Proof of abandonment of service
Abandonment of service is question of intention, Intention of abandonment has
to be gathered from conduct of employee Documents produced clearly show that
employee had exhibited intention not to resume duty despite sufficient
opportunity given to him Employer has proved voluntary abandonment of service
by referring to voluminous records No relief can be claimed by employee.
Held:
Under common law an
inference that an employee has abandoned or relinquished his services is not
easily drawn unless the length of absence and from other surrounding
circumstances an inference to that effect can be legitimately drawn and it can
be assumed that the employee intended to abandon his service. Abandonment or
relinquishment of service is always a question of intention and normally such
an intention cannot be attributed to an employee without adequate evidence
under law. In the present case the intention of the petitioner to abandon his
services has been clearly proved by voluminous documents produced by the Spices
Board. The Apex Court has held that whether there has been a voluntary
abandonment of service or not is a question of fact which has to be determined
in the light of the surrounding circumstances of each case. In the present case
the abandonment of service is total and complete. The employee has given up his
duties and has exhibited an intention not to resume the same, in spite of
sufficient opportunities given to him by the employer. Therefore, it can be easily
construed that there has been voluntary abandonment of service. (Para 10) Sankaranarayanan, P.L, Ernakulain
v. Spices Board, Kochi. [1999]
Settlement Bi partite settlement (dated September 17, 1984) governing service conditions of Bank employees Clause XVI Absence of workman from duty for more than 90 days Duty of employer to serve notice to report for duty within 30 days On his failure to comply, he will be deemed to have abandoned service Essence of clause is absence of intention of workman to join duty.
This writ petition by the management of
the State Bank of India challenged an award of the Industrial Tribunal held by
which the Tribunal held refusal by the Bank to give employment to the
respondent workman, a clerk in the Bank at its Phulbani Branch, on account of
his absence from duty beyond 90 days amounted to illegal termination of his
service and therefore directed his reinstatement with full backwages. The High
Court upheld the Tribunal's impugned award as regards reinstatement but allowed
in part the writ petition as regards payment of backwages.
Held:
The High Court observed
that the essence of clause XVI of the Bi partite settlement, on which the bank
purported to take its impugned action, was the absence of intention of the
workman to join duty. (Para 5)
The High Court found that the conclusion
of the Tribunal that the workman had no intention of abandoning his services
was essentially factual. It could not be treated as baseless. This finding of
fact was not to be interfered within a writ petition. (Para 6)
As regards backwages the High Court
observed the dispute was raised after substantial length of time. Hence
backwages were held payable only from January 1, 1990 and not from July 27,
1985 as directed by the Tribunal. (Para
7) Management,
State Bank of India, Phulbani Branch v. Bipin Bihari Patnaik. [1999]
Voluntary
abandonment of service Petitioner not shown to have tendered resignation His
leave applications not considered Nor medical certificates submitted by him No
decision thereon was taken by competent officer Held impugned order of
termination not bona fide State Bank of India Officers (Determination of Terms and
Conditions of Service) Order, 1979 Rules 20 and 92.
Saibabu
S. v. State Bank of India. [1999]
When
worker resorts to strike, he does not abandon his job I.D. Act has not provided
period of illegal strike would be treated as period of unauthorised absence or
relationship of employer employee would cease Industrial Disputes Act, 1947
Sections 22 and 26.
U.P. Rajya Setu Nigam Sanyukt Karmachari
Sangh v. U.P. State Bridge Corporation, Lucknow. [1999]
Unauthorised
absence Bank employee absenting Bipartite settlement Clause 17(a) is an
enabling clause to send notice to employee if he remains absent beyond 90 days
Not to send this notice is risky for Bank.
Petitioner had joined the Syndicate Bank
as attendee in 1978, and in 1984 he was promoted as clerk. He absented from
November 29, 1996. Bank issued notice to him on March 13, 1997 to join duty.
Further notice was sent on March 25, 1997 by Regd. Post. Notices came back with
postal endorsement "addressee left, returned to sender". Then Dy.
G.M. passed order on June 24, 1997 declaring that the employee is deemed to
have voluntarily retired from Bank Services from May 16, 1997, and further
declaring that the period of unauthorised absence of the petitioner should not
count for service for purposes of gratuity and pension. Hence this Writ
Petition.
Held:
Clause 17(a) of the
Bipartite settlement mandates that before management declares that the employee
has voluntarily abandoned the job by virtue of the fact that he absented
himself unauthorisedly for a period more than 90 days, the management is
required to give notice to the employee offering him an opportunity to explain
under what circumstances he absented himself unauthorisedly. In the instant
case no such notice was served. (Para 3) Ramachandra Alse S.
v. Dy. G.M., Syndicate Bank, Hyderabad. [1999]
·
Status and treatment of officer under
suspension Non payment of subsistence allowance during suspension does not
entitle delinquent officer to be absent from duty Punjab Police Rules, 1934
Rule 16.21.
State
of Punjab v. Dharam Singh. [1999]
Casual
Employees Technical Mate engaged by Railways on casual basis continued in
service for number of years Claim made by such Technical Mate for absorption
in Group "C" rejected by Railways Technical Mate approaching Central
Administrative Tribunal more than once Casual Employees could be given designation
Distinction exists between Casual Employees engaged in different categories
Railways directed to absorb Technical Mate as Skilled Artisan in Grade III in
appropriate Scale inasmuch as Technical Mate has approached Tribunal on number
of occasions and case is extra ordinary case.
A Technical Mate was engaged on daily
wages w.e.f. August 23, 1976. She was declared to have attained temporary
status in 1981. She made a representation to confer the temporary status in
Group "C". The Chief Engineer took the view that the appellant was
not entitled to be employed in Group "C". She filed an application
before the Central Administrative Tribunal seeking relief of absorption in
Group "C". The Tribunal set aside the action of the Chief Engineer
and remitted the matter to the concerned authorities. Once again the Chief
Engineer decided against her absorption in Group "C". Hence she
approached the Central Administrative Tribunal. The Tribunal directed the
Chairman of the Railway Board to examine this matter and give appropriate
relief. the Chairman of the Railway Board took the view that the employee is
only a casual employee and a casual employee cannot be differentiated from
another casual employee and the designation of post cannot be attached to such
an employee. Therefore, the Tribunal, found helplessness to give relief to the
appellant and dismissed the application filed by the casual employee. Hence the
Civil Appeal by Special Leave.
