Ors., (2003 III LLJ 751) that right to participate in dis cussions/ negotiations regarding general issues affecting all employees and settlement, if any arrived at as a result of such discussions/negotiations which is binding on all employees is available only to a majority union. In this case there were no proceedings pending before conciliation and hence there is no locus standi to challenge the settlement entered into with majority union by the minority union at all.

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All India Punjab National Bank Workers Federation v. Punjab National Bank, 2010 III LLJ 207 (Del.HC) WP (C) 11988 of 2009 dt. 8-10-2009

“Section 18 extracted ………. majority union of workers.” (Page: 208, Para: 4)

Sec. 12 (3)

Settlement – Cannot be annulled by invoking the general powers under T.N. Co-op. Soc. Act and Rules except by a challenge before an appropriate forum Bank – Entering into a settlement later cannot violate it unless in accordance with law

¥4.665 Once the settlement regarding the pay scales of the employees of the bank have been fixed then the

same cannot be revised unilaterally to the detriment of the workmen by invoking the general powers under T.N. Co-op. Soc. Act and Rules as it is not open to the bank to nullify the concluded settlement and to recover the salary paid to such employees. Hence the High Court held that the only course open to the employer was to challenge the validity of settlement, if it so desires, before the appropriate forum in the manner known to law.

H.T. Natarajan & Ors., v. Joint Registrar of Co-operative Societies, Nilgiris District, & Ors., 2010 I LLN 255 (Mad.HC)

“In the present case, it is……….order has been passed.” (Page: 257, Para: 10)

“In such circumstances……….manner known to law.” (Page: 257, Para: 11)

Sec. 9-A & 12 (3)

Settlement – U/s. 12(3) if clearly states that it would be applicable until it is altered, then it cannot be modified unless changed by new settlement Condition of Service – A notice u/s. 9A even if issued altering the specific clause in the settlement it will not change the said clause unless a new settlement replacing the clause was mutually arrived at Sec. 9A – Has no role to replace an existing settlement mutually arrived at within the meaning of Sec. 12(3) Sec. 12(3) – A settlement arrived at can only be replaced by a fresh settlement and not by notice u/s. 9A

¥4.666 If a settlement arrived at u/s. 12(3) is still in force without change made in subsequent settlements

regarding reckoning a month to be 26 days for calculating the length of service for purposes of gratuity, then can the employer change the same merely by issuing a notice u/s. 9A of the Act is issue in point. It was held relying on the judgement in the case of Life Insurance Corporation of India v. D.J. Bahadur & Ors., 1980 II LLN 575 even after notice u/s. 9A putting the employees on notice the intention of the employer to terminate a particular clause in the said settlement, it remains validly operative till the same is replaced by a fresh settlement. In this case no mutual settlement replacing the earlier settlement was arrived at u/s. 12(3) of Industrial Disputes Act varying or modifying the specific clause of the erstwhile settlement arrived at between the parties. Hence 26 days for reckoning a month to calculate the length of service for quantifying gratuity cannot be faulted.

Management of the Coimbatore District Central Co-operative Bank Ltd. Coimbatore v. Joint Commissioner of Labour/Appellate Authority, under payment of Gratuity Act Coimbatore & Anr., 2010 III LLN 412 : 2010 LIC 2449 (Mad.HC) WP 38830 of 2003 with 5546 & 5547 of 2004 dt. 30-3-2010

“The learned counsel……….survive for consideration.” (Page: 414, Para: 6)

“Firstly……….parties.” (Page: 415, Para: 12)

“In this context……….settlement.” (Page: 415, Para: 13)

Sec. 10 and 12(3)

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Settlement – Between employer and union if a package deal waiving certain rights agreed by the union not to raise an industrial dispute on unsettled points a reference on those points not allowed Reference – On the disputed points forsaken by the union in coming to an agreed settlement is inadmissible even when the settlement is still in force Undertaking – By the union before settlement to forsake certain unsettled disputes does not allow it to rekindle in the form of a reference when the settlement is in force

¥4.667 Where the union had given a categorical undertaking that all the pending demands were settled in

the settlement arrived between them and the employer and the said settlement was still in force, the union could not be held entitled to seek a reference of the same dispute which was pending when such categorical undertaking was given because the said dispute is part of the amicable settlement precluding the union to differ from it now so as to seek a reference even when that settlement arrived between the parties was still in force.

Chemplast Employees Union rep. by its Secretary v. Government of Tamil Nadu rep. by its Secretary Labour & Employment Department & Anr., 2010 II LLJ 824 : 2010 (124) FLR 384 : 2010 I LLN 305 : 2009 III CLR 926 : 2010 LLR 158 (Mad.HC) WP 11290 of 2000 dt. 27-10-2009

“Similar provisions……….still in force.” (Page: 825, Para: 9)

“The dispute……….justified.” (Page: 826, Para: 10)

Sec. 12 (3) & 18(3)

Settlement – Though to be held valid while implementing due regard to be shown to the loss if any suffered by the employer Loss – Suffered by the employer be given due weightage while implementing a settlement even if arrived while on conciliation Conciliation – A settlement arrived at though binding on the parties and all others the loss suffered if any by the employer cannot be ignored while implementing Back wages – not payable separately if the employer had already paid huge compensation as one time settlement

¥4.668 An employer is though bound by the Settlement arrived between him and workmen for

absorption/reinstatement but the fact that the employer also suffered huge loss cannot be ignored. Hence the undertaking by the employer to accommodate them as and when the necessity arises was accepted by the High Court. The High Court quashed the award of Labour Court for paying 50% back wages because the employer had already paid huge compensation as one time settlement.

Management of M/S Micropack Ltd, Anekal Taluk, Bangalore v. Jigani Industrial Area Workers' Union, Bangalore, 2010 (125) FLR 967 (Karn.HC) WP 8093 & 9753 to 9769 of 2009 dt. 10-8-2009

“As per the contention……….to deprive their right.” (Page: 971, Para: 13)

“Insofar as payment of……….other contract labourers.” (Page: 971, Para: 14)

Sec. 33C(2) & 12(3)

Limitation Act – Is not applicable to the application made to labour court invoking Sec. 33C(2) Sec. 33C(2) – Does not prescribed any time limit for preferring an application to labour court Settlement – U/s. 12(3) if not complied with the workmen can lawfully approach the forum u/s. 33C(2) Less Production – Disentitling the workmen for incentives as per settlement if set up evidence is to be adduced by the employer to repel the claim by the workmen

¥4.669 The workmen approached the labour court u/s. 33C(2) for the benefit of production incentive as a

envisaged in the settlement made u/s. 12(3). The Labour court allowed the application. The employer

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challenged the same before the Hgh Court stating among others that the application was belated being made after a period of 4 years and the workmen did not meet the level of production in terms of the settlement. Rejecting the contention of the employer the High Court held that the u/s. 33C(2) no limitation is prescribed for making an application and hence the employer cannot import the concept of Limitation Act or apply Art. 137 of the Limitation Act 1963. The employer failed to prove with documentary or other evidence that the level of production was less than that prescribe in the terms of settlement. Hence the High Court upheld the award entitling the incentives @ of ̀ 7680 per applicant (325 applicants).

Bhartiya Cutter Hammer Ltd. v. Presiding Officer, Labour Court-II, Faridabad & Ors., 2010 IV LLJ 645 : 2010 (127) FLR 1086 : 2010 II CLR 979 : 2010 LIC 4338 (P&H.HC) CWP 9478 of 2009 dt. 30-6-2010

“As regards the contention……….limitation or laches.” (Page: 648, Para: 7)

Sec. 12(3) & 36A

Writ Petition – Is not maintainable – Against reduction in variable DA in terms of a settlement u/s. 12(3) when alternative remedy u/s. 36A exists Sec. 36A – Is to be resorted to for interpretation of a settlement u/s.12(3) rather than writ petition Settlement – Interpretation as to the recovery of dearness allowance in terms thereof rests before the labour court u/s. 36A and not in a writ petition Interpretation – Of a settlement u/s.12(3) regarding recovery of DA efficaciously rests in a tribunal u/s. 36A rather than in a writ petition

¥4.670 A dispute arising out of recovery of variable dearness allowance linked to Consumer Price Index was

contested in a writ petition. The Single Judge decided the matter on merit against the workmen. The same was challenged before the Division Bench. The Division Bench held that the dispute arises out of interpretation of the provisions of a settlement arrived at u/s. 12(3) and there is efficacious alternative remedy u/s. 36A of the Act which should have been resorted to by the workmen. Setting aside the order of the single judge the matter was directed to be referred by the Appropriate Government to the labour court / tribunal for removing difficulties.

Tamilnadu Pokkuvarathu Kazhaga Thozhilalar Nala Sangam, rep. by its President A. Yoganman v. State of Tamil Nadu rep. by its Secretary to Government, Transport Department, Chennai, 2011 II LLJ 553 : 2011 (128) FLR 688 : 2011 I LLN 611 : 2011 I CLR 223 (Mad.DB) WA 1941 & 1942 of 2001 & WAMP 5218 & 5219 of 2002 dt. 8-12- 2010

“If there is breach……….of filing a writ petition.” (Page: 556, Para: 13)

“For the foregoing reasons……….36A of the Act.” (Page: 556, Para: 15)

Sec. 12(3) I.D. Act, Rule 97 to 102 of Factories Act & Sec. 4 of Information Technology Act

Settlement – Signed u/s. 12(3) will prevail for TAS being binding on the union Time Attendance System – Introduced if in accordance with settlement u/s. 12(3) it cannot be called into question by the union on the basis of Factories Act Information Technology Act – Sec. 4 allows maintenance of records in electronic forms with a due legal recognition Chief Inspector of Factory – Can grant exemption in respect of provisions contained under Rules 97 to 102 subject to conditions

¥4.671 The bone of contention was the introduction of the computerized Time Attendance System in place of

Optional Lock System maintained in the factory by the employer. As the inspector of factory took no action the union filed a writ petition against TAS. The High Court held that the union had signed a settlement u/s. 12(3) in which they had agreed for introduction of TAS system of attendance. Secondly Sec. 4 of the Information Technology Act grants legal recognition of electronic records. Hence it cannot be said that the action was illegal and without authority. Hence the petition was dismissed.

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Hindustan Unilever Employees' Union, Pondicherry v. Inspector of Factories, Pondicherry & Ors., 2010 IV LLJ 756 : 2010 (127) FLR 585 : 2010 II CLR 756 : 2010 LLR 878 (Mad.HC) WP 20876 of 2009 & MP 1 of 2009 dt. 8- 6-2010

“It must be noted……….the same.” (Page: 758, Para: 12)

Sec. 12(3)

Settlement – Implementation should be as per its objective

¥4.672 The employer made a settlement whereby an opportunity was provided to the dismissed workmen to

get back their jobs subject to fulfillment of attendance of 240 musters in two calendar years or 200 musters in four calendar years during the period of 5 years previous to the date of their termination. The workman, in the instant case was denied employment by reading into the words in the settlement prejudicial to the object of the settlement itself. Upon challenge the High Court examined the disputed question and found that the workman had put in 152 musters in the year 1993, 185 musters in the year 1994, 121 musters in 1995, 11 musters in 1996 and nil musters in 1997. Since the attendance was in conformity with settlement and the object was to avoid hardship to the workmen, dismissed for absenteeism, the refusal of the employer to provide employment was held arbitrary and illegal and direction was issued to consider his reappointment.

Nallamalla Prabhakar Rao v. Singareni Collieries Co. Ltd., Kothagudem & Ors., 2009 (120) FLR 412 (AP.HC) WP 10686 of 2005 dt. 14-8-2008

“As per the……….in the affirmative.” (Page: 418, Para: 18)

Sec. 12(3)

Reference – If the claim was not patently frivolous cannot be refused by the Appropriate Government Appropriate Government – Cannot refuse to make a reference unless the claim is patently frivolous Administrative function – In exercise of refusal to make a reference unless patently frivolous amounts to adjudication for which the Appropriate Government has no power

¥4.673 The Appropriate Government refused to make a reference on the dispute that the minimum benefit

under VRS was given to the workers of the quarry only ` 1 lakh whereas for staff was given ` 1.5 lakhs and the extended benefit was paid from 22.2.2004 instead of 30.7.2002 as paid to clerical staff. In terms of G.O. of the State Government. The reason advanced was that the G.O. of the State Government was not applicable to the worker category of the quarry and the order of the State Government was applicable only to those drawing pay in the time scale of ` 2550-3200. The union challenged the order before High Court which held the decision of the Appropriate Government amounts to an adjudication on the issue which was not within the purview while exercising its administrative function u/s. 12(5) of the Act, after all the claim of the workman prima facie not patently frivolous.

Salem Mavatta Kanima Niruvana Uzhiyar Sangam & Anr. v. Union of India, rep. by its Secretary to Government, Ministry of Labour, New Delhi & Ors., 2009 IV LLN 330 : 2010 LIC 784 : 2009 III CLR 501 (Mad.HC) WP 20435 of 2003 & 37484 of 2007 dt. 7-8-2009

“In respect of……….has been paid.” (Page: 334, Para: 14)

“On record it……….with necessary directions.” (Page: 335, Para: 15)

Sec. 12 (3), 33(1)

Settlement – Made u/s. 12(3) is binding on the parties unilateral revocation is hit by Sec. 33 Conciliation – A settlement made cannot be revoked without the approval u/s. 33

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¥4.674 When a settlement between the employer and the workmen’s union was arrived at in conciliation u/s. 12 (3) with a mandate to maintain status quo, the employer cannot revoke the same without the permission of the competent Court unilaterally by putting some of the workman under suspension and transfer to distant places in violation of Sec. 33 of the Act. The action of the employer following 39 days of strike by the workmen was hit by Sec. 33.The order of suspension and subsequent transfers were set aside.

A. Hanumantha Prasad & Ors. v. Coal Mines Provident Fund Organization, Dhanbad & Anr., 2009 LIC 96 : 2009 II CLR 237 (AP.HC) WP 14015 of 2008 dt. 4-9-2008

“Once the settlement……….Section 33 of the Act.” (Page: 100, Para: 12)

Sec. 12 (3) Settlement u/s. 12(3) – Entered by a Co-operative Society with its employees requires approval by the authorities of co-operative department for implementation Co-operative Society – In its settlement with its employees cannot implement the same without approval by the co- operative department authorities Larger Bench – Of Madras High Court has settled the matter regarding approval to be given to a settlement made with employees with co-operative society from co-operative department

¥4.675 Petitioner Co-operative Society entered into a settlement u/s. 12(3) of the Act regarding the payment

of wages to its employees which was refused to be implemented by the Co-operative Department authorities by questioning the action of the then board of directors entering into the settlement. Therefore the present petition filed by the Society seeking direction to the authority not to interfere with the settlement was dismissed by the High Court holding that the prayer in the writ petition being misconceived in the light of Larger Bench decision in K. Marappan v. Dist. Registrar of the Cooperative Societies, Namakkal, is not maintainable.

Thedavoor Primary Agricultural Bank Ltd. rep. by its President T.A. Thangavelu, Salem District v. Registrar of Co- operative Societies, Chennai & Ors., 2008 I LLJ 577 : 2008 (116) FLR 974 (Mad.HC) WP 11877 of 1998 dt. 31-10- 2007

“The prayer in……….is not maintainable.” (Page: 578, Para: 3)

Sec. 12(4) and 10(1)

Appropriate Government – while making the reference shall take into consideration not only the failure report but also all the documents accompanying it Reference – Based on the bare failure report not applying the mind reflecting on the case under conciliation as a whole is to be set aside Application of mind – While making a reference not merely on failure report but on the whole lot of the documents of conciliation is called for to be valid

¥4.676 The Appropriate Government has to consider not only the failure report but all the documents

accompanying it and together constituting full report of the conciliation officer in view of Sec. 12(4) of the Act before making reference and where the Central Government has not considered any material regarding contractual nature of work etc except the bare failure report which failed to reflect the case of the Corporation, such order of reference is vitiated for the gross non application of mind and hence it is to be set aside and Government is made free to make proper reference according to law.

Indian Oil Corporation Ltd. v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court & Ors., 2008 III LLJ 241 : 2008 (117) FLR 947 : 2009 I CLR 213 (Cal.HC) WP 1414 of 2005 dt. 17-9-2007

“Here I find ……….the conciliation officer.” (Page: 244, Para: 8)

293

“I fully agree ……….cannot be sustained.” (Page: 244, Para: 9)

Sec. 12(4) & 18(3)

Conciliation Officer – Has jurisdiction only to arrive at a settlement or send a failure report with no power to adjudicate on a charter of demand Trade Union – If both submits charter of demands the Conciliation Officer cannot treat the bipartite settlement u/s. 18(1) as made u/s. 18(3) to bind by means of tripartite settlement Bipartite Settlement – Made u/s. 18(1) cannot be treated by the Conciliation Officer as made u/s. 18(3) to bind the other union directing the settlement to be tripartite Adjudication – Excludes – Conciliation

¥4.677 The two trade unions raised charter of demands with the employer. The said General demands were

seized in conciliation. The Conciliation Officer accepted the bipartite settlement made u/s. 18(1) read with Sec. 2(p) of one of the unions and treated the settlement as if made u/s. 18(3) of the Act. The Conciliation Officer has further directed that this bipartite settlement will be considered as a tripartite settlement and will bind all workmen. Taking exception to the direction the High Court held that the Conciliation Officer has erred in adjudicating the issue holding the settlement between the employer and another union as fair and proper as the workmen benefited financially. By doing so the Conciliation Officer transgressed the province or jurisdiction vested in Industrial Tribunal. His duty is either recording a settlement or sending a failure report. The direction holding a tripartite settlement was set aside.

Vidyut Metalics Employees Union, Thane v. Vidyut Metalics Pvt. Ltd., Thane & Ors., 2011 (131) FLR 319 : 2012 I LLJ 592 : 2011 V LLN 152 : 2011 III CLR 481 : 2011 LLR 1262 (Bom.DB) CAJWP 3738 of 2011 dt. 5-9-2011

“We have heard……….for such failure.” (Page: 321, Para: 8)

“In the present case……….of the petitioner.” (Page: 321, Para: 9)

“Apart from this……….under I.D.Act.” (Page: 321, Para: 10)

Sec. 12 (4) & 33C(2)

Conciliation Officer – Cannot direct the workman to approach labour court u/s. 33C (2) instead of furnishing a failure report to the Government

¥4.678 On failure of Conciliation Proceedings, it is the duty of Conciliation Officer to send report to

Government for reference to Labour Court but in this case the Conciliation Officer directed the appellant to move to the Labour Court invoking Sec. 33C(2) of the Act for the claim of payment of arrears. The Division Bench in appeal held that the direction given by the Conciliation Officer is in contravention of mandatory procedure. Hence the direction was issued to Government to consider the report of Conciliation Officer and take action within a fixed time.

Y.K. Kumaraswamy v. Secretary to Govt., Dept. of Labour, Bangalore & Anr., 2010 III LLN 242 : 2010 LIC 2624 (Karn.DB) WA 3689 of 2005 dt. 30-7-2009

“On perusal of this Section……….Section 33C(2) of the Act.” (Page: 243, Para: 7)

Sec. 12(4) & 12(5)

Reference – The Appropriate Government has no power to refuse to make a reference without cogent reasons Appropriate Government – Cannot adjudicate on a dispute before refusing to make a reference Adjudication – The Appropriate Government has none while making or refusing to make a reference of a dispute

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¥4.679 The Appropriate Government refused to make a reference u/s. 12(5) on receiving failure report u/s. 12(4) on the ground that the workmen themselves had absented from duty and left the services and hence there was no justification in their demand notice. The demand notice was regarding illegal termination or refusal to allow them to join their duties. They had put up around 3 years of service. The High Court upon challenge held that the Appropriate Government had illegally negatived the claim of the workmen and assumed the power and jurisdiction of the industrial tribunal and labour court and decided the factual matrix and law point. The impugned order of the Appropriate Government was quashed with direction to refer the dispute to the competent court.

Kartar Singh & Ors. v. Joint Secretary to Government of Haryana & Ors., 2011 (129) FLR 906 : 2011 IV LLJ 84 : 2011 II CLR 754 : 2011 LLR 859 (P&H.HC) CWP 18185, 18188 & 18198 of 1991 dt, 28-1-2011

“Therefore, it is held……….circumstances of the case.” (Page: 911, Para: 19)

Sec. 12(4) 12(5) & 33C(2)

Conciliation Officer – Cannot direct the workman to seek the forum u/s. 33C(2) of the Act rather than conciliating and sending appropriate report Failure Report – The conciliation officer has to send if conciliation failed not to direct the workman to resort to forum u/s. 33C(2) of the Acts

¥4.680 The conciliation officer exceeding his powers directed the workman to approach the forum u/s.

33C(2) of the Act though his claim was for reinstatement against illegal termination and arrears of pay. His contest before the single judge failed. Whereas, the Division Bench setting aside the order of the single judge and the conciliation officer held that u/s. 12(4) of the Act the duty is cast upon him to send a report to the Appropriate Government and not to give any direction. Hence in this case directions were given to the Appropriate Government to consider the report of the conciliation officer for a reference u/s. 12(5) of the Act.

Y.K. Kumaraswamy v. Secretary to Govt., Dept. of Labour, Bangalore & Anr., 2010 III LLN 242 : 2010 LIC 2624 (Karn.DB) WA 3689 of 2005 dt. 30-7-2009

“On perusal of this Section……….Section 33 (c) (2) of the Act.” (Page: 243, Para: 7)

“Therefore, we are of the opinion……….learned Single Judge is to be set aside.” (Page: 243, Para: 8)

“In the result, the petition……….the date of receipt of the copy of this order.” (Page: 243, Para 9)

Sec. 12(5)

Sec. 12(5)

Reference – Rejection of should be based on reasons germane to the issue otherwise Appropriate Government has to reconsider its position Permanency – Is not automatic to setting aside the termination

¥4.681 The termination of the workman was set aside by the High Court against which the employer

approached Supreme Court. The Supreme Court while upholding the judgment of High Court however restrained into embarking into granting automatic permanency which depends on various factors which are to be examined by the employer and direction was given accordingly. But the employer refused to grant permanency though workman had put up more than 20 years of service. Conciliation failed. Appropriate Government refused to refer the matter for adjudication. This is the bone of contention. The Division Bench held that the reasons stated by Appropriate Government is not germane in which it was stated that the Supreme Court has decided this issue already. But the Division Bench noticed that the Supreme Court in fact directed the employer to consider the case and not decided. Hence the matter was referred back to Appropriate Government to reconsider the case of rejection to make a reference.

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Ashok Raghoba Ambre v. Union of India & Ors., 2010 II LLJ 403 : 2010 (126) FLR 23 : 2010 I CLR 85 (Bom.DB) CAJWP 7929 of 2009 dt. 16-11-2009

“It is this order……….Supreme Court.” (Page: 405, Para: 7)

“We have earlier……….subsist……….” (Page: 405, Para: 8)

Sec. 12(5)

Appropriate Government – Cannot adjudicate a matter while refusing to refer Reference – Appropriate Government cannot refuse to refer the matter by giving such reasons amounting to adjudication Adjudication – The Appropriate Government cannot while refusing to refer a matter

¥4.682 A failure report from conciliation officer, normally results in a reference by the Appropriate

Government as a matter of rule. While refusing to refer, it is required to give reasons. If the reasons are adjudicatory in nature, clearly the Appropriate Government exceeds its jurisdiction despite being purely an administrative authority. Hence, the Division Bench directed the Central Government to refer the matter because it gave reason for refusal that the workmen were contract workers and are engaged to maintain a garden owned by municipal corporation but given to maintain by Coal India and hence this reasoning amounted to adjudication. The Division Bench hence directed the Appropriate Government to refer the matter, reversing the decision of Single Judge who had held otherwise.

Manmatha Kumar Jena & Ors. v. Union of India & Ors., 2010 II LLJ 254 : 2009 (123) FLR 849 : 2010 I LLN 455 : 2009 LIC 4010 : 2010 I CLR 253 : 2010 LLR 78 (Cal.DB) MAT 120 of 2008 dt. 31-7-2009

“It appears from……….has been rejected.” (Page: 257, Para: 15)

“According……….above manner.” (Page: 257, Para: 16)

“We direct……….before us……….” (Page: 257, Para: 18)

Sec. 10 & 18(3)

Settlement – This conciliation resolves the dispute of reinstatement with full back wages by way of payment of legal dues or compensation, the same dispute even if raised appropriate government rightly refuse to make a reference Appropriate Government – Can refuse to make a reference or a second reference on same issue if it notices resolution of the same in a settlement u/s. 12(5) read with Sec. 2(p) Reference – Appropriate government can refuse to make if the dispute is already settled in conciliation

¥4.683 When a complaint filed under individual workmen were settled by a settlement u/s. 2(p) in

conciliation before assistant Labour commissioner for labour where by all of them accepted the legal dues/compensation, it is reasonable for the appropriate government to refuse to make a reference on the same settled matter i.e. Reinstatement along with full back wages. The appropriate government is also within its right to refuse to make a second reference on the same dispute even if raised this time by their union. Hence if the reasons given are germane bona fide adequate and not arbitrary and the decision taken is not adjudicatory in nature the refusal to make a reference cannot be interfered in a writ jurisdiction.

Pune Labour Union v. State of Maharashtra & Ors., 2010 II LLJ 376 : 2010 (124) FLR 630 : 2010 II LLN 503 : 2010 I CLR 72 : 2010 (1) Mah.LJ 806 (Bom.DB) WP 473 of 2006 dt. 13-11-2009

“As noted earlier……….workmen and the employer.” (Page: 378, Para: 8)

“In the instant case……….that burden.” (Page: 379, Para: 12)

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Sec. 10 & 12(5)

Industrial Dispute – Includes – A dispute as to creation of post and promotional issues Creation of Post & Promotional Disputes – Do take the colour of an industrial dispute for a reference Referral Stage – The Appropriate Government cannot take a decision not to refer the industrial dispute Appropriate Government – Cannot refuse to refer the dispute for creation of post and promotional matter

¥4.684 The Appropriate Government cannot make any decision on merit not to make a reference at referral

stage especially because item no. 6 of second schedule envisages that all matters other than those specified in the third schedule are industrial disputes sought to be referred. The Appropriate Government cannot usurp the function of the Tribunal to reject the dispute at referral stage without assigning proper reason as provided u/s. 12(5) of the Act. Even a dispute as to creation of post and promotion requires to be referred to Tribunal for adjudication being not outside the second schedule or covered by third schedule to the Act. The Division Bench hence directed the State Government to look afresh into the matter to take a decision as per law.

Dhenkanal Mehentar Sangha v. State of Orissa & Ors., 2009 III LLJ 86 (Ori.DB) OJC 4795 of 1995 dt. 12-12-2008

Sec. 12(5)

Reference – Of a dispute cannot be rejected on merit by the Appropriate Government Appropriate Government – Cannot reject a reference of a dispute for sufficiency of evidence Evidence – Sufficiency or otherwise the Appropriate Government, cannot enter into before making or refusing a reference Administrative Function – Does the Appropriate Government exercises, while making or refusing to make a reference

¥4.685 The Appropriate Government intimated its inability to refer the dispute of termination for

adjudication for the reason that the employee failed to prove that he is a workman, though two documents were produced by him. The Division Bench setting aside the order of rejection held that the order was perverse because the Appropriate Government cannot enter into the sufficiency or otherwise of the evidence on merit while exercising the administrative functions. The matter was referred back to Appropriate Government to reconsider and dispose as per law.

Mohidin M. Sangam, Goa v. Union of India thro' the Secretary Government of India, Ministry of Labour & Employment Shram Shakti Bhavan, New Delhi & Anr., 2008 II LLJ 530 : 2008 (117) FLR 609 : 2008 I CLR 869 (Bom.DB) WP 376 of 2007 dt. 22-11-2007

“In an opinion……….LLJ 558.” (Page: 532, Para: 4)

“In the light……….from today.” (Page: 532, Para: 5)

Sec. 12(5)

Reference – Cannot be refused by Central Government regarding the dispute of contract employees whether sham or bogus Contract Employers – Whether sham or bogus requires adjudication, the Appropriate Government cannot refuse reference Appropriate Government – Cannot refuse reference even in case of contract employees

¥4.686 Whether the 7 contract labourers are employees of the principal employer and whether the contract

is a mere ruse or camouflage or genuine or whether the contract is sham or bogus, cannot be decided by the Appropriate Government which exercises only an administrative power. The refusal to refer the matter for adjudication by the Appropriate Government was set aside with a direction to reconsider the matter and pass appropriate order u/s. 12(5) of the Act.

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Bhartiya Janata Kamagar Mahasangh Maharashtra, Nagpur v. Under Secretary, Ministry of Labour, Government of India, Delhi & Anr., 2008 I LLJ 298 : 2007 (115) FLR 796 : 2008 LLR 99 : 2007 (6) BCR 591 : 2007 (5) Mah.LJ 632 (Bom.DB) WP 1133 of 2006 dt. 7-8-2007

“In the present……….quashed and set aside.” (Page: 302, Para: 11)

“In view………. Respondent No. 1.” (Page: 302, Para: 13)

Sec. 12(5)

Reference – The Appropriate Government cannot decide the dispute on merit while refusing to make Appropriate Government – Has no power to decide a dispute on merit while refusing to make a reference

¥4.687 Once the failure report is received u/s. 12(4) from the Conciliation Officer, the Appropriate

Government u/s. 12(5) is bound to make a reference and in the absence communicate the parties its reasons therefore. The power of reference u/s. 12(5) has to be read with Sec. 10(1). In this case the Government refused to make a reference on the ground that the workman had absented himself from the duty leading to striking off his name from the rolls. There was no enquiry or opportunity to hear was provided. This, the High Court held, is a clear case of an examination on merit. The joint Secretary to Government has no power/jurisdiction to do so. The said illegal order was set aside with direction to pass necessary orders according to law.

Sant Lal, Workman v. State of Haryana & Ors., 2011 (131) FLR 266 : 2012 II LLJ 312 : 2011 IV LLN 407 (P&H.HC) CWP 800 of 1994 dt. 23-5-2011

“………. We are not multiplying……….to make a reference.” (Page: 271, Para: 16)

“Therefore, it is……….circumstances of the case.”(Page: 271, Para: 17)

Sec. 12(5)

Reference – Upon receipt of failure report u/s. 12(5) the Appropriate Government has to exercise its function either to make or refuse to make a reference with reason therefore Appropriate Government – Is bound to exercise its function in passing order u/s. 12(5) either to make or refuse to make Jewel Appraiser – Whether workmen or not requires a decision of the Appropriate Government by making a reference or refusing to make with reasons

¥4.688 Appropriate Government has the power to refuse to make reference u/s. 12(5) if the claim is frivolous

or the person concerned is not a workman as defined in the Act but while refusing the Government has to give reasons as it cannot itself adjudicate the issue and give findings on merits. In this case the government had not exercised its function in passing orders u/s. 12(5). The High Court held non passing of any order would amount to failure in performing its statutory functions. Hence direction was given to pass orders in accordance with Sec. 12(5) based on the reports of Conciliation Officer.

All Bank Appraisers Federation, Tamil Nadu v. Government of India & Ors., 2010 III LLJ 371 : 2010 LIC 350 (Mad.HC) WP 8169 of 2004 dt. 7-8-2009

“While construing the powers……….take such a decision.” (Page: 382, Para: 29)

“Further, even……….such a reference.” (Page: 385, Para: 36)

“Considering……….direction.” (Page: 385, Para: 37)

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Sec. 12(5) & 2(a)

Appropriate Government – has no power u/s. 12(5) to adjudicate a dispute and decline to make a reference Reference – The Appropriate Government cannot refuse to make upon adjudication by itself Adjudication – The Appropriate Government has no power while declining to make a reference

¥4.689 The question is whether the Appropriate Government can refuse to make a reference on receipt of

failure report u/s. 12(5) of the Act. In this case the conciliation failed and record had shown that the workman failed to participate in enquiry proceedings despite opportunity. On this ground the Appropriate Government refused to make a reference. The workman challenged the order before High Court which held that the Appropriate Government has exceeded its power and this refusal amounts to adjudication. Hence the Writ petition was allowed and the Appropriate Government was directed to make a reference.

Bhanwar Singh v. Government of India & Anr., 2010 (127) FLR 698 : 2010 III CLR 452 : 2010 LLR 1293 (Raj.HC) SBCWP 2917 of 2003 dt. 17-8-2010

“In the instant case, the……….of removal from service.” (Page: 699, Para: 7)

“The judgment, on which……….of the Act, 1947.” (Page: 699, Para: 8)

Sec. 12(4)

Notice – By Conciliation Officer to participate in the conciliation proceedings does not infringe legal right of the employer Conciliation officer – If issues notices or seeks comments that by itself cannot deemed to have infringed any legal right of the employer for maintaining a writ petition Legal right – Is not infringed merely by a notice seeking comments from the employer to enable to maintain a writ petition there against

¥4.690 Employer bank challenged in this petition a notice by the Conciliation officer to offer his comments

and to participate in the conciliation proceedings in respect of dispute raised on behalf of the workman over alleged unfair labour practice of the bank in seeking to exploit the workman. It was held that no legal right of the bank had been infringed by the said action and since the proceedings could not bring about a settlement between the parties. Under the facts and circumstances, the High Court directed the conciliation officer to submit a failure report to the Appropriate Government to consider for making a reference.

ABN Amro Bank N.V. v. Union of India & Ors., 2010 I LLJ 779 : 2009 (122) FLR 1074 : 2009 IV LLN 551 : 2009 II CLR 1022 : 2009 LLR 1204 (Cal.HC) CWJOSWP 1313 of 2003 dt. 12-6-2009

“Turning to the……….pass appropriate order(s).” (Page: 783, Para: 19)

“But since it……….as directed above.” (Page: 783, Para: 24)

Sec. 10 and 12(5)

Reference – While making or refusing to make the parties need not be heard act being administrative deciding no lis Appropriate Government – While making or refusing to make a reference need not hear the parties for it may form an independent administrative opinion not in the nature of deciding a lis

¥4.691 In view of S-10 and 12(5) of the Act, while making an application of reference, it is open to the State

Government to form an opinion based on the report of conciliation officer along with the record made available regarding the existence of the Industrial Dispute and if it is affirmative, it may make a reference to the appropriate authority and if it is otherwise, may decline to make the same by disclosing reasons for its rejection which needs to be communicated to the party concerned. However there is no provision in

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I.D. Act to issue any notice to the employer or to hear the employer before making or refusing to make the order of reference. Hence High Court rejected the contention of employer that he was required to be heard before making a reference for the reason that the order is administrative where no lis is decided.

M/s. Associate Stone Industries (Kota) Ltd. v. Shakaut Ali & Ors., 2009 (122) FLR 190 (Raj.HC) SBCWP 106 of 2006 dt. 18-2-2009

“A conjoint reading……….the party concerned.” (Page: 193, Para: 10)

“The order impugned……….bereft of merit.” (Page: 193, Para: 12)

Sec. 10 and 12(5)

Delay – Cannot be the sole ground for refusal to make a reference Appropriate Government – Cannot refuse to make reference only on the ground of delay Reference – Cannot be refused to be made by the government on the sole ground of delay

¥4.692 There was considerable delay in raising the dispute. The appropriate government declined to make a

reference due to delay and laches. The workman resisted the same in a writ petition. Allowing the petition the High Court held that the sole ground of delay alone is insufficient to refuse to make a reference. The tribunal could mould the relief taking this factor into consideration. There must be in addition to delay other sufficient grounds prima facie to refuse a reference. The order of the appropriate government was set aside. Thus the appropriate government was directed to reconsider the matter and pass appropriate order.

Ganesh Singh v. State of Rajasthan & Ors., 2009 IV LLN 768 (Raj.HC) SBCWP 4076 of 2006 dt. 15-7-2009

“A perusal of……….upon the issue.” (Page: 772, Para: 7)

Sec.10 and 12(5) Reference – Appropriate Government can refuse to make if raised after 16 years though no limitation is provided if there is sufficient cause Appropriate Government – Can refuse to make a reference after 16 years for sufficient cause irrespective of there been no limitation Limitation – Though not provided under the Act it gives no freehand to the workman to raise a dispute whenever he chooses

¥4.693 Though the legislature has not provided any time limit for raising dispute and making reference but

thereby it cannot be said that dispute is available to be raised whenever workman would choose to do. Hence refusal by Government to refer the dispute raised after 16 years without the petitioner showing any sufficient cause for such inordinate delay on his part cannot be said to be illegal or unjustified.

Mahaveer Singh v. General Manager, Paschimi Rajasthan Dugdh Utpadak Sahakari Sangh Ltd. & Ors., 2008 IV LLN 520 : 2008 LIC 97 : 2008 LLR 287 (Raj.HC) CWP 2185 of 2005 dt. 10-9-2007

“The suggestion as ……….as noticed above.” (Page: 526, Para: 19)

“In aforesaid circumstances……….in this case.” (Page: 527, Para: 21)

Sec. 12(5) Ward boy – Misleading the government for getting appointment stating no criminal case pending is sufficient for his termination Delay – Of 6 years in filing a petition against termination cannot be condoned Reference – A refusal upon acquittal in criminal case should be contested well within 6 months and not after 6 years Writ petition – For equitable jurisdiction is not maintainable if the delay was 6 years

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¥4.694 Workman, a ward boy who was temporarily appointed was terminated from the service as criminal cases were registered and challans were filed against him in Criminal Court. Government refused to refer his dispute. After his acquittal in criminal case his representation for reinstatement was declined by the government. Hence the present petition in which it was held that where the workman filed the petition in 1996 after his termination in 1990, the long delay of 6 years remained totally unexplained and filing petition after his acquittal could not be reasonable explanation. Moreover he also falsely misled the Government at the time of his appointment by claiming that he was not that Gyarsilal against whom the criminal case was filed. Hence there was no justification to exercise equitable jurisdiction in his favour.

Gyarsilal v. State & Ors., 2009 III CLR 212 : 2009 LLR 1186 (Raj.HC) CWP 3041 of 1996 dt. 13-8-2009

“Having considered contentions……….a reasonable explanation.” (Page: 214, Para: 7)

“That apart his……….benefit of doubt.” (Page: 214, Para: 8)

“But ultimate fact……….of the Constitution.” (Page: 214, Para: 9)

Sec. 12(5) Appointment Order – Burden is on the workman Continuous Service – Burden is on the workman Industry – Excludes – Godawari Marathwada Patbandhare Vikas Mahamandal

¥4.695 The termination of the workman was set aside by the Labour Court holding that he had worked for

240 days in the preceding 12 calendar months but employer violated Sec. 25-F. Setting aside the award the High Court held that the workman had failed to prove that there was employer-employee relationship, there was no written order of appointment, he was working in the same project transferred by the first party to the petitioner. The findings recorded by the Labour Court that the employer is an Industry was perverse and the workman failed to discharge his burden that he was in continuous service for one year. The allegations that his juniors were favoured cannot be alluded to because they were not party before the Labour Court and High Court. The full back wages granted by the Labour Court was without discussion and by cryptic order. Paying full back wages without any work is a burden on the public exchequer. For all these reasons the petition was allowed.

Godawari Marathwada Patbandhare Vikas Mahamandal v. Devidas Ganpat Pawar, 2010 (124) FLR 816 : 2010 I CLR 127 : 2009 (6) BCR 535 (Bom.HC) WP 3289 of 2002 with CA 4641 of 2005 & WP 710 of 2009 dt. 23-9/7-10- 2009

“Taking overall view……….appointment in public department.” (Page: 829, Para: 13)

Sec. 12 (5)

Reference – The Appropriate Government cannot refuse to make a reference without going into the relevant material Appropriate Government – Cannot refuse to make a reference relying on designation of the workman without going into the relevant material Designation – Alone cannot be a factor in arriving at an opinion refusing to make a reference

¥4.696 In consideration of failure report submitted by the conciliation officer the Appropriate Government

refused to make a reference but failed to give any reasons after except stating that the employee is a junior officer and hence not a workman. Upon challenge the High Court held that except relying on the designation of the workman, the Appropriate Government has not considered any other material placed before it to form an opinion. Even in exercise of its subjective satisfaction it cannot arrive at an opinion without going into the material and merely relying on the designation. Thus, the impugned endorsement refusing to make a reference was quashed and the matter was remanded to the Appropriate Government for reconsideration by going into all the relevant material.

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Power Cell Battery Karmikara Sangha (R), Maddur Unit v. Principal Secretary, Department of Labour & Ors., 2008 (119) FLR 163 : 2009 I LLJ 381 : 2009 I LLN 684 (Karn.HC) WP 2961 of 2008 dt. 15-4-2008

“Looking into the……….and the counter statement.” (Page: 166, Para: 9)

Sec.12(5) Employer – Who is the real one contractor or the principal employer if the core issue is to be decided by the labour court first by framing proper issues Award- Framing of proper issue as to who is the real employer between contractor and principal employer is necessary Framing of Issues – As to who is the proper employer between contractor and the principal employer is necessary before deciding reinstatement back wages

¥4.697 The Indtek consultant was an independent contractor providing security services and personnel on

contact at the factory of Lupin laboratories Ltd. The contactor employed a lady workman as Lady Searcher and was deployed and posted at the factory. Her services were terminated by contactor. The workman contended that she was employee of Lupin Laboratories. The labour court in the dispute referred, directed Lupin Laboratories to reinstate the workman and Indtek consultants to pay back wages with continuity of service and pay ̀ 500 towards a special compensation. The High Court upon challenge, held that the award passed by the labour court was inconsistent and contradictory because it has not answered the core question as to who is the real employer and hence it remanded the matter to the labour court for framing proper issue as to who is the real employer as it was the main question to be answered before deciding the dispute. Hence it set aside the award and remanded the matter.

Lupin Laboratories Ltd., Aurangabad v. J.P. Gaikwad & Anr., 2009 I LLJ 14 : 2008 IV LLN 752 : 2008 III CLR 333 (Bom.HC) WP 1471 of 1996 with WP 2658 of 1996 dt. 23-6-2008

“It is case……….Lupin Laboratories Ltd.” (Page: 15, Para: 4)

“On the face……….Labour Court on July 14, 2008.” (Page: 16, Para: 8)

Sec. 10(1) and 12(5) Appropriate Government – Forming the opinion for a reference regarding necessary parties cannot be challenged since it is the sole arbitrator Reference – Appropriate government is the sole arbitrator while making the parties as necessary parties Necessary parties – Appropriate government can decide being the sole arbitrator while making a reference

¥4.698 An order of government referring for adjudication of a Charter of Demands raised by the union

against the erstwhile employer and present employer for the payment of medical allowance, conveyance, house rent and grant of leave etc. was challenged by the erstwhile employer in the present petition pleading that it should be excluded as a necessary party because the workman more than 18 years ago had settled their disputes. It was held that the EPF and others were continued to be paid in the name of erstwhile company is one of the reasons to make it a necessary party. Further the appropriate government being a sole arbitrator had equally formed an opinion that for resolving the dispute both the erstwhile as well as present employer was necessary parties, the same could not be challenged and the delay of 18 years would not vitiate the reference.

United Labour Federation v. Government of Tamil Nadu, 2009 LIC 314 (Mad.HC) WP 20172 & 28487 of 2007 dt. 29-10-2008

“In respect of……….cannot be challenged.” (Page: 320, Para: 34)

Sec. 11A Prejudice – Could not have been caused to the terminated workman though scuffle was the cause in which no action was taken against the co-worker in a view of his superannuation

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Superannuation – If led non action against the co-worker no prejudice said to have been caused to the terminated workman though both of them are equally at fault due to scuffle Scuffle – In which both workmen are equally at fault yet termination of one only is said to have not caused any prejudice if superannuation is the cause for leniency

¥4.699 In a scuffle between the two workers, the petitioner worker was dismissed after the enquiry which

was challenged for being unjust for the discrimination made between him and the co-worker. As his reference was rejected by the Labour Court, he filed the present writ petition in which it was held that in view of superannuation of the co-worker, no final order was passed against him and the same was not disputed by the petitioner and for the failure to demonstrate the prejudice caused to him, the findings of the Labour Court could not be said to be perverse and hence no interference required under Article- 226 of the Constitution.

A.S.H. Sayed v. Larsen & Toubro Ltd., 2008 I LLJ 569 : 2008 (116) FLR 1115: 2007 III CLR 1021: 2008 LLR 10 (Bom.HC) OOCJWP 1622 of 2007 dt. 24-9-2007

“It appears that……….must be rejected.” (Page: 570, Para: 4)

“In so far……….to be dismissed.” (Page: 570, Para: 5)

Section 15 Duties of labour courts, tribunals and nationa tribunals

Sec. 15

Sufficient Cause – Cannot be stretched beyond limit for restoration of exparte award when the employer and advocate avoided appearances at all crucial stages Restoration application – Rightly denied when the employer and advocate avoided appearances deliberately at all crucial stages

¥4.700 The employer neglected to appear before the Labour Court despite repeated opportunities provided

to him by serving notices with acknowledgements and despite subsequent restoration the advocate failed to attend the court but no action against the said advocate by moving to appropriate Bar Council was taken and the advocate and the employer deliberately remained absent at all crucial stages of the case. So as to benefit from the decision of Apex Court wherein it was held that the party should not suffer for fault of Advocate. The employer also failed to attend recovery application filed u/s. 33C(1). For these reasons, the elasticity of “sufficient cause” cannot be stretched beyond limit to cause abuse and misuse of the process of Court and the Division Bench refused to interfere with the Exparte Award and decision of Single Judge upholding the award of reinstatement with full back wages.

P.N.N. International v. Premkumar Chotala & Ors., 2011 III CLR 308 : 2012 I LLJ 695 : 2011 (131) FLR 863 (Guj.DB) LPA 1180 & 1203 of 2011 in SCA 1917 & 6584 of 2011 with CA 8489 & 8512 of 2011 dt. 4-8-2011

“As discussed above……….Labour Court.” (Page: 312, Para: 13)

“From the above……….easy to say no.” (Page: 312, Para: 14)

“We are of the……….again be misused.” (Page: 312, Para: 15)

“In view of……….are dismissed.” (Page: 313, Para: 16)

Sec. 15 Affidavit – Where the contention of workman remained un-rebutted it will presumed to be correct so also the opposite corollary on the affidavit of employer Corollary – That if the contentions of employer in affidavit remained un-rebutted it is presumed to be true flows from the same principle if applied to workman’s affidavit

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Rebuttal – If not made by workman of the contentions made by employer in the affidavit, it is presumed to be true

¥4.701 The workman in this case had not prosecuted his case by proving the allegations by oral or documentary evidence but the allegations were rebutted by the employer by filing affidavits. Under Rule 12(9) of U.P. Industrial Disputes Act if the employer fails to rebut the contentions of the workman made in his affidavit, the Court will presume the contents to be true. If that is the case, the corollary that if the affidavit of the employer remained un-rebutted by the workman then the contents of the written statement of the employer would be also presumed to be correct. The Court held that the ex-parte award given in this regard against the workman is held valid and binding.

M/s. Uptron Powertronics Employees' Union, Ghaziabad through its Secretary v. Presiding Officer, Labour Court (II), Ghaziabad & Ors., 2008 (118) FLR 1164 (All.HC) CMWP 31966 of 2008 dt. 8-7-2008

“The arguments……….statement.” (Page: 1169, Para: 10)

“The corollary……….Apex Court.” (Page: 1170, Para: 11)

Sec. 10 & 15

Reference – extraneous issues not to be adjudicated-should be confined to terms of reference Extraneous issues – Cannot be adjudicated than that referred Tribunal – Cannot direct reemployment till fresh recruitment even while holding termination legal being outside the scope of reference

¥4.702 The terms of reference framed by the Government of India did not refer any dispute or question

pertaining to re-employment of the workmen of the Bank but only referred the validity of the action of terminating their services. The tribunal gave an award for reemployment as daily wagers even while upholding the termination. Thus, the High Court ordered that part of the award given by the Tribunal which directed that the workmen under reference should be reemployed as daily wagers till the final recruitment in accordance with law by the Bank be deleted being outside the scope of the reference.

State Bank of India, Panaji, Goa v. Gomantak Mazdoor Sangh, Ponda, Goa, 2008 (118) FLR 811 : 2008 II CLR 730 (Bom.HC) WP 647 of 2007 dt. 25-4-2008

“It is clear that……….is deleted.” (Page: 812, Para: 2)

Section 16 - Form of Reports or Award

Sec. 16

Dismissal of writ in limine – Not proper without hearing the employer’s plea that evidence for incident occurred 20 years ago is possible Award – Ist part if given holding enquiry not proper, the writ against cannot be dismissed in limine without examining employer’s plea that evidence for incident 20 year ago whether possible

¥4.703 The part I of the award holding that the departmental inquiry held against the workmen was not fair

and proper was challenged before the Writ Court. The High Court dismissed the writ in limine holding that the same could be gone into after the II part of award as and when made. On challenge by employer, the Division Bench set aside the order of Single Judge and held that the Single Judge failed to appreciate the contention of the employer who had expressed his inability to adduce evidence for the incident taken place some 20 years ago for want of witnesses etc. The matter was remanded to Single Judge to decide the plea raised by employer regarding the feasibility to adduce evidence on the matter arising 20 years ago.

Hindustan Unilever Ltd. v. Hindustan Lever Employees Union & Anr., 2009 II CLR 1083 : 2009 IV LLJ 814 : 2009 (122) FLR 1071 : 2009 (6) Mah.LJ 612 (Bom.DB) OOCJA 486 of 2008, WP 1861 of 2008 dt. 24-6-2009

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“We have heard……….aware is passed.” (Page: 1084, Para: 2) Section 17 - Publication of Reports and Awards

Sec. 17

Resjudicata – Equally applies to Industrial Disputes Industrial Disputes – The principle of resjudicata applies

¥4.704 When in an earlier occasion the attempt to set aside the ex-parte award failed and it attained finality

the same party cannot again on the same issue raise the matter in another proceeding before the Labour Court for restoration of the ex-parte proceeding and the Labour Court correctly in this case rejected the application because, it is well settled that the principles of resjudicata are also applicable in matters of industrial disputes. Refer Supreme Court judgement in the case of Sulochana Amma v. Narayana Nair, 1994 AIR (SC) 152 : 1994 (2) SCC 14.

Nilachal Service Station v. Presiding Officer, Labour Court, Bhubaneswar & Anr., 2008 II LLJ 95 : 2008 LIC 268 (Ori.DB) WA 95 of 2005 dt. 10-9-2007

“Apart from that in case……….proper consideration.” (Page: 99, Para: 18)

Sec. 17

Notification – Only, without being published in official gazette will be sufficient for enforcement Official Gazette – Need not be resorted to for publication of the award but notification itself serves Sec. 17 – Does not mandate publication of award in official gazette but a mere notification is sufficient

¥4.705 An ex-parte award was published by way of notification by the Appropriate Government. The said

award came to be challenged on several grounds, among which one of the grounds was that the award was not published in official gazette, but only notified by labour and employment department of government by way otherwise than in official gazette. Therefore if is contended that it is in violation of Sec. 17 and 17-A and hence unenforceable. The Division Bench perused the Sec. 17 of the Act and found that the award which has been published by notification is enforceable u/s. 17-A(1)(a) with in a period of thirty days from the date of its publication. The Gazette notification as per law arises only when the government feels that the award should not be enforced attracting Sec. 17A(1) read with proviso under clause (a) and (b).

Nilachal Service Station v. Presiding Officer, Labour Court, Bhubaneswar & Anr., 2008 II LLJ 95 : 2008 LIC 268 (Ori.DB) WA 95 of 2005 dt. 10-9-2007

“From a perusal……….17 of the Act.” (Page: 98, Para: 9)

“It is therefore……….clauses (a) and (b).” (Page: 99, Para: 15)

Sec. 17

Publication – Of award need not be necessarily in the Official Gazette Award – By the tenor of sec .17 does no where discloses it should be necessarily to be published in Official Gazette

¥4.706 Where Sec. 17 of the Act, in direct term does not speak that the award is to be published only in

Official Gazette and also no particular mode is specified for such publication, the order of the Appellate Court setting aside the conviction of employer failing to implement the award of reinstatement on the ground that the award is not published in the Official Gazette is liable to be set aside.

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Bharamarbar Das v. State of Orissa & Ors., 2008 III LLJ 385 : 2008 (117) FLR 1143 : 2008 II CLR 731 : 2008 LLR 1251 (Ori.HC) CRLR 397 of 2001 dt. 9-4-2008

“After considering all ……….revision is allowed.” (Page: 388, Para: 6)

Sec. 17 & 2(b)

Ex-Parte award – Can be restored for sufficient reasons Award – Requires adjudication on merit Order – Published u/s. 17 will not deemed to be an award unless it was adjudicated and determined on merit Functus Officio – Labour court – Becomes only when the award is passed on merit Restoration Application – Of an ex-parte award even after publication cannot be rejected unless the award was given on merit after adjudication/determination

¥4.707 The workman was not present on certain dates when the proceedings were scheduled for hearing

before the labour court for reasonable cause and sufficient reason. But the labour court passed an ex- parte order against him. An application was made by the workman, to set aside the ex-parte order and restore the reference but was rejected on the ground that it became functus officio. A petition was filed in the High Court. The High Court held in writ that si nce the labour Court did not adjudicate or decide the matter on merits the order though published under Sec. 17 will not be an award as award means adjudication and determination on merits. Hence the matter was remanded to labour court for deciding again on merits.

Jayantkumar Ishwarbhai Ahir v. Zaveri Polymers Ltd., 2009 III CLR 792 (Guj.HC) SCA 1993 of 2008 dt. 21-8- 2008

“It is……….of the Act.” (Page: 797, Para: 16.2)

“There is yet……….impugned order.” (Page: 799, Para: 17)

“The question which……….granting the relief.” (Page: 800, Para: 20)

Sec. 33C(2) and 17

Notice – Service of – If management fails to exercise due diligence notwithstanding of error in award the amount already paid cannot be restituted Sec. 33C (2) – Applies only to re existing rights

¥4.708 Applications u/s. 33C(2) were filed by the workmen in the year 1983-84 and were decided in the year,

1987 leading to filing of writ petitions by management in the year, 1989. It was held that where from the date of institution of petitions till the date, management did not take any step to effect service on the respondent workmen, they were disentitled to claim restitution of the amount paid to the workmen in terms of earlier orders in view of complete lack of diligence shown by the management although the Labour Court u/s. 33 C(2) had absolutely no jurisdiction to give an award for want of prior adjudication.

Union of India v. P.O. Central Government, Labour Court & Anr., 2008 LIC 495 (Del.HC) WP 2423 of 1989 of 18- 12-2007

“The applications preferred……….present writ petitions.” (Page: 499, Para: 17)

Sec. 17 Art. 226 & 227

Award – If illegal and void ab initio, it is susceptible to be set aside even in collateral proceedings by High Court u/s. 226/227

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Collateral Proceedings – Are sufficient to quash and set aside an award which is ab initio void and illegal but attained finality Void ab initio – If the award is, then High Court can even in collateral proceedings quash the award though it reached finality Finality – Though award reached it can be quashed in collateral proceedings under Art. 226 & 227 if ab initio void Daily Wage Labour – Fall u/s. 2(oo)(bb) and not 2(oo)

¥4.709 Where the award is passed after completely ignoring the law, in which it was held that for daily wage

labour fall u/s. 2(oo) instead of 2(oo)(bb), it becomes a case where the award cannot but be grossly illegal and void ab initio. In all such cases notwithstanding the award attaining finality, the High Court under Art. 226 or 227 of the constitution can interfere in a collateral proceeding and quash the award being error apparent on the face of the record. The Division Bench in this case relying on the facts found by the Labour Court itself quashed the award holding it illegal and void ab initio without any need for fresh evidence or reappraisal evidence.

Sanjay Kumar Tiwary & Ors. v. State of Bihar & Ors., 2008 II LLJ 977 : 2008 (117) FLR 312 : 2008 LIC 1127 : 2008 LLR 600 (Pat.DB) LPA 1525 of 1999 dt. 25-1-2008

“It appears……….of evidence……….” (Page: 983, Para: 13)

“In the result……….non-est in law.” (Page: 984, Para: 16)

Sec. 17 & 17-A

Jurisdiction – To set aside the award after publication does not exists Functus officio – Do become the labour court and tribunal after publication of an award Restoration – Of an ex-parte award after 470 days of publication not maintainable

¥4.710 An award becomes enforceable on the expiry of 30 days from the date of its publication u/s. 17 and

once the award becomes enforceable, the Labour Court/ Tribunal becomes functus officio and have no jurisdiction to set aside the award. Hence, the High Court held that the application to set aside an ex- parte award made after 470 days after publication was rightly dismissed by the Labour Court.

Management, rep. by its President K. Anbumani, President Village Panchayat v. Chellammal & Ors., 2010 I LLJ 876 : 2010 I LLN 563 : 2010 LIC 1195 (Mad.HC) WP 30674 of 2008 dt. 14-10-2009

“Referring to Sec. 17-A……….2004-III-LLJ-1141.” (Page: 877, Para: 6)

“In the light of the decision……….Petition is also closed.” (Page: 880, Para: 19)

Sec. 17 & 17-A

Condonation of Delay – For setting aside the ex parte award cannot sustain if there was no sufficient or good cause Ex parte Award – Cannot be set aside after considerable delay without sufficient cause for condonation of delay Sufficient cause – Must be averred in the affidavit for condonation of delay in order to set aside an ex parte award

¥4.711 The employer bank made an application to set aside the ex parte award after considerable delay

after publishing the award. The Labour Court dismissed the application as the award was passed 1 ½ years ago and the bank dragged its feet and assigned no cogent reason for delay. The reason stated in the affidavit was based on mere assumption. Upon challenge the High Court gave no relief but held that there was no sufficient or good cause for condonation of delay. A Court of law has a wide discretion in determining the sufficient or good cause bearing in mind the particular facts and circumstances.

Management, Pennagar Primary Agricultural Co-operative Bank, Gingee Taluk v. Kandeepan & Anr., 2010 III LLJ 341 (Mad.HC) WP 8718 of 2003 dt. 17-2-2010

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“The term ‘Sufficient cause……….arises for its rumination.” (Page: 347, Para: 23)

Sec. 17& 17 A

Ex-parte Award – Permits the employer to seek restoration if the Rule 26(2) and 31 A of the Bombay rules were not complied with Restoration – Of the application cannot be rejected if the employer had not received a copy of the award under Bombay rules Award – Is to be restored if the ex parte decision was not given to the employer under the Bombay Rules

¥4.712 The employer came to know of the award only when the workman had taken a proceeding for the

enforcement of the award made in his favour. The application for restoration as well as subsequent review application was rejected on technical ground. The employer challenged the same in a writ petition. Allowing the same the High Court held that Rules 26(2) and 31A of the Bombay Rules requires that a copy of the award should be sent to the parties and an application for setting aside the ex parte award can be made with in thirty days from the date of the receipt of the award unlike that of Central Rules. While rejecting the restoration application, the Labour Court had obviously lacked any knowledge of receipt or otherwise of the award by the employer. Hence the order of the Labour Court rejecting restoration was quashed and the matter was restored to the records of the tribunal for a fresh decision after hearing the parties.

Armament Officers Mess & Institute v. Vitthal Pundil Khadale & Ors., 2008 III CLR 906 : 2009 (120) FLR 346 (Bom.HC) CAJWP 2543 of 2007 dt. 7-10-2008

“In Grindlays Bank……….receipt of the award.” (Page: 907, Para: 6)

“In view of the……….of two months thereafter.” (Page: 907, Para: 7)

Sec. 33 C (2), 17 & 17 A.

Publication – U/s. 17 of a decision u/s. 33-C (2) is not required Sec.17-A – Is not applicable to a decision u/s. 33-C (2) Award – Excludes – A decision made u/s. 33-C (2)

¥4.713 The order u/s. 33C(2) need not be published in terms of Sec. 17 of the Act. Similarly Sec. 17A does

not apply to a decision to be enforceable because decision u/s. 33C(2) is not an award.

M/s. Arun Chemicals Industries v. The Certificate Officer, Bhagalpur etc., 2009 II LLJ 279 : 2008 LIC 4265 (Pat.HC) CWJC 9910 of 2001 & 11866 of 1999 dt. 2-9-2008

“On behalf of petitioners……….distinct from an award.” (Page: 285, Para: 21)

Sec. 17(1) Sec. 17(1)

Publication of Award – Delay beyond 30 days does not mean that it is not binding Award – Is binding – Even if there is a delay in publication beyond 30 days Sec. 17(1) – Is directory in nature and not mandatory

¥4.714 Delay in publication of award beyond 30 days does not mean that award is not binding. The

provision of Sec. 17(1) providing for publication by the government within 30 days of receipt of the copy of the award is directory in nature and delay in publication is only a procedural irregularity and cannot affect the merit of the award.

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Kirloskar Electric Co. Ltd. v. Government of N.C.T. of Delhi & Ors., 2010 II LLJ 701 : 2010 (124) FLR 755 : 2010 LLR 6 (Del.HC) WP(C) 11357 of 2009 dt. 2-9-2009

“I also do not find any……….merit of the award.” (Page: 703, Para: 9)

Sec. 17(1) and 17(2)

Award – In terms of Sec. 17(2) is final and shall not be called into question unless it is based on extraneous consideration or otherwise perverse Sec. 17(2) – Gives no scope for interference unless the award is perverse or based on extraneous consideration

¥4.715 Where the findings recorded by the Tribunal are based upon the material facts on record and are

neither perverse nor any extraneous consideration has gone into making of the said award, it becomes final and hence cannot be questioned in view of Sec. 17(2) under writ jurisdiction.

Soma Reddy v. LT. Governor & Ors., 2008 III LLJ 383 : 2008 (117) FLR 1158 : 2008 II CLR 737 : 2008 LLR 867 (Cal.HC) WP 339 of 2007 dt. 18-3-2008

“From the records ……….same was accepted.” (Page: 385, Para: 8)

“The aforesaid ……….Constitutional Writ jurisdiction.” (Page: 385, Para: 9)

Sec. 17(2)

Award – Finality of under Sec. 17(2) of Industrial Disputes Act cannot override the mandate of constitution Writ – Is maintainable against an award on the ground of ‘error of law’ and jurisdictional contour Finality – Of award u/s. 17(2) cannot operate as an embargo against the constitutional provision, basic structure of constitution, equality clause under Art. 14 Sec. 17(2) – Finality of an award is not an embargo for a writ petition to challenge it for error of law and jurisdictional contour

¥4.716 An award of which exceeds the constitutional mandate of Art. 14 and 16 under principle of “error of

law” and “jurisdictional contour” can be subjected to judicial review under Art. 226 to get the same quashed and set aside despite the tag of finality u/s. 17(2) of the Act. In this case 49 casual labourers in FCI were ordered to be regularised permanently by an award and FCI contested the same on the above principle among others that Tribunal has exceeded its powers. Division Bench held that publication of award cannot be an embargo to test the award under the anvil of judicial review under Art. 226. The jurisdiction conferred by the constitution can be taken away only by amending the constituion and not by statutory enactments like Industrial Disputes Act. In this view, the Division Bench quashed and set aside the award including the judgement of Single Judge which had upheld the award.

Food Corporation of India v. Central Government Industrial Tribunal, Asansol & Ors., 2009 III CLR 463 : 2010 I LLJ 496 : 2009 (123) FLR 816 (Cal.DB) FMA 2345 of 2005 CAN 8685 of 2007, CAN 4726 of 2008 dt. 25-2-2009

“The statutory……….constitution of India.” (Page: 477, Para: 28)

“The question of……….ER 145.” (Page: 477/478, Para: 29)

“Having regard……….respondent.” (Page: 478, Para: 30)

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Sec. 17A - Connencement of the Award

Sec. 17-A

Functus Officio – The Labour Court does not become against ex-parte award made without notice even after 30 days of its publication Ex-parte Award – Made without notice is a nullity can be recalled Recall – Of an ex-parte award made without notice is permissible no matter after 30 days of its publication Publication – Of an award is not going to render Labour Court functus officio even after 30 days thereafter

¥4.717 Labour Court does not become functus officio even though no application was moved to recall the ex-

parte award made without notice within 30 days of its publication in Government Gazette. This position is settled in the case of Anil Sood v. Presiding Officer, Labour Court II, 2001 I LLJ 1113 : 2001 (10) SCC 534 (S.C.2J). The decision of Labour Court and High Court to the contrary was set aside. An ex-parte award without notice is a nullity. The matter remanded to Labour Court.

Kendriya Vidyalaya Sangathan v. R.V.Palde & Ors., 2010 SCC (L&S) 936 (S.C.2J) CA 2578 of 2005 dt. 11-4-2005

“The decision……….nullity.” (Page: 937, Para: 3)(text)

Sec. 17A

Ex-parte Award – If obtained without proper notice to party will be liable to be recalled Functus Officio – The tribunal does not become if the ex-parte award obtained without notice to the opposite party Recall – Liable to be of ex-parte award despite being functus officio if the opposite party did not get proper notice

¥4.718 The question is whether Industrial Tribunal has got the jurisdiction to set aside the ex-parte award

after 30 days from the date of publication or not. The Court held that it is no more res integra. In the case of Anil Sood v. Presiding Officer, Labour Court II, 2001 I LLJ 1113 : 2001 (10) SCC 534 : 2009 (1) SCC (L&S) 494 (S.C.2J), it was held in the affirmative. This power emanates from Rule 22 of Central Rules. The Rule 26(2) of Maharashtra Industrial Disputes (Bombay) Rules is consistent with Sec. 17A of Central Act. In this case the employee misguided the Tribunal by furnishing wrong address of employer. Hence employer never received any notice. The employee succeeded in getting an ex-parte award which was published and no sooner a copy thereof is received, the employer filed application to recall the award no matter the tribunal became functus officio. The action of Tribunal in recalling was upheld by High Court and Supreme Court being consistent with law and principles of natural justice. In such cases 0.9 Rule 13 of Civil Procedure Code is attracted.

Radhakrishna Mani Tripathi v. L.H. Patel & Anr., 2009 LLR 133 : 2009 I LLJ 546 : 2009 (120) FLR 320 : 2009 I LLN 786 : 2008 III CLR 1043 : 2009 (2) SCC 81 : 2009 (1) SCC (L&S) 358 : 2009 (1) BCR 72 (S.C.2J) CAJCA 6737 of 2008 dt. 21-11-2008

“Similarly, the Court pointed out, the provision of Rule 24(b) empowered the industrial courts to refuse to adjourn the hearing and to proceed ex-parte. Hence, in a case in which the industrial court makes an ex-parte award the provisions of Order 9 Rule 13 of CPC would be clearly attracted. It logically follows that the Tribunal is competent to entertain an application to set aside an ex parte award. (vide paragraph 12 of the decision).” (Page: 136, Para: 13)

“We are unable to accept. The position is made clear in the later decision in Anil Sood v. Presiding Officer Labour Court II MANU/SC/2366/2000 : (2001)ILLJ1113SC . In Anil Sood interestingly the Labour Court had rejected the recall application on the very same ground that after making the award it became functus officio in the matter. The order of the Labour Court was challenged before the High Court but the High Court also took the same view. In appeal this Court noted that the award was made on 11.09.1995 and the application for its recall was filed on 6.11.95. The Court referred to the earlier decision in Grindlays Bank and the provisions of Sub-sections (1) and (3) of Section 11 of the Act and in paragraphs 6, 7, and 8 of the decision observed and held as follows:

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6. The aspect that the party against whom award is to be made due opportunity to defend has to be given is a matter of procedure and not that of power in the sense in which the language is adopted in Section 11. When matters are referred to the tribunal or court they have to be decided objectively and the tribunals/courts have to exercise their discretion in a judicial manner without arbitrariness by following the general principles of law and rules of natural justice.

7. The power to proceed ex-parte is available under Rule 22 of the Central Rules which also includes the power to inquire whether or not there was sufficient cause for the absence of a party at the hearing, and if there is sufficient cause shown which prevented a party from appearing, then if the party is visited with an award without a notice which is a nullity and therefore the Tribunal will have no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex-parte award.

8. If this be the position in law, both the High Court and the Tribunal (sic Labour Court) fell into an error in stating that the Labour Court had become functus officio after making the award though ex-parte. We set aside the order made and the award passed by the Labour Court and affirmed by the High Court in this regard, in view of the fact that the learned counsel for the respondent conceded that application filed by the appellant be allowed, set aside the ex-parte award and restore the reference.” (Page: 137, Para: 18)

“In light of the decision in Anil Sood we find no substance in the appellant's submission based on Section 17A of the Act. There being no substance in the first limb of the submission there is no question of any conflict between Rule 26(2) of the Maharashtra Rules and Section 17A of the Act.” (Page: 137, Para: 19)

Sec. 17A

Functus Officio – The labour court becomes after 30 days of the publication even an ex-parte award Ex-parte Award – Notwithstanding the labour court becomes functus officio after 30 days of publication of the award Publication of the Award – The labour court becomes functus officio after 30 days of its publication no matter the award is ex-parte Anil Sood and Radhakrishna Mani Tripathi – Judgements of the Apex Court are not relevant so far as Sec. 17A is concerned Grindlays Bank and Sangham Tape Co. – Judgements of the Apex Court are relevant so far as Sec. 17A is concerned

¥4.719 The question is whether the Labour Court/tribunal becomes functus officio or not after 30 days of

the publication of an ex-parte award. In this case award was made on 8th December, 2004 and was published on 27th July, 2005. The employer filed application for setting aside that award on 19th

September, 2005. The labour court dismissed the application having become functus officio. The stand of the labour court was upheld by the High Court relying on the judgement of Supreme Court in the case of Grindlays Bank Ltd. v. Central Government Industrial Tribunal , 1981 SCC (L&S) 309 and Mrs. Sangham Tape Co. v. Hans Raj, 2005 (9) SCC 331. The court did not accept the judgement made by the Apex court in the case of Anil Sood v. Presiding Officer, Labour Court, 2001 II CLR 18 and Radhakrishna Mani Tripathi v. L.H. Patel & Anr., 2009 (1) SCC (L&S) 358 as relevant. In the case of Radhakrishna Mani Tripathi Bombay Rules 26(2) are considered and held that there was no conflict between the Bombay Rules and the Central Rules.

Management of M/s. General Industries Co. & Anr. v. Satish Kumar, 2011 II CLR 379 : 2011 (130) FLR 430 : 2011 V LLN 249 : 2011 LLR 792 (Del.DB) LPA 923 of 2010 dt. 29-4-2011

“It is clear from the aforesaid……….would become functus officio.” (Page: 381, Para: 9)

Sec. 17A & 20(3)

Functus Officio – The labour court does not become until a period of 30 days expires from the date of publication of the award

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Jurisdiction – The labour court has to set aside and recall an award on sufficient ground until a period of 30 days from the date of publication Proceedings – Before the labour court deemed to have concluded on the date on which the award becomes enforceable u/s. 17A Ex-Parte Award – Can be set aside and recall on sufficient ground unless a period of 30 days from the date of its publication is elapsed Recall – The labour court can an award any time on sufficient ground until a period of 30 days from the date of its publication Publication – Unless 30 days elapsed thereafter the labour court retained its jurisdiction to set aside and recall an award since the proceeding is not deemed to have concluded

¥4.720 The Labour Court retains its jurisdiction and does not become functus officio unless a period of 30

days expires from the publication of the award. In other words in terms of Sec. 20(3) the proceedings before the labour court, tribunal etc. shall not be deemed to have been concluded unless the award becomes enforceable u/s. 17A. An award is enforceable on the expiry of 30 days from the date of its publication. In this case the award was ex-parte passed on 1st August 2002 and published on 21st

February, 2003. But the workman had filed an application for setting aside the same even before publication on 22nd October, 2002. Hence the Division Bench relying on the settled law in the case of Grindlays Bank Ltd. v. Central Government Industrial Tribunal & Ors., 1978 II LLN 110 (SC) held that there is no error on the part of labour court in setting aside and recalling the ex-parte award on the application of the workman on sufficient cause. Thus the order of High Court was upheld and appeal dismissed.

Greaves Cotton Ltd. v. Government of NCT of Delhi & Ors., 2011 I LLN 138 : 2011 IV LLJ 592 : 2011 LIC 1128 (Del.DB) LPA 860 of 2010 dt. 6-12-2010

“In this context, we may……….and pass suitable orders.” (Page: 140, Para: 7)

“In the factual matrix……….passed the impugned order.” (Page: 142, Para: 8)

Sec.17 A

Recall of ex party Award – Tribunal has on sufficient grounds Functus officio – The Tribunal does not become to set aside an ex party award even after publication if sufficient cause is shown Sufficient clause – If shown an ex party award even after publication could be set aside

¥4.721 The question is whether the Tribunal has the power to recall on ex party award beyond thirty days

after publication on sufficient ground. The division bench relying on the latest judgment of Supreme Court rendered in the case of Radhakrishna Mani Tripathi v. L.H. Patil & Anr., (2009 (2) SCC 81) which is a later decision to sangham Tape company, held that the power to proceed ex party is available under Rule 22 of central Rules which included the power to inquire whether or not there was sufficient cause for the absence of a party at the hearing. The division bench held that if sufficient cause was shown which prevented the party from appearing and the party was visited with an award without a notice said award being a nullity, it must necessarily have power to set aside the ex party award. The decision made in Anil Sood’s case by Apex court settles this preposition of law.

Mahabir Prosad Choudhury v. Octavius Tea & Industries Ltd. & Ors., 2010 III CLR 799 (Cal.DB) FMA 1187 of 2009 dt. 23-12-2009

“We may view……….de novo……….” (Page: 805/806, Para: 79)

Sec.17 A

Functus officio – Once Labour Court becomes, condonation of delay and application for setting aside ex party award is to be rejected

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Writ appeal – After a delay of 2 years of judgment without cogent reason cannot be condoned Condonation of delay – of 2 years period for writ appeal is not maintainable

¥4.722 The workman challenged his termination before Labour Court. Despite notice employer failed to

participate in proceedings. An ex party award was made on 12.11.2002 in favour of workman. It was published on 13.2.2003. After the award was made enforceable and the Labour Court becoming functus officio, the employer moved Labour Court on 19-8-2004 for setting aside the same which was rejected on 12-9-2006. The Labour Court relied on the judgment of Sangham Tape Co. v. Hansraj, 2004 III CLR 776 (SC) for the same. The single judge also dismissed the petition there against on 9.2.2007. The employer filed writ appeal there against only on 7.9.2009. No cogent reason for belated action exceeding 2 years was adduced. In these circumstances there being no bona fides, the appeal being grossly belated the application for condonation of delay stood rejected.

Sarpanch, Gram Panchayat, Balana Tehsil Bali District Pali v. Moola Ram & Ors., 2010 III CLR 757 (Raj.DB) DBSA 7817 of 2009 dt. 29-9-2010

“Put in nutshell……….countenanced.” (Page: 760, Para: 13)

Sec. 2 (b) & 17A

Gratuity – The Labour Court is incompetent to direct the employer to pay as separate authority is created for the purpose Award – For payment of gratuity from Labour Court is not competent Labour Court – Cannot make an award for gratuity as separate authority exists

¥4.723 The award given in favour of the workman for compensation of ̀ 1,00,000 for loss of employment

following his superannuation while proceedings in Labour Court were still pending ,with gratuity was challenged only after 4 years in writ petition that also when the workman filed application u/s. 33C(2) and obtained recovery certificate. The Single Judge dismissed the petition for delay and latches. The Division Bench upheld the finding of delay and laches but inclined to modify the award in so far as the order for payment of gratuity is concerned for which a different authority is available. While directing to implement all other award except gratuity, the workman was directed to approach the authority under Payment of Gratuity Act for relief.

Management of Azhagappa Spinnings Mills (P) Ltd. Rajapalayam v. M. Nainar & Anr., 2008 LIC 2910 (Mad.DB) WA 443 of 2007, MP 1 of 2007 dt. 30-1-2008

“Even though……….respondent.” (Page: 2912, Para: 13)

“Taking note……….per law.” (Page: 2912, Para: )

Sec. 17A

Recall – An award passed by the labour court can be before it becomes enforceable Restoration – Of an award not yet reached the stage of enforceability is lawful Functus Officio – So long as a labour court does not become recall and restoration of the award is in order

¥4.724 An application for recalling the ex-parte award before it became enforceable u/s. 17A can be allowed

since the court does not become functus officio. In this case the workman had filed application to recall before the date publication of the award. Hence the High Court upheld the restoration of the matter to the file and petition there against was dismissed.

Greaves Cotton Ltd. v. Government of N.C.T. of Delhi & Ors., 2011 III LLJ 421 : 2011 (128) FLR 368 (Del.HC) WP(C) 4809 of 2007 dt. 28-9-2010

“After having gone through……….for recalling the order.” (Page: 423, Para: 7)

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Sec. 17A

Unconstitutional – Sec. 17A of the Act being against the basic structure of the constitution Basic Structure of the Constitution – Is violated by Sec. 17A of the Act Separation of Power – Being the basic structure of our Constitution, Sec. 17-A is hit

¥4.725 The power vested with the Executive u/s. 17-A of the Act to reject or modify the award of the Labour

Court is held to be unconstitutional and void as it is against the basic structure of our constitution and separation of power postulated under the constitutional framework. The Court noticed the judgment of High Court of Andhra Pradesh in the case of Telugunadu Workcharged Employees v. Government of India wherein the said provision was held to be unconstitutional being against the basic structure of the Constitution. Hence the High Court held that the impugned notification passed by the Punducherry Government rejecting the award of Labour Court is liable to be set aside.

Textile Technical Tradesmen Asso. (rep. by its President), Pondicherry v. Union of India (rep. by its Secretary to Govt, Ministry of Labour), & Ors., AND Lok Sakthi Thozhilalar Sangam (Regn. No. 1122 of 1998) (rep. by its President, B. Sathiyaseelan), Pondicherry v. Union of India (rep. by Govt. of Pondichery, through Chief Secretary to Govt., Chief Secretariat), Pondicherry, & Ors., AND Lok Sakthi Thozhilalar Sangam (rep. by its President, B. SAthiyaseelan), Pondicherry v. Union of India (rep. by its Secretary to Govt. Ministry of Labour), New Delhi, & Ors., 2011 I LLJ 297 : 2011 III LLN 395 : 2010 IV LLN 456 (Mad.HC) WP 15517, 15518, 16716 & 16765 of 2001 dt. 29-9-2010

“Now, having the above……….liable to be struck down.” (Page: 302, Para: 17)

“When a similar challenge……….High Court of Andhra Pradesh.” (Page: 302, Para: 18)

“In the light of the above……….the Territory of India.” (Page: 304, Para: 25)

Sec. 17A Unconstitutionality – The provision of Sec. 17A even if any High Court holds it will run throughout the territory of India Sec. 17A – Was held unconstitutional by Andhra Pradesh High Court whose writ will run throughout the territory of India Pudhucherry – The provision of Sec. 17A was held unconstitutional by the High Court of Madras hence notification void

¥4.726 The question is whether a High Court needs to strike down a provision when the same has already

been struck down by another High Court. The same is answered by the 3 judge bench of the Supreme Court in Kusum Ingots & Alloys Ltd. v. Union of India, 2004 AIR (SC) 2321. It was held that an order passed on a writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Art. 226 of the Constitution of India will have effect throughout the territory of India subject of course to the applicability of the Act. This observation though an obiter dicta it is expected to be obeyed and followed and binding on the High Court’s and though such obiter dicta is not binding on the Supreme Court it does have a clear persuasive authority on it as held in the case of Oriental Insurance Co. v. Meena Variyal, 2008 AIR (SC) 1609. The High Court declared in this case that Sec. 17A of the Act is void, unenforceable in the union territory of Pudhucherry and accordingly set aside the notification. This provision was already struck down by Andhra Pradesh High court in the case of Telugunadu Workcharged Employees v. Government of India.