Held: The Communication of the Railway Board
No. P(S)/443/I/Misc/MP/MAS/Vo. X clearly indicates the manner in which a person
whose services have been engaged as a Technical Mate on casual basis has to be
treated. If this is the mode of providing an employment, then it is not
understandable as to how the Chairman of the Railway Board could not apply the
same to the appellant and give appropriate relief. Considering the long period
of service the appellant had put in and the qualification possessed by her,
namely, a diploma in technical subjects, it would certainly entitle her to be
absorbed as a skilled Artisan in Grade III in Scale 950 1500 against post
available in respect of direct recruitment
quota. If this aspect had been borne in mind
by the Chairman of the Railway Board, he would not have rejected the
case of the appellant. (Para 2)
The view taken by the Chairman of the
Railway Board that there cannot be any designation assigned to a casual
employee baffles all logic because there can be engagement of a peon on casual
basis and there can be engagement of a clerk on casual basis and it cannot be
said that both are casual employees and, therefore, there cannot be any
distinction between a peon and a clerk as they are engaged on casual basis. (Para 3)
Considering the number of occasions the
appellant had approached the Tribunal and the authorities for relief, it is an
extraordinary case where the respondents should be directed to absorb the
appellant as a skilled Artisan in Grade III in appropriate scale as indicated
in the communication No. P(S)/441/I/MISC/MP/MAS/Vo. X of the Railway Board and
the benefit thereof should be given to the appellant. (Para 4) Chandra V.M. v. Union of India [1999]
·
Absorption of surplus staff of
autonomous body by State Government Whether entities staff to demand continuity
of service In absence of specific provision No.
The Appellant was a Forester in the
Bihar State Forest Development Corporation, which was an autonomous body. Since
the BSFDC decided to close down certain projects, certain number of staff
including the Appellant became surplus. The State Government decided to absorb
the surplus staff in the State Trading Wing of the Forest Department with
effect from March 2, 1982. The Appellant approached the High Court claiming
continuity of his service from the day he had joined the BSFDC, and his
petition before the High Court was dismissed. Hence the appeal in the Supreme
Court contending that he was only transferred from BSFDC to STWFD and therefore
entitled to continuity of his service with consequential benefits.
Held:
In the absence of any
provision, the appointment of the Appellant in the State Cadre had to be
considered as appointment from the date when it takes effect. The judgment of
the High Court that the service of the Appellant will count from the date of
'his appointment in the State Trading Wing of the Forest Department of the
State of Bihar and his earlier service with the Corporation will not be counted
for the purposes of seniority and other benefits was confirmed by the Supreme
Court. (Para 5) Yogendra Prasad Mandal v. State
of Bihar. [1999]
Notification
by Government of India prohibiting employment of contract labour for sweeping
cleaning etc. of buildings owned by establishments in respect whereof Central
Government was appropriate Government Respondent Corporation held bound by
notification Employees for such work through contractor directed to be absorbed
by Corporation as its regular and permanent employees Contract Labour
(Regulation and Abolition) Act, 1970 Section 10.
Mumbai
Shramik Sangh v. Bharat Petroleum Corporation Ltd. [1999]
Contract
Labour (Regulation & Abolition) Act, 1970 Section 10 G.O. abolishes certain
categories of contract labour in APSEB Only employees working on day of
abolition entitled to be absorbed Petitioners not in rolls on said date not
entitled to claim regularisation.
Chandra
Mouli Reddy v. Member Secretary, APSEB. [1999]
Notification
under Section of 10(l) of Contract Labour Act No provision in the Act for
absorption of employees whose contract of employment stands abolished under
notification Principal employer not under obligation to absorb such employee.
Madras
Aluminium Co., Salem v. Regional Labour Commissioner. [1999]
Casual
Labour Absorption of Ex casual labourer regardless of number of working days
could be absorbed if he was graduate Scheme for absorbing ex casual labourers
being benevolent one has to be interpreted in manner which furthers its
objects.
Pippalla
Surya Bhagavan v. MemberSecretary, A.P.S.EB. [1999]
Person
appointed through back door cannot claim permanency in service Absorption in
permanent service on ground of social justice, not sustainable.
Calcutta
Tramway Co. Ltd. (1978) v. Ramesh. [1999]
No
claim for absorption in regular establishment can be made till Notification is
published prohibiting engagement of Vulcanisers as contract labour Leave given
to Vulcanisers; to move appropriate Government for prohibition of engagement of
Vulcanisers as contract labour in Halide Dock Complex, Calcutta Port Trust
Order of status quo issued
subject to certain conditions.
Sheikh
Jahangir Ali v. Calcutta Port Trust. [1999]
Validity
of medical certificate issued by specialists in field in face of
disqualification on medical ground for absorption of workmen Certificates
valid.
Held:
Certificates issued by
District Medical Officer, Skin Specialist in the Government Headquarters
Hospital, District Leprosy Officer, etc. should be accepted as valid
certificates. (Para 12) Workman, represented
by the General Secretary, India Cements Employees Union, Sankari West v.
General Manager, India Cements Ltd., Sankari West. [1999]
Absorption
Whether workman medically fit to do the work Workman is entitled to produce
medical certificate issued by Doctors other than Company Doctor.
Held:
Since the settlement
contemplates a right of appeal against the findings of company Doctor to the
District Medical Officer, the certificate issued by the company Doctor is not
final. Therefore the workman is entitled to produce the certificate issued by
the District Medical Officer. (Para 12) Workman, represented
by the General Secretary, India Cements Employees Union, Sankari West v.
General Manager, India Cements Ltd., Sankari West. [1999]
·
Absorption of surplus staff of
autonomous body by State Government Whether entitles staff to demand continuity
of service In absence of specific provision No.
Yogendra
Prasad Mandal v. State of Bihar. [1999]
SEE UNDER THE HEADING "WORKMEN'S COMPENSATON ACT, 1923".