Textile Technical Tradesmen Asso. (rep. by its President), Pondicherry v. Union of India (rep. by its Secretary to Govt. Ministry of Labour), & Ors., AND Lok Sakthi Thozhilalar Sangam (Regn. No. 1122 of 1998) (rep. by its President, B. Sathiyaseelan), Pondicherry v. Union of India (rep. by Govt. of Pondichery, through Chief Secretary to Govt., Chief Secretariat), Pondicherry, & Ors., AND Lok Sakthi Thozhilalar Sangam (rep. by its President, B. SAthiyaseelan), Pondicherry v. Union of India (rep. by its Secretary to Govt. Ministry of Labour), New Delhi, &

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Ors., 2011 I LLJ 297 : 2011 III LLN 395 : 2010 IV LLN 456 (Mad.HC) WP 15517, 15518, 16716 & 16765 of 2001 dt. 29-9-2010

“……….The court must……….applicability of the Act……….” (Page: 302, Para: 21)

“Of course,……….authority.” (Page: 304, Para: 24)

“In the light……….territory of India.” (Page: 304, Para: 25)

“In view……….set aside.” (Page: 304, Para: 26)

Sec. 17A

Labour Court – Does not become a functus officio after publication of award by Rule 22 of Central Rules and 26(1) of Bombay Rules and 34(11) T.N.I.D. Rules Ex parte Award – Is to be set aside for want of service to the opposite party and non application of mind Rule 22 of Central Rules – Has an implicit directive which is explicit in Bombay Rule 26(1) similar to Tamil Nadu Rule 34(11) whereby labour court does not become functus officio after publication of award Functus Officio – Excludes – Of a labour court after 30 days of publishing an award with due regard to Rule 22 of Central Rule, 26(1) of Bombay Rules and 34(11) of Tamil Nadu Rules

¥4.727 Labour Court does not become functus officio when applying the latest dictum of Supreme Court in

the light of the decision in Anil Sood’s case (2001 I LLJ 1113) taking note of Rule 22 of Central Rules which is similar to Rule 26(1) of Bombay Rules. Rule 34(10) and (11) of the Tamil Nadu Industrial Disputes Rules, 1958 enables the applicant to set aside the ex parte award even after 30 days of publication and the said rule is relatable to Rule 22 of Central Rules and Rule 26(1) of Bombay Rules. Similarly in view of the Supreme Court’s latest judgement in Radha Krishna Mani Tripathi v. L.H. Patel & Anr., (2009 I LLJ 546) the labour court cannot become functus officio after the publication of the award u/s. 17A of the Act. In this case the High Court directed the labour court to restore the matter in which earlier it rejected the application to restore ex parte award passed in a casual manner on the ground of functus officio.

Management of Stallion Garments, Sarkarpeiyapalayam v. 1. Presiding Officer, Labour Court, Salem 2. C. Rajendran 3. P. Kalidas 4. R. Palanisamy, 2010 III LLJ 156 : 2010 (126) FLR 488 : 2010 II LLN 747 (Mad.HC) WP 831 to 833 of 2008 dt. 18-2-2010

“In such view of the……….second respondent - workmen.” (Page: 165, Para: 20)

Sec. 2-A and 17A

Ex-parte order – Upholding dismissal not interfered as no explanation was given by the workman for remaining absent from all the proceedings before Labour Court Absence from Proceedings – Leading to ex parte award upholding dismissal goes against the workman if he furnishes no proper explanation Dismissal – Cannot be contested by writ if the workman remained throughout absent from the proceedings before Labour court without explanation

¥4.728 No explanation given by the workman for remaining absent from all the proceedings before Labour

Court. Hence the workman calling into question the upholding of the order of dismissal passed ex parte by the labour court was rejected.

J. Lokesh v. Juggath Pharma Industries Ltd., 2010 (125) FLR 375 : 2010 IV LLN 196 : 2010 LIC 4020 : 2010 II CLR 64 : 2010 LLR 606 (Karn.HC) WP 1798 of 2010 dt. 9-2-2010

“The allegation that fair……….presence in the proceedings.” (Page: 376, Para: 3)

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Sec. 17A

Ex-parte Award – Is valid and legal if the employer failed and neglected to accept and attend the proceedings in Labour Court Recall – Application of award will be rejected if the application is not made with in stipulated period Summons – Issued if refused the ex-parte award cannot be faulted Functus Officio – Once the Labour Court becomes, recall application cannot be entertained

¥4.729 Where the employer refuses the summons issued through Court server who visited the office of the

employer twice and also that the summon sent through Reg. A.D was refused and in that case if an ex- parte award was made thereon after many adjournments giving opportunity to the employer to defend and contest the workman’s claim that he was illegally terminated after serving for 26 years, the same cannot be called into question especially when the employer also failed and neglected to make an application to recall within 30 days of publication of the award a copy of which he received in the normal course. The High Court upheld the ex-parte award of reinstatement of workman with full back wages and also upheld the order of Labour Court refusing to recall the award after becoming functus officio.

District Panchayat (Zila Parishad), Kanpur Dehat v. Presiding Officer, Labour Court IV, Kanpur Nagar & Anr., 2008 (118) FLR 922 : 2009 I LLJ 561 (All.HC) CMWP 27075 of 1997 dt. 9-7-2008

“After hearing……….Constitution of India.” (Page: 925, Para: 13)

“The order……….dismissed.” (Page: 925, Para: 14)

“If further……….ex-parte award.” (Page: 925, Para: 15)

Sec. 17A

Functus Officio – The Court becomes after publication of the award cannot be recalled after 30 days of publication Ex-parte Award – Though not given on merit for non prosecuting by workman after 30 days of publication cannot be recalled Recall – Of ex-parte award for non prosecution by workman cannot be recalled after 30 days of publication

¥4.730 Where the workman did not prosecute the case leading to ex-parte award which was published and

attained finality cannot be recalled if no application is made before 30 days of publication. Such ex-parte award though not made on merit, is a final determination of the dispute attaining finality.

M/s. Uptron Powertronics Employees' Union, Ghaziabad through its Secretary v. Presiding Officer, Labour Court (II), Ghaziabad & Ors., 2008 (118) FLR 1164 (All.HC) CMWP 31966 of 2008 dt. 8-7-2008

“This Court……….thereafter.” (Page: 1170, Para: 13)

“Admittedly……….1947.” (Page: 1170, Para: 14)

Sec.17 A

Burden of proof – Of continuous service of 240 days is on the workman Publication of the award – The Labour Court becomes functus officio after 30 days of publication Labour Court – Has no jurisdiction to proceed on new evidence once it becomes functus officio after 30 days of publication of award Continuous service – The workman cannot discharge after 30 days of publication of award

¥4.731 The workman, a beledar, contested his termination before the Labour Court. In the proceedings he

could not prove that he was in continuous service of 240 days in the previous calendar year. On the contrary, the employer furnished evidence to the effect that he had only put up 61 days of service. The award against the workman was published. After publication the workman moved an application to

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consider a certificate purportedly issued by his employer towards proof of continuous service of 240 days. The Labour Court rejected the same for want of jurisdiction after publication of the award. The High Court upheld the same holding that the Labour Court cannot take any evidence oral or documentary after 30 days of the publication of the award, Labour Court having become functus officio.

Ram Swaroop v. Presiding Officer, Labour Court, I. Kanpur & Ors., 2008 III LLJ 847 : 2008 (118) FLR 800 (All.HC) CMWP 29895 of 2008 dt. 30-6-2008

“After publication of ……….of the Act.” (Page: 850, Para: 16)

Sec. 17 A(1) and 17 A(4)

Enforceability – Of an award u/s. 17A(4) is not different than u/s. 17A(1) and 17A(3) Coming into operation – A meaning associated with Sec. 17A(4) will not extend the period of 30 days after publication of award for enforceability as provided u/s. 17A(1) and 17A(3) Functus officio – The Labour Court becomes after 30 days of the publication of award no matter the award is operational only after 90 days of its passing Ex parte award – After 30 days of publication becomes functus officio for enforceability no matter 90 days time is provided for its operation – The two terms are independent

¥4.732 The question is whether the Labour Court becomes functus officio after 30 days of publication of

award in terms of Sec. 17 A(1) of the Act even when it has made the award operative after 90 days from the date of its passing. In this case the employer prayed for setting aside the ex parte award on the ground that he had not received the required notice of the proceedings. The Labour Court rejected the prayer on the ground of functus officio. The High Court upheld the view of the Labour Court because the term “enforceability” and “coming into operation” h ave their own independent meanings. Therefore Sec. 17A (4) is controlled by sub-sections (1) and (3) of Sec. 17 A regarding enforceability is concerned. Therefore application to set aside the ex parte award merely on the ground of period of 90 days provided for “coming into operation” of the award in the teeth of period of 30 days provided for “enforceability” is rightly rejected on the ground of being functus officio.

Kalpana Industries, Indore v. Kalpana Industries Seva Ayukta Shramikgan, Indore, 2009 (122) FLR 370 (MP.HC) WP 2359 of 2005 dt. 8-9-2008

“At the first……….Sangham Tape Company.” (Page: 372, Para: 8)

Sec. 17A & Art. 226 Rule 26-A of Industrial Dispute (Gujarat) Rules, 1966

Writ petition – Not maintainable against an order for rejection of application for setting aside an ex-parte award after a period of 6 years without sufficient cause Delay – Of 3 years in filing an application against rejection to set aside the ex-parte award, is not maintainable without sufficient cause

¥4.733 An application was filed under Rule 26A of Industrial Dispute (Gujarat) Rules, 1966 for setting aside

an ex- parte award passed against the employer was rejected. Employer did not challenge the same until after six years. The Writ Court held that the six years delay remained unexplained and no sufficient cause given and no such averment made in the petition. Hence the petition was dismissed without expressing any opinion on merits.

Bhartiya Karmchari Sangh v. Oil & Natural Gas Corp. & 3 Ors., 2010 (126) FLR 439 : 2010 II CLR 520 (Guj.HC) SCA 3856 of 2010 dt. 15-4-2010

“This petition has been filed……….2009 AIR SCW 1986).” (Page: 439, Para: 3)

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Sec. 17A

No Dispute Award – A labour court is incompetent to pass Labour Court – Cannot pass a no dispute award Award – Being a determination could be ex-parte but not “no dispute award” Determination – An award albeit ex-parte can be on merit but cannot be a “no dispute award” Ex-Parte Award – Being not same as no dispute award is in keeping with Sec. 14 and 15 but no dispute award is not

¥4.734 The question is whether the Labour court has competence to pass a “no dispute award”. In this case

such an award was passed on the ground that the workman did not appear nor filed statement of claim. His application for setting aside the award was rejected. Upon challenge the Division Bench set aside the award and restored the matter to the labour court for fresh disposal on the ground that Sec. 14 and 15 of the Industrial Disputes Act mandates that it is obligatory on the part of the labour court to answer the reference after considering merits of the case. Similarly Rule 10B(9) of the Central Rules, 1957 prescribes that the labour court may proceed with reference ex-parte in absence of prosecution of the case. But no where it mandates that the labour court has liberty to pass a no dispute award inasmuch as such an award cannot be construed as a “determination”, a term used in the definition of Sec. 2(b) of the Act. Hence a reference made u/s. 10(1) cannot be rescinded or cancelled.

Satendra Singh Gujar v. Bank of India, Gwalior & Ors., 2011 II LLJ 16 : 2011 LLR 61 (MP.DB) WP 1797 of 2004 dt. 10-8-2010

“The Labour Court vide……….before the Labour Court.” (Page: 17, Para: 3)

“From the aforesaid Rule……….before the Labour Court.” (Page: 17, Para: 7)

Sec. 17A

Ex-parte award – Without giving opportunity to the party proceeded against erroneously requires to be reheard PNJ – Is violated if the affected party in the ex-parte award is not heard

¥4.735 An ex-parte award against dismissal of workman issued in the name of management M/s. Pick-up

Industries Pvt. Ltd. cannot be enforced against M/s. Pick-up Ignition Switches Pvt. Ltd. without hearing them as they deny being the employer. Matter remanded to Labour Court to hear M/s. Pick-up Ignition Switches Pvt. Ltd.

M/s. Pik-up Ignition Switches Pvt. Ltd. v. Office of Labour Commissioner & Anr., 2008 (116) FLR 277 : 2008 I LLJ 757 : 2008 LLR 136 (Del.HC) WP (C) 16934 of 2005 & CM 10881 of 2005 dt. 29-10-2007

“I have heard……….Labour Court.” (Page: 279, Para: 6)

Sec. 17B – Payment of full wages to workman pending proceedings in Higher Courts

Sec. 17B

Last drawn wages – Payable if reinstatement is contested Writ petition – If filed against reinstatement, the provision of Sec. 17B is attracted

¥4.736 The award of reinstatement by Labour Court for 28 workmen, when challenged before single judge

was met with direction to pay last drawn wages. The Supreme Court confirmed the same with direction to dispose of writ petition by the single judge to give quietus to the long drawn litigation.

Employers Management Central Plan & Design (I) Ltd. v. Alleged Workmen representing G.S.N.C. Workers & Anr., 2010 (1) SCC (L&S) 739 (S.C.2J) CA 2354 of 2003 dt. 13-3-2003

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“The grievance……….1.4.2002.” (Page: 741, Para: 5)(text)

“We direct……….single judge.” (Page: 741, Para: 6)

Sec. 17B Last Drawn Wages – Cannot be reduced to 70% on financial consideration Sec. 33C(2) – Cannot be resorted for computing last drawn wages Sec. 17B – Cannot be subjected to the control of Sec. 33C(2) for computation Financial Constraint – Cannot be a consideration for reducing the last drawn wages

¥4.737 The Industrial Tribunal by an award, reinstated the 10 workmen holding their termination illegal.

Upon challenge by employer, the Single Judge allowed the employee’s claim for payment of last drawn wages pending the petition. The plea of employer that such amount requires to be computed u/s. 33C(2) was rejected. On appeal to Division Bench considering the financial condition of employer, the Court reduced the amount of last drawn wages to 70% only. The Supreme Court setting aside the same restored the order of Single Judge and ordered full last drawn wages to be paid as the Sec. 17B is clear and unambiguous. The plea that it requires computation u/s. 33C(2) was also rejected since u/s. 17B it is mere computation no evidence requires to be adduced and it is within the knowledge of employer and employee.

Kaivalyadham Employees Association v. Kaivalyadham S.M.Y.M. Samity, 2009 LLR 340 : 2009 II LLJ 311 : 2009 (121) FLR 183 : 2009 II LLN 464 : 2009 I CLR 696 : 2009 (6) BCR 430 (S.C.2J) CAJCA 480 of 2009 dt. 28-1- 2009

“The provisions of Section 17B stipulates that when an Award of reinstatement of a workman is challenged by the employer before the High Court or the Supreme Court and the operation of the same is stayed, the employer shall be liable to pay the workman, during the period of pendency of such proceedings, full wages last drawn by him. It also indicates that the same would be subject to the workman filing an affidavit to satisfy the Court that he had not been gainfully employed during the said period. The said question has been set at rest by the learned Single Judge in favour of the workmen.” (Page: 342/343, Para: 8)

“In contrast, Section 17B provides in unambiguous terms that if an award for reinstatement of a workman is stayed at the instance of the employer, either by the High Court or the Supreme Court, the employer will be liable to pay to the workman during the pendency of the proceedings before the High Court or the Supreme Court full wages as last drawn by him, including any maintenance allowance admissible to him under any Rule, if the workman had not been gainfully employed elsewhere during the said period.” (Page: 343, Para: 10)

“On the other hand, Section 33C(2) of the aforesaid Act contemplates a proceeding requiring evidence to be taken to determine the quantum of the dues payable to the workman. Taking recourse to such a course of action as a matter of course would destroy and frustrate the very purpose of Section 17B which, as has been consistently held by this Court, is to provide the workman with the means of sustenance of his family members and himself during the pendency of the proceedings taken by the employer before the High Court or the Supreme Court.” (Page: 343, Para: 11)

Sec. 17-B

Last drawn wages – U/s. 17B cannot directed to be paid ignoring the employers evidence given with supporting affidavit as to gainful employment Gainful employment – If employer furnishes evidence the High Court cannot ignore it to grant last drawn wages

¥4.738 The High Court cannot but consider the reply filed by the employer against granting the last drawn

wages u/s. 17B of the Act that the workman is not entitled for the same since he was gainfully employed. The vouchers showing receipt of salary from two transport companies though placed on record with supporting affidavit as to gainful employment were not considered by the High Court. The order passed

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for payment of last drawn wages set aside. The matter is remanded to High Court for fresh adjudication in accordance with law.

Rajasthan Gramin Bank v. Bishan Lal Bairwa, 2009 III LLJ 235 : 2009 (122) FLR 165 : 2009 III LLN 13 : 2009 II CLR 296 : 2009 LLR 563 : 2010 (13) SCC 248 : 2011 (1) SCC (L&S) 366 : 2010 AIR (SC) 1789 (S.C.2J) CA 2407 of 2009 ASLP(C) 20509 of 2007 dt. 13-4-2009

“Mr. Dhruv Mehta, learned Counsel appearing for the appellant-bank submits that in the first instance the learned Single Judge, while allowing the application preferred by the workman under Section 17B of the Act has proceeded on the premise that the Management had failed to controvert the specific plea of the workman that he was not gainfully employed, whereas, in Para 4 of the reply, filed on behalf of the appellant to the said application, their specific case was that after his dismissal, the workman had worked in two transport companies for different periods. Copies of the vouchers showing payment of salary by the transport companies were placed on record with the supporting affidavit. It is asserted that the workman did not rebut the said material. Learned Counsel thus contends that the learned Single as well as the Appellate Bench having ignored the said evidence, the impugned direction deserves to be set aside.” (Page: 236, Para: 4)

“Having heard learned Counsel for the parties and perused the material on record, in particular, the reply filed by the Management refuting the claim of the workman that he was not gainfully employed with supporting evidence, we are of the view that the High Court has failed to take into consideration the material which was relevant for deciding the controversy before it. It is clear from the order of the learned Single Judge that he had proceeded on the basis that the statement of the workman that he is not gainfully employed has not been controverted by the management, which fact, as noted earlier, is not correct. In view of the factual scenario, as emerging from the record, the impugned orders cannot be sustained.” (Page: 236, Para: 6)

Sec. 17-B

Last drawn wages – Payable, if the employer refuse to reinstate the employees

¥4.739 Here the employer is not ready to reinstate the employees, but ready to pay the last drawn wages, the

Supreme Court issued directions to pay the last drawn wages in terms of Sec. 17B of the Act.

Workmen employed under IT Shramik Sena v. Raptakos Brett & Co. Ltd., 2008 II LLJ 695 : 2008 (117) FLR 199 : 2008 III LLN 63 : 2008 LIC 2595 : 2008 II CLR 186 : 2008 LLR 520 : 2008 (3) SCC 499 : 2008 (1) SCC (L&S) 833 : 2008 (3) AIR (Bom.HC) 627 (S.C.2J) CA 1585-1587 of 2008 dt. 25-2-2008

“The learned senior counsel appearing for the respondent submitted on instruction that the management had never agreed to reinstate the workmen and therefore, the question of calling the workmen to work in the company during the pendency of the writ petition shall not arise at all. The learned senior counsel for the appellant, however, submitted that since the management is not willing to reinstate the workmen, they should be paid in compliance with the interim direction No. 4 made by the learned single judge, which has been affirmed by the Division Bench of the High Court, that is to say, when no work was provided to the workmen, the workmen shall be paid wages @ Rs. 2500/- per month till the disposal of the writ petition. Such being the stand taken by the parties before us, we dispose of these appeals with the following directions:

i) The management shall not call the workmen/appellant for work in the company and therefore, the workmen/appellant shall have no obligation to join the company for work but, during the pendency of the writ petition, the management shall go on paying wages @ Rs. 2500/- per month.

ii) The High Court is requested to dispose of the pending writ petition at an early date preferably within 4 months from the date of supply of a copy of this order.” (Page: 696, Para: 4)

Sec. 17 – B

Sec. 17B – Last drawn wages are payable from the date of filing writ petition Last drawn wages – u/s. 17B is payable from the date of filing writ petition

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¥4.740 Last drawn wages are payable from the date of institutions of writ petition are not from the date of filing the I.A. claiming wages u/s. 17B in the said writ petition. The order single judge was modified accordingly.

South Indian Worker's Congress v. Sree Sankara University of Sanskrit, 2010 LLR 46/280 : 2010 I LLJ 276 : 2009 (123) FLR 557 (Ker.FB) WP 2350 of 2008 dt. 19-8-2009

“On a scrutiny……….accordingly.” (Page: 48, Para: 5)

“In the result……….award.” (Page: 48, Para: 6)

Sec. 17B

Last Drawn Wages – Payable from the date of institution of proceedings in High Court / Supreme Court Date of filing proceeding – Before High Court S.C is the starting point for claiming benefit u/s. 17B Award – Is not the starting point for claiming benefit u/s. 17B Filing affidavit – By workman is not the starting point for payment of last drawn wages

¥4.741 The benefit of last drawn wages u/s. 17B of the Act would be payable from the date of institution of

proceedings before the High Court or Supreme Court. However, the scope of Sec. 17B cannot be expanded to cover the period between the date of award of reinstatement and institution of proceedings before High Court / Supreme Court. Similarly the contention of employer that it is payable from the date of filing affidavit by employer was also rejected.

Airport Authority of India & Anr. v. Bharat H. Parmar & Ors., 2011 II LLJ 390 : 2011 (128) FLR 327 : 2011 III LLN 575 : 2011 LIC 484 : 2010 III CLR 888 (Guj.DB) LPA 2066 to 2090 of 2010 dt. 7-10-2010

“In our considered……….the award.” (Page: 393, Para: 12)

“The appeals……….turned down.” (Page: 393, Para: 15)

Sec. 17B

Last drawn wages – U/s. 17B is payable from the date of instituting S.C.A. in High Court and not from the date of award Sec. 17B – Benefit applicable from the date filing S.C.A. and not from date of award Award – Is not the starting point for benefit u/s. 17B but filing of S.C.A. is

¥4.742 The benefit of last drawn wages as postulated u/s. 17B of the Act will accrue only from the date of

institution of Special Civil Application till its f inal disposal. The Division Bench therefore set aside the judgement of Single Judge granting the same from the date of award itself. It also disagreed with employer that entitlement should be only from the date of filing affidavit stating that workman was not gainfully employed.

Cadila Pharmaceuticals Ltd. v. Jyotiben Harishbhai Pandit, 2011 II LLJ 216 : 2011 (128) FLR 182 : 2010 III CLR 822 : 2011 LLR 162 : 2011 LLR 267 (Guj.DB) LPA 1731 of 2010, CA 3385 of 2010 with CA 8704 of 2010 in LPA 1731 of 2010 dt. 26-8-2010

“The resultant……….to costs.” (Page: 218, Para: 8)

Sec. 17B

Last Drawn Wages – U/s. 17B does not permit to go into the merit of the award of reinstatement before passing the order Award – Whether legal or valid cannot be entered into before passing an order for last drawn wages

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Sec. 17B – Is attracted no sooner a stay was granted against reinstatement upon an affidavit by the workman irrespective of the merit of the award Merit – Of the award is of no consequence while granting last drawn wages while staying the award for reinstatement

¥4.743 While granting stay of the operation of the award towards reinstatement of the workman, the single

judge allowed the application of the workman for last drawn wages u/s. 17B. The employer contested the same before the Division Bench holding that the award was bad because the workman had worked only in the leave vacancy and hence there is a good case in favour of them by reason of applicability of the provision of Sec. 2(oo)(bb). In view of this the Single Judge could not have allowed the application u/s. 17B while staying the award. Rejecting the contentions the Division Bench held that while deciding the application u/s. 17B, the court is not required to find out the merits of the matter including whether the order of the labour court/industrial court is sustainable or not and whether the reinstatement order could have been passed or not. Appeals dismissed.

Union of India & Anr. v. Hemant Shamrao Sankpal, 2011 (4) Mah.LJ 241 : 2011 (130) FLR 375 : 2011 II CLR 470 : 2011 LLR 919 : 2011 (3) BCR 712 (Bom.DB) LPA 59, 60 of 2011 in CA 1966, 1968 of 2010, 76 & 77 of 2011 with WP 9601, 9600 of 2009 dt. 6-4-2011

“It is next argued by……….have been passed or not.” (Page: 243, Para: 7)

Sec. 17B

Agricultural Land – Even if the workman owns it is not a disqualification for granting last drawn wages unless there is sufficient proof of receiving adequate income from it Last Drawn Wages – Payable no matter by workman owns agricultural land unless there is proof of receipt of adequate income from it Income – Proof of adequate receipt of from agricultural land owned by the workman can alone disentitle the claim of the workman for last drawn wages

¥4.744 The order of single judge granting last drawn wages on staying the award for reinstatement was

challenged before the division bench on the ground that the workman owns agricultural land and hence not entitled for the benefit. Rejecting the contention the Division Bench held that mere owning land that also joint property without any proof of receipt of adequate income by itself cannot disentitle the workman from his statutory right to receive last drawn wages u/s. 17B and thus upheld the order of single judge to grant last drawn wages.

Executive Engineer v. Ayubbhai Ladharbhai, 2011 I LLJ 61 : 2011 I CLR 411 (Guj.DB) LPA 350 of 2010 dt. 27-4- 2010

“The above conclusions are……….before this Court.” (Page: 62, Para: 6)

Sec.17B

Adequate Remuneration – Includes – Political and construction activities of the workman Political and construction Activities – Is falling under the proviso to Sec.17B within the meaning of receiving adequate remuneration Establishment – Appearing in Sec.17B has a wider meaning so as to include a person engaged in political and construction activities Sec.17B – Cannot be invoked by a workman engaged in political and construction activities receiving adequate income within the meaning of Sec.17B

¥4.745 The benefit of Sec.17B requires that the workman should not have been employed in any

establishment and the proviso excludes the workman who had been employed and had been received adequate remuneration. Now the term “establishment” has not been defined in the Act and the width of that term cannot be restricted to an “industrial establishment”. The Division Bench has assigned a wider

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connotation to the term by reading the proviso to Sec.17B. The proviso states that the workman who “had been employed and had been receiving adequate remuneration” is excluded. Now in this case the workman is a well known builder and partner in a number of schemes. He owns an indigo car and resides in a huge bungalow with luxurious facilities and had contested election and elected as a member of Gram Panchayat. Hence he was engaged in construction and political activities and he claims ̀ 700 as his monthly salary of last drawn wages even when refusing to come forward to get reinstated. The Division Bench therefore upheld the order of single judge refusing to grant last drawn wages holding that he receives adequate remuneration.

Rauf Mohmed Sheikh v. Pragati Glass Works Pvt. Ltd., 2011 II LLJ 433 : 2011 (128) FLR 649 : 2011 I LLN 283 : 2011 I CLR 123 : 2011 LLR 257 (Guj.DB) LPA 2319 of 2010 & CA 12051 of 2010 dt. 13-12-2010

“In the facts of the……….amusement or establishment.” (Page: 435, Para: 6)

“Although the above……….is not bona fide.” (Page: 436, Para: 7)

Sec. 17B & 2(b)

Interim Relief – Of a labour court reinstating being not in the nature of an interim award does not entitle the workman for the relief of last drawn wages u/s. 17B Interim Award – When ordered for reinstatement must reflect a mental process weighing the dispute determining judicially enabling the court to grant last drawn wages u/s. 17B Last Drawn Wages – U/s. 17B cannot be paid for an interim relief reinstating the workman for the reason that it was not an interim award after judicial determination Sec. 17B – Cannot be invoked in case of interim relief for reinstatement unlike an interim award Award – An interim relief of the labour court for reinstatement does not fall within the ambit of Sec. 2(b) for any claim u/s. 17B

¥4.746 The labour court passed an interim order granting interim relief in the nature of reinstatement of the

workman with 75% of total gross wages against a reference for adjudication about the legality and justifiability of the termination. Upon challenge the single judge while staying the operation of the order allowed the application of the workman towards last drawn wages u/s. 17B as if it is an interim award. Setting aside the same the Division Bench distinguished between an interim relief and an interim award. Interim relief can be granted without involving a mental process reflecting the same in the order so passed. An interim award on the other hand requires determination of the issues which stand on a higher pedestal than the order of an interim relief. Interim relief is given as breathing time to the parties or to save further damages. Whereas while passing interim award tribunal has to consider prima facie the industrial dispute and weigh the findings in the enquiry by application of mind reflecting the same in its order. In this case no such adjudication determining the matter judicially and making an authoritative declaration after taking into consideration the material on record and hearing the parties thereon was made. Hence this order is only in the nature of an interim relief for which the law does not permit granting of last drawn wages u/s. 17B. The order to pay the last drawn wages was set aside.

1. Hiru B. Barot 2. IPCA Laboratories Ltd. v. 1. IPCA Laboratories Ltd., through Sanjay Jadhav, GM 2. Presiding Officer, Labour Court 3. Hiru Barot, 2011 (129) FLR 1031 : 2011 IV LLJ 11 : 2011 II LLN 420 : 2011 II CLR 152 : 2011 LLR 644 : 2011 (3) BCR 581 : 2011 (4) Mah.LJ 120 (Bom.DB) LPA 294 of 2010 in WP 3139 of 2010 with LPA 296 of 2010 with CA 373 of 2010 in CA 2561 of 2010 in WP 3139 of 2010 dt. 13-4-2011.

“With due respect……….Act was unavailable.” (Page: 1037, Para: 19)

Sec. 17B & 2(b)

Contractual Reinstatement – For 3 months by the employer is not sufficient compliance of the order u/s. 17B Last Drawn Wages – Or reinstatement are only the true compliance of Sec. 17B and not contractual appointment for 3 months

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Reinstatement – In true spirit of the award if not made compliance of Sec. 17B arises there being no case for short circuiting the same by contractual reinstatements

¥4.747 During the pendency of a writ application the employer is bound to take work or to make payment of

wages last drawn upon staying the award of reinstatement. In this case, the award reinstatement was published in January 2006 and the employer before the publication of the award offered appointment on 21.12.2005 on contractual basis initially for a period of 3 months which was extended for another 3 years. His services were discontinued thereafter. The employer in fact contested the award in a petition and the court had stayed the reinstatement. Upon discontinuation of service the workman made an application for last drawn wages u/s. 17B which was allowed by the Single Judge. The employer contested the same before the Division Bench. Upholding the order it was held that contractual employment for 3 months is not a substitute for reinstatement during the pendency of the writ petition. The employer is free to reinstate or to pay last drawn wages in the spirit of the award and provision of Sec. 17B respectively. Offer of contractual appointment for 3 months is only to frustrate the award and order of Single Judge to pay last drawn wages u/s. 17B.

Mineral Exploration Corp. Ltd. v. Presiding Officer, Central Industrial Tribunal & Ors., 2011 II CLR 138 : 2011 IV LLJ 28 (Raj.DB) DBSA 550 of 2010 dt. 24-2-2011

“First question for consideration……….his willingness to join.” (Page: 139, Para: 7)

Sec. 17 B

Sec.17 B – Applicable only for cases of reinstatement and not for regularization Reinstatement – Sec.17 B is applicable not for regularization Regularization – The Sec.17 B is inapplicable

¥4.748 The provisions of Sec. 17B of the Act operates only when the reference pertains to cases of

termination coupled with an award of Industrial Tri bunal/Labour Court or National Tribunal reinstating the services of workman if that award is challenged by employer before proceedings in High Court or Supreme Court but in a reference for regularization if the Tribunal makes an award for regularization, the provisions of Sec. 17 B, for last drawn wages does not come into operation at all no matter in the interregnum period the services of workman was terminated but that was not challenged as yet.

Employers in relation to the Management of Rajrappa Washery Central Coalfields Ltd. v. Their Workmen, rep. through Bihar Colliery Kamgar Union Rajrappa, 2010 III LLJ 553 : 2010 (124) FLR 662 : 2010 II LLN 186 : 2010 LIC 2949 : 2010 I CLR 880 : 2010 LLR 370 (Jhar.DB) LPA 1 of 2009 dt. 14-10-2009

“As noticed……….sustained in law.” (Page: 556, Para: 12)

Sec. 17B

Last Drawn Wages – Payable only from the date when the workman files an affidavit stating that he was not gainfully employed Affidavit – Filing of – Stating not gainfully employed is the starting date for paying last drawn wages Gainful Employment – If denied by an affidavit last drawn wages payable only from the date of filing affidavit

¥4.749 The award of reinstatement was challenged and the Single Judge stayed the same with direction to

pay last drawn wages from the date of filing writ petition. This was challenged in misc. petition before Division Bench contending that last drawn wages are payable only from the date when the workman files his affidavit stating that he was not gainfully employed. In this case writ was filed on 23.3.2006 and affidavit only on 5.3.2009. Allowing the appeal of the employer, the Division Bench held that the provision Sec. 17B is clear in support of the proposition of law that the workman is entitled to last drawn wages only from the date when he files an affidavit stating that he is not gainfully employed and not from the date of filing of writ petition by the employer challenging the award.

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Management of K.S.B. Pumps, Ltd., Coimbatore v. 1. Presiding Officer, Labour Court, Coimbatore 2. R. Chandrasekaran 3. Management of Human Resources Syndicate, Coimbatore, 2010 II LLN 786 : 2010 (126) FLR 758 : 2010 LLR 813 (Mad.DB) WA 1166 & 1167 of 2009 & MP 1 & 2 of 2009 dt. 31-3-2010

“These is no dispute……….said date.” (Page: 787, Para: 7)

Sec. 17B

Last Drawn Wages – Payment arises only from the date of the order of High Court staying the award of Labour Court Stay – Of award is the starting date for payment of last drawn wages

¥4.750 The entitlement to last drawn wages arises and workman can legitimately claim for the same only

from the date when the order for reinstatement passed by Labour Court was stayed by the High Court and hence the workman cannot withdraw any amount if any deposited in Court for the period prior to that by the employer in obedience to the orders of High Court. That amount if any is only to be invested in fixed deposit till final disposal of the matter.

United Motors (India), Ltd. v. Pradeep Raghunath Rane, 2010 II LLJ 579 : 2010 (125) FLR 237 : 2010 II LLN 161 : 2010 LLR 580 (Bom.DB) NM 3338 of 2009 A 469 of 2008 & WP 1304 of 2007 dt. 5-3-2010

“Having regard……….September 1, 2008……….” (Page: 580, Para: 6)

“The order……….pending.” (Page: 580, Para: 7)

Sec. 17B & O. 47 & R. 1

Review application – Under Order 47 Rule 1 is admissible to place materials not placed before court in notice of materials not placed before court in notice of motion so as to get favourable orders Order 47 – Rule 1 – Permits review of the interim orders passed in notice of motion pending in L.P.A. before division bench

¥4.751 The Industrial Tribunal rejected the closure application and single judge affirmed the same. In the

L.P.A. there against before division bench, the employee in the Notice of Motion made a prayer for interim orders for granting stay of the operation of the said orders. But the interim order was to deposit of the 50% of the arrears and compliance of Sec. 17B of the Act. The employer there against filed a review application under Order 47, Rule 1 – on the basis that certain facts relevant were omitted to be brought before the court such as the company had paid a sum of ` 12,27,61,629 towards closure compensation, gratuity, PF and other dues which were accepted. Moreover undertakings were given not to alienate, transfer or part with possession of the assets of the company. The review application was partly thus allowed to the extent that instead of deposit of 50% amount of arrears only 20% is sufficient because in the new light deposit of 50% of back wages would be harsh and would imbalance the equities of the parties. No change in compliance with Sec. 17B of the Act.

IVP Limited v. IVP Limited Workers Union & Anr., 2010 III LLJ 219 : 2010 (126) FLR 572 : 2010 I CLR 303 : 2010 (1) BCR 201 : 2010 (3) BCR 203 (Bom.DB) RP 28 of 2009 NM 168 of 2009 A 11 of 2009 WP 1934 of 2007 dt. 11/16-12-2009

“There are same……….provident fund etc.” (Page: 205, Para: 3)

“The provisions……….said order.” (Page: 205, Para: 4)

“Thus while……….of appeal.” (Page: 205, Para: 5)

Sec. 17- B, 25-O (5) and 2(b)

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Sec. 25-O (5) – Determination refusing permission to close if stayed by High Court, attracts last drawn wages u/s 17- B of the Act Last drawn wages – Attracts for stay of operation of an award u/s 25-O(5) refusing permission for closure Closure – If refused u/s 25 – O(5) and (6),challenge there to attracts benefits of Sec. 17 – B of the Act Award – includes orders made u/s 25 – O(5) of the Act

¥4.752 The question is whether a decision of Tribunal made in a reference u/s 25-O(5) refusing permission

for closure and direction to reinstate workmen with all benefits if challenged before High Court, attracts the benefits of Sec. 17 – B upon staying the decision of the Tribunal is as much as in a case of closure unlike in cases of termination the refusal to grant permission cannot be considered as an order for reinstatement. The division bench held that one cannot give a restricted meaning to the term “award”. The words “of any question relating there to” occurring in Sec. 2(b) indicates a wide meaning. Hence the order passed by an Industrial court u/s. 25-O(5) is capable of being construed as an award within the scope of sec 17 B of the Act. This interpretation gets sustenance from the mandate and command contained in Sec. 25- O(6)

IVP Limited v. IVP Limited Workers Union & Anr., 2010 III LLJ 219 : 2010 (126) FLR 572 : 2010 I CLR 303 : 2010 (1) BCR 201 : 2010 (3) BCR 203 (Bom.DB) RP 28 of 2009 NM 168 of 2009 A 11 of 2009 WP 1934 of 2007 dt. 11/16-12-2009

“The industrial court……….expeditiously.” (Page: 222, Para: 8)

“In the light……….nothing more.” (Page: 223, Para: 12)

Sec. 17B

Minimum Wage – Cannot be claimed as last drawn wage Last Drawn Wage – Cannot be claimed by ordering the minimum wage to be paid Sec. 17B – Legislative intent is not to pay minimum wage rather only last drawn wage being in the nature of subsistence

¥4.753 The mandate of Sec. 17B is in the nature of subsistence allowance which would not be refundable or

recoverable even if the award is ultimately set aside. It is therefore merely a last drawn wage and cannot be equated with minimum wage which is a statutorily fixed remuneration for the work actually done. Hence minimum wage cannot be claimed in the nature of “last drawn wage” being not the legislative intent.

UCO Bank v. Pesiding Officer, CGIT, Jaipur & Anr., 2009 (120) FLR 925 : 2009 I LLN 579 (Raj.DB) SA 47 of 2008 dt. 1-9-2008

“Object of grant of……….mixed together.” (Page: 928, Para: 8)

Sec. 17B

Averments – As to not gainful employment and how the workman subsists need not be proved in addition to affidavit for orders u/s. 17B Sec. 17B of the Act – Postulates an affidavit as to not gainful employment and his efforts and his subsistence without any onus as to proof Affidavit – As to not gainful employment with his efforts to find one with his present subsistence requires no proof of averments unless proved otherwise for orders u/s. 17B

¥4.754 While considering the prima facie case for grant of last drawn wages u/s. 17B, the Court is not

concerned with the status of the family members of the workman, it is only his means and his employment are relevant. Further, the order on application u/s. 17B is not as a result of a trial and not

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even a summary trial. It is only on the basis of affidavit and his averments as to unemployment and his efforts to find an employment and as to how he subsists during involuntary unemployment.

Oil & Natural Gas Corporation Ltd., Mumbai v. Ninan Thomas, 2009 I LLN 829 : 2009 (120) FLR 1170 : 2009 LIC 2241 : 2009 I CLR 279 : 2009 (2) Mah.LJ 270 : 2009 (3) BCR 344 (Bom.DB) LPA 412 of 2008, CA 194 & 377 of 2008, WP 5700 of 2006 dt. 18-12-2008

“The analysis……….relevant period.” (Page: 831/832, Para: 4)

“It has to be……….on record.” (Page: 832, Para: 5)

Sec. 17B

Last drawn wages – Payable once the employer challenges the award of reinstatement of workman Sec. 17B – The principles to pay last drawn wages are now will settled by Supreme Court judgement in Dena Bank v. Kirtikumar T. Patil

¥4.755 A Labour Court gave an award of reinstatement with full back wages holding termination of

workman illegal. The employer challenged the same in writ before Single Judge. The workman invoked the provisions of Sec. 17B of the Act. The Single Judge rejected the application holding that the workman had failed to prove employer-employee relationship. In writ appeal the Division Bench reversed and set aside the decision of Single Judge and held that the law is now well settled that once an award is passed holding termination illegal directing reinstatement, the employer is bound to pay the wages last drawn during the pendency of any challenge to the award by the employer in High Court or Supreme Court.