·
Judicial Review Scope and Meaning of
Judicial Review is not akin to appeal It is review of manner in which decision
was arrived at Courts while exercising judicial review must remain conscious of
fact that Court cannot substitute its judgment for that of administrative
authority. (Para 17)
Apparel
Export Promotion Council v. A.K. Chopra. [1999]
Section
3(q) Department of Social Forestry, a scheduled employment of workers in
Plantations, Farms and Schemes of such department, engaged on daily wage basis
Grievance of reduction in their wages Writ petition for relief, held not
maintainable Minimum Wages Act, 1948.
The petitioner union sought relief on
behalf of daily rated workers in the Plantation Farms and Schemes of the Social
Forestry Department of the Government of Maharashtra, against a reduction of
their wages, claiming that social forestry was a scheduled Employment under the
Minimum Wages Act, 1948. The High Court held the petition not tenable.
Held:
The High Court observed
that disputes regarding daily rated casual labourers fell within the ambit of
service matters as defined under Section 3(q) of the Administrative Tribunals
Act, 1985. (Para 4)
The present (writ) petition was
therefore held not tenable. The High Court consequently directed transfer of
the petition to the Maharashtra Administrative Tribunal. (Para 6) Marathwade Sarvashramik Sangathan v
State of Maharashtra [1999]
·
Section 14(l)(a) jurisdiction of CAT
Appellant selected by Posts & Telegraphs Department for post of clerk Due
to want of vacancy could not be offered appointment Appellant accepted offer of
appointment as clerk in Army Postal Service on deputation Also accepted that he
would revert to P&T Dept. on release from Army Postal Service Facts
demonstrate that appellant had been in P&T Dept. working on deputation in
Indian Army Postal Service Central Administrative Tribunal has jurisdiction to
entertain original application filed by appellant CAT erroneously accepted
claim of appellant that he was army personnel Case remanded to CAT to decide
original application of appellant. (Para 8)
Major
M. R. Penghal v. Union of India. [1999]
·
Sections 14(l) & 15(l) Relief
granted by lower Court found to be illegal Yet not disturbed on facts and
circumstances of case.
Union
of India v. Kulamoni Mohanty. [1999]
Section
28 Exclusion of jurisdiction of High Court in respect of orders passed by
Administrative Tribunal, unconstitutional
(Constitution of India, 1950 Articles 323
A (2)(d).
Edwin
v. Director General, All India Radio [1999]
Procedure to be followed before communication of adverse remarks to employee Application of Section 114 (c) of Indian Evidence Act to service law Presumptions applicable judicial Officers are on duty all the 24 hours.
The Petitioner has gone to the Court
with a prayer to quash adverse entry in his service records. The adverse entry
was "deliberately avoided to attend the official meeting with Hon'ble
Acting Chief Justice on October 23, 1993 at the Irrigation Inspection House,
during His Lordship's visit to Mirzapure. He is guilty of disobedience. He is
also impertinent and arrogant in his behavior". The case of the Petitioner
was that on October 23, 1993 was a holiday and he was on fast and performing
Havan while celebrating Ram Navami. Therefore he could not go to meet His Lordship.
The record placed before the Court
contained more information about the behaviour of the Petitioner. In 1976 77
there were adverse remarks against him such as "It is distressing to note
that he lacks courtesy and good manners. He is not amenable to the advice of
District Judge". Again in 1977 78 "his knowledge of law is poor and
appreciation of evidence unsatisfactory. His judgments are not sound and are
sometimes vitiated even by misreading of documents" etc. In 1979 80 also
there were adverse remarks.
Held:
What the Rule
prescribes is that before the adverse remarks are issued, it would be placed
before the Chief Justice and in this case it was done, and nowhere in the Writ
Petition has the Petitioner made any statement that the adverse remarks were
not placed before the Chief Justice prior to its issuance. (Para 7.2)
Even though the provisions of the Indian
Evidence Act are not in terms applicable to the proceedings under Article 226
of the Constitution yet the principles engrafted under Section 114 (c) of the
said Act concerning presumptions of correctness and regularity in regard to the
official and judicial acts would be applicable to the proceedings. The act in
question was done by the High Court on its administrative side. Thus, this
presumption will be of the highest degree and the onus will be very heavy on a
person who challenges this presumption which has not been discharged by the
Petitioner. Adverse remarks were
communicated to the Petitioner after the endorsement by the Chief
Justice. (Para 7.3)
The Petitioner has taken different
stands at different times, such as that he was not aware of the fact that
judicial officers were required to meet the Chief Justice at the Irrigation
Inspection House, he was not informed that any official meeting has been fixed,
while the circular had mentioned about the visit clearly.
The contentions of the Petitioner were
that the visit was absolutely private and not an official one; Petitioner was
not provided with the copy of the report of the District Judge on the basis of
which adverse remarks were recorded; October 23, 1993 being Ram Navami day was
declared a holiday and the Petitioner was on fast and performing his pooja; the
Chief Justice has not concurred with the issuance of adverse remarks; the High
Court while dealing with administrative side with the member of the subordinate
judiciary was required to act fairly and non arbitrarily and thus the adverse
remarks recorded against him and the resolution of the administrative
department are liable to be quashed.
If he was really fasting, that fact
should have been brought to the notice of the District Judge. The D.B. refused
to believe this defence. (Para 8. 1)
On the plea that it was a holiday the
Court said that the Petitioner being judicial officer will be deemed to be on
duty 24 hours. (Para 8.3)
The D.B. could not find any ground to
entertain his alternative plea of mercy and it was rejected. (Para 11) Singh, N.B., Additional District
& Sessions Judge, Budaun v. Laksluni Bihari, District
Judge.
[1999]
Trade
Unions cannot dictate employer whom they should employ If there was any
agreement giving them right so to dictate, it was for them to raise industrial
dispute.
Peethainbaran
v. Ramachandran. [1999]
Chapter
VIII Rule 5 Right of appeal, a creature of statute No inherent right to prefer
appeal, unless it is conferred on litigant by law If appeal sought relief of
implementation of award coming within prohibition of Rule 5 of High Court Rules, appeal is not maintainable U.P.
Industrial Disputes Act, 1947 Sections 14 A and 16.
Rain
Kripal Singhv. U.P. State Road Transport Corporation. [1999]
·
House
Rent Allowance Entitlement of employee living in his own house Admissible only
if gross rental value assessed by Municipal Authorities for municipal purposes
exceeds 10% of employee's pay Rental value for H.R.A. cannot be different from
rental value of house as assessed for municipal purposes Employee cannot draw
H.R.A. based on certificates obtained from municipal officials showing
different rental value.
Director
General, Indian Council of Medical Research v. Dr. Anil Kumar Ghosh. [1999]
·
House
Rent Allowance Entitlement of employee living in his own house Admissible only
if gross rental value assessed by Municipal authorities for municipal purposes
exceeds 10% of employee's pay Rental value for HRA cannot be different from
rental value of house as assessed for municipal purposes Employee cannot draw
HRA based on certificates obtained from municipal officials showing different
rental value. (Para 16)
Director
General, Indian Council of Medical Research v. Dr. Anil Kumar Ghosh. [1999]
Subsistence Allowance Interim relief Nonpayment of subsistence allowance Not a ground that will vitiate award.
Dismissal of employee without enquiry Subsistence allowance during pendency proceeding in Labour Court Should be paid Bombay Industrial Relations Act, 1946 Section 119 D.
Bharat
Co operative Bank Ltd. v. K.L. Baria, Judge, Labour Court. [1999]
SEE UNDER THE HEADING "CONSTITUTION OF INDIA" ARTICLE
226.
Supply
of uniforms and shoes It is an amenity Employer may provide it, discontinue it
or not provide at all Application under Section 15(2) to be filed within 12
months Payment of Wages Act, 1936 Sections 15(2) and 15(3).
Gurbux
Singh v. Executive Engineer, Ropar Division, Sirhind Canal, Ropar. [1999]
ANDAMAN AND NICOBAR (PWD) GROUP A AND GROUP B POSTS
RECRUITMENT RULES, 1980
·
Determination of seniority of employees
whether service rendered on ad hoc basis prior to
regularisation can be taken into account for determination of seniority in a
particular rank Ad hoc appointee's service prior to regularisation is not counted
for the purpose of seniority.
Singh
P.K. v. Bool Chand Chablani. [1999]
Regulation
8 Notional pay has to be fixed and P.F. and gratuity to be calculated on that
basis Arrears can be claimed, under Regulation 8 as of right and it is not paid
ex gratia.
Veerabhadra Rao K. Ch. v. Government of
India, Ministry of Finance, New Delhi. [1999]
ANDHRA
PRADESH COOPERATIVE SOCIETIES ACT, 1964
SEE UNDER THE HEADING "COOPERATIVE SOCIETIES".
Section
79 Appointment in leave vacancy is not regular appointment under No enquiry for
removal of teacher appointed in leave vacancy necessary.
Kanthi
Kumari P. (Smt.) v. State of A.P. [1999]
STRUCTURE) ACT, 1994
Regularisation of service of temporary employees on daily wage basis Those who completed rive years of service, although not on date of petition, held entitled to be considered for regularisation, subject to their fulfilling other conditions including those regarding appointment at inception.
The present petitioners were N.M.R.
Section writers on temporary daily wage basis and they sought a writ of mandamus for regularisation of their
services. The High Court disposed of the petitions with directions.
Held:
The High Court observed
that the petitioners had completed five years of (temporary) service as on the
date of this judgment. Therefore the respondents could not refuse
regularisation of their services, as per G.O. Ms. No. 212 of April 22, 1994. (Para 6)
However the respondents were entitled to
consider whether the petitioners satisfied the other conditions as to age,
vacancies etc. and follow the rule of reservations. (Para 7)
The respondents could also consider
whether the petitioners would satisfy conditions as to their appointment at
inception. (Para 9) Nagaraju T. v. District
Collector& Chairman, Rural Development Agency, West Godhavari Dist. [1999]
Right of appeal, a creative of statute No inherent right to prefer appeal, unless it is conferred on litigant by law If appeal sought relief of implementation of award coming within prohibition of Rule 5 of High Court Rules, appeal is not maintainable U.P. Industrial Disputes Act, 1947Sections 14 A & 16 Allahabad High Court Rules Chapter VIII Rule 5.
Rain
Kripal Singli v. U.P. State Road Transport Corporation. [1999]
1. Ad hoc appointment
2. Vacancies
3. Miscellaneous
·
Ad hoc Class IV employee appointed ad
hoc clerk against leave vacancy Respondent not possessing requisite
qualification High Court setting aside order of non regularisation Also
ordering employee to be continued as clerk Held, it cannot be upheld
Constitution of India, 1950 Article 226.
Improvement
Trust, Ludhiana v. Kuldip Singh. [1999]
·
Appointment
on ad hoc basis Right of such
appointees to claim for regularisation or reinstatement Persons appointed on ad hoc basis who were continued for 4 to
5 years cannot claim reinstatement as of right They are entitled to sympathetic
consideration State directed to grant them relaxation to age and give them
first preference in the event of appointment being made to posts.
Appellants worked as Home Guards from
1985 to 1990. They were appointed on ad
hoc basis and worked upto July 1994. Contention of the State was that they
were appointed only on fixed term basis and were not given fresh appointment on
the expiry of last term in 1994. Therefore, they were not entitled for the
relief of either reinstatement or regularisation. High Court issued direction
for taking action against the Officers who have granted extension to the
appellants from time to time.
Held:
The fact that all the 8
appellants had worked as Home Guards for the period from 1985 to 1990 and the
further fact that they were appointed on ad
hoc basis and had worked on the aforesaid posts upto July 1994 is not
disputed. Although the appellants, having been appointed on ad hoc basis cannot claim reinstatement
as a matter of right. However, one cannot ignore the fact that the appellants
were appointed by the respondent on ad
hoc basis and the appointments have continued from time to time with the
result they continued in service for 4 to 5 years. Therefore, they are entitled
for sympathetic consideration. Hence the appellants are entitled to the benefit
of relaxation in age for the period for which they are already in service as
Corporal Instructors/Dispatch Riders. If the respondents at all intend or
proceed to make appointments on these posts, the appellants shall be given
first preference. The direction of the High Court to take action against the
Officers who have granted extension to the appellants from time to time is
allowed to stand. (Paras 3 & 6) Balwinder Singh v.