Suresh Mahato v. G.E. Industrial Pvt. Ltd. & Ors., 2009 IV LLJ 489 : 2009 IV LLN 548 : 2009 II CLR 497 (Cal.DB) MAT 674 of 2008, CAN 7938 of 2008 dt.18-11-2008

“We have……….Supreme Court……….” (Page: 490, Para: 4)

“In view……….month.” (Page: 491, Para: 6)

Sec. 17B

Last drawn wages – Is the wage as computed per month no matter he did not work for full month Sec. 17B – Postulates wage as computed per month no matter he did not work for full month Full month – Wage is the last drawn wage no matter, he did not work for full month

¥4.756 The last drawn wages contemplated u/s. 17B, is not the “actual wages drawn”. That is to say if the

workman has worked only for 18 days at the rate of wages of ̀ 15 per day that does not mean that his last drawn wages are ̀ 270. What the Act contemplates is last drawn monthly wage for the whole month no matter he might not have worked for the whole month. In this situation, the Division Bench upheld decision of Single Judge that last drawn wages computed to be paid ̀ 450 p.m. is correct and not ̀ 270 as contended by employer.

M/s. Orissa Agro Industries Corporation Ltd. v. Presiding Officer, Labour Court & Anr., 2009 II LLN 343 : 2009 LIC 27 (Ori.DB) WA 80 of 2008 dt. 8-9-2008

“We are not in a position……….stretch of imagination.” (Page: 346, Para: 19)

Sec. 17B, 2(b) & 33(2)(b)

Order of Labour Court – Refusing approval for removal of workman u/s. 33(2)(b) has all the trappings of an award u/s. 2(b) entitling compliance of Sec. 17B if employer challenges the same Award – The order refusing approval of removal u/s. 33(2)(b) has all the trappings for granting last drawn wages u/s. 17B

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Last Drawn Wages – Payable even consequent to an order refusing approval for removal u/s. 33(2)(b) ifemployer files writ there against also having all the trappings of an award Award – The order of rejection of approval u/s. 33(2)(b) has all the trappings of – if contested attracts Sec.17B

¥4.757 A refusal of Labour Court Industrial Tribunal to grant approval for the removal of a workman u/s.

33(2)(b) renders such removal void ab initio and non-est. This gives rise to the necessity to reinstate him. But instead of reinstating with all consequential benefits, if the employer challenges the decision of non- approval in writ, the workman entitles to get last drawn wages in terms of Sec. 17B of the Act and the decision of non-approval by the Labour Court has all the trappings of an award. The Division Bench quashed and set aside the decision of Single Judge to the contrary.

Karan Singh v. Authorised Disciplinary Authority, Rajasthan State Road Transport Corporation & Anr., 2009 (122) FLR 36 : 2009 II LLN 361 : 2009 II CLR 672 : 2009 LLR 917 (Raj.DB) DBCSA (W) 706 of 2008 & SBCWP 3250 of 2006 dt. 18-12-2008

“Words “award directs……….award after adjudication.” (Page: 40, Para: 10)

Sec. 17B

Application u/s. 17B – Need not be heard if main petition is taken up for hearing resulting in remand Illegality of Award – If the consequence, then before remanding the matter to Tribunal for fresh disposal question of hearing application on Sec. 17B also does not arise S.17B – Paying last drawn wages does not arise if the main petition itself is heard and the matter is remanded for rehearing due to the illegality of the award

¥4.758 When the High Court is able to hear the main petition first, the question of hearing the application

u/s. 17B of the Act does not arise. As a result the matter was remanded to Tribunal for rehearing since Tribunal’s award was held to be illegal as it exceeded its jurisdiction in as much as it erroneously held that the company and its two firms were functionally integral by which the liability of these firms were also saddled on the company.

Mill Mazdoor Sabha v. Rushbh Precision Bearing Ltd. & Ors., 2008 I CLR 362 : 2008 II LLJ 201 (Guj.DB) LPA 596 of 2007 in SCA 3988 of 2005 with CA 3913 of 2007 dt. 18-6-2007

“……….As far as question……….legality or on merits.” (Page: 372/373, Para: 28)

Sec. 17B

Statutory Liability u/s. 17B of the Act – Cannot be avoided on the specious plea that the organization from where the workman was terminated is no more in existence Last Drawn Wages – Are to be paid no matter the organization where from the workman was terminated is no more in existence Liquidation of the Concern – From where the workman was terminated is of no consequence for discharging the statutory liability u/s. 17B of the Act

¥4.759 A specious plea by the employer that their organization viz. Avas Vikas Sansthan where from the

employee was illegally terminated was no more in existence and hence they cannot comply with the requirements of Sec. 17B of the Act cannot be maintainable. When the employer could not disprove the employee’s contention that he was not gainfully employed, he cannot avoid his statutory liability u/s. 17B of the Act on this ground.

Chariman, Avas Vikas Sansthan Liquidation Committee & Ors. v. Manoj Kumar Bhatnagar & Ors., 2008 (118) FLR 940 (Raj.DB) DBCMA 8203 of 2003 dt. 26-2-2008

“In view……….time of termination.” (Page: 941, Para: 2)

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“We hardly……….of the appeal.” (Page: 941, Para: 3)

Sec. 17B

Last Drawn Wages – Need not be paid u/s. 17B of the Act, if the employment of the workman itself in doubt Sec. 17B – Compliance of does not arise, if the employment or workman itself is in doubt Award – For reinstatement though challenged compliance of last drawn salary u/s. 17B need not be made if employment of workman itself is doubtful

¥4.760 Even where there is an order for reinstatement contested by the employer, the employer cannot be

fastened with the liability to pay the last drawn wages u/s. 17B of the Act if the Court has prima facie reason to believe that there is not a single scrap of paper to show that the workman received any amount of salary wages from the company nor there is any order of termination. If such material suggests that there is nothing to show that the workman was ever in it’s employment, the compliance of Sec. 17B of the Act does not arise. The order of Single Judge to comply with Sec. 17B was set aside.

Carrit Moran & Co. Pvt. Ltd. v. State of West Bengal & Ors., 2008 I LLJ 19 : 2008 (116) FLR 943 : 2009 IV LLN 562 : 2008 I CLR 512 : 2010 LLR 126 (Cal.DB) GA 1705 & 1706 of 2007 & APOT 313 of 2007 & WP 1565 of 2006 dt. 20-6-2007

“It is……….the company.” (Page: 20/21, Para: 11)

“We are……….costs.” (Page: 21, Para: 13)

Sec. 17B

Last Drawn Wager – Payable on proof that the workman was not gainfully employed Gainfully Employed – Or not is the basis for last drawn wages Police – Help can be sought by the court to ascertain the gainful employment before paying last drawn wages

¥4.761 The employer contended before High Court that the workman Mr. Anand Das, was gainfully

employed in another company and hence not entitled to last drawn wages u/s. 17B of the Act. The Division Bench through the police, ascertained the position and found that Mr. Anand Das was another person of same name as that of the workman. Hence upheld the order of Single Judge, for paying last drawn wages u/s. 17B of the Act.

STP Ltd. v. Learned Second Labour Court, West Bengal & Ors., 2008 III LLJ 155 : 2008 II CLR 122 (Cal.DB) CAJOSAPO 204 of 2007 & WP 1074 of 2003 dt. 12-12-2007

“Pursuant to our earlier……….any further enquiry.” (Page: 156, Para: 2)

“From the……….Labour Court.” (Page: 156, Para: 4)

Sec. 17B

Last Drawn Wages – Cannot be denied if no document for receipt of salary wais produced by employer towards gainful employment in another concern Salary – Receipt of is vital for denying last drawn wages Gainful Employment – Must be proved with receipt of salary for denying wages u/s. 17B

¥4.762 Though there is a certificate tendered by one Mr. Partha Mukerjee to the effect that the workman

after termination of his service, was in his employment for the period from November 20, 2001 to October 11, 2002, that letter by itself is not sufficient to deny the last drawn wages to workman inasmuch as, there is no particulars towards receipt of any salary. As there is no document for receipt of salary from the said Mr. Partha Mukherjee the last drawn wages are attracted if the award for reinstatement

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was challenged. Hence Division Bench ordered to pay entire arrears of salary and allowances, thereby setting aside the order of Single Judge.

Dilip Dey v. Manasi Press & Ors., 2008 III LLJ 162 : 2008 II CLR 124 (Cal.DB) CAJOSGA 2878 of 2005 APO 417 of 2005 & WP 771 of 2004 dt. 20-3-2007

“The said……….Partha Mukherjee.” (Page: 163, Para: 6)

“Accordingly……….said Act.” (Page: 164, Para: 8)

Sec. 17B Last Drawn Wages – Being in the nature of subsistence allowance is liable to be paid even when the award of reinstatement is stayed Award – Of reinstatement though stayed, the last drawn wages are liable to be paid Sec. 17B – Will continue to be operational though the award of reinstatement was stayed Reinstatement – Though stayed, the last drawn wages are continued to be paid

¥4.763 The employer stopped paying the amount u/s. 17B from the date when he took a stay against the

operation of award for reinstating the conductor. The High Court held that the settled legal principle is that the workman will continue to get wages if stay on award of reinstatement granted by the Court being in the nature of subsistence allowance. The High Court directed the employer to deposit the balance amount in Labour Court for enabling the conductor to receive.

Management of Marudhupandiyar Transport Corporation, Marudhapathi, Karaikudi (represented by its Managing Director) (now Known as Tamil Nadu State Transport Corporation (Kumbakonam Division III), Ltd.) v. Presiding Officer, Labour Court, Madurai & Anr., 2008 I LLJ 428 : 2008 (117) FLR 344 : 2008 I LLN 928 : 2008 I CLR 756 : 2008 LLR 632 (Mad.DB) WA 1158 of 2002 WP 11080 of 1994 dt. 28-11-2007

“Learned counsel for the appellant……….considered opinion.” (Page: 432, Para: 18)

Sec. 17B

Interlocutory Orders – Should also be made with reasons howsoever brief Reasons – Are to be given even in case of interlocutory orders rejecting the prayer

¥4.764 While challenging the award given in favour of workman, the employer prayed for interim relief of

stay of the impugned orders. But the court rejected the prayer without assigning any reason even in the face of merit in the petition of employer keeping is view the provisions of Sec. 17B of the Act. The Division Bench therefore held that the Court is bound to give reasons even in case of interlocutory orders howsoever brief it may be and set aside the said orders besides remanding the same for hearing afresh in accordance with law by the Single Judge.

Pipe Arts India Pvt. Ltd. Sanaswadi, Taluka Shirur v. Gangadhar Nathuji Golamare, Pune, 2008 II CLR 228 : 2008 III LLJ 121 : 2008 (6) Mah.LJ 280 (Bom.DB) CAJLPA 50-58 of 2008 WP 7373, 7428, 7417, 7430, 7433, 7415, 7431, 7426 & 7429 of 2007 dt. 13-3-2008

“Clarity of thought……….present appeals.” (Page: 233/234, Para: 22)

Sec. 17B

Writ Court – Cannot refuse to address itself on merit on the plea that compliance of order u/s. 17B should be first Dismissal of writ petition – Cannot be on the cards of High Court merely on the ground of non compliance of the order u/s. 17B

¥4.765 A writ court cannot refuse to address itself on merits by saying that if the order passed u/s. 17B of the

Act had not been complied with then the writ petition of employer will be automatically dismissed.

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Krishi Upaj Mandi Samita Bada Malhara v. Yashwant Singh Bundela & Anr., 2008 II LLJ 105 : 2008 (118) FLR 188 : 2008 LIC 302 (MP.DB) WA 1093 of 2007 dt. 9-10-2007

“In view……….not sustainable.” (Page: 109/110, Para: 19)

“In the ultimate……….set aside.” (Page: 110, Para: 20)

Sec. 17B

Counter affidavit – From the employer stating the workman is gainfully employed is necessary to debar the workman from claiming last drawn wage Last Drawn Wages – Cannot be denied if employer does not file a counter affidavit showing the gainful employment of workman

¥4.766 When employer did not file a counter affidavit pin pointing the gainful employment of workman

countering workman’s affidavit filed for last drawn wages u/s. 17 B of the Act, the order of writ court for paying last drawn wages cannot be called into question.

Krishi Upaj Mandi Samita Bada Malhara v. Yashwant Singh Bundela & Anr., 2008 II LLJ 105 : 2008 (118) FLR 188 : 2008 LIC 302 (MP.DB) WA 1093 of 2007 dt. 9-10-2007

“In view……….fault with.” (Page: 109, Para: 18)

Sec. 17B

Writ Appeal – Is maintainable against an order u/s. 17B of the Act Sec. 17B – Under which an order if issued by Single Judge it is appealable under writ Letters Patent – Appeal is maintainable against order u/s. 17B Judgement – Includes – An order of court u/s. 17B

¥4.767 An order of court u/s. 17B is a judgement within the meaning of clause 10 of the Letters Patent. A

writ appeal against the said order is therefore maintainable.

Krishi Upaj Mandi Samita Bada Malhara v. Yashwant Singh Bundela & Anr., 2008 II LLJ 105 : 2008 (118) FLR 188 : 2008 LIC 302 (MP.DB) WA 1093 of 2007 dt. 9-10-2007

“In central mine planning……….appeal is maintainable.” (Page: 107/108, Para: 11)

Sec. 17B Last drawn wages – Admissible from the date of institution of proceedings in High Court/Supreme Court no matter since two decades work man is not in employment Employment – A fact cannot be inferred by the fact a workman remaining out of employment since two decades Affidavit – With which the workman swears the fact of his not gainfully employed onus shifts to the employer to prove the opposite Gainfully employed – Cannot be inferred by reason of workman remaining unemployed for two decades

¥4.768 Once the workman files an affidavit in terms of Sec. 17B that he is not gainfully employed the onus

shifts to the employer to lead evidence to prove his otherwise gainful employment. The workman cannot be put to strict proof of the fact that he was not gainfully employed elsewhere because no person can be asked to prove the non existence of a fact. It is immaterial that he is surviving without employment since last two decades, that itself cannot be a cause to disentitle him the last drawn wages. The court ordered to pay the last dawn wages from the date of institution of proceedings in the High Court in the instant case.

Union of India v. Bhagawan Giri & Anr., 2008 I LLJ 925 : 2008 (116) FLR 1013 : 2008 II LLN 528 : 2008 I CLR 470 : 2008 LLR 328/455 (Raj.DB) DBCSA (W) 59 of 2006 dt. 14-5-2007

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“On plain reading……….in his favours.” (Page: 926, Para: 3)

Sec. 17B

Last Drawn Wages – U/s. 17B – Is payable subject to affidavit disclosing not only not gainfully employed but also how he subsisted Subsistence – During forced unemployment should be part of the affidavit u/s. 17B Affidavit – For Sec. 17B should disclose full facts including how workman subsisted during forced unemployment

¥4.769 The statutory interim protection contemplated u/s. 17B of the Act is dependent upon his gainful

employment including self employment. Then the question is in discharge of the legal obligation what materials an affidavit as contemplated in the provision should partake. The Division Bench held that the workman is expected to discharge his onus by filing affidavit in definite terms with correct facts. Merely stating that he is not employed in any establishment is not substantive and sufficient compliance. The workman is also expected to disclose as to how he subsisted during that period to the satisfaction of the Court. But where employer failed to rebut the workman’s contentions, the affidavit without such disclosures cannot be faulted.

U.P. State Bridge Corporation Ltd. v. Maharashtra General Kamgar Union, 2008 III LLJ 507 : 2008 III LLN 187 : 2008 (2) AIR (Bom.HC) 730 : 2008 (2) BCR 619 : 2008 (4) Mah.LJ 297 (Bom.DB) LPA 290-292 of 2007 in CA 2105-2107 of 2006 in WP 8699 of 2005 dt. 17-1-2008

“……….in the present case……….present appeals.” (Page: 516, Para: 19)

Sec. 17B

Last drawn wages – U/s. 17B cannot be avoided under the guise of protection granted u/s. 22 of SICA Section 22 of SICA – Does not override sec. 17B of ID Act Section 17B – Overrides Sec. 22 of SICA since it is neither a suit or recovery of money Suit – Excludes – An order u/s. 17B to be covered u/s. 22 of the Act Recovery of money – Excludes – An order u/s. 17B to be covered u/s. 22 of the Act

¥4.770 The illegal termination of workman was met with the relief of reinstatement with 25% back wages by

an award of Labour Court. The single judge did not interfere with the award but allowed the application for granting last drawn wages u/s. 17B of the Act. The employer contested the matter before the Division Bench inter alia on the ground that the High Court should not have directed to pay last drawn wages when there is also protection u/s. 22 of SICA. The Division Bench disagreed and held that the order passed by High Court under Art. 226 for payment of last drawn wages u/s. 17B neither could be termed as a suit for recovery of money nor enforcement of any security against the company. Hence the mandate u/s. 17B cannot be avoided on the ground of Sec. 22 SICA.

Palani Andavar Cotton & Synthetic Spinners Ltd., rep. by its Managing Director, Coimbatore District v. Solyraj & Ors., 2008 II LLJ 887 : 2008 III LLN 290 (Mad.DB) WA 12 of 2008 & MP 1 of 2008 dt. 30-1-2008

“……….in the present……….I.D. Act.” (Page: 891, Para: 9)

“The question……….section 22 of SICA.” (Page: 892, Para: 11)

Sec. 2(b), 10(4) & 17B

Interim Award – Of a tribunal reinstating the workman also falls under an award within the meaning of Sec. 2(b) Last Drawn Wages – U/s. 17B is payable upon stay of an interim award of reinstatement made by the tribunal Award – Includes – An interim award of the tribunal granting temporary reinstatement for purposes of granting last drawn wages u/s. 17B

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Dispute – Even if pending in the tribunal upon granting interim award of reinstatement a stay of the order will invite consequences of payment of last drawn wages u/s. 17B Reinstatement – Temporary by interim award if stayed by the High Court the workman is free to invoke the relief u/s. 17B Sec. 17B – Is available to workman even in a case of temporary reinstatement by an interim award no matter the case is still pending in the tribunal for final hearing

¥4.771 An interim award, granting temporary reinstatement to a workman raising dispute of his illegal

termination, has also the attributes of an award within the meaning of Sec. 2(b) of the Act. The tribunal in exercise of its power u/s. 10(4) can grant relief to a discharged workman by granting interim award. Once such interim award was stayed by the High Court the workman is entitled to seek the benefit of last drawn wages as contemplated u/s. 17B during the pendency of such stay inasmuch as the claim of the workman for reinstatement was one of the specified points of dispute for adjudication in this case.

IPCA Laboratories Ltd. v. Hiru Barot & Anr., 2011 III LLJ 471 : 2011 (128) FLR 1077 : 2011 II LLN 413 : 2011 I CLR 430 (Bom.HC) CAJCA 2561 of 2010 in WP 3139 of 2010 dt. 26-10-2010

“In my opinion the……….u/s. 17B.” (Page: 473, Para: 8)

Note : The above decision was reversed and set aside by the Division Bench 1. Hiru B. Barot 2. IPCA Laboratories Ltd. v. 1. IPCA Laboratories Ltd., through Sanjay Jadhav, GM 2. Presiding Officer, Labour Court 3. Hiru Barot, 2011 (129) FLR 1031 : 2011 II LLN 420 (Bom.DB)

Sec. 17B

Superannuation – Cannot limit the payment of last drawn wages u/s. 17B being in the nature of subsistence allowance provided the matter drags on Last Drawn Wages – Is payable u/s. 17B even after the workman attains the ages of superannuation as this subsistence allowance does not recognize employer employee relationship Employer employee relationship – Continued existence is not the criteria to pay the last drawn wages and hence payable even after attaining the age of superannuation Sec. 17B – The legislature by using the widest amplitude to the expression last drawn wages has precluded any assertion to curtail the payment of last drawn wages limiting it till the age of superannuation

¥4.772 A workman is entitled to last drawn wages u/s. 17B of the Act even after attaining the age of

superannuation, if the writ petition challenging the award of reinstatement remains pending beyond the date of superannuation as the payment of last drawn wages is not dependent on the existence of employer employee relationship between the parties as it is dependent on the existence of the ingredients contained in Sec. 17-B of the Act. Moreover what is payable under the provision is in the nature of subsistence allowance and not exactly wages. Therefore it is not open for the Court to interfere therewith in absence of Legislature having not restricted the right to receive the last drawn wages till the age of superannuation. The High Court held that the expression, “during the pendency of such proceedings in the High Court or the Supreme Court” used by the legislature is in the widest amplitude which cannot be curtailed by limiting the payment till the attainment of the age of superannuation even though the proceeding may remain pending.

Management of Centaur Hotel v. P.S. Mohan Nair & Anr., 2011 II CLR 703 : 2012 I LLJ 89 : 2011 (130) FLR 542 : 2011 LLR 762 (Del.HC) CM 4440 of 2011 in WP 115 of 1999 dt. 21-4-2011

“I am, with respect, unable……….in the High Court.” (Page: 706, Para: 16)

“There is inherent……….Sec. 17B.” (Page: 706/707, Para: 17)

“I am also………said provision.” (Page: 707, Para: 20)

“I am therefore of the……….implementation of the award.” (Page: 708, Para: 25)

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Sec. 17B

Last Drawn Wages – Being in the nature of subsistence wages are not subjected to recovery or refund Refund – The employer cannot claim from the workman the amount of last drawn wages paid even if the workman loses his battle before the High Court Sec. 17B – The provision being in the nature of subsistence wages it does not contemplate refund or recovery irrespective of the result of the petition before the High Court

¥4.773 The workman got a favourable award of reinstatement with back wages. The employer successfully

challenged the award in a writ petition. The question is in such cases whether the employer was entitled to claim refund of the amount paid to the workman in the form of last drawn wages u/s. 17B. The employer in this case demanded refund. Rejecting the same the High Court held that the last drawn wages are in the nature of subsistence wages which are neither susceptible to refund nor recovery even if the order in the writ petition goes against him. This proposition of law is well settled in the case of Dena Bank v. Kiriti Kumar T. Patel and Dena Bank v. Ghanshyam by the Supreme Court.

Project Director, District Literacy Samiti Tala House v. Ms. Mamta Shrivastava & Anr., 2011 LLR 693 : 2012 I LLJ 212 : 2012 (132) FLR 424 : 2012 I LLN 776 : 2011 LIC 3424 (MP.HC) MCC 40 of 2011 dt. 11-2-2011

“Sec. 17-B was……….is not recoverable.” (Page: 694, Para: 5)

Sec. 17-B

Reinstatement – If challenged in a petition the employer is obliged either to pay last drawn wages or job directly and not through contractor Employment – Upon reinstatement must be directly and not through contractor if challenged in a Writ Petition in lieu of last drawn wages Last Drawn Wages – In the alternative employment directly and not through contractor is to be provided

¥4.774 When the reinstatement was directed against the employer Bank and if the Bank challenges the same

in a Writ Petition, then it cannot avoid payment of last drawn wages or take work from the workman. In this case the employer provided him work only through the contractor, which the workman refused. The stand of the workman was upheld by Division Bench and the SLP carried by the employer there against was also dismissed. Hence the legal position is clear that the Bank was obliged to provide work to him directly or in the alternative pay him last drawn wages in conformity with Sec. 17 B of the Act.

Subhashbhai Ramnikbhai Gadhiya v. General Manager & 2 Ors., 2011 (131) FLR 154 : 2012 II LLJ 369 : 2011 III CLR 175 (Guj.HC) CA 13983 of 2010 in SCA 2776 of 2009 dt. 28-1-2011

“The proposition of the Bank’s……….the said relief is vacated.” (Page: 158, Para: 12)

“This court is……….date of the award” (Page: 158, Para: 13)

Sec. 17B

Last Drawn Wages – Payable from the date of filing petition and not from the date of affidavit u/s. 17B Gainful Employment – Lack of need not be proved by producing evidence but last drawn wages admissible merely by filing an affidavit therefore Affidavit – For absence of gainful employment is a necessary pre condition for last drawn wages with no requirement to produce any other evidence Writ Petition – Is the starting point for the payment of last drawn wages

¥4.775 The last drawn wages u/s. 17B will be payable upon filing an affidavit of absence of gainful

employment and the workman is not required to produce any evidence in proof of his assertions in the

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affidavit. The last drawn wages are payable from the date of the writ petition and not from the date of application made u/s. 17B.

Food Corporation of India v. Union of India & Ors., 2011 II LLJ 481 : 2010 (127) FLR 460 : 2011 LLR 77 (Cal.HC) CAN 739 of 2007 in WP 18769 of 1998 dt. 12-5-2010

“The Corporation’s case……….in any establishment.” (Page: 483, Para: 11)

“The provisions of Section……….from September 25 1998.” (Page: 483, Para: 14)

Sec. 17B

Affidavit – U/s. 17B merely required the averment that “workman had not been employed in any establishment” and nothing more Last Drawn Wages – Payable even if affidavit only contained that he had not gainfully employed in any establishment and nothing more Gainful Employment – Denying the same in an affidavit is sufficient compliance for granting last drawn wages u/s. 17B nothing more is required

¥4.776 The question is whether the workman in his original/first affidavit in support of his applicati on for

last drawn wages u/s. 17B should state that he has not been, nor is presently, gainfully employed though he had sought employment but did not get any and furnish particulars of where he sought employment and how he had managed to survive during the period prior to the application with substantiation. The High Court held the provision 17B only requires an affidavit stating that “he had not been employed in any establishment” and nothing more because term ‘employed in any establishment includes gainful employment. Since the employer did not furnish any particulars whatsoever as to gainful employment of the workman in support of his allegation that he owns agricultural lands and earns ̀ 9,000 p.m. and rest content by trying to pick holes in the workman’s affidavit without any evidence the last drawn wages was directed to be paid.

Kirloskar Pneumatic Kamgar Sangh v. Kirloskar Pneumatic Company Ltd., 2011 I LLJ 622 : 2010 LIC 3619 : 2010 (6) BCR 292 (Bom.HC) CA 75 of 2010 in WP 1399 & 2613 of 2008 dt. 12-3-2010

“For the same reasons……….engaged in “gainful employment”.” (Page: 629, Para: 22)

“The entire approach on……….holes in their affidavit.” (Page: 636, Para: 83)

Sec. 17B

Last Drawn Wages – Can be ordered to be paid before setting aside the order of reinstatement subject to filing necessary affidavits in terms of Sec. 17B Reinstatement – Can be set aside by the High Court by ordering last drawn wages to be paid subject to filing necessary affidavits u/s. 17B Sec. 17B – workman entitled to last drawn wages subject to his filing the requisite affidavit while setting aside the order for reinstatement

¥4.777 The workman was appointed on January 1, 1990 and was terminated on May 27, 1998. The tribunal

gave an award reinstating with back wages. The bank contested the same in High Court. The court held that it is incumbent upon the bank to pay him last drawn wages in terms of Sec. 17B provided the workman files necessary affidavit in terms of the provisions. Accordingly while staying the order of the tribunal, the bank was directed to pay last drawn wages within 15 days from the date of receiving the affidavit.

Chief Manager, Indian Bank v. Anilkumar Sukhvasia, 2011 I LLJ 759 : 2010 LIC 3737 (Guj.HC) SCA 29294 of 2007 dt. 3-5-2010

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“In light of this background……….advocate Mr. K.V. Gadhia.” (Page: 765, Para: 9)

Sec. 17B

Award – If only for compensation not for reinstatement there is no case for last drawn wages u/s. 17B Reinstatement – If not awarded then notice of motion sought for relief u/s. 17B of the Act is not maintainable Compensation – If the award there is no question of granting last drawn wages u/s. 17B

¥4.778 Labour Court expressly denied reinstatement to the workman while awarding only compensation.

Hence the notice of motion sought for relief u/s. 17B of the Act is not maintainable as there was no award of reinstatement made in this regard.

Arora Combines v. Damaji Ganpat Mankar & Anr., 2010 III LLJ 533 : 2010 (124) FLR 653 : 2010 I LLN 448 : 2010 I CLR 82 : 2010 LLR 341 : 2010 (1) Mah.LJ 754 (Bom.HC) NM 358 of 2009 dt. 10-11-2009

“In the present case……….is accordingly dismissed.” (Page: 534, Para: 4)

Sec. 17B

Sec. 17B – Benefits of last drawn wages cannot be denied merely because the workman claimed the same after considerable delay Delay – of 5 years in applying for last drawn wages is not a reason to deny the benefits of Sec. 17B Minimum Wages – If more it will become the last drawn wages u/s. 17B subject to condition

¥4.779 Delay in filing application u/s. 17B after 5 years of award is no ground to deny the benefits of last

drawn wages. He was awarded minimum wages with a condition that should he fail the difference between minimum wages and actual wages will be refunded. The petition of the employer there against was dismissed.

Delhi Jal Board v. Industrial Tribunal & Anr., 2010 III LLJ 809 : 2010 LLR 472 (Del.HC) CM 4219 of 2009 in WP 21069 of 2005 dt. 7-1-2010

“Sec. 17-B of the……….had to be allowed.” (Page: 810, Para: 4)

Sec. 17-B

Age of superannuation – if attained workman not entitled to wages u/s. 17-B of the Act Workman – if crossed the age of superannuation then he is not entitled to wages u/s. 17-B of the Act Last drawn wages – u/s. 17B not available to the workman who has attained the age of superannuation

¥4.780 Workman who has crossed the age of superannuation, is not entitled to wages u/s. 17-B of the Act.

I.C.I. India Ltd. & Anr. v. The Second Labour Court & Anr., 2010 III LLJ 862 : 2010 (125) FLR 219 : 2010 III LLN 745 : 2010 LLR 596 (Cal.HC) GA 3077 of 2009 & 2000 of 2009 & 1924 of 2003 dt. 21-10-2009

“Considering the fact……….shall stand vacated.” (Page: 864, Para: 7)

Sec. 17-B

Sec. 17-B – Gives no right to the employer to take work from the workman against the liability to make payment without paying usual wages Employer – Has no right to take work from the workman against the liability to make payment u/s.17-B without paying usual wages Wages – Normal wages are payable if the employer intends to take work from the workman receiving last drawn wages Work – In leave of last drawn wages is not contemplated u/s.17B if the employer even if intends to extract

336

¥4.781 During the pendency of proceedings in the higher court, employer has no right u/s. 17B to take work from the workman against the liability to make payment and if the workman is working then he is entitled to same wages as drawn by other workmen working on the same post.

Delhi Transport Corporation v. Phool Singh & Anr., 2010 (126) FLR 531 : 2010 LIC 2305 : 2010 LLR 571 (Del.HC) CM 11188 of 2009 in WP 5183 of 2003 dt. 17-2-2010

“The application, therefore……….Sec.17B of the Act.” (Page: 536, Para: 18)

Sec. 17-B ‘Wages last drawn’ u/s.17-B – Means – If the workman was earning less than the minimum wages he is entitled to atleast the prevalent minimum wage Minimum wage – Is the wage payable u/s.17B if the workman was drawing less wages than the minimum

¥4.782 ‘Wages last drawn’ within the meaning of Sec. 17B does not mean wages last drawn are alone to be

paid. If the workman was earning less than the prevalent minimum wage then the workman will be entitled to the later.

Tehsildar, Kathoomer & Ors. v. Judge, Labour Court & Ors., 2010 I LLN 644 (Raj.HC) SBCWP 2856 of 2005 dt. 7-8-2009

“Counsel for the petitioner……….extent of minimum wages.” (Page: 645, Para: 4)

“The term ‘wages last drawn……….from 1 September 2009.” (Page: 645, Para: 5)

Sec. 17B

Gainfully Employed – If evidence not tendered by the employer the affidavit of the workman to the contrary is to be admitted u/s. 17B Affidavit – Of the workman stating not gainfully employed if left un rebutted the claim of the workman will be allowed

¥4.783 Payment of last drawn wages cannot be refused, if the workman in his affidavit had stated that he

was not gainfully employed in any establishment and the same was not rebutted by the employer and also no evidence was produced to prove that the workman was gainfully employed. Hence the High Court allowed the application of the workman u/s. 17B.

J.K. Industries Ltd. v. Upendra Chowdhary, 2010 IV LLJ 76 : 2010 (126) FLR 599 : 2010 II CLR 448 : 2010 LLR 1270 (Cal.HC) WP 878 of 2003 dt. 11-3-2010

“The intention……….the Evidence Act.” (Page: 78, Para: 5)

Sec. 17B

Sec. 17B – Relief to come in to effect from the date of application if there is unexplained and long delay Delay – If unusually long and unexplained then the last drawn wages u/s. 17B will be paid from the date of application Last Drawn Wages – Will be payable from the date of application if there is long and unexplained delay

¥4.784 Application u/s. 17B was filed after an unusually long and unexplained delay. Hence the workman is

entitled to an order only with effect from the date of application.

Management of M/s. Municipal Corporation of Delhi v. Bhanwar Singh & Anr., 2010 LIC 2933 (Del.HC) CM 16682 of 2007 in WP 5021 of 1998 dt. 24-5-2010

337

“I thus hold……….Sec. 17 B.” (Page: 2937, Para: 13)

“The delay……….the writ petition.” (Page: 2937, Para: 14)

Sec. 17B

Last Drawn Wages – Cannot be less than the minimum wages within the true spirit of Sec. 17B Minimum Wages – Is proper as last drawn wages within the true spirit of Sec. 17B Pendency of Matter – Years together in courts supports grant of minimum wages if the last drawn wages are lower Sec. 17B – Postulates better wages not less than minimum wages as last drawn wages in its true spirit

¥4.785 The last drawn wages u/s. 17B can take the shape of the minimum wages to safeguard the interest of

the workman who was denied reinstatement as per award because pendency of writ petitions and 17B applications for years would not be in the true spirit of Sec. 17B.

Vallabhbhai Patel Chest Institute v. Nishikesh Tyagi, 2010 LLR 785 (Del.HC) CM 12460 of 2003 & CM 14012 of 2005 in WP 7161 of 2003 dt. 4-5-2010

“The contention……….minimum wages.” (Page: 786, Para: 7)

Sec. 17B

Last Drawn Wages – The workman is not entitled if the challenge was for the preliminary issue of a finding that the enquiry was defective Preliminary Issue – Regarding a finding of the Labour Court that the enquiry was defective will not attract last drawn wages in a challenge before the High Court by the employer

¥4.786 The workman is not entitled to get the benefit of last drawn wages u/s. 17 B, even if the employer

challenges the preliminary findings of the Labour Court that the enquiry was defective giving an opportunity to the employer to prove the charges, no matter the preliminary objection was kept for considerable period in High Court for disposal, thereby the workman was kept out of employment for a pretty long time.

Glaxo Smithkline Consumer Healthcare Ltd. v. Presiding Officer, Labour Court IX & Anr., 2010 LLR 900 (Del.HC) WP 7265 of 1999 dt. 14-5-2010

“What strikes one……….Bipartite Agreement.” (Page: 908, Para: 13)

Sec. 17B

Gainful employment – Absence of – An averment is sine qua non for maintenance of application u/s. 17B Averment – Of workman towards non engaging in gainful employment is necessary for relief u/s. 17B

¥4.787 Where there is no specific averment made by the workman in his affidavit regarding his non

employment, in support of his application u/s. 17B, the same is liable to be set aside.

Sri Sathya Sai Vidya Vihar v. Rati Ram, 2010 II LLJ 249 : 2009 (123) FLR 585 : 2009 IV LLN 791 : 2010 LLR 85 (Del.HC) WP(C) 11007 of 2005 dt. 2-4-2009

“I do not……….application is dismissed.” (Page: 251, Para: 10)

Sec.17-B

Own business – Excludes – Gainful employment Gainful Employment – Excludes – Own business

338

¥4.788 The issue is whether the bald allegation made by the employer was that the workmen was gainfully employed and that he was doing business by regularly sitting in one Sharma General Stores and he often goes to Delhi for purchasing and selling commodities and earns from the same and this disentitles him from the provision of Sec. 17-B to get the last drawn wages. The High Court held that the employer had failed to produce any evidence that in whose name the shop license was issued and what is the quantum of income earned from the shop. The term “Gainful employment” is not synonymous with “doing own business”. Even if he does own business to earn a livelihood to maintain himself and his family that itself cannot oust him from the beneficial provision of Sec. 17-B.

State of Rajasthan v. Rajendra Prasad & Anr., 2010 (124) FLR 339 : 2009 IV LLN 781 : 2010 LIC 443 (Raj.HC) SBCWP 2460 of 2001 dt. 29-7-2009

“In my view, the petitioner……….himself and his family.” (Page: 343, Para: 8)

Sec. 17 B

Sick Industry – Is not a valid ground to deny the last drawn wages u/s. 17 B Last Drawn Wages – Once all the ingredients to make the payment are fulfilled the employer is estopped to bring new grounds to deny the benefit

¥4.789 The employer made several attempts to avoid granting relief to the workmen u/s. 17-B. The Labour

Court directed reinstatement of the workmen with 25% back wages. The employer contended that the establishment was declared to be a sick industry and the workman was a contract employee, among others. Rejecting all these contentions, the High Court held that this case has all the conditions required for the applicability of Sec. 17-B such as the workman was reinstated, award was assailed by the employer in High Court and the workman was not gainfully employed. Hence the workman is entitled to last drawn wages or minimum wages whichever is higher.

Cement Corporation of India v. Shriram Chaurasia & Ors., 2010 I LLJ 161 : 2009 (122) FLR 1087 : 2009 II CLR 929 : 2009 LLR 1069 (Del.HC) CM 5803 of 2008 dt. 30-5-2009

“In the instant case……….somewhere else.” (Page: 165, Para: 13) “Sec.17-

B of the Act……….whichever are higher.” (Page: 165, Para: 17) Sec. 2(s)

& 17B

Personal Driver – Of the General Manager is not a workman of the company Employer-employee Relationship – Between a personal driver and the company is not traced the driver cannot claim as an employee of the company Last drawn wages – Paid to a absolute stranger being a personal driver though appears not a liability of the company yet court can restrain itself from directing to refund

¥4.790 The General Manager of the company has appointed a driver as his personal driver. The said driver

claimed that he was an employee of the company after his services were dispensed with. The tribunal directed the company to reinstate the driver with full back wages. The company challenged the same before the High Court which held that there was no privity of employment between the company and the driver and his claim was dishonest and there was no evidence that the company had practiced camouflage. There was never any relationship of employer-employee. The order of the tribunal was quashed. In this case despite these facts the High Court had earlier allowed payment u/s. 17B. Therefore it is now held that though he is a complete stranger and the employer had infact no liability for subsistence allowance to such absolute stranger for want of privity of employment the court restrained itself from directing the driver to refund the sum of ̀ 1,14,003 already paid to him as drawn wages.

339

Mudra Communications Ltd. v. Ganesh Kumar & Ors., 2010 III LLN 529 : 2010 II CLR 423 (Del.HC) WP 4913 of 1997 dt. 21-4-2010

“Though the Tribunal……….same in evidence.” (Page: 531, Para: 6)

“This petition thus………. u/s. 17B.” (Page: 534, Para: 13)

Sec. 17B

Last drawn wages – Cannot be denied u/s. 17B upon stay of reinstatement if the employer fails to prove the gainful employment of the workman subsequent to award Gainful employment – After the award – Burden of proof is on employer for denying last drawn wages

¥4.791 An award of reinstatement and back wages was passed by the Labour Court in favour of the

workman by holding his termination illegal. Hence a writ petition was filed against the award which was admitted and stay was granted on the said award. Hence a civil application seeking wages u/s. 17B was filed by the workman in which it was held that where the employer failed to prove that the workman was in gainful employment for the period subsequent to the date of award, the benefit u/s. 17B cannot be denied to the workman.

Ram Prakash R. Upadhyay v. Manager, Rang Pharmaceuticals Industries, 2009 (120) FLR 396 : 2009 I CLR 498 (Guj.HC) CAD 7740 of 2007, SCA 24778 of 2006 dt. 2-4-2008

“If the employer……….in the establishment.” (Page: 398, Para: 8)

Sec. 17B

Self employment or miscellaneous work – Excludes – Gainful employment Gainful employment – Excludes – Self employment or miscellaneous work

¥4.792 Self employment or doing some miscellaneous work by the workman after termination cannot be

considered as the gainful employment to deny the benefit of the Sec. 17B of the Act.

Ram Prakash R. Upadhyay v. Manager, Rang Pharmaceuticals Industries, 2009 (120) FLR 396 : 2009 I CLR 498 (Guj.HC) CAD 7740 of 2007, SCA 24778 of 2006 dt. 2-4-2008

“This Court had……….of this petition.” (Page: 399, Para: 13)

Sec. 17B

Minimum wages – If higher than last drawn wages can be claimed u/s. 17B with a condition that the difference is subject to refund should the employer succeeds in his petition Last drawn wages – If lower than minimum wages the workman can claim minimum wages with a condition that the difference is subject to refund should the employer succeeds in his petition

¥4.793 U/s. 17B of the I. D. Act, the High Court can in its discretion award minimum wages or the last

drawn wages whichever is higher. Therefore the plea of the workman that he should be awarded minimum wages which is higher than the last drawn wages pending the proceedings was held justified but with the condition that if the writ petition of the employer stands allowed, the difference between the last drawn wages and the minimum wages would be refunded by the workman.