State of Punjab. [1999]
·
Appointment on ad hoc basis of Law Assistants in North
Frontier Railway Appointees having made representations to regularise their
appointments cannot make grievance as though they were not aware of appointment
on ad hoc basis.
Appellants have sought regularisation of
their service as Law Assistants who had been informed after two years that
their promotions as such Assistants had been on ad hoc basis. The Administrative Tribunal held that the appellants
were not entitled to promotion as Law Assistants on regular basis. The Supreme
Court in this appeal against the Tribunal's order only confirmed it and
dismissed the appeal.
Held:
The Supreme Court
observed that it was not as though the appellants would not be aware of the ad hoc basis of their appointment (on
promotion) as Law Assistants and that was why they made representations to
regularise their promotions on ad hoc basis.
Thus the appellants could not make a grievance now. (Para 7) Sarma A.K. v. Union of India. [1999]
·
Appointment on ad hoc basis Right of such appointees
to claim for regularisation or reinstatement Persons appointed on ad hoc basis
who were continued for 4 to 5 years claim reinstatement as of right They are
entitled to sympathetic consideration State directed to grant them relaxation
to age and give them first preference in the event of appointment being made to
posts.
Balwinder
Singh v. State of Punjab. [1999]
Appointment
Vacancy arising on one selected candidate not joining It is not fresh vacancy
Restrictions imposed by Reserve Bank of India on fresh recruitment do not apply
to such non joining duty vacancy.
This writ appeal by the Indian Bank
challenged an order of a single Judge directing the Banking Service Recruitment
Board to sponsor one candidate from the waiting list, in which the first
respondent was included, to the Indian Bank for filling up a non joining duty
vacancy which arose in the Bank. The High Court dismissed the appeal.
Held:
The High Court observed
that the restrictions imposed by the Reserve Bank of India did not apply to the
case on hand, which was one non joining duty vacancy and not of fresh vacancy.
Therefore the direction of the Single Judge to the Banking Service Recruitment
Board to notify the next immediate available vacancy to the appellant was
perfectly in order. (Para 7) Indian Bank v. R.
Jayasree. [1999]
Appointment
offered to persons whose land was acquired, under policy originally declared
Change brought about in policy could not affect person's vested right Nor take
away such right by such change giving it retrospective effect.
In allowing this petition against
discriminatory action of the respondent Board, which lured, as it were, land
owners to part with their land for its power project with offers of
appointment, the High Court spoke the voice of justice rendering relief to a
disappointed land owner by the said action of the Board, resulting in his
losing both the land and the job. The reply of the Board that there was a
change in its policy since the time that such offer was made to the petitioner,
which resulted in the denial of the job to the petitioner, or that the
petitioner was overage, did not succeed before the High Court.
Held:
The High Court observed
that the alleged change in the policy of the Board could not affect the vested
right of the petitioner under the policy originally declared. Such a right
could not be taken away by a subsequent change in the policy, with
retrospective effect. (Para 8)
Finding that others who were over age
were given relaxation in age, the effort of the respondent Board to deny
petitioner the job on ground of his being over age could not but be termed as
discriminatory, the High Court concluded. (Para
8) Malkiat Singh v. Punjab State Electricity Board. [1999]
·
Appointment Constitution of India,
1950Article 226 Appellant appointed Lambardar Order challenged by respondent's
father Commissioner remanded matter to Collector for fresh consideration on
merits and demerits Order of removal challenged by appellant before Financial
Commissioner who declared that order of Collector had become final and
proceedings had become infructuous as a result of death of respondent's father
Aggrieved by that order, Respondent filed writ petition in High Court which
remanded case to Collector directing him to permit respondent to continue as
Labrador till fresh decision was made as to who should be appointed to post by
inviting fresh applications from all interested persons Aggrieved by High
Court's order respondent riled this appeal High Court's order not sustainable
So long as appointment of appellant is not cancelled, it is not permissible to
invite fresh applications Matter remanded to Financial Commissioner as question
of survival of cause of action was to be decided Heir of Respondent Allowed to
become party Appellant allowed to raise all contentions permissible in law.
(Para 5)
Khazan
Singh v. Shamsher Singh. [1999]
·
Appointment to Civil Service (Executive
Branch) Appointment to civil service challenged by unsuccessful candidates
Matter carried to Supreme Court Candidates were appointed as Excise and
Taxation Officers and also getting themselves impleaded before Supreme Court
Supreme Court directing candidates to file proper writ petition before High
Court Writ Petition riled cannot be dismissed on ground of delay and laches
Circular issued by Government can be enforced Under circulars issued by
Government, Appellants are entitled to be considered as vacancies arise by
reason of non appointment of some of the candidates especially when vacancies
arise within period of six months from date of previous selection.
Virender
S. Hooda v. State of Haryana. [1999]
Sections
2(aa), 18 and 22 Apprentices Training Rules, 1961 Rajasthan State Road
Transport Workers and Workshop Employees Standing Orders, 1965 Clause 12
Meaning of apprentice Person undergoing training in pursuance of contract of
apprenticeship Apprentice being only trainee and not worker, cannot claim
relief to absorb him in employment.
Petitioners herein were trainees under
apprenticeship programmed of the respondent Transport Corporation, and they
challenged in this petition denial of appointments in the Corporation. The High
Court dismissed the petition.
Held:
The High Court observed
after referring to Clause 12 of the Standing Orders and the statutory
provisions, that letters of selection of petitioners as trainees contained a
condition that there was no job guarantee. Further the contract form signed by
the petitioners did not contain any clause providing for employment. Hence
petitioners could not claim any relief to absorb them in the employment of the
respondents. As per Section 18 of the Apprentices Act, 1961, the petitioners
being apprentices were only trainees and not workers. (Para 15) Babulal Slo Heera Lal v. Rajas than State Road Transport Corporation,
Parivahan Marg. [1999]
Section
6 Period of apprenticeship Extended beyond one year by appraisal committee Whether
such extended period can be counted for seniority of employee Seniority is a
question of comparison between incumbents in same cadre If performance of
apprentice trainee is not satisfactory requiring extension of training period,
trainee not entitled to presumption of completion of training period in one
year Discrimination cannot arise on basis of illegal order in another case.