Phool Singh v. Delhi Transport Corporation, 2009 (120) FLR 727 : 2009 I CLR 155 : 2009 LLR 251 (Del.HC) LPA 189 of 2008 dt. 7-11-2008

“We have heard……….by the appellant.” (Page: 728, Para: 4)

340

Sec. 17B

Sec. 17B – High Court cannot refuse the said relief to the workman if all requirements are complied with Affidavit – If workman submits making true disclosures regarding how he subsists including his efforts to obtain a job then application u/s. 17B cannot be denied Last drawn wages – Grantable upon workman making true disclosures as to how he subsisted including efforts made to obtain a job

¥4.794 In a writ petition, an interim stay was obtained by the employer against the award of the Labour

Court holding termination of service illegal and directing the reinstatement to the workman with 50% back wages. Hence the present application seeking wages contemplated u/s. 17B of the Act by the workman in which High Court held that it cannot deny the relief by looking into the legality of the award. The workman in his affidavit made true disclosures that he subsisted on the income of his wife and also efforts made by him to seek employment in government, public sector or private organization were in vain. Hence, when all requirements of Sec. 17B are complied with, High Court said that it cannot refuse the relief u/s. 17B.

Ninan Thomas v. Oil & Natural Gas Corporation Ltd., 2009 (120) FLR 867 : 2009 I LLN 500 : 2009 LIC 1740 : 2009 I CLR 48 : 2009 LLR 440 : 2009 (1) BCR 137 (Bom.HC) CA 194 of 2008 in WP 5700 of 2006 dt. 1-10-2008

“Sec. 17B……….accordingly disposed of.” (Page: 870, Para: 7)

Sec. 17B

Last drawn wages – Or minimum wages whichever is higher payable in the absence of proof of gainful employment Gainful employment – Employer is not expected not elicit information from workman’s school going daughter Refund – The workman is bound to do the difference between minimum wages and last drawn wages if the employer succeeds Minimum wage – If paid to workman he is liable to refund the difference between it and last drawn wages

¥4.795 An award of reinstatement in favour of workman was challenged by the employer in a writ petition.

Therefore the he filed an application u/s. 17B seeking last drawn wages or minimum wages whichever was higher. It was held that where there was no further particular evidence with regard to either alleged work or work place, salary he drew or even his working hours, to plead gainful employment, the action of the management to question the school going daughter of the workman eliciting information about gainful employment if any was to be disapproved and deprecated. Hence, the management was liable to pay the last drawn wages to him. High Court directed to pay him last drawn wages or minimum wages whichever is higher with the condition that should the employer succeeds the workman is liable to refund the difference.

Union of India & Ors. v. Baljit Singh, 2009 (121) FLR 786 : 2009 LIC 1872 : 2009 LLR 572 (Del.HC) WP (C) 14226 of 2005 dt. 10-3-2008

“It is noteworthy……….of the management/employer.” (Page: 788, Para: 5)

“I might add……….in this behalf.” (Page: 789, Para: 6)

“Under the circumstances……….weeks from today.” (Page: 789, Para: 7)

Sec. 17B

Last drawn wages – Are payable upon an assertion made in an affidavit towards absence of gainful employment Sec. 17 B – Operates in favour of workman giving an affidavit sworn asserting absence of gainful employment Gainful employment – Onus shifts on the employer once the workman discharged his burden

341

¥4.796 The employer contended that the workman, a stenographer, who had filed an application u/s. 17B for last drawn wages be asked to work for the employer at the wages he was initially employed. The High Court rejected the same because asking to work for the present at a wage he was initially drawing amounts to a forced labour and hence where in his deposition workman had stated on affidavit that he was not gainfully employed presently and the employer failed to rebut his assertion by producing reliable evidence, he was held entitled for the relief u/s. 17B of the Act during the pendency of the petition challenging reinstatement.

M/s. Gammon Nirman Ltd. v. State of West Bengal & Ors., 2009 (122) FLR 156 (Cal.HC) WP 21245 of 2007 dt. 27- 4-2009

“Since, the workman……….of the Act.” (Page: 157, Para: 4)

“The employer is……….same falls due.” (Page: 158, Para: 8)

Sec. 17B

Gainful employment – Onus shifts on the employer once the workman files an affidavit as to his non employment Onus – Of proving gainful employment of the workman shifts on the employer once the workman files an affidavit as to absence of gainful employment Burden of proof – As to not engaged in gainful employment is on workman

¥4.797 Once the workman files an application u/s. 17B of the Act and an affidavit towards not engaged in

any gainful employment, then the onus shifts on the management to show that the workman was employed in some establishment or was carrying on some gainful activity which would disentitle him of the benefit of last drawn wages. In the facts of the instant case, where the management failed to discharge this onus, there is no reason to disbelieve that the respondent workman has remained unemployed. Last drawn wages granted.

Pro Interactive Service (India) Ltd. v. Government of NCT of Delhi & Anr., 2009 (123) FLR 722 (Del.HC) WP(C) 9218 of 2006 & CM 13042 of 2008 dt. 1-4-2009

“I have considered……….of Sec. 17B.” (Page: 723, Para: 7)

“In the instant case……….have been satisfied.” (Page: 723, Para: 8)

Sec. 17 B

Moral turpitude – Excludes – Manipulating the office records and receiving illegal gratification Illegal gratification – Excludes – Moral turpitude Manipulating the office records – Excludes – Moral turpitude

¥4.798 Misconduct of manipulation of office records and receiving illegal gratification cannot be held as an

offence involving moral turpitude u/s. 4(6)(b)(ii) of the Payment of Gratuity Act, 1972 to forfeit the gratuity payable to the employee and the fact that the payments have been made to the employee u/s. 17B of the I.D. Act, cannot be a ground for declining payment of gratuity to the employee.

A. Padmanabhan v. Joint Commissioner of Labour, Chennai & Anr., 2009 I LLN 726 : 2009 LIC 498 (Mad.HC) WP 12297 of 2006 dt. 23-10-2008

“In the light……….to the petitioner.” (Page: 730, Para: 22)

“Drawing Court’s attention……….to the petitioner.” (Page: 730, Para: 23)

“Second respondent/management……….u/s. 4(6)(b)(ii).” (Page: 730, Para: 24)

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Sec. 17B

Contempt proceeding – Is valid for nonpayment of last drawn wages no matter judgement in the writ petition was already rendered Writ petition – In which though judgment was rendered does not affect a claim granted u/s. 17B Last drawn wages – Payable irrespective of the judgment in the writ petition having been rendered

¥4.799 The contention of the employer was that he no longer required to pay the last drawn wages u/s. 17B

though he had failed to comply with the order because as of now the order to pay the last drawn u/s. 17B merges with the judgment in the writ petition. The High Court rejected the same and held that right of the workman u/s. 17B of the I.D. Act is an independent statutory right which cannot be denied whatever may be the merits of the result of the writ petition. Hence, the workman’s right to realize wages u/s. 17B till the disposal of the writ petition would not be affected irrespective of judgment in the writ petition. The contempt proceedings were held valid for nonpayment of last drawn wages.

Valsalan v. Aravindan, 2009 II LLJ 127 : 2009 (120) FLR 541 (Ker.HC) CCC 1236 of 2008 dt. 17-11-2008

“I do not……….or High Courts.’ (Page: 129, Para: 5)

“I am mot……….u/s. 17B.” (Page: 131, Para: 7)

“I also do……….for further proceedings.” (Page: 131, Para: 8)

Sec.17B

Means to pay – If absent matter requires to be taken out leading evidence in the proceedings u/s. 17B itself Last drawn wages – Order cannot be contested later on the ground of want of means to pay if the grounds were not raised before the very proceedings Employer employee relationship – Does not discontinue on remand for considering compensation in place of reinstatement to justify nonpayment of last drawn wages

¥4.800 Employer contended that he had no means to comply with the order to pay last drawn wages. The

High Court held the question whether means are there are not is a matter for evidence which can be lead in the contempt proceedings and it is maintainable or not is for that court to decide especially the employer had not taken that plea at the time of hearing of the petition u/s. 17B. Secondly the High Court rejected the contention that once the High Court remanded the matter to Labour Court for consideration of paying compensation instead of reinstatement, from that point of time there remains no employer employee relationship to enforce the order u/s. 17B.

Valsalan v. Aravindan, 2009 (120) FLR 541 : 2009 II LLJ 127 (Ker.HC) CCC 1236 of 2008 dt. 17-11-2008

“I am not……….u/s. 17-B.” (Page: 546, Para: 7)

Sec. 17B

Pension – Receiving of – Cannot be termed as gainful employment Gainful employment – Excludes – Receiving Pension for past services Statutory claim – A claim for pension is outside the scope of gainful employment Sec. 17B – A receipt of pension for past services does not fall within the ambit of gainful employment

¥4.801 The question is when an ex serviceman receives pension for the services rendered prior to his joining

the services of the present employer whether that pension can be adjusted against his claim for last drawn wages u/s. 17B of the Act. Rejecting this proposition the court held that the claims u/s. 17B cannot be adjusted because that pension was in the nature of a statutory claim and it has nothing to do with his present employment and that pension cannot be regarded as remuneration paid for gainful employment inasmuch as receiving pension does not mean employment.

343

M/s. Jai Jagdambay Deposits Pvt. Ltd. v. Presiding Officer, Labour Court, Jalandhar & Anr., 2009 LIC 3151 (P&H.HC) CWP 19104 of 2006 dt. 6-3-2009

“This contention of……….is hereby rejected.” (Page: 3154, Para: 10)

“Respondent No. 2……….award till date.” (Page: 3154, Para: 11)

Sec. 17 B

No work no pay – Applies to the claim of last drawn wages if the reinstatement awarded was overturn by the High Court judgement with deduction from the pension Last drawn wages – Paid is liable to be deducted from the pension if the award of reinstatement was set aside by the High Court Pension – The last drawn wages is liable to be deducted from it if the award of reinstatement is set aside by High Court

¥4.802 Where the High Court upholds the penalty of dismissal for the misconduct of unauthorized absence

together with the misconduct of misbehavior with superiors in a drunken condition during duty hours, setting aside the award of reinstatement, the question of paying wages from the date of award to the date of judgement of the High Court does not arise taking into consideration the principle of “No work no pay” and that the entire amount already paid by way of last drawn wages u/s. 17B, is to be deducted from the retiral pension benefits of the workman.

Commissioner, Corporation of Chennai, Chennai v. L. Jaganathan & Anr., 2009 III LLN 245 (Mad.HC) WP 7117 of 2005 WPMP 7776 of 2005 & 488 of 2007 dt. 18-3-2009

“Applying the principles……….to the first respondent.” (Page: 250, Para: 21)

Sec. 17B

Last drawn wages – U/s. 17-B paid to a hamal cannot be recovered even if the reinstatement was set aside

¥4.803 The issue is when the award of reinstatement of daily rated workmen was set aside by the High

Court for the reason that he did not complete the requirement of continuous service, whether the amount already paid to the workman under orders of the High Court u/s. 17-B of the Act is to be recovered from him. The High Court held that the amount paid was to a hamal who could not have saved any amount for recovery. Hence no directions could be given for recovery of that money.

State of Maharashtra v. Ratan Budha Alam, 2009 III LLN 436 : 2009 II CLR 324 : 2009 (3) BCR 24 : 2009 (4) Mah.LJ 620 (Bom.HC) WP 4016 of 2000 WP 1541 of 2001 dt. 1-4-2009

“……….However, during the……….recovery of that money.” (Page: 442, Para: 15)

Sec.17-B

Last Drawn Wages – Admissible u/s. 17 B on the basis of affidavit of the workman declaring unemployed in the absence of any proof of gainful employment to the contrary

¥4.804 As the employer failed to prove before the Court the gainful employment of the workman, upon a

stay granted by the High Court against the order of the Labour Court for reinstatement, the workman was held entitled for last drawn wages in terms of Sec. 17-B.

Gopalbhai Meghjibhai Kantia v. Superintending Engineer, 2009 II LLJ 225 : 2008 (119) FLR 832 : 2009 I LLN 388 (Guj.HC) CAD 14780 of 2007, SCA 19234 of 2006 dt. 11-4-2008

344

“Therefore, according to……….decided by this Court.” (Page: 235, Para: 13 & 14) Sec. 17-B

Last Drawn Wages – Not payable if the workman obtained an award without proving employer employee relationship Employer – Employee Relationship – If the workman has not proved at the time of obtaining an award in his favour application u/s. 17B is to be rejected

¥4.805 The Labour Court directed the employer to reinstate the workman with payment of back wages. The

employer challenged the same in a writ petition. The workman applied and sought last drawn wages u/s. 17B of the Act. The High Court rejected the application of the workman for last drawn wages as he had failed to produce any documents in support of his appointment, payment of salary and order of termination in the face of employer’s contention that there was no employer employee relationship. The decision in the case of Carrit Moran and CO. Pvt. Ltd. (2008 I LLJ 19) squarely applies to this case. Merely because he was reinstated the last drawn wages are not automatic.

M/s. G.E. India Industrial Pvt. Ltd. v. Second Labour Count & Ors., 2009 II LLJ 214 : 2008 (119) FLR 903 : 2009 LLR 537 (Cal.HC) WP 23839 of 2005 with CAN 1437 of 2006 dt. 30-4-2008

“I have given……….Industrial Disputes Act.” (Page: 215, Para: 6)

“In view of……….no. 3 fails.” (Page: 216, Para: 8)

Sec. 17B

Last Drawn Wages – Entitlement occurs from the date when the award of reinstatement was challenged in High Court and not from date of application u/s. 17B Application date u/s. 17B – Is not the starting point for grant of last drawn wages but the actual date on which the award for reinstatement is challenged in High Court

¥4.806 The liability to pay the last drawn wages u/s. 17B of the Act arises from the date of pendency of

proceedings in High Court challenging the award of reinstatement. The proposition that last drawn wages are payable only from the date of application for the said wages is rejected. Even if the application for such wage is belated, it does not deprive him for the arrears of wages u/s. 17B from the period when the award of reinstatement was challenged in High Court. The only requirement is to satisfy the ingredients of Sec. 17B.

Delhi Transport Corporation v. Pratap Singh, 2008 (118) FLR 485 : 2008 LLR 1046 (Del.HC) WP(C) 7796 of 2005 dt. 26-3-2008

“Counsel for……….is unemployed……….” (Page: 487, Para: 2)

Sec. 17B

Employment – Effort made to obtain by the workman is not condition precedent to grant wages u/s. 17B Sec. 17B – Last drawn wages cannot depend upon the effort made by workman to secure employment

¥4.807 There is no authority or any law to support the proposition that it is incumbent upon the workman to

demonstrate before an order u/s. 17B is issued disclosing the efforts made by him to secure a job during the period of his forced unemployment.

Delhi Transport Corporation v. Pratap Singh, 2008 (118) FLR 485 : 2008 LLR 1046 (Del.HC) WP(C) 7796 of 2005 dt. 26-3-2008

345

“……….I find that……….can be made.” (Page: 487, Para: 2)

Sec. 17B

Personal Bond – Can be directed to be given by workman for restitution of the amount granted more than last drawn wages Tangible Security – Can be directed to be given by the workman for receipt of more than the last drawn wages if he has Last Drawn Wages – If paid more than entitled then Court can direct workman to give security for restitution if award is set aside Award – If set aside the employee can be directed to pay the difference of last drawn wages and actual amount received by him through security or personal bond

¥4.808 U/s. 17B while awarding a monthly sum more than the last drawn wages to be paid to workman

during pendency of writ proceedings challenging an award, the employer can pray to the Court for a direction to the workman to file an affidavit of undertaking in the writ petition to offer tangible security for restitution if the award is set aside and if the workman has none then a direction to offer a personal bond for restitution of the difference.

Delhi Transport Corporation v. Eklakh Hussain & Anr., 2008 (118) FLR 857 : 2008 II CLR 688 (Del.HC) LPA 254 & 257 of 2008 dt. 21-5-2008

“Finally……….Smt. Omwati.” (Page: 861, Para: 12)

Sec. 17B

Last Drawn Wages – Continue to be paid notwithstanding a stay issued by writ courts against operation of award

¥4.809 The last drawn wages u/s. 17B continue to be paid even if the award under challenge was stayed by

the writ or appeal court. The word “pending” will o rdinarily mean that the matter is pending until it is concluded.

State of Madhya Pradesh (Now Chhattisgarh) & Anr. v. Chhattisgarh Jalasaya Pariyojna Shramik Sangh, Rudri, 2008 (116) FLR 1066 (Chhat.HC) WP 2900 of 1996 with WP 669 of 2001, 775 of 2002 & 4120 of 2006 dt. 20-2- 2007

“Whether……….High Court.” (Page: 1067, Para: 1)

“Further, in the case of……….pending.” (Page: 1070, Para: 10)

Sec. 17B

Last Drawn wages – Cannot be subjected to deduction from the 50% back wages awarded towards illegal lockout back wages being not full Back wages – If awarded only 50% against illegal lockout the last drawn wages cannot be deducted therefrom

¥4.810 The award of 50% back wages on account of illegal lockout is for the matter of Court’s discretion

which is judiciously exercised but the deduction of the payment of wages received under Sec. 17B from 50% back wages is unjustified as the workmen have been awarded only 50% back wages and not the back wages in its entirety.

D. Meganathan & Ors. v. Presiding Officer, Industrial Tribunal Madras, & Anr., 2008 I LLN 334 (Mad.HC) WP 21836 of 2001 & WPMP 32314 of 2001 dt. 11-6-2007

“Coming to the……….against the petitioners.” (Page: 337, Para: 12)

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“However as far……….second respondent company.” (Page: 338, Para: 13)

Sec.17 B Last drawn wages – Cannot be denied in the absence of specific details of gainful employment of the workman tendered by the employer Technical error – In late filing affidavit denying gainful employment will not disentitle the workman for last drawn wages from the date of award Affidavit – Though filed late for last drawn wages this technical error by itself will not disentitle the workman for the last drawn wages from the date of award itself Award – Is the starting point for payment of last drawn wages and not date of affidavit

¥4.811 Where the management failed by providing specific details about the workman’s gainful

employment, their contention that he should not be entitled for the payment of last drawn wages u/s. 17B could not be sustained. The fact that merely because the appropriate affidavit of non employment was filed later on by the workman, that by itself would not whittled down the provisions of Sec. 17B for this technical error and hence it was held that he was entitled for the payment of wages from the date of award itself and not from the date of filing his affidavit.

Sahara Airlines, Ltd. v. Captain R. Khosla, 2008 II LLJ 236 : 2008 I LLN 602 : 2008 I CLR 47 (Del.HC) CMS 13364 of 2006 & 15889 of 2007 WP (C) 9135 of 2006 dt. 7-12-2007

“The amendment made ………. Sec. 17B of the Act.” (Page: 238, Para: 7)

“Thus it is ………. by the respondent.” (Page: 238, Para: 8)

Sec. 17B Gainful Employment – Excludes – Investment in shares and earning thereof including remuneration received from conducting cases of fellow workmen Earning from investment in shares – does not amount to remuneration and hence does not constitute gainful employment Conducting cases – Of fellow workmen being not gainful employment remuneration received there from is not a bar to receive last drawn wages Last drawn wages – Cannot be excluded merely because the workmen is receiving earnings from shares and remuneration for conducting cases of fellow workmen

¥4.812 An application was filed by the workman u/s. 17B of the Act which was opposed by the Company. It

was held that earning by workman from investment in shares does not amount to remuneration and does not amount to trading in shares so as to constitute the gainful employment u/s. 17B. So also the payment received by the workman towards the union activities for conducting cases of fellow workman does not amount to remuneration u/s. 17B of the Act. Hence, he cannot be denied the benefit of Sec. 17B on these grounds.

M.J. Patel v. Tata Chemicals, Ltd., 2008 II LLJ 345 : 2008 (116) FLR 821 : 2008 (117) FLR 176 : 2008 I LLN 588 : 2008 I CLR 588 : 2008 LLR (Sum) 559 (Guj.HC) CA 6403 of 2007 SCA 669 of 2007 dt. 23-10-2007

“The Company has ……….of the applicant.” (Page: 348, Para: 8)

“The applicant has ……….this Court also.’ (Page: 348, Para: 9)

“In view of ……….expeditiously as possible.” (Page: 349, Para: 11)

Sec.17B Contempt petition – Is maintainable against the employer refusing to comply with the orders to pay last drawn wages in the teeth of consistent court orders if not bonafide Last drawn wages – If not paid despite repeated court orders employer will be invited with court contempt

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Sec.17 B – If violated in the face of court orders contempt petition is maintainable questioning the bonafides of the employer

¥4.813 The contempt petitions were filed by the workmen against the employer for non compliance of order

u/s. 17B to pay minimum wages to them during the pendency of writ filed by the employer. Single Judge held that inspite of giving repeated opportunities; the employer remained recalcitrant in complying with the orders, however in view of his ailments, one last opportunity to show his bonafides should be given to him to pay the sum failing which Court would have no option but to punish him for the contempt.

Roop Singh & Roshama Verghese v. Ramesh Kapoor, 2008 II LLJ 577 : 2008 (116) FLR 876 (Del.HC) CC (C) 1296 & 1297 of 2005 dt. 12-12-2007

“It is also ……….has remained recalcitrant.” (Page: 579, Para: 10)

“However taking into ……….constitution of India.” (Page: 580, Para: 11)

Sec. 17 B

Gainful employment – For denying benefit of last drawn wages includes getting army pension together with possession of 13 bighas of land Last drawn wages – Not payable if the workman is getting pension and possessing 13 bighas of land Pension – For the past service in the army if paid the workman is disentitle to the benefit of last drawn wages Possession of land – Is a disqualification for awarding last drawn wages u/s.17B

¥4.814 In normal circumstances a workman is entitled to get benefit u/s. 17B of the Act after his termination

provided he is not in any gainful employment and not getting adequate remuneration. In the present case, where the workman has 13 bighas of land in his possession and is getting monthly pension of ` 1857 in view of his past service in the Army, he is not entitled to get the benefit u/s. 17B of the Act.

Municipal Council, Sikar & Ors. v. Rawat Singh & Anr., 2008 III CLR 854 : 2009 LLR 104 (Raj.HC) SBCWP 6318 of 2006 dt. 28-2-2008

“It is no ……….or Supreme Court.” (Page: 856, Para: 5)

“Since the Respondent ……….Act is rejected.” (Page: 856, Para: 8)

Sec. 17B

Sporadic intermittent employment – Cannot be called as gainful employment u/s. 17B of the Act Gainful employment – Excludes – Sporadic intermittent employment Last drawn wages – Cannot be denied on the ground that the workman was in receipt of income out of his Sporadic intermittent employment Undertaking – The High Court can impose by order on the workman to refund the excess amount if any withdrawn between last drawn wages or minimum wages than actually due should the employer succeeds

¥4.815 It is held that the sporadic intermittent employment resorted by the workman to keep his body and

soul together cannot be said to satisfy the test of gainful employment u/s. 17B. Hence he is entitled to the benefit u/s. 17B of the Act and the employer is directed to pay him last drawn wages or minimum wages whichever is higher subject to the undertaking by that if such amount is more than the last drawn wages or minimum wages then he would refund the difference between the wages last drawn and minimum wages if any in the event that the employer succeeds.

Delhi Transport Corporation v. Balwant Rai Ex. Cond., 2008 III LLJ 283: 2008 (118) FLR 347 (Del.HC) WP(C) 11849 of 2005 dt. 18-3-2008

“In view of ……….I. D. Act.” (Page: 285, Para: 4)

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“Under the circumstances ……….the writ petition.” (Page: 286, Para: 5)

Sec.17B

Affidavit – Of workman if remained uncontroverted by the employer regarding his remaining not gainfully employed is entitled for wages last drawn Last Drawn Wages – Cannot be denied if workman’s affidavit for not gainfully employed remained uncontroverted by the employer Gainful employment – If denied by affidavit by the workman uncontroverted by the employer last drawn wages cannot be denied

¥4.816 When there is no positive averment made by the management countering the workman’s detailed

affidavit regarding his remaining unemployed, he is entitled for the order u/s. 17B of the Industrial Disputes Act for the payment of full wages last drawn from the date of the award which had directed his reinstatement.

Director General (Works), CPWD v. Sant Lal & Ors., 2008 III LLJ 524: 2008 IV LLN 359 : 2008 LLR 686 (Del.HC) WP (C) 19695 of 2005 dt. 28-4-2008

“The instant case ……….Industrial Disputes Act.” (Page: 529, Para: 6)

Sec. 17B

Drivers – Cannot remain unemployed a contention raised to deny last drawn wages unless proved by tangible evidence unacceptable Gainful employment – Of the driver if not proved by the employer last drawn wages cannot be denied Last Drawn Wages – Is a rule and denial is exception depending on lack of employer employee relationship and jurisdictional error

¥4.817 The allegation of the employer that the workmen being drivers, they could not have remained

unemployed cannot be accepted for the reason that they had sworn in affidavits that they are not engaged in gainful employment and then the onus shifts on the employer to prove the contrary. Since the employer failed to substantiate his contentions of gainful employment, merely because the workmen were drivers, the assumption that they could not have remained unemployed cannot be relied upon. Since relief under Sec. 17 B can only be denied in exceptional cases of lack of employer employee relationship and want of jurisdiction, payment of last drawn wages is a normal rule and denial is only an exception.

Ramniranjan Kedia Tourism Services Pvt. Ltd. v. Tilakraj & Ors., 2008 III LLJ 70 : 2008 (119) FLR 617 : 2008 LIC 2322 : 2008 II CLR 248 (Del.HC) CM 11831 of 2007in WP (C) 14981 of 2005 dt. 2-4-2008

“The allegations against……….has been given.” (Page: 74, Para: 20)

“In the circumstances ……….within four weeks.” (Page: 74, Para: 22)

Sec. 17 B Last Drawn Wages – Payable once the award for reinstatement is stayed Self Employment – Excluded – Gainful employment Gainful employment – Excluded – Self Employment Award – Gainful employment is not prior to but after to the award

¥4.818 The employer resisted the payment of last drawn wages on the ground that the workman was

engaged in self employment in the construction industry. The High Court held that engaging in self employment per se is not gainful employment. Secondly the fact of gainful employment must be for the period after the date of the award. In this case employer was pointing out workman’s gainful employment only for the period prior to the date of award. Once the employer enjoys the fruits of stay of

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the operation of the award there is no escape but to accede to the provisions of last drawn wages u/s. 17B. The High Court directed the employer to pay full wages last drawn inclusive of maintenance allowance if any drawn by him.

Ramprakash R. Upadhyay v. Manager, Rang Pharmaceuticals Industries, 2008 IV LLN 842 (Guj.HC) SCA 24778 of 2006 dt. 2-4-2008

“If the employer……….in the establishment.” (Page: 844, Para: 7)

“Here it is……….letter and spirit.” (Page: 846, Para: 13)

“Therefore in view……….this Court finally.” (Page: 846, Para: 14)

Sec.17B

Last Drawn Wages – Cannot be denied without proof of gainful employment in an establishment Bland statement – Without support of tangible evidence of earning adequate income from gainful employment is to be rejected against claim for last drawn wages Sec.17 B – Attracts for last drawn wages upon granting stay of reinstatement by High Court/Supreme Court

¥4.819 An order of reinstatement was passed in favour of a workman which was challenged and pending in

High Court and Supreme Court and the stay ordered by the Supreme Court against the relief of reinstatement remained continued. It was held that where the employer failed to produce any evidence showing that the workman was gainfully employed and receiving adequate remuneration, the benefit u/s. 17B cannot be denied to him. Mere pointing out that the workman owns agricultural land being only a bland statement, cannot be relied on as a case for earning adequate remuneration in an establishment. Hence the High Court directed the employer to pay the last drawn wages during the pendency of the proceedings.

Bipin V. Patel v. Parry Engineering & Export Ltd., 2008 LIC 2514 (Guj.HC) CAFO 15422 of 2007 dt. 4-2-2008

“Therefore according to……….entitled to it.” (Page: 2539, Para: 34)

Sec. 17B

Last drawn wages – Payable upon an order of stay of the award for reinstatement Gainful employment – If not proved employer cannot escape from the payment of last drawn wages Sec. 17 B – Imposes a liability on the employer to pay last drawn wages on stay of the reinstatement

¥4.820 In a reference, the Tribunal passed an order of reinstatement of the workmen after holding that the

lock out by employer was illegal. This order was stayed by the High Court as the employer challenged the same. Ultimately in the claim for benefit u/s. 17B of the Act, the employer failed to produce any evidence regarding the gainful employment of the workmen, it is held that the applicant’s workmen are entitled to benefit u/s. 17B of the Act.

Chemical Mazdoor Panchayat, Ahmedabad v. Krishak Bharti Co-operative Ltd. & Ors., 2008 LIC 2837 (Guj.HC) CA 11809 of 2007, SCA 13590 of 2007 dt. 4-2-2008

“Therefore considering the……….I. D. Act, 1947.” (Page: 2864, Para: 31)

“In view of……….I. D. Act, 1947.” (Page: 2865, Para: 32)

Sec. 17-B

Last drawn wages – Payable from the date of award upon staying the award for reinstatement Award – The date thereof is the starting point for granting last drawn wages upon granting stay for reinstatement

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Stay – Of reinstatement by the High Court ensues grant of last drawn wages from the date of award

¥4.821 Where the award of reinstatement was stayed by the High Court at the instance of the employer, the application with appropriate affidavit of the workm an for last drawn wages u/s.17-B is to be granted. In this case the employer was directed to pay the last drawn wages from the date of award. However employer is free to bring to the notice of the Court during the pendency of writ petition any gainful employment of the workman for suitable modification of the order for payment of last drawn wages.

Ajmer Central Co-operative Bank Ltd. & Anr. v. The Judge, Labour Court & Industrial Tribunal, Ajmer & Anr., 2008 (117) FLR 78 : 2008 LLR 547 (Raj.HC) SBCWP 6444 of 2003 dt. 17-12-2007

“The said application……….in accordance with law.” (Page: 79, Para: 2)

Sec. 17 B

Stay of re-instatement – Not a condition precedent for payment of last dawn wages Last Drawn Wages – Is payable no matter no stay of reinstatement was taken

¥4.822 The question before the court was whether the workman, a daily labourer who was granted, an

award of reinstatement of which the employer had challenged before the High Court is entitled to last drawn wages even though no stay of the order was obtained from the Court. Secondly whether the employer can be given liberty to reinstate the daily labour in such a way as and when work is available. The High Court held that stay of the order of reinstatement is not sine qua non for granting last drawn wages. The plea of the employer that he be reinstated depending upon the availability of work was rejected because to do so would amount to an affront to the award. The workman, it was held, was entitled for Minimum wages irrespective of the fact that he is a Daily Labour.

Agricultural Produce Market Committee, Botad v. Paresh Kumar Bhaskarrai Dave, 2008 (117) FLR 685 : 2008 II CLR 192 (Guj.HC) CA 13010 of 2007 in SCA 21849 of 2006 dt. 15-10-2007

“The present applicant……….” (See Deva Goa V. District Panchayat) (Page: 690, Para: 19)

Sec. 17-B

Last Drawn Wages – If work is extracted from the workmen then they be paid on par with other regular workmen with no security for excess amount paid should they lose the case Security – The workmen need not give for wages received on par with permanent workmen even if later on they lose the case if work was extracted instead of paying u/s. 17 B

¥4.823 The employer thought it fit to provide work to the workmen instead of paying wages u/s. 17 B. The

dispute in question was whether the workmen would be entitled to the same wages and benefits as are being paid to the permanent workmen or only ̀ 2500 as per order in an earlier petition, If higher amount is to be paid whether such amount is to be secured to get a refund of excess amount paid in terms of the Apex court decision in Dena Bank’s case. In this case employer was paying ` 2500 only when work was available otherwise paying only ̀ 1200 or there about. Allowing the application of the union the High Court distinguished the judgement of Dena Bank and held that in this case question of giving any security does not arise because the employer is extracting work and hence workmen are entitled to same wages as paid to permanent workmen. If no work is available then the employer has to pay ` 2 500 in terms of the High Court Order as given in the earlier petition.

Workmen employed under it represented by Shramik Sena v. Raptakos Breet & Co. Ltd., 2007 (115) FLR 558: 2008 I LLJ 1062 : 2007 III CLR 354 (Bom.HC) CAJCA 1554 of 2007 in WP 3079 of 2006 a/w CA 1916 of 2006 in WP 3079 of 2006 dt. 10-8-2007

“The tribunal has……….by the Industrial Tribunal.” (Page: 562, Para: 11)

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“In the circumstances……….disposed off accordingly.” (Page: 563, Para: 12)

Sec. 17 B &Art. 226

Clarification – An application to court will not lie once the order was passed after hearing both the parties

¥4.824 When an order is passed by the court after hearing both the parties an application for clarification on the order does not lie except to the extent of correcting clerical and accidental mistakes.

Agricultural Produce Market Committee, Botad v. Paresh Kumar Bhaskarrai Dave, 2008 (117) FLR 685 : 2008 II CLR 192 (Guj.HC) CA 13010 of 2007 in SCA 21849 of 2006 dt. 15-10-2007

“Recently, in case of……….or Apex Court.” (Page: 690, Para: 17)

Sec. 17B & 17A

Sec. 17B – Benefits available from the date of award and not from the date of petition or from the date of filing affidavit of non-employment Award – Is the starting point for granting benefits u/s. 17B and not date of petition or workman affidavit Affidavit – From workman stating not engaged in gainful employment is not the starting point for granting last drawn wages but the date of award is Petition – Filing of in the High Court is not the starting point for granting last drawn wages the award is Last drawn wages – U/s. 17B is payable from the date of award in consonance with Sec. 17A

¥4.825 Workman is entitled to the benefits of Sec. 17B from the date of award and not from the date of

petition or from the date of filing affidavit for n ot having gainful employment. Any other interpretation would be contrary to Sec. 17A of the Act.

Bharat H. Parmar v. Airport Authority of India & Ors., 2010 IV LLJ 153 : 2010 II LLN 811 : 2010 LIC 1921 : 2010 II CLR 1029 (Guj.HC) MCA 354 & 379 of 2010 CA 10657 & 10682 of 2008 dt. 11-3-2010

“The award passed……….date of award.” (Page: 166, Para: 25)

Sec. 17B and 2(b)

Closure of the Unit – Is a reason only to be rejected for non implementation of the orders to pay last drawn wages Last Drawn Wages – Cannot be refused to be paid only for the reason that establishment was closed Interim Orders – Staying the operation of the award will be vacated if the employer defies the orders to pay last drawn wages

¥4.826 The employer despite orders of High Court defied in complying with the order to make payment of

last drawn wages on the specious ground that his industrial undertaking was already closed. The High Court while giving interim orders staying the operation of the award had directed to comply with Sec. 17B of the Act. Contempt petitions came to be filed against the employer following his defiance to implement the orders. The employer justified non implementation for closure of his establishment. Whereas the court held compliance of statutory obligation u/s. 17B is not optional for the management and it has to be complied with mandatorily and the same can be avoided only in a situation where the workman is gainfully employed during the period of pendency of the petition and not on the ground of closure of his unit. In the wake of his defiance the High Court vacated its interim order with liberty to enforce the implementation of the award u/s. 29 or u/s. 15(2) of Payment of Wages Act.

Granite (India) Ltd. Alwar v. Judge, Industrial Tribunal, Bharatpur & Anr., 2010 I LLN 658 : 2009 LIC 3328 : 2010 I CLR 474 (Raj.HC) CWP 5220 of 1999 dt. 16-3-2009

“The respondents-workmen……….taken as void.” (Page: 660, Para: 5)

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“All that is……….avoid its compliance.” (Page: 661, Para: 6)

Sec.2 (b), 18 and 17B

Settlement – Is permissible under Rule-58 of the Act to compromise the benefit awarded by the tribunal Award – Can be implemented in a modified manner by amicable settlement under Rule-58 of the Act Physical presence – On duty is the criterion for entitlement of bonus, LTC, Mini LTC, bonus, leave encashment and quarter allowance except gratuity Last drawn wages – Paid can be deducted from the back wages under a settlement under Rule-58 of the Act

¥4.827 Workman was not allowed to join his duties after recovery from T.B. and he succeeded in getting

award for reinstatement with full back wages from the Tribunal. Employer challenged the award in writ petition and obtained stay for the operation of the said award but he was directed to pay last drawn wages. Mean while the employer and the workman had entered into a settlement in terms of Rule-58 of I.D. Act under which 66% of full back wages were paid minus the amount already received u/s. 17B of the Act, the workman having reached the age of superannuation. Later he filed petition for gratuity, PF, LTC, Mini LTC, bonus, leave encashment and quarter allowance. The petition failed for the reason that the back wages were already received in terms of the settlement and for other benefits he was never physically present on duty till his superannuation and never a member of the pension fund nor any number was allotted by the PF authority nor his previous employer made him a member of C.M.P.F. the only benefit that will accrue to him was the gratuity which was paid by the employer.

Bindeshwari Das v. B.C.C.L. & Ors., 2009 II CLR 116 (Jhar.HC) WP (S) 6522 of 2004 dt. 16-3-2009/27-3-2009

“From the rival……….prescribed Form ‘A’.” (Page: 121, Para: 6)

“The above facts……….any such funds.” (Page: 121, Para: 6.1)

“Considering the above……….payment of gratuity.” (Page: 122, Para: 7)

“It is also……….towards the gratuity.” (Page: 122, Para: 7.1)

Sec. 17-B

Full back wages – As an interim relief – Has to be considered on several factors involved in the case Last Drawn Wages – In full need not be paid when employer has opted for clause (iii) of the award depositing Compensation in lieu of reinstatement

¥4.828 Where there is no evidence that the workman was responsible for the delay in pendency of

proceedings and has been ready and willing to work, it would be appropriate for the petitioner employer to deposit 50% back wages and where the compensation in lieu of reinstatement has been already deposited, the question of full back wages u/s. 17B does not arise since the employer being determined not to reinstate the worker has opted for clause (iii) of the award of the Labour Court i.e for the payment of compensation in lieu of reinstatement.

China Gate Restaurant Pvt. Ltd. v. Kisan D. Badei, 2008 (2) BCR 273 (Bom.HC) NM 414 of 2007 with WP 1132 of 2007 dt. 28-11-2007

“The next question……….of the petition.” (Page: 275, Para: 8)

“Insofar as the……….of the petitioner.” (Page: 275, Para: 9)

“Insofar as relief……….the writ petition.” (Page: 276, Para: 11)

“Insofar as prayer……….have no application.” (Page: 276, Para; 12)

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“Going by the……….of the Act.” (Page: 276, Para: 14)

Sec. 17B & 11 A

Domestic Enquiry – Is based on preponderance of probabilities

¥4.829 The workman, a driver, was terminated after an enquiry for rash and negligent driving and

concealing an accident caused due to one way driving. The termination was set aside by the Labour Court on the ground that the enquiry was not fair and proper. Reversing the award the High Court held that there was a wealth of evidence produced before the Labour Court showing clinching evidence about the culpability of the workman in the incident and that the domestic enquiry is wholly based on the preponderance of probability and it is no where affected by his acquittal in the Criminal proceedings on technical ground. The amount already paid u/s. 17-B could not be recovered but that in deposit was permitted to be withdrawn by the employer.

Management of Tamil Nadu State Transport Corporation (Kumbakonam Division II) Ltd. (represented by its Managing Director) (Formerly Known as Dheeran Chinnamalai Transport Corporation, Ltd.), Tiruchirapalli v. (1) Presiding Officer, Labour Court, Tiruchirapalli (2) K. Arjunan, 2009 III LLN 479 (Mad.HC) WP 13551 of 1999 dt. 30-7-2008

“In any event ……….of the case.” (Page: 482, Para: 21)

Sec. 11 A

Delay and laches – Of 14 years in raising a dispute regarding illegal termination will cost the back wages Industrial dispute – If raised belatedly back wages not payable Last drawn wages – Payable upon contesting reinstatement till the death of the workman while proceedings on Back wages – Not payable for raising dispute after 14 years of termination

¥4.830 The services of a workman were terminated under Clause 14(10)(c) of Delhi Road Transport Act,

(Conditions of Appointment and Services) Regulations, 1952. However the delinquent workman was not afforded proper opportunity to defend. The tribunal on this ground set aside his termination and reinstated him with 50% back wages. The employer assailed the same before High Court. The High Court modified the award to the extent of granting 50% back wages are concerned. It held that the workman raised dispute of his illegal termination only after a period of 14 years. Hence he is not entitled for the relief of back wages. However as the workman has since expired he could not be reinstated but he be paid the last drawn wages as admissible under the provisions of Sec. 17B till the date of his death according to his application.

Delhi Transport Corporation v. Rohtash Singh, 2009 (123) FLR 128 (Del.HC) WP(C) 23841 of 2005 dt. 13-5-2009

“I have considered……….to be modified.” (Page: 130, Para: 5)

“I have heard……….the statutory benefits.” (Page: 131, Para: 12)

Sec. 17-B and 25-O (6)

Minutes of the Order – For 50% last drawn wages will be superseded by the provision of the sec. 17B read with Sec. 25 O of the Act Last Drawn Wages – Will be payable notwithstanding the minutes of the order should the employer contest the order refusing to grant permission to closure Agreement- To pay 50% last drawn wages upon refusal of permission to close down the unit cannot survive in the face of application of S.25– O(6)

¥4.831 There was a minutes of order between the employer and the workmen to pay 50% of the last drawn

wages in the challenge by the employer by a writ petition against refusal of the Industrial court to grant

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permission to close down the Industrial unit u/s. 25-O of the Act. Meanwhile some of the law points in the petition were referred to the larger bench. The workmen thereupon moved a Notice of Motion for full last drawn wages due to the perceived delay in the conclusion of the matter. The High Court held that the minutes of the order are not same as consent terms. The workmen who did not accept VRS though party to the Minutes now claiming last drawn wages u/s 17B of the Act have filed the requisite affidavits and hence they are entitled to the last drawn wages in as much as Sec. 17-B read with Sec. 25-O (6) of the Act comes calling notwithstanding the minutes of the order.

Britannia Industries Ltd. v. Maharashtra General Kamgar Union & Anr., 2008 III CLR 621 : 2009 II LLJ 555 : 2008 (119) FLR 915 : 2009 II LLN 381 (Bom.HC) OOCJNM 79 of 2008 dt. WP 2659 of 2005 dt. 16-9-2008

“Mr. Singh, learned……….of the industrial Disputes Act.” (Page: 622, Para: 6)

“There is no merit……….25-O (6)applies with full effect……….” (Page: 622, Para: 8)

Sec.17B & 33(2)(b)

Gainful Employment – Lack of it need not be mentioned directly in the affidavit itself, it is sufficient if it is mentioned in the application though kept silent in the affidavit for Sec. 17B Sec. 17B – Being benevolent pedantic objection for not mentioning in the affidavit the fact of lack of gainful employment will not survive when it is mentioned in the application Affidavit – Need not contain lack of gainful employment if the application covers the same Application – If contains the lack of gainful employment the affidavit even if silent cannot be challenged on this ground the objection being pedantic

¥4.832 The termination of the workman was not approved u/s. 33(2)(b) by the tribunal. But despite this the

employer refused to reinstate him and on the contrary filed a petition challenging the order of the tribunal. The workman filed an application for last drawn wages u/s. 17B. The question before the court was whether the workman should specifically state in the affidavit that he was not gainfully employed or such statement in the application u/s. 17B of the Act is sufficient though that statement was silent in the affidavit itself. The High Court held that the spirit of the provision will be complied with once the workman states on oath that he had not been employed in any establishment and such statement even if made merely in an application it will be sufficient compliance though in the affidavit that fact was not mentioned. The objection from the employer being pedantic was rejected.

Bikram Singh v. Delhi Transport Corporation & Anr., 2010 IV LLJ 303 : 2010 II CLR 220 : 2010 LLR 682 (Del.HC) WP 19645 of 2005 & CM 10556 of 2006 dt. 7-4-2010

“Sec.17-B of the Act……….is sufficient c compliance.” (Page: 305, Para: 6)

“Accordingly, DTC is……….No. 19645/2005.” (Page: 306, Para: 9)

Sec. 17B and 33(2) (b)

Last Drawn Wages – The workman is entitled even for stay of rejection application for approval of dismissal u/s. 33(2)(b) Sec. 33(2)(b) – Also attracts last drawn wages should the High Court set aside the order of rejection of approval application for dismissal Stay – Of the operation of the order of rejection of approval for dismissal u/s. 33(2)(b) also attracts Sec. 17B

¥4.833 The employer sought approval for dismissal u/s. 33(2)(b) which was rejected. The employer

challenged the same and the High Court stayed the operation of the order. The workman invoked Sec. 17B for last drawn wages. The question is in the event of employer challenging the rejection application before High Court with a prayer to stay the order of rejection impliedly including stay of reinstatement whether workman is entitled for the last drawn wages from the date of rejection application till the matter is finally heard and decided by the High Court. The High Court held that this matter is no more

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res Integra. The Supreme Court and High Courts in a large number of cases settled this issue in favour of workman. Accordingly the High Court directed the employer to pay last drawn wages from the date of order till the date of actual reinstatement. However if he is reinstated the employer has to pay regular current wages to the workman.

Somabhai Babubhai Parmar v. Gujarat State Road Transport Corporation, 2009 (121) FLR 253 (Guj.HC) CA for IR 8323 of 2005 in SCA 12302 of 2004 dt. 4-7-2008

“In view of……….by Industrial Tribunal.” (Page: 264, Para: 13)

Sec. 18 – Persons on whom settlements and awards are binding

Sec. 18

Settlement – Are prospective in nature supersede bilateral settlements in regard to service condition Gender Neutralization – Between Flight pursers and Air hostesses can be promoted by adoption of revised promotion policy

¥4.834 The employer in AIR India is within its rights to supersede bilateral settlements in regard to service

conditions by new promotion policy which was accepted by majority merging the service condition of In- Flight Pursers and Airhostesses. This decision is prospective in nature and with view to remove discrimination and to render gender neutralization.

Air India Cabin Crew Association & Ors. v. Union of India & Ors., 2012 (1) SCC (L&S) 218 : 2012 I LLJ 305 : 2012 LIC 373 : 2012 (1) SCC 619 (S.C.2J) CA 9857-61 of 2011 with 9862 -65 of 2011 & 9866-71 of 2011 dt. 17- 11-2011

“As was observed by this Court in Inderpreet Singh Kahlon and Ors. v. State of Punjab and Ors. MANU/SC/2433/2006 : (2006) 11 SCC 356, it is well-settled that a decision is an authority for what it decides and not what can logically be deduced there from. Further, it is also well-settled that the ratio of a case must be understood having regard to the fact situation obtaining therein. The position since the decisions rendered in Nergesh Meerza's case and in Yeshaswinee Merchant's case, underwent a change with the adoption of the revised promotion policy agreed to between the parties and which replaced all the earlier agreements. In our view, the Management of Air India was always entitled to alter its policies with regard to their workmen, subject to the consensus arrived at between the parties in supersession of all previous agreements.” (Page: 239, Para: 71)

Sec. 18

Transfer – If one of the conditions of service violation of it in the face of clause in the bi-partite settlement compulsory retirement cannot be held void Compulsory Retirement – Invoking clause XVI of the Fourth bi-partite settlement is proper for not reporting on transfer to new place of posing with inflexible hostile attitude

¥4.835 When the workman adopted a contiguous, inflexible, confrontationist and hostile attitude by refusing

to report to the place of transfer and evaded the show cause notice issued to him in terms of clause XVI of the Fourth bi-partite settlement and ignored the publications made in various news papers to report to his new place of posting, it cannot be said that sufficient opportunity was not granted to him. In such cases it cannot be said that the action of the employer in retiring him compulsorily did not meet the requirements of Art. 14 of the constitution or violated the principles of natural justice after all the transfer was one of the conditions of service.

U.P. Singh v. Punjab National Bank, 2011 II CLR 608 : 2012 I LLJ 131 : 2011 (130) FLR 682 : 2011 LLR 708 (Del.DB) LPA 481 of 2010 dt. 10-2-2011

“The appellant had submitted……….Fourth Bipartite Settlement.” (Page: 615, Para: 16)

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“It may be observed……….complied with.” (Page: 620, Para: 20)

Sec. 18

Settlement – As to retirement age notwithstanding under negotiation workmen can seek amendment to existing standing order to enhance the age of retirement Standing Order – Could be got amended by the workmen through the certifying officer even when a settlement on same points is under negotiation

¥4.836 On expiry of subsisting settlement in which the age of retirement of workmen was fixed at 55 years

and during ongoing negotiations for further period of settlement towards increasing that age to 58 years, the workmen can simultaneously seek before certifying officer an amendment to the standing order of the company u/s. 10(2) of standing order for enhancement of the age of retirement and that the certifying officer will be within his right to grant such request.

M. Devaki & Ors. v. BPL Group of Companies, 2010 IV LLJ 508 : 2010 (125) FLR 859 (Ker.DB) WA 159, 167 & 168 of 2010 dt. 16-3-2010

“Exhibit P-9 settlement………. manufactured by the establishment.” (Page: 509, Para: 3)

“The certifying………. September 29,2004.” (Page: 509, Para: 4)

Sec. 18

Settlement – Courts always hold high and a few members cannot resile Reprobate – A few members cannot having enjoyed the benefits PRBS – In ONGC is a collective decision and beneficial EPS 1995 – And PRBS can co-exist

¥4.837 Association of Scientific and Technical Officers (ASTO) and ONGC have entered into a settlement

and as per the MOU the members will derive retiral cum other benefits under PRBS i.e. Post Retirement and Death in Service Benefit Scheme. Some of the members challenged the compulsory deduction from their salaries to the scheme among others as arbitrary and in violation of PNJ, and unviability of the scheme and of being duplication with EPS 1995, a statutory scheme, also being unjust and unfair. The Division Bench held that this being a collective decision, a few members cannot resile and say it does not suit them and that the deductions are permissible and authorized deductions u/s. 7(kk) of Payment of Wages Act. However, where complex question of facts are involved, such as management, accounting and Trust which manages the funds that cannot be decided under Art.226 of the constitution. Once benefits are accepted, they cannot simultaneously reprobate the justness and fairness of PRBS.

Regional Director, Southern Regional Business Centre, Oil & Natural Gas Corporation Ltd. & Anr. v. Union of India & Anr. Etc., 2008 II LLJ 1001 : 2008 III LLN 390 : 2008 LIC 1432 (Mad.DB) WA 2771 & 2772 of 2004 dt. 26-9-2007

“If the settlement………. section of executives.” (Page: 1006, Para: 21)

“It is not as if……….of the scheme.” (Page: 1011, Para: 42)

“……….Normally……….the same.” (Page: 1011, Para: 44)

“……….In as much as……….fairness.” (Page: 1015, Para: 57)

“……….while ten petitions……….counteracted.” (Page: 1015, Para: 58)

Sec. 18

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Agreement – For re-employment if includes medical fitness and age refusal to employ on the basis of medical report cannot fall within the ambit of illegal termination Termination – Excludes – If refusal to re-employ is on the basis of a medical report pursuant to an agreement

¥4.838 Where there is an agreement to consider to employ the ex-employees subject to seniority and medical

examination, and when the parties had acted upon on this document and performed their respective parts, they cannot later on permitted to wriggle out of the agreed terms. In this case the re-employment was denied on the basis of medical report. The High Court held that refusal of employment on the basis of medical report pursuant to the agreement cannot be termed as illegal termination of service. The award was set aside.

Cement Corp. of India Ltd. v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Hissar & Ors., 2011 III CLR 240 : 2012 I LLJ 871 (P&H.HC) CWP 16121 of 1991 dt. 18-8-2011

“While deciding the issue……….cannot be faulted.” (Page: 242, Para: 9)

“Even otherwise, both……….cannot be upheld.” (Page: 243, Para: 10)

Sec. 18

Bipartite Settlement – If permits cessation of service for unexplained long period of absence the termination of employment cannot be called into question Unauthorized absence – Of Bank employee would amount to voluntary cessation of services as per the clause in the Bipartite Settlement Voluntary Cessation of Service – Includes – Termination of service for long period of absence within the meaning of Fifth Bipartite Settlement of the Bank Bank – Employee being subject to the terms of Fifth Bipartite Settlement cannot claim illegality in the termination of his service if he remained absent for long period without explanation

¥4.839 As per Para 17(a) of Fifth Bipartite Settlement which was applicable to the Bank employee,

continuous absence from duty without sanction of leave would amount to voluntary cessation of service. He was absent from 24.8.1995 to 3.5.1996 when he was treated to have voluntarily retired from service. Further the workman was unable to explain reasons if any beyond his control for the absence. There were allegations that he had gone abroad and abandoned his duties. Hence the dismissal of workman by the employer for unauthorized absence in consideration of the provisions of fifth bipartite settlement was upheld by the labour court and High Court as proper and justified.

Jaswinder Singh v. Regional Manager, Punjab National Bank, Karnal, & Anr., 2010 III LLN 290 : 2010 (125) FLR 813 : 2010 LLR 817 (P&H.HC) CWP 1655 of 2010 dt. 2-2-2010

“Had the workman been……….dated 10 April 1989.” (Page: 292, Para: 7)

Sec. 18

Bipartite Agreement – In which workmen once consented for voluntary retirement following absence from duty the clause thereof is unimpeachable Reinstatement – With back wages will not sustain if the VRS following absence from duty is based on bipartite agreement

¥4.840 The workman had voluntarily deemed to have retired from service consequent upon his absence

without leave for 30 consecutive days in terms of a clause in bipartite agreement between Indian Banks Association and Bank employees. Upon challenge the tribunal ordered his reinstatement with back wages. Employer contested the award before High Court which held that since the said clause was agreed by the employees themselves the same cannot be reduced to a mockery and interpreted so as to render it beyond the pale of implementation because the workman reported only one day earlier than 90 days only

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frustrate the settlement since obviously he remained absent thereafter. Hence the award of the Tribunal ordering reinstatement with back wages cannot be sustained and was set aside by the High Court.

Syndicate Bank v. B.N. Pandey & Anr., 2010 (127) FLR 102 (Del.HC) WP 268 of 2003 dt. 1-7-2010

“The interpretation placed by……….of the said clause.” (Page: 107, Para: 13)

Sec. 18

Settlement – Bars promotion for six months under minor penalty special allowance with promotion cannot be given before it Special Allowance – Eligibility in case of minor penalty begins only on completion of six months of penalty in terms of bipartite settlement

¥4.841 The Clause 6 of the bipartite settlement disqualifies a workman for promotion for the period of six

months if the misconduct was minor. In this case letter of warning was issued on 14.4.1984 disqualifying him for promotion until 25.10.1984. As the bank had violated these terms his reference on the dispute was answered in his favour by the Tribunal granting him promotion and special allowance from 1.8.1984. Modifying the said award the High Court held that he was eligible for promotion only from 25.10.1984 on completion of six months from the date of penalty and not before in accordance with the bipartite settlement of 1984.

Bank of Maharashtra v. Bank of Maharashtra Karmachari Sangh, 2008 (119) FLR 534 : 2008 III CLR 343 (Bom.HC) CAJWP 3528 of 1997 dt. 20-8-2008

“……….Thus, on 1-8-1984……….on 25-10-1984, admittedly.” (Page: 537, Para: 7)

“The Industrial tribunal……….from 25-10-1984.” (Page: 537, Para: 8)

Sec. 2 (k), 33 C (2) & 18.

Settlement – After suspension of operation without questioning the closure cannot be called into question on the ground of coercion by two workmen out of seventy after enjoying the benefits Writ Petition – Filed by only two workmen out of seventy alleging coercion in the settlement will hit by the doctrine of res judicata Res judicata – The findings of the Labour Court will operate against a petition filed only by two workmen out of seventy having enjoyed the benefits of settlement

¥4.842 When the suspension of the operation was challenged u/s. 33C(2) read with Sec. 33C(5) even when

all the seventy workmen have amicably settled their dispute by a settlement and received the benefits, the High Court held that the jurisdiction to raise a plea u/s. 33C(2) is not open to them and the proper remedy is to raise a dispute u/s. 2(k) and that a disputed question cannot be gone into u/s. 33C(2). Moreover when only two workmen out of seventy have filed a petition before the High Court, the findings rendered by the Labour Court against them will operate as res judicata. In this case in the settlement entered into, the workmen never questioned the closure and instead compromised the matter by accepting terminal benefits, then they are estopped from contending that the resignations were obtained by coercion.

1. Rangasamy 2. M. P. Manikandan v. 1. The Presiding Officer, Labour Court, Coimbatore 2. The Management of Janardhana Mills Ltd., rep. by its Chairman and Managing Director, Siganallur, Coimbatore-15, 2011 III LLN 679 (Mad.HC) WP 21908 & 21909 of 2010 & MP 1 of 2010 dt. 25-3-2011

“It is needless to……….industrial disputes Act.” (Page: 681, Para: 8)

“ The learned Counsel……….petitions are closed.” (Page: 681, Para: 9)

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Sec. 2 (oo) & 18

Order – Notwithstanding adverse to the workman and favourable to the employer if the workman was continued for 2 ½ years without termination his services cannot be discontinued later Service – If continued for 2 ½ years after the order to terminate the employer cannot later implement the order of the judicial fora Termination – After 2 ½ years from the date of order of the judicial fora is illegal showing different cause than the earlier one Continuation – In employment for good 2 ½ years after the order for termination will render the order of termination effected later in compliance of the order illegal

¥4.843 The High Court modified the award of the Labour Court and ordered to pay a lump sum

compensation of ̀ 50, 000 in lieu of reinstatement on 15.12.2006. The employer instead of terminating his services in compliance with the said order, continued him for a good 2 ½ years till 29.6.2009, despite adverse judicial order against the workman. His services however were discontinued on 29.6.2009 purportedly in compliance with the High Court order. This belated termination was challenged by the workman. Allowing the petition of the workman the High Court held that the sheer continuance of the services even after High Court order for a long period indicates that this termination is on account of a separate cause. The prime consideration is industrial peace. The parties can always be at liberty to arrive at a different settlement even after a verdict from judicial fora. The termination was set aside, allowing him minimum of the pay scale being ad hoc appointee.

Ashok Kumar Vyas v. State of Rajasthan & Anr., 2011 III CLR 478 (Raj.HC) SBCWP 6454 of 2009 dt. 13-9-2011

“An another important fact……….to have been taken.” (Page: 480, Para: 8)

“In totality, the facts……….thus, is bad.” (Page: 480, Para: 9)

“For the reasons given……….in accordance with law.” (Page: 480, Para: 10)

Sec. 2(p), & 18

Settlement – Is required to be examined to pass an award in terms thereof by the tribunal Tribunal – Cannot reject to consider the settlement for passing an award in terms thereof Award – The request to pass in terms of a settlement cannot be rejected by the tribunal

¥4.844 An application to record a settlement between employer and workmen and to pass an award in terms

thereof was rejected by the tribunal. The employer challenged the rejection before the High Court. The High Court held that the terms of settlement needs to be considered in view of facts and circumstances between the parties and the matter being of revision of pay scales and other benefits arising out of service conditions alleged settlement has to be examined properly. Hence the order was quashed and application was restored with a direction to the Tribunal to frame issues and after allowing parties to lead evidence over their contentions and decide the matter according to law.

Paranjape Metal Shapers Pvt. Ltd. v. Pamets Employees Union, 2010 (126) FLR 812 : 2010 III LLN 146 : 2010 II CLR 617 : 2010 (4) Mah.LJ 250 : 2010 (3) BCR 266 (Bom.HC) WP 939 of 2010 dt. 1-4-2010

“In suck a situation like……….before the Tribunal.” (Page: 813, Para: 4)

“In view of above, I am……….in above background.” (Page: 814, Para: 6)

Sec. 2(p), 18 & 19

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Financial Burden – Imposition if prohibited during the currency of settlement any claim for enhancement of the age of retirement even by amendment to the standing orders will not sustain Retirement Age – Cannot be increased by amending standing orders during the operation of the settlement if the terms put an embargo on the basis of financial implication Settlement – With clause prohibiting any demand with financial implication is an embargo for enhancement of the age of retirement by amending standing orders during its operation Standing Orders – Any amendment to increase the age of retirement being pregnant with financial implication is not sustainable in the face of a settlement putting an embargo to do so

¥4.845 Once the union enters into a settlement with the employer with specific clause therein that during the

subsistence of the settlement no demand having financial implication would be made, it is not open to the said union to put a demand to amend the standing orders before the certifying officer to enhance the age of retirement from 58 to 60. In this case the union sought enhancement of the age of retirement from 58 to 60 and the certifying officer and the appellate authority allowed the same. Upon challenge the High Court set aside the said order and held that the settlement is binding on the union and cannot be scuttled having financial implication unless and until the period of the operation of the said settlement comes to an end especially when there is no conflict between the settlement and the standing orders inasmuch as even after the age of 58 the employer can continue the workman upto the age of 60 subject to medical fitness and other conditions being fulfilled.

M/s. Kennametal India Ltd. v. Kennametal India Employees Association & Ors., 2011 LLR 584 : 2011 LIC 1224 (Karn.HC) WP 16922 of 2010 dt. 19-11-2010

“As the enhancement of……….for the petitioner.” (Page: 586, Para: 14)

“In Baruni’s case……….High Court is unassailable.” (Page: 586, Para: 15)

“The case on hand……….from 58 to 60 years.” (Page: 587, Para: 16)

Sec. 2(s) &18

Settlement – Entered prior to promotion ceases to have any force on the employee after his promotion to the Executive cadre Executive cadre – Once promoted from the workmen cadre the settlements entered into prior to promotion ceases to have any binding force on the Executive Workman – Ceases to be so on promotion to Executive cadre and settlements also cease to have any binding force

¥4.846 Once the workman is placed in the Executive cadre by promotion, he ceases to be a workman and as

a corollary ceases to be governed by the settlements arrived at between the management and the workmen through the Trade Union prior to his promotion. Such agreements/ settlements by operation of law cease to have any binding force upon elevation of the workmen on promotion to the Executive cadre.

Air India Cabin Crew Association & Ors. v. Union of India & Ors., 2012 (1) SCC (L&S) 218 : 2012 I LLJ 305 : 2012 LIC 373 : 2012 (1) SCC 619 (S.C.2J) CA 9857-61 of 2011 with 9862 -65 of 2011 & 9866-71 of 2011 dt. 17- 11-2011

“We are also unable to accept the further submission made on behalf of the Appellants that those workmen who had been promoted to the Executive category would continue to be governed by the Settlements arrived at when they were workmen and were represented by the Association. In our view, once an employee is placed in the Executive cadre, he ceases to be a workman and also ceases to be governed by Settlements arrived at between the Management and the workmen through the concerned Trade Union. It is not a question of an attempt made by such employees to wriggle out of the Settlements which had been arrived at prior to their elevation to the Executive cadre, which, by operation of law, cease to have any binding force on the employee so promoted by the Management.” (Page: 239, Para: 72)

Sec. 10(3) & 18

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Settlement – On some of the issues will not frustrate the reference if it contains issues still to be settled Reference – U/s.10(3) could contain issues already settled among unsettled issues

¥4.847 The issue is if some of the matters under reference were already settled between the Management

and the Union, the reference so made was proper or not. The High Court held that merely because some issues were settled it would not frustrate the order of reference as it contains other unsettled issues also.

The Management of MRF Ltd. v. The State of Tamil Nadu & Ors., 2009 LIC 2137 (Mad.HC) WP 37842 of 2007 & 3 of 2008 dt. 9-2-2009

“It was nextly argued……….issues of reference.” (Page: 2150, Para: 68)

Sec. 10 (4) & 18

Necessary Party – The Labour Court has no power to implead the principal employer when the reference made was confined to the contractor and its employees only Reference – Made cannot be expanded to implead the principal employer if such impleadment expands the scope of reference making it alien to the original Principal Employer – Cannot be impleaded as a necessary party in a dispute between the contractor & his workmen by expanding the reference by introducing totally a new element alien to the original

¥4.848 The 75 workmen engaged by M/S Baba Enterprises, a contractor of M/S Birla Tyres, were

retrenched giving rise to a dispute which was referred to the Labour Court. The Union raised a plea that M/S Birla Tyres which was the principal employer should be summoned and impleaded as a necessary or a proper party to the reference by virtue of Sec.10(4) of the Act. The Labour Court rejected the plea relying on the Judgment of Apex Court in the case of Steel Authority of India Ltd & others and also held that if the plea was allowed it would amount to introducing altogether a new case beyond the scope of the reference. The High Court upheld the impugned order of the Labour Court rejecting the plea.

Birla Tyres Workers Union v. Industrial Tribunal Orissa, Bhubaneshwar & Ors., 2008 (119) FLR 321 : 2008 LLR 1271 (Ori.HC) WP(C) 4709 of 2003 dt. 22-7-2008

“Learned Tribunal………. the same is rejected.” (Page: 322, Para: 2)

“A perusal of Sec.10 (4)………. facts of present case.” (Page: 323, Para: 10)

“Considering the findings ………. interference by this court.” (Page: 323, Para: 11)

Sec. 18 and 12(3)

Reference – Unsustainable if the delay of 8 years in raising the dispute is coupled with an existing settlement in force and injury to the employer due to prejudice Delay – Of 8 years in raising the dispute coupled with an existing settlement in force and injury to the employer due to prejudice makes the reference without jurisdiction Jurisdiction – Of Labour Court non est to adjudicate if there was delay of 8 years coupled with an existing settlement in force and injury to the employer due to prejudice if allowed

¥4.849 The dispute centered round the question of settlement in which 16 part time I.T.I. qualified workmen

were regularized as handymen in Grade-I in the year 1999. The union after 8 years raised a dispute that they should have been regularized as yardmen in Grade-II. The said dispute was referred for adjudication before the tribunal. The employer challenged the reference in a writ petition. Allowing the petition the High Court held that there were several cumulative factors for rejection of the reference. Firstly it is not the delay alone is to be reckoned. With the delay of 8 years, there was an existing

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settlement in force giving little jurisdiction to the Labour Court to adjudicate. The employer will be adversely prejudiced if allowed to adjudicate this matter. Hence the litigation is needless and requires to be put an end at the earliest point of time.

Chennai Petroleum Corporation, Ltd. (represented by its Company Secretary), Chennai v. (1) Secretary, Government of India, Ministry of Labour & Employment, New Delhi (2) Chennai Petroleum Corporation, Employees' Union (represented by its General Secretary), Chennai, 2009 IV LLN 201 (Mad.HC) WP 15516 of 2008 dt. 12-8-2009

“It is also seen……….second respondent.” (Page: 203, Para: 8)

“In the present case……….be exercised.” (Page: 206, Para: 12)

“The above……….respondent union.” (Page: 207, Para: 14)

Sec. 18, 25-F

Tripartite Settlement – U/s. 18(3) made on the same dispute has to be taken into consideration before passing any award Award – Import of tripartite settlement is to be considered before making an award on the same matter

¥4.850 A tripartite settlement arrived at in the course of the conciliation proceedings is to be honored and is

enforceable and binding on all the parties to the dispute. Hence the award of the Tribunal awarding compensation in lieu of reinstatement for violation of Sec. 25F for illegal termination of the workmen was quashed because the Tribunal passed the impugned award without considering the import of the tripartite settlement on the same disputes by making one sentence observation that tripartite settlement was “in no way can take away the right of workmen as provided u/s. 25F when admittedly they were not paid any retrenchment benefits at the time of their termination even though they had worked for 240 days continuously during the preceding 12 months.” The matter was remanded back for fresh decision after considering the import of the tripartite settlement to which the disputant workmen were parties.

Management of the Director, Central Institute of Fresh Water Aquaculture, Bhubaneswar-2 v. Union of India & Anr., 2010 (124) FLR 984 (Ori.HC) WP(C) 9593 & 11980 of 2007 dt. 9-10-2009

“Notwithstanding the sanctity……….the tripartite settlement.” (Page: 989, Para: 13)

Sec. 18, 25F and 2(oo)

Probationer – Cannot be terminated beyond the period of probation in violation of the terms of settlement Settlement – prevails over the letter of appointment so far as period of probation is concerned Letter of appointment – The clauses in conflict with a binding settlement cannot prevail in matters of period of probation are concerned Probation period – If 1 year as per settlement it cannot be varied in letter of appointment

¥4.851 The question is if there is a conflict in the clauses of the letter of appointment and a binding

settlement, which one will prevail. Obviously the binding settlement will override the terms in the appointment letter no matter the workman might have unwittingly accepted the said terms without question. In the instant case the terms in the appointment letter regarding the period of probation is concerned it is in direct conflict with the binding settlement. The settlement entered was prior to the letter of appointment and if the employer incorporates a period of probation in violation of the binding settlement it attracts the penal provisions. In this case the workman was terminated beyond 1 year in terms of letter of appointment. Whereas, the settlement bars such termination because in the settlement the period of probation was mentioned as only for one year and not beyond that period. The High Court therefore upheld the award holding the termination of probationer beyond the period of 1 year as illegal.

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Management of Ambanad Estate v. General Secretary, Kerala & Anr., 2009 I CLR 479 (Ker.HC) WP 21974 of 2004 dt. 9-12-2008

“At this stage……….accepted the same.” (Page: 484, Para; 18)

Sec. 18 and 25-O

Principles of Sec. 18 – Can be applied to a matter of closure so as to bind a non party if the case was examined by various authorities before granting permission for closure

¥4.852 The question is whether the orders of Punjab and Haryana High Courts regarding the issue of

closure were binding on the union when they were not party to the proceedings. The High Court held that the closure of 7 units being the subject matter in the litigation examined by various courts including BIFR and AAIFR the principles applicable to a settlement as enunciated u/s.18 can be made applicable to this case as well. So viewed, the court held that the union cannot now argue that the orders were not binding on them.

Cement Corporation Employees Union v. Union of India & Ors., 2009 II LLJ 347 (MP.HC) WP 6582 of 2008 dt. 1- 12-2008

“Before parting with……….and had failed.” (Page: 355, Para: 31)

Sec. 33-C (2) & 18

Settlement – Benefits if claimed application u/s. 33C (2) is maintainable Prospective Application – If the settlement is then the workman resigned prior to it is not entitled to the benefit Voluntarily Retired – Workman prior to the settlement is not entitled to such settlements if the benefits are linked to the subsequent settlement to which he was not a party

¥4.853 The workman who voluntarily resigned from the Bank in the year 1997 claimed for the benefits of

the settlements of the year 1994 and 1995 made by the union with the employer in an application u/s 33C(2). It was the admitted fact that the service of large number of recruits including the applicant workman was liable to be terminated due to irregularities but because of stay from the court. It was only by virtue of the 1998 settlement, a decision was taken to regularise the services of the similarly placed fellow workmen in service. The benefits of 1994 and 1995 settlement cannot be read in isolation but is inextricably linked to the 1998 settlement which prescribes that the benefit of their regularisation is applicable only prospectively. In this case though the High Court upheld the jurisdiction of the Labour Court u/s. 33 C(2) of the Act to deal with such applications the High Court set aside the order of the Labour Court because the benefit of regularisation could not have been given to the workman retrospectively when the settlement of 1998 was applicable prospectively and that he was also not a party to the subsequent settlement due to his voluntary retirement.

Maharashtra State Co-operative Bank Ltd., Mumbai v. Namdev Tukaram Pednekar & Anr., 2008 (1) BCR 499: 2008 LIC 218 : 2007 II CLR 980 : 2007 (6) AIR (Bom.HC) 411 (Bom.HC) OOCJWP 816 of 2007 dt. 26-6-2007

“However, in my view……….Commissioner for co operation……….” (Page: 504, Para: 17)

Sec. 2(k) & 18

Reference – Can be permitted to be withdrawn upon a settlement of the dispute referred Withdrawal – Of a reference is permissible in terms of the settlement of the dispute referred Settlement – Made after the reference of a dispute can validly end the dispute with no reason for the tribunal to reject the withdrawal application Award – Can always be made in terms of a settlement by the tribunal permitting withdrawal of a reference Tribunal – Cannot withhold permission to withdraw a reference upon a settlement made in this behalf by the majority of workmen espoused by the union

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Union – Which espoused a dispute leading to a reference can settle the dispute with employer empowering it to seek withdrawal of such reference

¥4.854 Three references were made to the industrial tribunal for the dispute in the nature of that covered

u/s. 2(k) and not Sec. 2A. All the 3 references were made at the instance of the union. A settlement subsequent to reference came to be made, which was accepted by all the workmen. The reference so made was sought to be withdrawn but the tribunal rejected the application holding that the dispute concerns Sec. 2A and one of the workman whose dismissal application was pending u/s. 33(2)(b) had not consented to the settlement. Upon challenge the High Court set aside the order of the tribunal rejecting the withdrawal application and held that the dispute was u/s. 2(k) and was espoused by a body of workmen. An award can even otherwise be passed in terms of the settlement and the reference may allowed to be withdrawn and such withdrawal of reference can be sent to Appropriate Government u/s. 15 and can be published u/s. 17 and such settlement becomes enforceable on the expiry of 30 days from the date of publication and binding on the parties.

DGP Windsor India Ltd. v. Kwil Kamdar Association, 2011 I LLN 110 : 2011 LIC 1244 : 2011 II CLR 320 (Guj.HC) SCA 12678 of 2009, 7897 & 7899 of 2010 dt. 7-12-2010

“Having heard learned Counsels……….and withdraw the reference.” (Page: 120, Para: 25)

Sec. 18(1)

Sec. 18(1)

Award – Made an a settlement cannot be set aside merely because labour laws are otherwise do not apply to registered societies governed by statutory rules Statutory Rules – If govern a body, the labour rules do not apply Co-op. society – If governed by statutory rules, Industrial Disputes Act do not apply

¥4.855 Industrial laws do not apply to the employees whose service conditions are governed by statutory

rules such as Co-op. Societies Act. However where an award of Labour Court is made on the basis of a settlement between parties, the same cannot be set aside by the High Court for this reason. The Apex Court upheld the decision of High Court in setting aside all other matters raised by a sales man of a Co- op Society under Payment of Wages Act etc. except the part of settlement set out in an award.

Prabhu Dayal v. Sadhan Sahkari Samiti Mujuri Vikas Khand Paniyara & Ors., 2008 II LLJ 499 : 2008 LIC 3849 : 2008 I CLR 886 : 2008 (4) SCC 34 : 2008 (1) SCC (L&S) 1069 : 2008 AIR (SC) 1681 (S.C.3J) CA 6227 of 2004 dt. 27-2-2008

“Therefore, the High Court was justified in its view. But so far as award dated 9.12.1988 is concerned, the same was made on the basis of a settlement between the parties. That being so, the High Court ought not to have set aside the award. In the ultimate result, the appeal is allowed by setting aside that part of the impugned order relating to award dated 9.12.1988.” (Page: 500, Para: 5)

Sec.18(1)

Reversion – To substantive post of clerical cadre is permissible on request during probation period of promoted post within the ambit of bipartite agreement without further conditions by the bank Bipartite Agreement – Is to be the basis for reversion without further condition attached to the prejudice of employee

¥4.856 A bipartite agreement between the Bank and union is binding upon the Bank and the employee. If

the employee’s request for reversion from the promoted post of officer to his substantive clerical post, during the probation period, can only be acceded to within the tenor and terms of such agreement. Bank cannot impose a condition that he will forfeit his right to promotion in eternity but it can do so only for a period of two years, in terms of the said agreement.

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C.V. Satheeshchandran v. General Manager, UCO Bank & Ors., 2008 (116) FLR 536 : 2008 I LLJ 689 : 2008 I LLN 772 : 2008 LIC 2034 : 2008 II CLR 774 : 2008 (2) SCC 653 : 2008 (1) SCC (L&S) 529 (S.C.2J) CA 337 of 2008 dt. 11-1-2008

“Under Sub-Clause (b) of Clause 3.8.3 of the bipartite agreement, when an employee seeks reversion after the expiry of probation period, he may be allowed reversion on his request in the discretion of the Bank and if such a request is acceded to by the Bank, the employee shall have to forfeit permanently his chances for promotion to officers' cadre. Therefore, if the promotee officer has made a request after the expiry of the probation period, he has to give up all chances of future promotions to the officers' cadre. Thus, to forfeit chances of promotion to the officers' cadre, the request for reversion is to be made after expiry of the probation period. In the present case, the request for reversion, which was made by the appellant on 3.3.1999, was although after a period of one year but was during the period of probation. The appellant's case will be governed by Sub-Clause (a) of Clause 3.8.3 of the bipartite agreement and, thus, he can be denied future promotion only for a period of two years from the date the order of reversion is made effective. The order of the Bank debarring the appellant of all future promotions to the higher rank of Officer beyond the period of two years is, therefore, illegal and requires correction.” (Page: 540, Para: 11)

Sec. 18(1)

Settlement – Of past Industrial Dispute could not deemed to have been settled in the package deal of VRS unless a clause to that grievance is also included Industrial Dispute – Which was pending prior to settlement of VRS cannot deemed to have been also settled unless there is a clause as to that grievance being settled VRS – Though arrived at by a settlement, the pending grievance of an Industrial Dispute subsists unless it is also specifically settled in the package deal Closure – And settlement of VRS does not put an end to past pending Industrial Dispute unless it is also specifically settled in the package deal

¥4.857 Unless a settlement entered into with workman for voluntary retirement included also a grievance of

past pending Industrial dispute regarding ceiling on DA, in the matter of full and final settlement, no matter even if the unit is closed or at present there are no workmen remained employed, the said past industrial dispute cannot said to have been settled or ceased to exist.

Workmen through Hindustan Lever Mazdoor Sabha v. Hindustan Levers Ltd., 2008 III LLJ 360 : 2008 (118) FLR 957 : 2008 IV LLN 148 : 2008 II CLR 1086 (S.C.2J) CAJCA 4460 of 2008 dt. 16-7-2008

“It is, thus, clear that the retirement of the workmen under the Voluntary Retirement Scheme of 7.3.2000 and payment of compensation in full and final settlement there under excluded the pending dispute relating to ceiling on D.A. Therefore, the retirement under the Voluntary Retirement Scheme did not result in settlement of the dispute pending in Adj. Case No. 42/1998. Unfortunately, the High Court lost sight of the said saving clause in the Voluntary Retirement Scheme in regard to the pending dispute in Adj. Case No. 42/1998 and proceeded on the erroneous assumption that all pending claims of the workmen including the subject-matter of Adj Case No. 42/1998 were settled on their retirement under the Voluntary Retirement Scheme of 7.3.2000. The order of the High Court cannot, therefore, be sustained.” (Page: 362, Para: 7)

Sec. 18(1)

Debarring clause – In a settlement prohibiting higher qualification acquired before absorption for future promotion is illegal unenforceable and hit by Sec. 23 of contract Act Settlement – If contains a debarring clause for promotion etc it is hit by Sec. 23 of contract Act Higher qualification – are considered as restrictions for promotions in a settlement such clause is void ab initio being hit by Sec. 23 to the contract Act

¥4.858 The workman, a B.com graduate, working as a casual worker was absorbed in subordinate staff on

certain conditions consequent upon a settlement. One of the conditions stipulated is that a workman

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possessing qualifications of matriculation or above on the date of first engagement as casual worker would not be closable to be considered for promotion as also selection to any functional special allowance post for all the time in future. He has challenged the same albeit after 6 years in a court petition before high court. The single judge set aside the said offending clause being illegal arbitrary and unfortunate. The division bench an appeal upheld the judgment of single judge and absorbed that the debarment clause is unconstitutional and against public policy and hit by Sec. 23 of the contract Act and hence unenforceable. Even if the management later on made a new settlement but stipulated other conditions for enforcing his rights such as a later date for promotion and benefits the same is equally unconstitutional and derogatory. Hence dismissing the petition it upheld the orders of single judge to confer full and complete benefit from the date of absorption to the degree holder for the reason that the offending clause is null and void ab initio.