The present L.P. Appeal by employer
Electricity Board called in question an order of single Judge, who, while a]
lowing a writ petition of the respondent employee, directed the Board to
reconsider the question of seniority of the respondent, on the footing that his
apprenticeship could not be for more than one year period, though, as a matter
of fact, it had been extended in his case for more than a year on account of an
appraisal committee finding his performance not satisfactory. The High Court
allowed the appeal, setting aside the impugned order of the single Judge.
Held:
The High Court observed
that the period of apprenticeship training had to be taken as anterior to the
entry into a service or cadre. (Para 18)
The respondent was not entitled to a
presumption of completion of his apprenticeship on the expiry of one year,
bearing in mind the appraisal committee's unfavorable finding on his
performance and consequent extension of period of apprenticeship beyond one
year. (Para 20)
The respondent's complaint of
discrimination compared with others could not succeed as the legality and
validity in their case had first to be investigated before it could be directed
to be followed in the case of the respondent. (Para 22) Madhya Pradesh Electricity Board v. Dal Chand Rathore. [1999]
Section
13 If employer pays stipend at rate less than prescribed minimum, it cannot
contend compensation should be only at rate actually paid Such argument, if
permitted, would allow employer to take advantage of its own wrong.
Held:
The High Court rejected
another contention of the appellant that compensation should be calculated only
on the basis of wages (stipend) which the appellant was paying to the claimant
and not on the basis of minimum wages prescribed on the relevant date for the
designated trade. The High Court observed that this contention would permit the
appellant to take the benefit of its own wrong and besides defeat the
benevolent provisions of the statutes. (Para
14) Divisional
Controller, G.S.R.T.C. v. Ashok Kumar Keshavlal Parekh. [1999]
Section 16 Workmen's Compensation Act, 1923 Schedule If apprentice in establishment suffers personal injury caused to him by accident arising out of and in course of employment, his employer, liable to pay compensation.
Held:
Refuting the contention
of the appellant employer, the High Court observed that from a conjoint reading
of the provisions of the Apprentices Act, 1961 and the Workmen's Compensation
Act, 1923, an apprentice in an establishment in case suffered personal injury
in the course of his employment, his employer was liable to pay compensation
under Chapter II of the aforesaid Act. (Para
13) Divisional
Controller, G.S.R. T. C. v. Ashok Kumar Keshavlal Parekh. [1999]
Section 21 KSRTC (Cadre and Recruitment) Regulations, 1982 Claim for post of Helper based on National Apprenticeship Training Scheme Claimant can be said to have completed apprentice training only if he has passed test held under Section 21.
An unsuccessful claimant for the post of
Helper (B) in the respondent Corporation filed this writ petition seeking
direction for his appointment. The High Court dismissed the petition.
Held:
The High Court observed
that the petitioner's challenge to the denial of the post was based on the plea
that the petitioner had undergone training under National Apprenticeship
Training Scheme. But a person could be said to have completed his apprentice
training within the meaning of the Apprentices Act, 1961, only if he was found
to have passed the test held under Section 21 of the Act. Taking any other view
would defeat the very object and purpose of the Act and the law laid down by
the Supreme Court in [1995] (Para 9) Nagaraja A. v.
Karnataka State Road Transport Corporation, Bangalore. [1999]
Section 22 Trade apprentices selected
for training in Carriage and Wagon department of N.F.Railway No guarantee of
employment given while sending them for apprenticeship course Letter of
appointment in Group 'C' on temporary basis, stating
their services could be terminated on 11days' notice or pay in lieu thereof Cancellation of their
appointment and alternative appointment in Group D (lower post) held, not
arbitrary or discriminatory and not violative of Articles 14 and 16 of
Constitution.
The present appellants who were selected
as trade apprentices under Apprentice Act, 1961 for apprenticeship course in
the Carriage and Wagon Department of N.F. Railway were aggrieved that the cup
of Group 'C' Fitter post had slipped their lips and they had to be satisfied
with the Lower Group 'D' Carriage Khalasi post. They were first selected for
Group 'C' (Class III) post on May 28, 1990 and in less than one month, that is,
on June 7, 1990, their appointment was cancelled and they were given fresh
appointment in Group 'D' (Class IV) post. They agitated their grievance before
the Central Administrative Tribunal, Guwahati and having failed there, they
came up in the present appeal before the Supreme Court. The Supreme Court
dismissed the appeal.
Held:
The Supreme Court
observed, after referring to Section 22 of the Apprentice Act, 1961, that the
appellants did not, after undergoing the apprenticeship course, have the right
to be appointed. (Para 9)
Further the original appointment letter
of May 28, 1990 (in Clause 2) informed the appellants that it was purely on
temporary basis, terminable on 11 days' notice or pay in lieu thereof. Its subsequent cancellation could not therefore be
said to be arbitrary or discriminatory and violative of Articles 14 and 16 of
the Constitution. (Para 12)
The decision not to allow direct entry
into Group 'C' a rule, namely Rule 159 of the Railways' Rules of Recruitment
and Training providing for 25% posts in Group 'C' to be filled by selection
from apprentices notwithstanding, was reportedly taken upon discussions between
the Administration and the Unions in view of stagnation of existing employers
in Group 'D' waiting for promotion. This decision was therefore held to be
reasonable and taken to keep industrial peace. (Para 14) Mitrangshu Roy Choudhary v. Union of India. [1999]
Meaning of apprentice Person undergoing
training in pursuance of contract of apprenticeship Apprentice being only
trainee and not worker, cannot claim relief to absorb him in employment.
Babulal S/o Heera Lal v. Rajasthan
State Road Transport Corporation Parivahan Marg. [1999]
Rule 22 Dismissal of domestic orderly by court martial Nothing on record to show that Rule 22 was followed It showed total non application of mind nor was there any admission of guilt by domestic orderly.