UCO Bank & Ors. v. Jagdish Narain Purviya, 2010 III CLR 948 : 2011 I LLJ 403 (Raj.DB) DBCSA(W) 1426 of 1999 dt. 18-5-2010

“The debarring clause……….contract Act.” (Page: 956, Para: 25)

“It is not that………. stipulated one i.e., 8.3.2009.” (Page: 956, Para: 26)

“While we appreciate……….settled accordingly.” (Page: 957, Para: 27)

Sec. 18(1)

First engagement – when age of workman even if less than 18 years, if age became on date of settlement, they be regularized Settlement – should be construed for the benefit of workman not completing 18 years prior to settlement but if attained 18 years on that date for regularization in age Regularization – of casual Labourer attaining the age of 18 years on date of settlement is to be covered

¥4.859 A bipartite settlement entered on 12.10.1989 excluded some 25 casual workers from the benefit of

regularization because their age was less than 18 years at their first engagement though at the time of settlement they were 18 years and above. The matter was adjudicated before Tribunal. Taking a beneficial interpretation, the Tribunal held that the first engagement should be computed taking the date of settlement on 12.10.86 and those completed 18 years on that date are to be regularized accordingly. The single judge and division bench replied the decision.

Management of UCO Bank v. Government of India & Anr., 2010 LIC 3838 : 2011 I LLJ 495 (Ori.DB) WA 7 of 2006 dt. 29-6-2010

“The said clause 2(a)………. Appellate jurisdiction.” (Page: 3840, Para: 12)

Sec. 18(1)

Settlement – U/s. 18(1) if no undertaking as per clause is given by the members of the non signatory union the employer cannot be proceeded with for denying benefits alleging ULP Undertaking – The members of the non signatory union if fails to give accepting the terms of settlement entered u/s. 18(1) they are not entitled to the benefit precluding ULP on the part of the employer Unfair Labour Practice – Excludes – Declining benefit to non signatories of a settlement u/s. 18(1) of the Act if they refuse to sign the settlement in terms of the clause

¥4.860 The employer entered into a settlement with one of the union u/s. 18(1) of the Act. The settlement had

a clause extending the benefit to any other workman belonging to another union also though not a member of the union signatory to the settlement provided he accepts the terms of the settlement which included a clause of productivity. However the other union wanted the benefit without any obligation of showing productivity envisaged in the clause. As the employer refused to extend the benefit without signing an undertaking for showing productivity the said union filed a complaint under MRTU Act. The

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Industrial Court allowed the complaint holding employer had committed unfair labour practice and directed the employer to extend the benefit to them also without signing an undertaking. This was upheld by the single judge. Reversing the same the Division Bench held that the settlement was not designed to exclude any workman from the benefit nor the clause towards productivity was included malafidely to harm the members of the other union. If the settlement was not real but only purported, as claimed by the contesting union then they have no claim at all for the benefit of a settlement signed u/s. 18(1) of the Act. Hence the order of Industrial Court and single judge holding that the employer had committed unfair labour practice was set aside.

Goodlass Nerolac Paints Ltd. v. Paints Employees Union, 2009 II CLR 95 : 2009 III LLJ 703 (Bom.DB) OOCJA 1079 of 2003, WP 577 of 2001, NOM 3683 of 2003, AP 1079 of 2003 dt. 21-1-2009

“It is clear from Clause (7)……….item 9 of Schedule IV of the Act.” (Page: 99, Para: 9)

“In our opinion, the Industrial Court……….but only a purported settlement.” (Page: 99, Para: 10)

“Taking overall view of the matter……….signing the settlement.” (Page: 99, Para: 11)

Sec. 18(1) Settlement – The electricity board can make bonafide to thwart litigations pending in various judicial forums filed by thousands of contract workers Electricity Board – Can make a settlement evading new jobs of mazdoors under helpers

¥4.861 Thousands of unskilled contract workers working for years in the Electricity Board possessing no

required qualification of N.T.C. / N.A.C. (ITI) wer e fighting for permanency and regularization under various judicial forums. The Khalid commission appointed by Supreme Court had formulated a scheme for filling up 18006 posts of helpers by 11500 existing and 4500 ITI holders and rest 2000 by ratio of 1:1 immediately. The question before the board was how to reconcile the Tamil Nadu Industrial Establishment (company of permanent status to workman) Act, 1981 for those completed 480 days of work with the qualifications set out for recruitment of helpers. It was done by a settlement by the board by resurrecting the position available prior to 1974 by creating new lower level posts of mazdoor grade II for unskilled labourers which is not in conflict with its regulation presenting qualifications to the higher post of helpers. Such an arrangement is not in conflict with the scheme of Khalid commission and board is free to enter into such settlement which could only be attacked on ground of malafide or fraud. This was not the case in this matter. The Division Bench approved the settlement while retaining the NTA/IAC qualifications for posts of helpers. Challenge to settlement was thus quashed.

Superintending Engineer, Nagapattinam Electricity Distribution Circle, Tamil Nadu Electricity Board, Nagapattinam & Ors. v. Inspector of Labour, Thiruvarur & Ors., 2009 III LLN 325 (Mad.DB) WA 1302 of 2003 dt. 24-10-2008

“If this was……….creation of such cadre.” (Page: 341, Para: 23)

“Under the……….helpers' are not discarded.” (Page: 341, Para: 24)

“We therefore direct……….electricity or not……….” (Page: 341, Para: 25)

Sec. 18(1)

Settlement – U/s. 18(1) of the Act over riding the directions issued u/s. 18(1) of the T.N. Co. op. Societies Act by the management of such societies will not survive Wage Revision – By way of a settlement u/s. 18(1) will be illegal in the face of Sec. 18(1) of Co.op. Societies Act for unified wage by Government order Tamil Nadu Co. Op. Societies Act 1983 – Sec. 18(1) will prevail for wage settlements of the societies instead of a settlement u/s. 18(1) of the Act

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¥4.862 The question is whether in the face of Sec.181 of Tamil Nadu Co.op. Societies Act, 1983 can the Societies enter into a settlement with its workmen u/s. 18(1) of the Act. The single judge upheld the direction given by Dy. Registrar of Co-op. Societies u/s. 166 of 1983 Act directing them to cancel the Sec. 18(1) settlement based on which higher scales of pay was fixed and paid and to effect recoveries. Upholding the same the Division Bench held that the directions given u/s. 181 of 1983 Act were never challenged by the union and hence now they cannot be permitted to challenge the consequential orders passed u/s. 166 of the Act of 1983. The Court held that the directions emanated by Rule 149 of the Rules 1988. The G.O. issued by the State Government there from was aimed at that the Registered societies do not become defunct or unwieldy and to prevent their closure for want of funds by mismanagement. Hence the directions issued in supersession of the settlements were held legal and proper.

Tamil Nadu Vatta Kooturavu Veetu Vasathi Sangangalin Anaithu Paniyalargal Madya Sangam (represented by its General Secretary R. Raghavendran) v. Deputy Registrar of Co-operative Societies (Housing) Cuddalore Circle, & Ors., 2008 II LLN 236 (Mad.DB) WA 1574 of 2007 & 2 & 15 of 2008 & MP 1 of 2007 & MP 1 & 1 of 2008 dt. 21- 1-2008

“A reading of the said provision……….power could be called in question.” (Page: 239, Para: 11)

“In fact, it was brought to our……….Section 181 of the 1983 Act.” (Page: 239, Para: 13)

“By no stretch of imagination……….objective of the State Government.” (Page: 240, Para: 15)

“In the light of the above factors……….jurisdiction of the first respondent.” (Page: 240, Para: 16)

Sec. 18(1)

Management Function – Includes – Rationalization and reduction of cabin crew complement which does not call for concurrence of union Cabin Crew – Complement can be reduced without concurrence of union being a management function Rationalization – Allowed being management function without concurrence of employee’s union Union – Need not give concurrence to reduce the cabin crew being management function

¥4.863 The question is whether the decision of Air India to reduce the cabin crew complements as a measure

of restructuring and rationalization without notice but unilaterally, violates the record note or the bilateral agreement between the Air India and Cabin Crew Association. It is held that it does not. The Division Bench ‘held that the record note or bilateral agreement only postulates consultation and discussion with employee’s association and not the requirement of “concurrence”. Moreover such restructuring and rationalization is the management function and time tested by the previous awards and judgments of the Courts and not arbitrary or prejudicial but necessary in a highly competitive environment.

Air India Cabin Crew Association, Mumbai v. Union of India & Ors., 2008 I LLJ 63 : 2007 III CLR 117 : 2008 II LLN 391 : 2007 (4) BCR 739 (Bom.DB) OOCJWP 590 of 2007 dt. 21-6-2007

“In the result we are……….Constitution of India as alleged.” (Page: 76, Para: 47)

Sec. 18(1)

Settlement – Made to reduce the back wages in modification of award under threat to otherwise to challenge it in High Court is not coercion Coercion – Excludes – A stipulation in settlement that employer will not challenge back wages in High Court for settling for 50% instead of full Back wages – If reduced by settlement in lieu of not challenging the award it is not coercion under the law of contract

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¥4.864 A settlement arrived at between the employer and workman to reduce the back wages from full, as awarded by Labour Court to 50% on the basis that employer will not challenge the award once agreed by the workman, he cannot challenge the said settlement has having obtained under coercion. The Single Judge was in error to infer that the settlement was obtained under coercion because of that stipulation in the settlement claiming a right to go to court or even asking the opposite party that the decision of sub- ordinate court will be challenged in High Court in accordance with law does not amount in any manner a threat or coercion as defined under the law of contract.

M/s. Steel Authority of India Ltd. v. Md. Shamshad Ansari, 2008 I LLJ 108 : 2007 (114) FLR 285 : 2007 LLR 1005 (Jhar.DB) LPA 232 of 2006 dt. 2-3-2007

“From the observation……….undue influence.” (Page: 112, Para: 10)

Sec. 18(1)

Settlement – If accepted by majority of workmen withdrawing the complaint then single workman has no locus standi to pursue the complaint being hit by Order XXIII Rule 1 of CPC Order XXIII Rule 1 of CPC – Is applicable to Labour and Industrial proceedings Resjudicata – Estoppel – Is applicable to Labour and Industrial proceedings Maintainability – Excludes – For re-agitation once the complaint was withdrawn without leave of the Court to file a fresh proceeding

¥4.865 The union after the filing a complaint in the Industrial Court regarding wages etc. following closure

of the establishment withdrew the complaint as their dispute was amicably settled out of Court. All the workmen accepted the benefits of this settlement except one workman. He agitated afresh the dispute of closure. The employer objected to the maintainability of the complaint as a preliminary issue. The Industrial Court rejected the same. Hence this petition. The High Court held that it is now well settled that Order XXIII Rule 1 of the Code of Civil Procedure would equally apply to the proceedings before Labour and Industrial Courts. In this case the union withdrew the complaint unconditionally without obtaining leave to file a fresh proceeding. The Court disposed off the complaint for non-prosecution. In view of this the single workman has no locus standi to re-agitate this matter and the order of the Industrial Court rejecting the preliminary issue for non maintainability was quashed and set aside the High Court also held that the aspects of res judicata, estoppel are relevant even to the matters of Industrial and Labour Disputes.

G. B. Hingurani v. Vinayak Narayan Govekar & Anr., 2010 LLR 1108 (Bom.HC) WP 2095 of 1998 dt. 30-4-2010

“……….In my view,……….same subject matter.” (Page: 1109, Para: 2)

“Even otherwise,………circumstances of the case.” (Page: 1109, Para: 3)

“The learned counsel……….or not, is irrelevant.” (Page: 1109, Para: 4)

Sec. 18 (1)

Industrial Dispute – Includes – A settlement made u/s. 18(1) of the Act for which writ petition is not maintainable but forum under I.D. Act is the appropriate remedy Writ Petition – Not maintainable to resolve a dispute for violation of the terms of settlements but I.D. Act proper Efficacious Remedy – For violation of terms of settlements is the forum under I.D. Act not writ petition

¥4.866 There was settlements u/s. 18(1) between the workmen and the management for paying advance

towards ex gratia as an interim arrangement. It was agreed to continue to pay such advance until other new settlements reached for subsequent years. There was no further discussion and no further settlement in this matter. The employer resorted to recovery of the advances from the retirement benefits of the workmen who got retired. The same was contested by a writ petition for violation of terms and conditions

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of settlement. The High Court ruled that this gives rise to an industrial dispute which can be resolved before the Forum constituted under the I.D. Act. Hence the Writ petitions are not maintainable in view of the alternative remedy.

Coimbatore District Mill Labour Union v. The National Textile Corporation (T.N. & P) Ltd. & Ors., 2010 LIC 3286 (Mad.HC) WP 8360 & 23899 of 2001 dt. 8-7-2010

“In the case on……….Industrial Law.” (Page: 3289, Para: 17)

Sec. 18(1)

Settlement – Over which the Deputy Labour Commissioner has no power to force enforcement or to put restraint for failure to implement Deputy Labour Commissioner – Has no power to enforce the settlement except the power to prosecute for failure to implement Adjudication – The Deputy Labour Commissioner cannot on the terms and conditions of a settlement Prosecution – The Deputy Labour Commissioner has the power for violation of the terms and conditions of a settlement

¥4.867 A settlement was arrived at between the contractor, contract workers and the principal employer to

the effect that the contract workers will receive certain benefits from the contractor and the principal employer in turn will give concession in their regularization in his employment in the company in future vacancies. The contract workers will withdraw all cases pending in courts. The contractor and contract workers fulfilled their part of the contract. The principal employer gave advertisements for filling fitters and electricians disregarding the settlement. The workmen sought intervention of Deputy Labour Commissioner who restrained the principal employer in proceeding with recruitment. On challenge the High Court held that the Deputy Labour Commissioner has exceeded his power because he has no power to adjudicate upon the terms and conditions of settlement and no power to restrain employer from filling up the vacancies advertised. At the most he can exercise the power to prosecute the parties violating the settlement but cannot enforce the settlement or restrain the parties refusing to implement.

Bharat Heavy Electricals Ltd. v. State of U.P. & Ors., 2009 (122) FLR 128 : 2009 III LLN 78 : 2009 II CLR 285 : 2009 LLR 833 (All.HC) CMWP 6381 of 2008 dt. 10-4-2009

“In the light……….a Labour Court.” (Page: 132, Para: 8)

Sec. 18(1) Settlement – Made with a recognized union is binding on all members and non members notwithstanding the same was entered into u/s. 18(1) read with 2(p) Recognized union – If enters into a settlement into a settlement with employer it is binding to all members including non members Undertakings – Signing specified in the settlement was opposed to public policy being in abrogation of workman’s right and hence illegal and non est

¥4.868 Clause 14 in the settlement reached under Sec. 18(1) of the Act requiring workmen to sign an

undertaking is opposed to public policy as their rights are abrogated by such undertaking and the employer has said to have committed an unfair labour practice by not extending the benefits of settlement to the workmen for not signing the undertaking since the benefits and obligations under the settlement are not conditional upon the workmen signing it and the same are binding on all workmen present and future, inasmuch as the settlement was signed by the recognized union and hence binding even on non members.

Cipla Ltd. v. Anant Ganpat Patil & Ors., 2008 II LLJ 377 : 2008 III LLN 793 : 2008 I CLR 102 : 2008 LLR (Sum) 894 : 2008 (1) BCR 78 : 2008 (3) AIR (Bom.HC) 438 : 2008 (1) Mah.LJ 477 (Bom.HC) WP 4643 of 2007 dt. 2-11- 2007

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“In my view……….pencil through it.” (Page: 387, Para: 23)

“The petitioners ought ……….MRTU & PULP Act.” (Page: 388, Para: 24)

Sec. 18 (1)

Settlement – U/s. 18(1) cannot be a bar to invoke Sec.47 of the Persons with Disabilities (Equal opportunities, protection of rights and full participation) Act, 1995 Conductor – Employed in government can invoke Sec.47 of Persons with Disabilities (Equal opportunities, protection of rights and full participation) Act, 1995 in the teeth of settlement u/s.18(1) aimed to deprive this benefit Persons with Disabilities Act 1995 – Overrides a settlement entered u/s.18(1) to deprive the benefit of disability

¥4.869 A conductor was disabled from performing his duties due to loss of his right leg in an accident and

his request for providing him with the light work was rejected and his services were terminated. Hence, the present petition was filed in which the Single Judge held that when the employee is clothed with a legal right to claim all benefits u/s. 47 of the Persons with Disabilities (Equal opportunities, protection of rights and full participation) Act, 1995 which are more beneficial to him, the said right cannot be taken away on the basis of a settlement entered into with the workman u/s. 18(1) of the I. D. Act to deprive him this benefit.

E. Sheriff v. Tamil Nadu State Express Transport Corporation, Division-I, (formerly known as Tiruvalluvar Transport Corporation), rep. by its General Manager, Chennai, 2008 II LLJ 565 (Mad.HC) WP 11378 of 1998 dt. 13-7-2007

“If the facts……….and accordingly rejected.” (Page: 568, Para: 7)

“When the petitioner……….as to costs.” (Page: 568, Para: 8)

Sec. 18 (1) Settlement – For deployment of man power if subsists between employer and workman it is the prerogative of employer to assign work and not the Industrial Court Industrial Court – Cannot at interlocutory stage direct the employer to provide same work to the workmen prior to their discharge by ignoring provisions of settlement Employer – Can assign work in his discretion in terms of the settlement over which the Industrial Court cannot interfere by interlocutory orders against such deployment Deployment – Of work force being the prerogative of the employer in terms of the settlement Industrial Court cannot interfere by interlocutory orders there against

¥4.870 The assignment of work is in the discretion and prerogative of the management particularly when

there is a clause in the industrial settlement entered into with a union which permits the deployment of workmen between jobs and departments. Hence the approach of the Industrial Court at interlocutory stage, directing the employer to provide the petitioner workmen with the same work which they were performing prior to their discharge by ignoring provisions of settlement is held faulty and therefore it cannot be held as unfair labour practice as per the settlement.

Electropneumatics & Hydraulics (India) Pvt. Ltd. v. Bharatiya Kamgar Karmachari Mahasangh & Anr., 2008 II LLJ 845 (Bom.HC) WP 2335 of 2008 dt. 15-4-2008

“But the learned ……….has been committed.” (Page: 846, Para: 6)

Sec.18 (1) Memorandum of Settlement – Rule 58 for sending copy to the Appropriate Government is directory Rule 58 – Is not mandatory

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¥4.871 The requirements of a settlement being in a prescribed form and jointly sending copy to the Central government is merely directory and it cannot be mandatory on the proper construction and understanding of this Rule 58.

Management of L&T. Komatsu, Ltd. v. Larsen & Toubro Employees' Association, 2008 IV LLN 391 (Karn.HC) WP 38974 of 1999 & 29500 of 2000 dt. 29-10-2007

“Rule 58 of ……….of this rule.” (Page: 402, Para: 27)

Sec. 2A, 2(oo) & 18(1) VRS – Once opted and claimed benefits jural relationship ceases with no scope to raise dispute u/s. 2A Coercion – Cannot be a plea for raising dispute u/s. 2A having claimed the benefits under VRS Sec. 2A – Cannot be invoked once VRS benefit is enjoyed Industrial Dispute – Excludes – Once enjoyed the benefits of VRS

¥4.872 Once the workman opted for VRS and entered into a settlement thereof u/s. 18(1) and received the

benefits, encashed the cheques, forgone the pensionary benefits, he ceased to be a workman and cessation of jural relationship becomes absolute and hence later on he cannot raise a dispute u/s. 2A that he opted for VRS under coercion. There is no scope for adjudication u/s. 2A, because there could be no industrial dispute in as much as VRS is excluded from Sec. 2(oo) and the settlement is binding. The Division Bench upheld the decision of Labour Court rejecting the application u/s. 2A, and set aside the order of Single Judge who had earlier held that reference under Sec. 2A cannot be rejected.

Eid Parry (India) Ltd. Chennai v. M.N. Padmanabhan & Anr., 2008 III LLJ 687 : 2008 (118) FLR 818 : 2008 III LLN 379 : 2008 III CLR 306 (Mad.DB) WP 698 of 2001 dt. 26-6-2008

“In this context………. go against the first respondent.” (Page: 692, Para: 9)

“……….as the first respondent……….cannot be sustained.” (Page: 693, Para: 14)

Sec. 18(1), 2(b) & 33C(2)

Sec. 33C(2) – Does not permit adjudication of disputed questions of fact Settlement – Is permissible between employer and employee to modify an award upon which workman cannot claim balance benefit Back wages – Through awarded full, the employer and employee by settlement arrive at 50% of payment

¥4.873 There was an award for full back wages and reinstatement. The employer reinstated the workman

but so far as back wages are concerned he and workman entered in to a settlement whereby the workman has foregone 50% of his back wages. After enjoying the benefit the workman after two years filed an application u/s. 33C(2) of the Act seeking balance 50% back wages which was allowed and affirmed by single judge. The Division Bench setting aside the same held that the Labour Court u/s. 33C(2) cannot clothe itself to adjudicate the disputed questions. Once the workman enjoyed the benefit under a settlement, after two years even without disputing the settlement u/s. 19(2), was not supposed to claim balance 50% of back wages. The Division Bench dismissed the application of workman u/s. 33C(2), claiming 50% back wages.

M/s. Steel Authority of India Ltd. v. Md. Shamshad Ansari, 2008 I LLJ 108 : 2007 (114) FLR 285 : 2007 LLR 1005 (Jhar.DB) LPA 232 of 2006 dt. 2-3-2007

“In the present……….cannot be said to be incidental.” (Page: 114, Para: 19)

“We are therefore……….of the act.” (Page: 114, Para: 20)

Sec. 2 (b) and 18(1)

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Settlement – If arrived between the parties during the pendency of the reference, the Industrial Tribunal has power to pass an award in terms of the settlement answering the reference Industrial Tribunal – Has power to pass an award in terms of the settlement answering the reference Award – Passed in terms of the agreement disposes the pending reference on the same issues with no scope for further contest being binding on all

¥4.874 If a settlement was arrived at between the disputing parties even during the pendency of the

reference before the Industrial Tribunal, it has got power to pass an award in terms of the settlement and that award answers the pending reference and there is no illegality or infirmity in such award. The award so passed in terms of such settlement is binding on Union of workmen in view of Sec. 33 and 97 of the M.P. Industrial Relations Act.

Katni Pottery Karamchari Sangh v. Associated Cement Co. Ltd., 2009 (120) FLR 911 (MP.HC) WP 3517 of 2001 dt. 29-7-2008

“I am also……….affirm the same.” (Page: 922, Para: 16)

Sec. 18(1) & 2(p)

Settlement – U/s. 18(1) r/w Sec. 2(p) is binding on the members of the unrecognized union so signing Unrecognized Union – Signing a settlement with Sec. 18(1) is binding only to its members and can be extended to others with unconditional undertaking Undertaking – If unconditional employer can extend the benefits of a settlement made u/s. 18(1) r/w Sec. 2(p) with an unrecognized union to others also

¥4.875 A settlement made u/s. 18(1) r/w Sec. 2(p) with an unrecognized union is binding only to the members

of the said union. The employer sought an unconditional undertaking from the workmen belonging to other union if they want the benefit of the said settlement. But they gave such undertaking after the stipulated period on one hand and that also a conditional one. Therefore employer refused to extend the benefits. Later unconditional undertakings were given. From that date they were allowed to get the benefits of the settlement. Their challenge to get such benefits from the date of settlement itself was rejected by the High Court holding that the benefits of a settlement made with an unrecognized union u/s. 18(1) r/w Sec. 2(p) is confined only to the members of the unrecognized union unlike a recognized union. Hence there is no case to uphold their contention and the petition was dismissed.

S.D. Muley & Ors. v. Jaihind Industries & Anr., 2011 (3) Mah.LJ 299 : 2011 III LLJ 851 : 2011 II CLR 213 (Bom.HC) WP 4680 of 1999 dt. 9-2-2011

“In my opinion, these……….not extend the benefits.” (Page: 301, Para: 8)

“In my view, since……….dismissing the complaint.” (Page: 301, Para: 9)

Sec. 2(p) & 18(1)

Settlement – Made u/s. 2(p) & 18(1) terminating some employees is against the settled law Closure – By a settlement putting employees out of job by union is not tenable

¥4.876 An alleged agreement made by the union and employer by which the employment of some employees

alleged to be members of other union were allowed to be terminated and the company was closed down and complaint against which was withdrawn by union, is not binding on such employees as their services were illegally terminated. The settlement even if made u/s. 2(p) read with Sec. 18(1) is not binding on such workmen being not its members. They continued to be employees, their services could not have been terminated. Even otherwise, the union cannot put on end to their services. Hence question 25H is not applicable. Award quashed and matter remanded.

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Abhimanyu Dattaram Sawant & Ors. v. Rauko Cine Laboratories & Ors., 2008 (116) FLR 937 : 2008 I CLR 488 (Bom.HC) ACJWP 582 of 1997 dt. 19-12-2007

“Even if……….on the petitioners.” (Page: 942, Para: 13)

Sec. 18(1) and 2(p)

Settlement – If accepted by majority during the period of a pending reference the award has to be made in terms of it Award – Should be in terms of settlement on request of employee if it is made by majority when the reference was pending Industrial Dispute – If settled by majority by a settlement during a pending reference award should be made in terms of such settlement

¥4.877 A settlement signed under Sec. 2(p) of the I.D. Act is required to be examined by the tribunal even in

the pending reference when the employer who is a party to the reference makes an application for passing an award in terms of the settlement. Therefore, when the settlement has been accepted by majority of the members, the award ought to be passed in terms of the settlement.

Bombay Gas Company Ltd. v. G.S. Baj & Ors., 2008 III LLJ 365 : 2008 (118) FLR 530 : 2008 IV LLN 721 : 2008 (4) Mah.LJ 88 (Bom.HC) WP 4652 of 1996 with CA 7098 of 1996 dt. 11-2-2008

“The reasoning given……….a bilateral settlement” (Page: 369, Para: 8)

“In the instant……….memorandum of settlement” (Page: 371, Para: 10)

Sec. 2 (p), 18(1) and 18(3)

Settlement – May be either u/s.18(1) or u/s.18(3) read with Sec. 2(p) to be legally enforceable by the union Agreement – Which is neither u/s.18(1) or u/s.18(3) read with Sec. 2(p) cannot become an enforceable and binding settlement within the meaning of these provisions Binding settlement – Excludes – Any agreement between union and management not conforming to the provisions of Sec.18(1) or 18(3) read with Sec.2 (p) of the Act Enforceable settlement – Excludes – Any agreement between union and management not conforming to the provisions of Sec. 18(1) or 18(3) read with Sec.2 (p) of the Act

¥4.878 A written agreement constituting the settlement must contain two parts, either relating to a

settlement arrived at in course of conciliation proceedings or relating to a written agreement between the employer and workmen arrived at otherwise than in course of conciliation proceedings. Where these conditions are absent, the agreement cannot be called as settlement and therefore the petitioner union has no legally enforceable right to enforce the agreement relied upon as settlement.

A.P. State Road Transport Corporation, National Mazdoor Union (represented by its State Joint Secretary) v. A.P. State Road Transport Corporation (represented by Vice-Chairman & Managing Director) Hyderabad & Anr., 2008 III LLJ 399 : 2008 (118) FLR 21 : 2008 II LLN 828 : 2008 II CLR 431 : 2008 LLR (Sum) 890 (AP.HC) WP 27909 of 2007 dt. 8-2-2008

“It is of……….terms of settlement.” (Page: 407, Para: 21)

“In view of……….agreements, vehicles etc.” (Page: 408, Para: 30)

Sec. 2(p), 18(1), 25-O

Settlement – To obviate compliance of Sec. 25- O and 25-N even though validly made if against the public policy an interest of workmen will not sustain Sec. 25-O – Provisions of which can override individual settlements made by the employer to come out of the grip of chapter -V-B

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Sec. 25-N – Provisions of which can override individual settlements made by the employer to come out of the grip of chapter -V-B Closure – U/s. 25-O and retrenchment u/s. 25N cannot be invalided by individual settlements being in the nature of a public policy and opposed to the interest of workmen

¥4.879 The employer sought permission for closure u/s. 25 O which was rejected. Thereafter the employer

sought permission to retrench 50 workmen out of 141. The Government permitted retrenchment of only 32 workmen. The employer thereafter made individual settlements with individual workman to get out of the purview of chapter -V-B. The question before the High Court was whether the settlements so made are in compromise with the provisions of Sec. 25N and 25-O of the Act or not. The High Court answered the same in negative because such settlement which may otherwise be valid must conform to the statutory conditions laying down a public policy including in terms of Sec. 23 of Indian Contract Act. This includes the interest of the workman. These being imperative in character would prevail over the right of the parties to arrive at a settlement.

Ravi Dutt & Ors. v. State of H.P. & Ors., 2008 III LLJ 795 : 2008 LIC 3220 : 2008 LLR 853 (HP.HC) CWP 215 of 2005 dt. 16-5-2008

“It is settled ……….should be registered.” (Page: 797, Para: 5)

“A settlement within ……….Indian Contract Act.” (Page: 800, Para: 12)

“The settlement arrived ……….as noticed above.” (Page: 801, Para: 14)

“Though the management ……….to alternate remedy.” (Page: 802, Para: 18)

Sec. 18(1) & 9A Settlement – U/s. 18(1) will prevail over general direction to refix salary as per Government order until and unless opportunity by notice is given to workmen petition against being premature General Direction – Includes – A letter from registrar to refix salary in contra distinctions pf a sett;e,emt i/s. 18(1) unless fructified by a notice u/s. 9A Writ Petition – Is premature to challenge a letter from registrar directing to refix salary in the face of a settlement more favourable until and unless procedure prescribed u/s. 9A was complied with

¥4.880 The Registrar of Co-operative Societies addressed a letter to all Regional Joint Registrars which

stated that the salary of employees be re-fixed as per government order. The letter according to workmen was contradictory to the settlement arrived at by them u/s. 18(1) of Industrial Disputes Act. A petition filed challenging the letter. The Court held that the letter contained general directions and was not yet implemented and hence the challenge to the said letter was premature. The employer before implementing the contents of the letter has to comply with Sec. 9A without which the directions do not come into play. Hence the petition of workmen fails and dismissed.

N. Rajagopal & Ors. v. Registrar of Co-operative Societies, Chennai & Ors., 2009 III CLR 924 (Mad.HC) WP 8341 of 2005 & WPMP 8996 of 2005 dt. 2-11-2009

“In this case……….provided under law.” (Page: 926, Para: 7)

Sec.10, 18(1) Industrial dispute – Does not survive for making a reference upon a settlement on such issues Appropriate government – Is within its right to refuse to make a reference on dispute already settled by a settlement Settlement – Once settles an Industrial dispute during the subsistence of such settlement the appropriate government cannot make a reference covered therein Reference – The Appropriate government can refuse to make on a dispute already settled by a settlement which is in force

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¥4.881 The workmen of the erstwhile company raised an industrial dispute it against and also against the company subsequently formed out of a settlement, claiming that the erstwhile company was the real employer of the said workman and they are entitled to be made permanent in its service and they be allowed to work in its premises. But the appropriate government refused to make a reference because there was a settlement which created the subsequent company and the settlement settled all disputes between the erstwhile company and its workmen. When they acquiesced in the settlement with erstwhile company the question whether it has set up a company by itself cannot be gone into after nearly two decades. Hence it is the settled position of law that during the subsistence of his settlement on the same issues no industrial dispute survives to make a reference. Hence the rejection to make a reference cannot be called into question.

United Labour Federation v. Government of Tamil Nadu, 2009 LIC 314 (Mad.HC) WP 20172 & 28487 of 2007 dt. 29-10-2008

“While considering the……….after two decades.” (Page: 319, Para: 28)

“It is not……….terms of settlement.” (Page: 320, Para: 29)

“There is nothing……….the impugned order.” (Page: 320, Para: 30)

Sec. 10(1) & 18(1)

Settlement – If silent on the point of wages during the period of strike, then a reference demanding wages should not be interfered Strike or lockout – If a disputed question of fact a reference made for wages during the period of lockout cannot be quashed on the ground of a settlement being silent on payment of wages

¥4.882 A settlement had arrived at between the employer and Union on 13.3.2006 for the period 1.10.2005 to

30.9.2008 but it was silent about the period of strike that was from 29.1.2006 to 10.2.2006. The workmen claimed wages for the strike period. The same was referred to the tribunal whether the workmen were entitled for wages during the lockout period. The dispute was whether it was a strike or a lockout and with this dispute lies the claim for wages. The employer challenged the reference in the light of the settlement according to which the complaints and counter complaints for strike and lockout are settled. Hence the reference was not maintainable. The High Court held that the tribunal is the proper forum to decide the fact of strike or lockout and the claim for wages and the concluded settlement and hence it cannot be said that it does not reflect real lis between the parties and this calls for appropriate adjudication. Hence petition dismissed.

Kaira Can Co. Ltd. v. State of Gujarat & 3 Ors., 2010 I CLR 508 (Guj.HC) SCA 8975 of 2009 dt. 9-10-2009

“This Court has heard the……….wages for the period.” (Page: 513, Para: 15)

“This Court is of the view……….the Indian Penal Code.” (Page: 515, Para: 21)

“Thus, the aforesaid provision……….to be dismissed accordingly.” (Page: 515, Para: 22)

Sec. 18 (1) Settlement – Signed by the majority of the union members is binding on both the management and all the union members including those who have not signed the same Union – Entering into a settlement and majority members accepting it an award being made in terms of it becomes binding on members irrespective a few not signing it Binding – A settlement becomes on non signatory members if majority of union members accepts when an award was made in terms of it

¥4.883 Once the settlement is signed by the majority of the union members during a pending reference on a

charter of demands and once it is upheld by the tribunal, it is binding on both the management and all

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the union members and even on those who have not signed the same because it is deemed to have been signed by and accepted by them, they being the members of the union signing the settlement. Therefore it is not necessary that a few members who have not signed the settlement are required to sign the same to receive the benefit. Hence the industrial Court has not committed any error in substituting the settlement in place of award in answering the reference.

First Flight Couriers Ltd. Bangalore v. Karnataka Couriers, Cargo & General Employees Union, Bangalore & Anr., 2009 (121) FLR 20 : 2009 LIC 156 : 2009 LLR 375 (Karn.HC) WP 41994 of 2003 dt. 11-4-2008

“In so far as the……….sign the settlement.” (Page: 26, Para: 15)

Sec. 12(3) & 18(1) Settlements – U/s. 12(3) are enforceable if in making it there was reckless callousness willful negligence to attract Sec. 87 of the Tamil Nadu Co-operative Societies Act Tamil Nadu Co-operative Societies Act – Sec. 87 for surcharge proceedings against Sec. 12(3) settlement is not maintainable if there was no willful negligence in the settlement

¥4.884 The petitioner working as special officer in obedience to the government order entered into a

settlement with the employees of Primary Agricultural Co-operative Bank u/s. 12(3) of the Act. The benefits of revision of pay etc. was approved by the Co-operative Sub-Registrar (Arbitration) and disbursed. After 7 years, surcharge proceedings were initiated against him for excess amount paid on account of pay fixation and payment of wages to employees who were not regularized and objected by the audit. The tribunal upheld the surcharge proceedings u/s. 87(1) of the Tamil Nadu Co-operative Societies Act because settlement u/s. 12(3) cannot be applicable to ad hoc appointments because such appointments can be made only in a permanent vacancy and such settlement cannot be legally enforced. Whereas the High Court set aside the findings of tribunal and held that there was no callous or willful negligence or a supine indifference to justify surcharge proceedings and no justification to do so after a limitation period of 7 years. The approval given Co-operative Sub-Registrar to such settlements inures the petitioner.

A. Abdul Hameed v. Deputy Register of Co-operative Societies, Cuddalore, & Ors., 2010 III LLN 437 (Mad.HC) WP 35621 of 2007 & 114 of 2008 dt. 20-4-2010

“It has been……….are valid.” (Page: 446, Para: 28)

“It remains……….disputes Act.” (Page: 448, Para: 29)

“In such……….under the Act.” (Page: 449, Para: 31)

Sec. 12(5) & 18(1)

Reference – Of an Industrial Dispute cannot be brushed aside on the plea that majority have already entered into a settlement Settlement – By a majority does not preclude the need for a reference for a dispute raised by minority Appropriate government – Cannot refuse to make a reference, of a dispute raised by minority merely because the majority have entered into a settlement

¥4.885 The Appropriate Government refused to make a reference of the dispute on receiving the failure

report because according to it a majority of workmen have already settled the dispute for revision of wages for the period 1.1.2007 to 31.12.2016. Hence there is no Industrial Dispute in existence. The main plank of dispute was the settlement could not have been for a period of 10 years. The division bench held that for raising a dispute there need not require a majority of the employees. It is enough as a class they raise it and there is a potential cause for disharmony likely to endanger Industrial peace. In this case there were about 200 workmen involved in conciliation out of 1000 suggesting the need for a reference. Further when the Appropriate Government fails to substantiate that majority have accepted the settlement with facts and evidence, the statement becomes bland. Hence the division bench directed to consider the matter afresh for a reference.

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Goa Shipyard Workers Union v. Union of India & Ors., 2010 (5) BCR 472 (Bom.DB) WP 143 of 2010 dt. 20-7/5-8- 2010

“In the absence of……….majority of workmen.” (Page: 476, Para: 10)

Sec. 18 (1) and 19

Settlement – Cannot be changed during its subsistence unless in terms of Sec. 19 in accordance with law Gratuity – The number of days as 26 days in a month as agreed in a subsisting settlement cannot be changed other than that set out u/s.19 of the Act Section 19 – Of the Act is only the proper mode to change a subsisting settlement otherwise it is illegal

¥4.886 Settlement between management and workman was made u/s. 18(1) of the Act for 5 years as per the

Government Order and the same was also approved by the Registrar of Co-operative Societies in which the calculation of gratuity was on the basis of 26 days a month but later during the subsistence of the settlement the employer sought to change the same on the basis of a Government order. The workmen challenged the alteration to the settlement in a writ petition. The High Court allowing the same held that unless the settlement so reached undergoes a change through a further settlement the terms of settlement would stand binding on the employer. It can be changed only in terms of Sec. 19 in accordance with law. Hence the unilateral change made to the settlement held illegal and the petition of workmen allowed.

C. Kuttiappan & Ors. v. Appellate Authority under Payment of Gratuity Act, 1972 / Joint Commissioner, Coimbatore & Ors. AND Management, Erode District Central Co-operative Bank, Ltd. Erode v. Appellate Authority under Payment of Gratuity Act, 1972 / Joint Commissioner, Coimbatore & Ors., 2010 I LLN 262 (Mad.HC) WP 2069 of 2005 & 2364 of 2009 & MP 1 of 2009 dt. 25-11-2009

“I agree with the submissions……….cannot be accepted.” (Page: 264, Para: 12)

Sec.25 FFF and 18(1)

Settlement – U/s. 18(1) if entered between union and employer it is binding on the members of the said union

¥4.887 A settlement reached between union and the employee’s u/s. 18(1) is binding on the parties which

means on the members of the Trade union signing it and employer. Therefore the contribution that it is not applicable to 7 out of 26 workmen, not approving it is to be rejected. Hence the division bench set aside the award of Tribunal and judgment of single judge that the 7 workmen were entitled to wages from 1.4.1994 to March 2000 the actual closing of undertaking because in the settlement it was clearly mentioned that no wages are payable consequent upon the strike or stoppage of work by the workman closure being deemed by retrospective effect of 1.4.1999. The court printed out if the decisions of courts below are accepted then there will be two closure dates and two different benefits which will become anomalous. The settlement is binding on complaints who were otherwise treated on par with 19 other workmen by paying the benefit of settlement.

Mehta Gem Tools Pvt. Ltd. v. Aruna Arvind Parkar & Ors., 2010 (6) Mah.LJ 697 : 2011 II LLJ 280 : 2011 (128) FLR 223 (Bom.DB) AP 868 of 2006 dt. 15-6-2010

“Now is the light……….April 1999 onwards.” (Page: 698/699, Para: 5)

“……….The settlement……….the appeal is allowed.” (Page: 699/700, Para: 6)

Sec. 33(2) (b) & 18(1)

Dismissal – Becomes illegal for non compliance with Sec. 33(2)(b) if approval was not obtained when matter not connected with dispute is pending no matter already settled with another union

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Settlement – Of dispute though made after the dispute is referred to tribunal approval for dismissal is required u/s. 33(2)(b) unless the Tribunal concludes the dispute Sec. 33(2)(b) – Is still operative no matter the dispute referred to Tribunal was settled with another union until concluded with Tribunal Embargo – u/s. 33(2)(b) prevails though the dispute is settled with union until the dispute referred prior to settlement is concluded Industrial Dispute – Is not said to have been concluded once referred to Tribunal by subsequent settlement u/s. 18(1) with union unless Tribunal by award put an end to it

¥4.888 An industrial dispute arising out of a charter of demand raised by the registered union was referred

to industrial tribunal after having failed in conci liation. Meanwhile the management made a settlement with the rival captive union on the same charter of demands which was accepted by large number of workmen. Thus from the point of view of management, there exists no industrial dispute though the proceedings in the reference was not yet closed. Meanwhile pursuant to settlement u/s. 18(1), five workmen belonging to union not party to settlement were dismissed for misconduct not connected with dispute without complying with the provisions of Sec. 33(2)(b). The question was whether in the absence of industrial dispute the employer was required to obtain approval u/s. 33(2)(b) of the Act. The tribunal, upon a complaint and review u/s. 33A upheld the dismissal. But the Single Judge reversed the same. The Division Bench endorsing the decision of Single Judge held that even if the dispute was settled the proceedings would still be in respect of an industrial proceedings and they would be pending until they are concluded as per Sec. 20 and until they conclude the embargo of Sec. 33(2)(b) will apply. The ending of dispute is not relevant criterion but conclusion of proceedings is. Hence the dismissal in this case is illegal and non est.