Held:
This writ petition by a
dismissed domestic orderly in the Army challenging his dismissal, was allowed.
The High Court found that no such statement as alleged by the respondents to
have been given by the petitioner at the time of hearing under Rule 22 of Army
Rules, 1954, of the charge of stealing of a steel almirah, was given by the petitioner
or recorded. (Para 3)
There had been total non application of
mind by the respondents. It was inherently impossible to allege that the
petitioner had stolen the steel almirah. (Para
3) Harnarayan
Singh v. Union of India. [1999]
·
Rule 37
Form IAFD 916 Commanding Officer Court Martialled Necessity for written order
by Commanding Officer nominating personnel for Court Martial No record to show
that personnel for Court Martial were appointed or nominated by Lt. General
Order for assembly of General Court Martial did not contain signature or
initial of Lt. General Such Order was signed only by Colonel No order
evidencing appointment of Court Martial by Lt. General who has to satisfy
himself that charges to be tried by Court Martial are for offences within
meaning of Army Act Not relevant to decide whether Rule 37 is only procedural
in view of categorical stand taken by appellant that there was an order by
Commanding Officer appointing or detailing Officers to form Court Martial Form
for assembly of Court Martial does not contain signature or initial of Lt.
General No record to show that oral order was passed by Lt. General Rule 37 was
violated Court Martial has no jurisdiction to proceed with trial and entire
proceedings are vitiated.
The Commanding Officer was issued a
Charge Sheet containing 8 charges alleging certain irregularities in regard to
local purchase of material for repair. A General Court Martial was convened and
after trial, the Commanding Officer was found guilty of 4 out of 8 charges. He
was awarded the sentence "to be cashiered" and to suffer rigorous
imprisonment for two years. The said sentence was confirmed by the concerned
authority. A writ petition was filed challenging the Court Martial proceedings
as well as punishment. The High Court accepted
the contention that the constitution of Court Martial was not done by the
Commanding Officer as required under Rule 37(3) of the Army Rules. Hence the
High Court took the view that the Court Martial has no jurisdiction to proceed
with the trial and therefore, the entire proceedings as well as order of
punishment vitiated. Hence civil appeal by special leave.
Held:
Admittedly there is no
record whatsoever in the file to show that the personnel of the Court Martial
were appointed by or nominated by the Lt. General. The Order for the assembly
of a General Court Martial did not contain either the signature or the initial
of the Lt. General. It was signed only by the Colonel and none else. In the
circumstances the said order cannot be considered to be an order evidencing the
appointment of personnel of the Court Martial by the Lt. General. There is no
dispute that under Rule 37, the Commanding Officer has to apply his mind to
satisfy himself that the charge to be tried by the Court are for offences within
the meaning of the Act and that evidence justifies the trial of those charges.
The Commanding Officer has also to satisfy himself that the case is a proper
one to be tried by the kind of Court Martial which he proposes to convene. The
form for assembly of Court Martial does not contain either the signature or
initial of the Lt. General. Even assuming that the Lt. General passed an oral
order, there is no record of any kind whatsoever to prove it. The form for
assembly of Court Martial was not contemporaneous to such oral order, if any.
In the absence of any record whatever to show that the appointment of the
personnel of the Court Martial was by the Lt. General the contention of the
appellants that the requirements of Rule 37 were fully satisfied cannot be
accepted. (Para 7) Union of India v. Harish Chandra
Goswami. [1999]
Ex prate Award Employer not riling application
before Labour Court for setting aside award due to Supreme Court decision in
[1981] Petition in High Court Delay in approaching Court Vague averments on
same Petition dismissed Industrial Disputes Act, 1947.
Delhi
Development Authority v. Pradeep Kumar. [1999]
Ex prate award
Employer not riling application before Labour Court for setting aside award due
to Supreme Court decision in [1981] Petition in High Court Delay in approaching
Court Vague averments on same Petition dismissed.
Held: Even in this petition except making
vague averments, the petitioner has failed to give facts which may amount to
sufficient cause for its non appearance before the Labour Court. Except for a
vague averment that the petitioner's panel of lawyers had been changed and that
the concerned file was misplaced, no details of files with which this file may
have been tagged on or misplaced have been mentioned. It has also not been
stated when it was traced. The petitioner has been utterly negligent in not
appearing before the Labour Court for nearly four years since the last
appearance. Even this petition has been filed six months after the award. (Para 1) Delhi Development Authority v.
Pradeep Kumar. [1999]
·
Award of Industrial Tribunal
inconsistent with statutory rules Writ petition filed for implementing Award
Arbitrator enhancing age of superannuation to 58 years contrary to Statutory
Rules which determined age of superannuation as 55 years Award under Industrial
Disputes Act cannot be inconsistent with Law laid down by Legislature or by
Service conditions Such Award is illegal and cannot be enforced Decision by
Constitution Bench cannot be overlooked Decision by Bench of lesser strength is
not binding authority, if it is inconsistent with decision of Constitution
Bench especially when attention of Judges deciding latter case was not invited
to earlier decision.
Giri
N. S. v. Corporation of City of Mangalore. [1999]
·
Award of Labour Court Labour Court
upholding order of dismissal issued to workman High Court upheld award of
Labour Court but directed employer to provide appointment in lower category as
new entrant High Court has jurisdiction to issue such direction after upholding
order of dismissal High Court can reduce severity of punishment on finding that
punishment was disproportionate No jurisdiction is vested in High Court to
direct employer to reemploy delinquent employee after upholding punishment.
(Constitution of India, 1950 Article 226 Industrial Disputes Act, 1947 Section
11 A).
A.P.S.R.T
C. v. K. Pochiah. [1999]
Dismissal
order passed in violation of Section 12(3) of I.D. Act That vitiates domestic
enquiry However award is not vitiated as enquiry was conducted before Labour
Court itself.
Venugopal
V. v. Management of Reed Relays & Electronics Ltd., Madras. [1999]
1. General rules
2. Grant of back wages
(a) On
reinstatement
3. Denial of back wages
4. Quantum of back wages
(a) Fullback
wages
(b) Reduction
in back wages
Backwages Normal rule is, workman, whose termination of service is held illegal, is entitled to backwages except to extent he is shown to have been gainfully employed during enforced idleness.