Management of W.S. Industries Ltd. Chennai v. K. Ramakrishnan & Ors., 2009 III LLN 804 (Mad.DB) WA 3944 of 2004 dt. 6-8-2009

“In this case……….relevant criterion.” (Page: 809, Para: 16)

Sec. 18 (1) & 33C(2)

Settlement – U/s. 18(1) – Is binding only on the parties to the proceeding though signed by the recognized union as there is no law in TN to recognize the union as of now Conciliation – Outside any settlement made even though by a recognized union in TN is not binding on the nonsignatories as there is no law in TN to recognize the union as of now Piece Meal Acceptance – Of a settlement cannot be because acceptance should be as a whole as per the settled principle of law Nonsignatories – To a settlement u/s.18 (1) signed by a recognized union cannot insist benefits flowing from it since in TN there is no law to recognize a trade union

¥4.889 There was more than one union in the establishment. The employer entered into a settlement u/s. 18

(1) of the Act with a recognized union. The employer extended the benefit of the settlement to non signatories provided they accepted the terms and conditions u/s. 18(1) settlement. But they accepted only the revision of wages was concerned refusing to accept other part except either under protest or without prejudice. This was rejected by the employer. The workman filed an application u/s. 33C(2) which was allowed. Single judge set aside the award for the reason that in Tamil Nadu there is no law for recognition of trade union and a settlement arrived at outside the conciliation proceedings will bind only the parties to the settlement and not nonsignatories. Hence the union signing the settlement cannot be recognized as the Sole Bargaining Agent with exclusive right to represent the workmen. Moreover it is settled proposition of law that a settlement has to be accepted or rejected as a whole.

A. Kari & Ors. v. Needle Industries Ltd. Ketti, Nilgris Rep. by its Managing Director & Ors., 2011 III LLJ 423 : 2011 (129) FLR 240 : 2011 II LLN 296 : 2011 II CLR 727 (Mad.DB) WP 89 of 2004 & WP 9332 of 1998 with WP 36131 of 2002 dt. 2-2-2011

“In the present case……….liable to be rejected.” (Page: 427, Para: 12)

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“The last contention……….liable to be set aside.” (Page: 428, Para: 16)

Sec. 10 (1) & 18(1)

Conciliation Proceedings – Once ended on a failure report reaching the Appropriate Government no direction can be issued to conciliate on a settlement to which the union was not a party Failure Report – Once reached the Appropriate Government the conciliation comes to an end with no scope for issuing any direction for conciliation afresh on a settlement Appropriate Government – Can be directed to consider the failure report received after conciliation for a reference Reference – Whether to make or refuse to make is within the administrative power of the Appropriate Government for which the court cannot issue a direction Charter of Demands – Made by one union reaching failure with a report thereof the employer cannot prevail upon the conciliation officer to conciliate on a settlement reached with another union Settlement – U/s. 18(1) and 2(p) reached with another union cannot be a subject matter of conciliation if the charter of demands made by another union was already reached a stage of failure report

¥4.890 A dispute concerning charter of demands raised by one of the unions was under conciliation. The

conciliation failed and a failure report was sent to the Appropriate Government which has yet to take a decision on it. Meanwhile the employer entered into a settlement with another union comprising 74 workmen and extending its benefits to other workmen if they give an undertaking accepting the terms and conditions of the settlement. The workmen who submitted the charter of demands made a petition to direct the Appropriate Government to refer the dispute to the tribunal. The employer also filed a petition to direct the conciliation officer to start conciliation on the settlement already signed with another union to record the fairness of the same and having accepted by the majority of the workmen. The High Court held that so far as directing the conciliation officer is concerned when a failure report was already reached the Appropriate Government there remains no dispute to be conciliated by the conciliation officer and hence the direction for conciliation on the settlement reached u/s. 18(1) r/w Sec. 2(p) with another union cannot be issued. The only issue remaining is the reference on a failure report for adjudication to the tribunal. The High Court issued directions to pass an order on the failure report and communicate the result to the union. The writ petition of the employer was dismissed.

Workmen of RSB Transmissions (I) Limited through United Labour Federation rep by its President, Chennai v. Government of Tamil Nadu, rep. by its Secretary, & Ors. Kanchipuram, 2011 I CLR 1035 : 2011 III LLJ 659 (Mad.HC) WP 18034 & 19456 of 2010 & MP 1 of 2010 dt. 28-2-2011

“In the present case……….case for reference.” (Page: 1037, Para: 8)

“But, however this……….an industrial dispute.” (Page: 1039, Para: 14)

“If a section of……….u/s. 10(1).” (Page: 1039, Para: 15)

Sec. 18(3)

Sec. 18(3) Compassionate appointment – Must be made in terms of the spirit of the clauses of settlement u/s. 18(3) of the Act Settlement – U/s. 18(3) being binding on all it cannot be put to naught by imposing limitations unreasonably by a circular in case of compassionate appointment

¥4.891 Where by a settlement u/s. 18(3) of the Industrial Disputes Act, entered between the union and

employer, it is prescribed in one of the clauses that employment is to be offered to the male dependent of the deceased workman and incase he is 15 years of age his name should reflect in the roster as live till he attains the age of majority, mean while to pay certain compensation to female dependent, the employer violated the clause by fixing a limitation within which he should apply. The Supreme Court held that such limitation is not rigid rather should be in keeping with the spirit of the settlement u/s. 18(3) of the

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Act which is binding. The six month’s limitation fixed in this case was held as neither statutory nor imperative. The court held that the employer, though a State, did not act fairly or reasonably or bonafide. Hence, setting aside the judgement of Division Bench, the S.C., directed the employer to appoint the dependent within eight weeks in a suitable post on compassionate ground in keeping with the settlement.

Mohan Mahto v. M/s. Central Coal Fields Ltd. & Ors., 2008 I LLJ 496 : 2007 (115) FLR 427 : 2007 IV LLN 936 : 2007 III CLR 824 : 2007 (8) SCC 549 : 2007 (2) SCC (L&S) 951 : 2008 AIR (SC) 39 (S.C.2J) CA 4339 of 2007 dt. 18-9-2007

“The period of six months' limitation prescribed in the circular letter dated 12.12.1995 was not statutory. It is also not imperative in character. Even for entertaining such an application beyond the period of six months, the Headquarters of the Central Coal Field Limited is entitled to consider the facts and circumstances of each case. Admittedly, Appellant filed an application for grant of appointment on compassionate ground when he was a minor. His application was rejected on that premise at the first instance but even at that point of time the respondent did not take a stand that the same had not been entertained on the ground that the same was filed after expiry of the period of six months.” (Page: 500, Para: 16)

“It is neither in doubt nor in dispute that the case for grant of compassionate appointment of a minor was required to be considered in terms of Sub-clause (iii) of Clause 9.5.0 of the N.C.W.A.V. In terms of the said provision, the name of the appellant was to be kept on a live roster. He was to remain on the live roster till he attained the age of 18 years. Respondents did not perform their duties cast on them thereunder. It took an unilateral stand that an application has been filed in the year 1999 in the prescribed form. For complying with the provisions of a settlement which is binding on the parties, bona fide or otherwise of the respondent must be judged from the fact as to whether it had discharged his duties thereunder or not. In this case, not only it failed and/ or neglected to do so, but as indicated hereinbefore it took an unholy stand that the elder brother of the appellant being employed, he was not entitled to appointment on the compassionate ground. Thus, what really impelled the respondent in denying the benefit of compassionate appointment to the appellant is, therefore, open to guess. We expect a public sector undertaking which is a 'State' within the meaning of Article 12 of the Constitution of India not only to act fairly but also reasonably and bona fide. In this case, we are satisfied that the action of the respondent is neither fair nor reasonable nor bona fide.” (Page: 500/501, Para: 17)

“For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. Respondent is hereby directed to offer appointment to the appellant on a suitable post within eight weeks from date. As the appellant is not in employment for a long time, he is entitled to costs throughout. Counsel's fee assessed at Rs. 25,000/-.”(Page: 501, Para: 22)

Sec. 18(3)

Settlement – Is not in accordance with law if the conciliation officer prepones the date behind the back of another Union Sec. 18(3) – Excludes – Not binding and not in accordance with law if made behind the back of another Union

¥4.892 When in a conciliation proceedings after intervention by a multi states Unions by way of written

application which was signed by five employees wherein by way of annexure names of 136 workmen were represented, the proceedings were adjourned for a certain date, the conciliation officer cannot make a settlement with another rival Union by preponing the date, behind the back of the multi state Union, no matter to buy peace in the wake of threatened strike. Such settlement even without mens rea is not in accordance with law and such settlement cannot be a settlement arrived at before conciliation and hence nonest in the eyes of law.

Akhil Dadra & Nagar Haveli Kamgar Sangh, Silvassa, Dadra & Nagar Haveli v. Krantikari Kamgar Union & Ors., 2011 III CLR 26 : 2012 III LLJ 528 : 2012 (135) FLR 8 : 2011 (6) BCR 180 : 2011 (5) Mah.LJ 88 (Bom.DB) CAJLPA 197 of 2008 in WP 3197 of 2008 with LPA 156 of 2011 in WP 6184 of 2008 & WP 5911 of 2010 dt. 28/29-6-2011

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“It is required to be noted……….there is a dispute in this behalf.” (Page: 43, Para: 39)

“It is argued……….concerned with this aspect.” (Page: 44, Para: 40)

“Considering the aforesaid……….in the eye of law.” (Page: 45, Para: 46)

Sec.18(3)

Settlement – Benefit cannot be denied to an illegally terminated workman merely because he was not a party to the settlement following closure of the Company Ex-gratia Payment – Cannot be denied to an illegally terminated workman in terms of the settlement following closure of the Company no matter he was not a party to the settlement Termination – If illegal the benefit of award cannot be deprived of despite winding up of the Company no matter the workman was not a party to a settlement

¥4.893 The question is whether the workman whose termination was held illegal and was directed to be paid

back wages till superannuation by an award can be deprived of the ex-gratia payment and retrenchment compensation by the Company Court, following winding up of his Company on liquidation, as paid to other workmen upon a settlement with them merely because the Company was closed down in the year 1998, where as the back wages were directed to be paid to the illegally terminated workman in question till his superannuation till the year 2001 and also on the ground that he was not a party to the settlement entered with other workmen. Setting aside the judgement of Company Judge who refused the benefit of the settlement including Ex-gratia and retrenchment compensation on par with others, the High Court held that the decision of the Company Judge was very harsh. While doing justice to the workman, in view of the beneficial legislation, no discrimination could be countenanced no matter the workman was not a party to the settlement. Modifying the order, it allowed the benefit of settlement besides the back wages up to 1998 till closure of the Company.

Patel Vimlaben Mafatlal v. Official Liquidator, Cellulose Products of India Ltd., 2011 LIC 2469 : 2012 I LLJ 443 (Guj.DB) OJA 58 of 2009 dt. 24-2-2011

“We have noticed……….sought to be withdrawn.” (Page: 2471, Para: 10)

“In view of what……….order of this Court.” (Page: 2473, Para: 13)

Sec. 18(3) Settlement – If lawful being the basis for reinstatement of a workman no plea could be raised regarding lack of sanctioned post to fill Sanctioned post – Is not an obstacle for reinstatement to be made in terms of a lawful settlement Collector’s order – Not granting sanction to the creation of a post cannot stand legal scrutiny before a lawful settlement for reinstatement of a workman

¥4.894 An award of reinstatement was passed in favour of workman in terms of settlement of dispute by the

employer. Later on a review petition was filed by the employer claiming inability to execute the award due to want of vacancy of permanent post. This was rejected by the Labour Court. Hence the present petition, in which it was held that reliance on the Collector’s order not granting sanction to the creation of the post cannot be entertained since there is no point of law to hold that the settlement arrived at was contrary to law and not capable of being complied with.

Chief Officer, Thangadh Nagarpalika, Thangadh v. Lataben Samand & Anr., 2008 III CLR 842 (Guj.HC) SCA 30133 of 2007 dt. 11-9-2008

“This Court is ……….as to costs.” (Page: 846, Para: 12)

Sec. 18(3)

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Settlement – Made for compassionate appointment is to be liberally construed as to period of limitation is concerned Compassionate Appointment – Is an exception to Article 16(1) of the Constitution being a beneficial provision made under a settlement is to be liberally construed Limitation – For compassionate appointment is to be liberally construed

¥4.895 The application for compassionate appointment of the son of the deceased workman was rejected as

he had submitted it after 6 months from the date of limitation prescribed in the employer’s circular. The delay was caused due to Parliamentary election whereby he could not get the requisite testimonials and certificates from the officials of District Administration. The High Court setting aside the rejection held that compassionate appointment is a beneficial provision being an exception to Article 16(1) of the Constitution. A beneficial provision made under a settlement by the State within the meaning of Art.12 is to be acted upon reasonably. Even otherwise it is against the tenor of catena of judgements. It is the point to be noted that in later cases this limitation period was extended even up to one and a half years. Hence the impugned order of employer was set aside with direction to the authorities to consider the case.

Deonath Manjhi v. Central Coalfields Ltd. & Ors., 2008 (119) FLR 949 (Jhar.HC) WP(S) 6675 of 2002 dt. 22-10- 2008

“A settlement……….Article 16(1) of the constitution.” (Page: 950, Para: 5)

“In the aforesaid……….copy of this order.” (Page: 952, Para: 6)

Sec. 2(p) and 18(3)

Settlement –U/s. 18(3) and 2(p) is material on the basis an industrial dispute under reference can be put to an end Reference – Cannot be quashed if the alleged settlement is outside that contemplated u/s. 2(p) read with 18(3) being not signed by the parties to reference Industrial dispute – Deemed to have been resolved if a settlement on the same issues was entered into in conciliation u/s. 18(3) read with Sec. 2(p) Conciliation – Is not involved within the meaning of Sec.18(3) a settlement arrived is not binding on non signatories and the reference survives

¥4.896 The workmen raised certain dispute for regularization and permanency since they were working in

temporary capacity since several years. The conciliation failed and a failure report submitted to the Appropriate Government following which a reference was came to be made. The employer contested the reference on the ground that where the matter in dispute was already settled by a settlement, nothing survives. The Labour Court rejected these contentions. Upon challenge the High Court upheld the decision of Labour Court and held that it is only when a settlement was entered into in conciliation u/s. 18(3) within the meaning of Sec. 2(p) alone is deemed to resolve a dispute binding on all irrespective of whether they are party to it or not. In this case no settlement was arrived at during conciliation which was in fact failed and a reference was made on receipt of failure report. It is only thereafter a settlement was arrived at to which the workmen in reference are not signatories. Therefore based on a settlement outside conciliation not being under u/s. 18(3) it is not binding on all workmen. Therefore the reference made is proper and cannot be quashed.

Tata Iron & Steel Co. Ltd. v. State of Jharkhand & Ors., 2010 II LLJ 483 : 2009 LIC 4041 (Jhar.HC) WP 5872 & 5845 of 2004 dt. 19-3-2009

“The Hon’ble Supreme……….the present case.” (Page: 489, Para: 10)

“Under Section 18(3)……….Government for adjudication.” (Page: 490, Para: 12)

“Regard having to……….enforceable and binding.” (Page: 491, Para: 15)

Sec. 2 (p) and 18(3)

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Settlement – Arrived at in course of conciliation regarding age of retirement overrides the age as per certified standing orders Certified standing orders – As to age of retirement is subservient to the age of retirement settled in conciliation Age of retirement – Settled in conciliation overrides that in a certified Standing Orders

¥4.897 Once the settlement is arrived at in the course of conciliation between the management and union

regarding the age of retirement to be 58 years, the union cannot resile and fall back on certified standing orders specifying the age of 60 years for the retirement, as per Sec. 18(3) of the I. D. Act, since the settlement arrived at in conciliation proceedings is binding on the parties.

Workmen of Sookerating Tea Estate v. Management of Sookerating & Anr., 2008 III LLJ 144 : 2008 III CLR 468 (Gau.HC) WP (C) 120 of 2002 dt. 24-1-2008

“Section 2(p) of the ……….as 60 years.” (Page: 147, Para: 19)

Sec. 18(3), 2(k)

Settlement – To employ the dependent upon declaration of workman as unfit cannot be dishonoured during its subsistence Industrial Dispute – For non employment of the son of retired workman can be espoused by the union Union – Can espouse the cause of retired employee for employing his son as per settlement Retired Employee – His cause can be espoused by the union

¥4.898 The Clause 9.4.3 of National Coal wage agreement IV provides that upon termination by way of VRS

of a workman following declaration of physical unfitness by Apex Medical Authority one of the dependents, was to be offered employment. But in this case despite fulfillment of all requirements following his termination owing to unfitness the employer refused to employ his son. The reference against was answered in favour of the workman brushing aside the contention that the union of workman could not have espoused the case of retired workman. The Single Judge dismissed the writ there against. The Division Bench upholding the decision of courts below held that the management cannot violate the binding settlement entered u/s. 18(3) within the meaning of Sec. 2(p) of the Act. The union can espouse his cause since their collective interest in the non employment of the workman’s dependent son is involved. The order to employ the dependent son of the workman is valid in law and the stand of the management for reexamination of the terminated workman medically after his retirement is devoid of merit. The provisions of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 is inapplicable to this case in the wake of overriding effect of settlement u/s. 18(3) of the Act.

Eastern Coalfields Ltd. v. Niranjan Chatterjee & Ors., 2009 III CLR 971 : 2010 I LLJ 772 : 2009 (121) FLR 1080 : 2009 LIC 3069 (Cal.DB) MAT 730 of 2008 with CAN 9101 of 2008 dt. 21-5-2009

“After considering……….after thought.” (Page: 976, Para: 18)

“We are……….different domain.” (Page: 977, Para: 20)

Sec. 18(3)&. 2(p) and Rule 62

Settlement – U/s. 18(3) r/w sec. 2(p) should be signed by the conciliation officer in terms of Rule 62 of the Act Purchaser of business – Is not bound to employ the workmen of the seller in terms of a settlement unless that settlement is in terms of Rule 62 of the Act duly signed by the Conciliation Officer Conciliation Officer – Has to sign the settlement in terms of Rule 62 if the terms of the settlement is to be made binding on the purchaser of the business to fall u/s. 18(3) of the Act

¥4.899 A dispute regarding not paying minimum wages was pending in the tribunal. The employer and the

union entered into a settlement. One of the clauses of the settlement was to the effect that in case of transfer of machinery or business either by way of sale or by other mode, the employer would give

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priority in the matter of giving employment to the workmen. The business was sold but the employer failed to inform the union neither the new employer employed the workmen. The workmen proceeded unsuccessfully against the employer before the courts below alleging violation of settlement u/s. 18(3) r/w. Sec. 2(p). Rejecting the LPA the Division Bench held that the settlement made was not in accordance with the Rule 62 of the Act and such settlement is not binding on the purchaser of the business but only limited to the parties to the settlement. A settlement to be within the meaning of Sec. 18(3) read with Sec. 2(p) should be signed by the conciliation officer in terms of Rule 62. Hence the purchaser of the business cannot be compelled to employ the aggrieved workmen inasmuch as the benefit of Sec. 18(3) of the Act is not available to them.

General Sec., Gujarat Audyogik Kamgar Sangthan v. Kalyan Paper & Board Mills & Anr., 2011 (129) FLR 1067: 2011 IV LLJ 45 : 2011 III LLN 612 : 2011 II CLR 25 : 2011 LLR 659 (Guj.DB) LPA 71 of 2011 in SCA 4497 of 1994 with CA 247 of 2011 dt. 22-3-2011

“In view of the aforesaid……….to the appellants.” (Page: 1070, Para: 8)

“For the aforesaid……….dismissed summarily.” (Page: 1070, Para: 9)

Sec. 18(3) & Art. 226

Settlements – Legality of – Signed with management by the representative union before labour commissioner cannot be challenged in writ Writ Petition – Is not maintainable challenging the legality of settlement entered with employer by representative union Industrial Tribunal – Proper forum not writ for deciding the legality of settlement entered with employer by the representative union

¥4.900 4 workmen cannot challenge the legality and correctness of settlement made, between the employer

and representative union of a textile mill and the private agreements entered with a developer, in a writ petition. The proper forum is the Industrial Tribun al by raising an industrial dispute. The writ petition was disposed of.

Sushma Sharad Vartak & Ors. v. Commissioner of Labour, Mumbai & Ors., 2008 (118) FLR 995 : 2008 III LLJ 790 : 2008 II CLR 1057 : 2008 (6) BCR 179 : 2008 (6) Mah.LJ 731 (Bom.DB) OOCJWP 3023 of 2006 dt. 10-7-2008

“Now let us examine……….writ petition.” (Page: 999/1000, Para: 8)

“The copies of settlement……….lead evidence.” (Page: 1000, Para: 9)

“In the peculiar……….complaint.” (Page: 1000, Para: 11)

Sec. 18(3) (b) & 10(1)(d)

Substantive Issue – If involved the Tribunal has no power to implead a party not party to reference as incidental or ancillary to reference u/s. 18(3)(b) Employer – Who is being a substantive issue if not covered in a reference, the Tribunal cannot implead a party as a necessary party Reference – Once made the power of Tribunal is limited to implead a party if the issue involved there in is substantive Tribunal – Has no power to implead a party as necessary party if substantive issue is involved there in

¥4.901 The closure of the establishment was the bone of contention and a reference was made whether the

closure is justified of the unit viz. vinayaga converters. The workmen prevailed upon the Tribunal to make Premier Mills Ltd. a party stating that the real employer was Premier Mills Ltd., to which products of the Vinayag converters are supplied and they contended that Vinayag a converter is only a benami firm of Premier Mills Ltd.. The Division Bench held that the Tribunal exercising power u/s. 18(3)(b)

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cannot make the Premier Mills Ltd. a necessary party with in Sec. 18(3)(b) in the absence of a reference. U/s. 10(1)(d) because this incidental or ancillary dispute in any sense but substantive issue in nature. This being the law equity and sympathy only follow the law. The order of Tribunal impleading Premier Mills Ltd. as affirmed by Single Judge was set aside in consonance with the settled law postulated in Hochtief Gamman v. Industrial Tribunal, 1964 II LLJ 460 (SC).

Management of Premier Mills Ltd, Pulankinar 642 122, Udumalpettai Taluk v. Presiding Officer, Labour Court Coimbatore & Ors., 2010 II LLJ 757 (Mad.DB) WA 2320 of 2000 & CMP 20132 of 2000 dt. 8-9-2009

“The principle……….to the proceedings.” (Page: 761, Para: 9)

“Learned……….respondent.” (Page: 761, Para: 10)

Sec. 19(3)

Award – Even if ceases to operate after one year, it does not become ineffective but continues to remain binding on the parties as a contract Life of an award – Continues to bind the relationship of parties even after a period of one year unless a fresh contract or adjudication determines their relationship

¥4.902 As per Sec. 6A of the U. P. Industrial Disputes Act, an award becomes enforceable after 30 days from

the date of publication and Sec. 6C indicates that the award shall be operative for a period of one year or shorter period but even after it ceases to operate, it does not become ineffective but continues to remain binding on the parties as a contract and the obligations created by such award can only be altered by a fresh adjudication or by a fresh contract. Till such time the life of an award continues to remain binding in spite of its expiry after one year.

U.P. State Bridge Corporation Ltd. v. Prescribed Authority, Labour Court, U.P., Varanasi & Anr., 2009 (121) FLR 436 : 2009 III LLN 82 : 2009 LLR 635 (All.HC) CMWP 7135 of 2009 dt. 10-2-2009

“The provision of……….of one year.” (Page: 438, Para: 5)

Sec. 29 & 19(6)

Continuing offence – Non implementation of an award is Award – If not implemented it becomes a continuing offence not barred by limitation prescribed u/s. 468 of Cr. PC Limitation – U/s. 468 of Cr.PC is not applicable to a continuing offence such as non implementation of a binding award Sec. 29 – Of the Act is applicable for non implementation of an award without limitation by virtue of Sec. 19(6) Sec. 468 of Cr.PC – The limitation prescribed is inapplicable to a continuing offence u/s. 29 of the Act

¥4.903 The employer did not implement the award even after a period of one year which is an offence u/s. 29

of the Act. The question raised was whether the employer is liable to be punished even after one year when the period of operation of the award has expired. It was the contention of the workman that there was an embargo placed u/s. 468 of Cr.PC. being a limitation, is applicable to the case. The High Court held that non implementation of the award is a continuing offence and hence it is not controlled by Sec. 468 of the Code. This is because Sec. 19(6) of the Act directs that in spite of expiry of the period of operation of the award, the award continues to be binding on the parties. Hence u/s. 29, the breach of the binding award is made punishable. Hence the Court held that the complaint was not time barred. In view of this, it was held that after expiry of one year from the date on which the award became enforceable, it is not barred by time u/s. 468 of the Code being a continuing offence.

Vikram Kirloskar v. State of Karnataka & Ors., 2011 (128) FLR 511 : 2011 II LLJ 499 : 2010 IV LLN 197 : 2010 LIC 4008 (Karn.HC) CP 2577 of 2005 dt. 25-5-2010

“U/s. 29……….the prosecution” (Page: 504, Para: 13)

387

“In management……….468 of Code” (Page: 504/505, Para: 14)

Sec. 33(2)(b), 33C(2), 31(1) & 20(2)(b)

Criminal Prosecution – U/s. 31(1) and computation of wages u/s. 33C(2) though for violation of Sec. 33(2)(b) are independent computation need not wait for the result in the criminal proceedings Conciliation Proceedings – Comes to an end only upon reaching failure report to the Appropriate Government u/s. 20(2)(b) Computation of Wages – U/s. 33C(2) is maintainable for violation of Sec. 33(2)(b) irrespective of the fact that there was also a criminal proceedings pending on the same issue u/s. 31(1) Sec. 33(2)(b) Proviso – If violated for dismissal even when the failure report was not yet reached the Appropriate Government application for computation of dues u/s. 33C(2) is maintainable

¥4.904 The workman was dismissed from service for certain misconduct. There was also a charter of

demand pending in conciliation. According to the employer the dismissal of a workman was made after conclusion of conciliation proceedings. Whereas according to workman he was dismissed from service on December 24, 2003 and conciliation proceedings ended in failure on August 28, 2003 and the same was sent to the commissioner of labour and in turn he sent it to the government only on October 4, 2004. It is only when the failure report reaches the Appropriate Government the conciliation proceedings comes to an end as per Sec. 20(2)(b) of the Act. Since approval for dismissal was not taken u/s. 33(2)(b) the workman claimed wages and filed application u/s. 33C(2). They also filed criminal prosecution u/s. 31(1) of the Act. The labour court while upholding the maintainability of the application rejected their claim for the reason that unless the result of the criminal prosecution was obtained no relief could be given. The High Court set aside the order and held that the decision was contrary to law. It remanded the matter for deciding whether the conciliation proceedings concluded or not and if not concluded to compute the wages from the date of dismissal.

P. Sundararaj v. Presiding Officer, I Addl. Labour Court, Chennai & Anr., 2011 II LLJ 681 : 2011 (129) FLR 119 : 2011 I CLR 377 (Mad.HC) WP 1413-1415 & 983 of 2008 dt. 19-11-2010

“Law is well settled……….the benefits available.” (Page: 686, Para: 12)

“The question raised……….by the 1st respondent.” (Page: 687, Para: 15)

“Accordingly, the impugned……….observation. No costs.” (Page: 687, Para: 16)

Sec. 17A

Ex-parte Award – Does not warrant to be set aside if the employer intentionally failed to participate in the proceedings before Labour Court Non-Appearance if intentional – Even after being duly served in the proceedings, Tribunal can rightly reject the application for setting aside the ex-parte award Application for setting aside the ex-parte award – To be rejected if employer intentionally fails to appear even after being duly served in the proceedings

¥4.905 If the employer intentionally fails to appear before the labour court even after being duly served in

the proceedings there is no reason or justification for the Labour Court to exercise its extra ordinary power to set aside an ex-parte Award.

Shri Harikishan Jee Industries v. Harender Yadav & Anr., 2010 II CLR 145 (P&H.HC) CWP 39 of 2010 dt. 7-1- 2010

“I have heard the counsel……….not be called for.” (Page: 147, Para: 3)

Sec. 12

388

Review – Is hit by res judicata only when it pertains to quasi judicial powers exercised by virtue of statute Quasi judicial powers – Exercise of which attracts res judicata disabling to entertain a review application Res judicata – Cannot be attracted towards the function of the government either u/s. 10 of the Central Act or under State Act which are administrative in nature Administrative Powers – Includes power to review of a decision taken in conciliation or by Appropriate Government in exercise of its power u/s. 10 Conciliation Officer – Has power to review his order being not an exercise of quasi judicial powers but administrative in nature

¥4.906 In conciliation regarding the dispute whether or not the workmen tendered their resignation was

answered against the workmen. The said report was accepted by the Deputy Labour Commissioner holding that there exists no industrial dispute. The workmen made an application to review this order. It was allowed. The employer contested the same on the ground of res judicata holding that the Deputy Labour Commissioner had exceeded his jurisdiction. Whereas, the High Court held that the power to review must be conferred by the statute either specifically or by necessary implication and it is applicable only where the government exercises a quasi judicial power vested in it by the statute and it does not apply to purely administrative matters. Hence the function of the government either u/s. 10 of the Central Act or under similar provisions under the State Act being only administrative in nature, the principles of res judicata cannot be attracted. Therefore, the Government or its officers are free to alter its policy or decision in the administrative matters. Hence the review application made by the workmen as accepted by the conciliation officer is valid and legal.

M/s. Chaubisi Plastic Pvt. Ltd. v. Deputy Labour Commissioner, Lucknow & Ors., 2009 (120) FLR 89 : 2009 II LLN 124 : 2009 LLR 266 (All.HC) WP 5105-5111 & 14 of 2006 dt. 9-7-2008

“It is settled……….want of jurisdiction.” (Page: 93, Para: 8)

Sec. 12

Domestic Inquiry – If not conducted the employer has to seek permission of the court to prove the misconduct Misconduct – To prove the employer has to seek permission of the Labour Court Shambunath Goyal – This legal position was upheld by the constitution bench in the case of Lakshmi Devamma Framing of Issue – The Labour Court cannot dispense with while proving misconduct for the first time to avoid surprise to the workman Lakshmi Devamma – The judgement is the settled legal position regarding proving a misconduct for the first time

¥4.907 The Labour Court even while holding that the termination of the workman was illegal for the reason

that no enquiry was held and no compensation was paid and that he had not abandoned his service as claimed by the employer yet instead of reinstating him a compensation of ̀ 4000 was awarded. The Labour Court while arriving at this decision has disregarded to note that the employer has not sought any permission to prove the misconduct now alleged. Hence the High Court has held that the Labour Court cannot decide suo motu whether there is misconduct committed by the workman especially when no issue was framed. The workman therefore could not have been taken by surprise by relying on the report of a detective agency furnished by the employer in proof of misconduct. Such a decision is contrary to the settled legal position decided by Apex court in the case of Shambunath Goyal which was approved by the Constitution Bench in the case of Lakshmi Devamma. Modifying the award the High Court reinstated him with all consequential benefits.

Deepak Ganpat Tari v. New Excelsior Theatre Pvt. Ltd. & Ors., 2008 (119) FLR 877 : 2008 III CLR 762 : 2009 (1) Mah.LJ 547 : 2009 (2) BCR 916 (Bom.HC) CAJWP 2048 of 1997 dt. 30-9-2008

“In the present case,……….dismissed for misconduct.” (Page: 882, Para: 8)

“In my opinion,……….three months from today.” (Page: 882, Para: 10)

389

Sec. 11A & 2(k)

Resignation – If due to harassment reinstatement with 35% back wages is proper Back Wages – For resignation due to harassment – 35% proper Reinstatement – With 35% back wages subserves for resignation tendered due to harassment Industrial Dispute – Includes – Resignation by way of harassment

¥4.908 The workman tendered resignation alleging harassment and that she was forced and threatened to

do so. Her dispute was referred for adjudication in which employer contended that there was no Industrial dispute and hence the application was not maintainable. The Labour Court reinstated her with 65% back wages and consequential benefits. Upon challenge the High Court held that the letter of resignation indicates that the harassment was writ large on the face of it as the workman has indicated in the body of the resignation letter the reason of harassment as a cause. If the resignation was accepted then the cause of harassment was also deemed to have been accepted. Further the resignation tendered on such grounds being not only an industrial dispute within the meaning of Sec. 2(k) but also u/s. 2(A)of the Act and hence maintainable. The High Court however modifying the award so far as back wages are concerned ordered to pay 35% instead of 65% upholding the reinstatement because employer was a film training institute aided by government and not an out and out business establishment with a profit motive.

Managing Director, Adarsh Film Institute, Bangalore v. Smt. M.K. Sharada & Anr., 2009 (121) FLR 465 : 2009 III CLR 293 (Karn.HC) WP 30060 of 2004 (C/W) WP 32491 of 2004 dt. 1-12-2008

“At the outset……….exercising its jurisdiction.” (Page: 466, Para: 8)

“The question……….calls for modification” (Page: 470/471, Para: 15)

Sec. 17A & Order-IX, Rule 9

Ex-parte Award – Is amenable to be restored if an application under Order-IX Rule-9 is made by the workman explaining his reasons for remaining absent on the date of hearing Order-IX Rule-9 – Of CPC is applicable for restoration of an ex-parte award Labour Court – Has the power to restore an ex parte award made due to absence of workman on the date of hearing under Order IX Rule 9

¥4.909 The Labour Court gave an ex parte award against the workman for the only reason that the

workman or his counsel was not present on the date of hearing to prove the issues. The workman made an application under Order-IX Rule-9 of Civil Procedure Code to restore the matter. The same was rejected. Upon challenge the High Court held that Labour Court was bound to decide the matter on its merit. Hence the ex parte award against the workman was not sustainable and his application under Order IX Rule 9 of Civil Procedure Code is maintainable. The award was quashed and set aside and Labour Court was directed to hear the reference afresh on merit.

Dola ram v. H.P. Khadi Village Industries Board & Anr., 2008 LIC 3785 (HP.HC) CWP 585 of 2008 dt. 28-5-2008

“It is evident……….on its merits.” (Page: 3785, Para: 8)

“It is true……….maintainable, are erroneous.” (Page: 3790, Para: 12)

Sec. 11A Order 18 Rule 4 of CPC

Madhya Pradesh Rules – Examination of witnesses under Rule. 10 B(6) is not mandatory if the affidavits were relied on unless there is requirement for cross examination Affidavit – Can be relied on if the parties dispense with cross examination of the witnesses as examination of witnesses is not mandatory under Rule. 10B(6) of MP Rules

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Examination of Witness – Is not mandatory in every case, it is to be done in case the parties have applied for calling of witnesses for cross-examination

¥4.910 In this case the issue involved is whether the procedure of examination of each witness referred in

Rule. 10B(6) of Industrial Disputes (Madhya Pradesh) Rules 1957 is mandatory. The tribunal had not examined each witness and gave its awards on affidavits only. The Division Bench held that under Order 18, Rule. 4 of the CPC as introduced by the Code of civil procedure (Amendment) Act, examination of a witness in Court is necessary only for cross examination. In this case except exchanging copies of the affidavits none of the parties applied to the tribunal for calling the witness whose affidavits were filed for cross examination. The tribunal is not required suo motu call the witnesses for cross examination. Hence the contention of the employer that the tribunal had followed a wrong procedure was rejected. Thus the Division Bench upheld the decision of the tribunal made under affidavits without examining the witnesses, the authors of affidavits, as examination in chief. The Rule 24 of the Central Rules is relevant in this regard.

M.P. Hasta Shilpa Hath Kargha Vikas Nigam Maryadit Headquarters, Bhopal v. Om Prakash Kori & Ors., 2011 III LLJ 407 : 2011 IV LLN 237 : 2011 LLR 347 (MP.DB) WP 5315 of 2008 dt. 11-10-2010

“Part III of the Rules……….principles of natural justice.” (Page: 408, Para: 7)

Sec. 17A

Restoration of Dispute – Is to be allowed by tribunal to contest the ex-parte award on merit due to advocate’s fault

¥4.911 The employer was allowed to contest the appeal on merit, before the Industrial Tribunal as it was

due to advocates fault, which had earlier denied restoration of ex-parte award and contest on merits. While so ordering, the Supreme Court set aside the award of Tribunal and order of High Court to the contrary.

Bhagyoday Co-operative Bank Ltd. v. Natvarlal K. Patel, 2010 I CLR 489 (S.C.2J) CAJCA 1800 of 2007 dt. 15-12- 2007

“Having heard learned counsel for the parties and on perusal of the impugned order, it would be clear that the appellant was not heard by the High Court while entertaining the writ petition. In paragraph 5 of the impugned order, the High Court has observed as follows:

It is true that the Appellate order passed by the Industrial Tribunal was an ex-parte order, inasmuch as that the learned Advocate for the petitioner had not remained present, may be for justifiable reasons.” (Page: 489, Para: 3)

“In that view of the matter, we find that the liberty must be given to the appellant to contest the appeal before the Industrial Tribunal. That being the position, we set aside the impugned order of the High Court as well as that of the Industrial Tribunal and the matter is sent back to the Industrial Tribunal with a direction to decide it in accordance with law. It is expected that the matter will be decided by the Industrial Tribunal within a period of six months from the date of supply of a copy of this order to it. In the meantime, the appellant is directed to pay a sum of ̀ 1,00,000 (Rupees One Lakh only) to the respondent within a period of one month from this date, in default of which the order passed by High Court shall stand restored. (Page: 489, Para: 4)

Sec. 20 & 33(2)(b)

Fiction – By way of fiction u/s. 20 the starting and concluding of proceedings is fixed so as to preclude the right of the employer to terminate without approval Approval Application – Cannot be dispensed with by fiction of Sec. 20 of the Act Section 20 of the Act – By way of a fiction imposes a liability on the employer to seek approval prior to termination

¥4.912 The point in issue is whether the employer can dismiss the workman between receipt of failure report

and making a reference without taking approval u/s. 33(2)(b) of the Act. The High Court clarified that

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the provisions of I.D. Act have been constructed in such a way that there should not be any time gap between the order of the failure report from the Conciliation Officer and the order of reference from the Appropriate Government. That is why the Act provides a fiction u/s. 20 regarding the starting and conclusion of the proceedings. The term “the pendency of the dispute” for this purpose is to be understood in this context. In this case failure report was sent on 10.2.2003 and the reference was made on 12.8.2003 Hence dismissal of workman without approval on 13.8.2003 becomes void ab initio if the employer has not taken approval for his actions on the ground that the notice of reference was received by him only on 30.8.2003. Hence the workman is entitled for wages from the date of dismissal to the date of withdrawal of the order of dismissal or till his reinstatement.

Management of Alpha Helical Pumps, Coimbatore v. Presiding Officer of Labour Court, Coimbatore & Ors., 2011 III CLR 486 : 2012 II LLJ 79 (Mad.HC) WP 2020 of 2006 & WP 31375 of 2007 & WPMP 2301 of 2006 in WP 2020 of 2006 dt. 12-9-2011

“The proviso expressly……….in the service of the employer.” (Page: 488, Para: 7)

“When the management……….of the proceedings.” (Page: 492, Para: 19)

“The legislature thought that……….correct legal provisions.” (Page: 492, Para: 22)

“If the contentions of the……….petition is closed.” (Page: 494, Para: 24)