In this writ petition the State Bank of
India questioned the legality of an order passed upon applications made by
respondent workmen under Section 33 C(2) of the I.D. Act, 1947, for back wages,
pursuant to their reinstatement in service under an award of the Industrial
Tribunal cum Labour Court. The High Court dismissed the writ petition.
Held:
The High Court observed
that the award directing reinstatement of respondent workmen was totally silent
as regards backwages. The normal rule of payment of backwages had to be applied
in such a situation, unless it was proved by the Bank, which it had not done,
that the workmen had engaged in some gainful employment during the relevant
period. (Para 11) State Bank of India v. Ram
Chandra Dubey. [1999]
Backwages can be computed in application by workmen ordered to be reinstated Such computation cannot be treated as conferring any new right upon workmen Industrial Disputes Act, 1947Section 33 C(2).
State
Bank of India v. Ram Chandra Dubey. [1999]
·
Untrained
teachers in Notified Area Schools in Orissa Sent for training On completion of
training not allowed to join duty Joined duty at intervention of Administrative
Tribunal Entitled to back wages for period between completion of training and
taken back on duty.
Appellants, untrained teachers, were
taken over in the Notified Area schools and sent for training. On completion of
training they were not allowed to join duty. On the intervention of the
Administrative Tribunal, they were taken on duty, they claimed wages for the
period they were not allowed to join duty.
Held:
The appellants were not
taken back. It cannot be said it was due to their fault. The Tribunal was not
right in denying their salary for the period from the date when they reported
for duty on completion of training till they were taken back on duty pursuant
to the order of the Tribunal. (Para 5) Rabindra Kumar Battick v. State
of Orissa. [1999]
Denial
of back wages not proper when there is no material to connect employee with
alleged charges.
Held:
The High Court further
observed that except in exceptional cases denial of back wages was not proper
and permissible. The present was not one such case. When there was no material
to connect the appellant with the alleged charges, there was no justification
to deny the back wages. (Para 7) Velappan M.M. v.
Commissioner, Madurai Municipal Corporation, Madurai. [1999]
·
Non payment of back wages justified in
some circumstances But they cannot be denied for reason that charges could have
been established with better proof.
Held:
The Supreme Court
expressed its disapproval of the single Judge's view that non payment of back
wages could be justified, as in this case, for the reason that charges (against
the appellant workman) could have been established by better evidence. It was a
view, the Supreme Court said, falling within the realm of speculation. It
expressed its surprise, that this view had been upheld by Division Bench (in
the writ appeal). (Para 9) Chandra Shekara
Chari H.S. v. Divisional Controller, KSRTC. [1999]
Constitution
of India, 1950 Articles 226, 227 Workman directly approached Writ Court against
termination No enquiry can be held about gainful employment during period of
forced unemployment which is matter of enquiry Hence backwages consequent on
reinstatement not granted Workman left to claim from appropriate forum relief
of backwages. (Para 22)
Pawan
Kumar Shrivastava v. Municipal Corporation, Jabalpur. [1999]
·
Tribunal could not have directed payment
of back wages, when it has upheld order of dismissal.
The Supreme Court set aside in this
appeal that portion of the Tribunal's order as affirmed by the High Court,
which directed the Management appellant to grant back wages.
Held:
The Supreme Court
observed that it was difficult to appreciate how the Tribunal could have
directed payment of back wages, even after upholding the order of dismissal of
the respondent employee from service. (Para
2) Lucas
India Service Ltd. v. Presiding Officer, Labour Court, Madras. [1999]
·
Employee who had not put in 240 days
service in a year cannot be regarded as temporary employee Such employee cannot
claim benefit of back wages in terms of settlement for period when he was unemployed
Industrial Disputes Act, 1947 Sections 25 B and 25 F.
State
Bank of India v. Presiding Officer. [1999]
Refusal
to grant backwages on ground that workman had not shown that he had not been
able to secure any employment It is not incumbent upon workman to make out a
case for award of 'back wages by producing sufficient material Workman cannot
be asked to prove the negative.
The petitioner was removed from service.
The Labour Court after adjudication, modified the punishment from removal to
stoppage of two increments, declining to grant relief of back wages, on the
ground that the workman has not made out a case for back wages. Therefore the
petitioner approached the High Court.
After quoting various judgments of the
Supreme Court and High Courts.
Held:
The workman is not
expected to prove the negative. (Para 10)
The view of the Labour Court that the worker has not made out a case for back wages cannot be sustained. (Para 13) Ishwar Singh v. Delhi Transport
Corporation. [1999]
Finding of Labour Court that termination of
service was illegal could not be accepted Service of workman came to end on
account of his failure to exercise option of accepting work at another place
within given time Award of back wages by Labour Court held unwarranted.
This petition by employer company
challenged an award of the Labour Court, so far as it directed payment of back
wages to first respondent workman, he having already been reinstated in service
as per the said award. The High Court allowed the writ petition.
Held:
The High Court
observed that it was difficult to accept the Labour Court's finding that there was illegal termination
of the first respondent service. His services, in the High Court's view, came
to an end on account of his failure to exercise his option (to take up work at
another place offered by the employer) within the given time. The award with
regard to back wages was wholly unwarranted. (Para 5) Gansons Engineers (P) Ltd. v. Shriram Y. Chhatre. [1999]
·
Suit for reinstatement and backwages Court
decreeing reinstatement and ordering wages for 3 years and 2 months Respondent,
instead of claiming decrial amount, making departmental representation on
reinstatement Later, on refusal of representation, filing writ petition
claiming backwages Held, it was not permissible to claim back wages in a
belated writ petition.
State
of Punjab v. Sukhdev Singh. [1999]
Back
wages pursuant to award determined payable Employer taking technical stand and
indulging in vexatious litigation Appeal dismissed with costs.
The appellant, a Tamil Nadu Government
undertaking filed this writ appeal against an order of a single Judge
dismissing the writ petition of the appellant. The writ petition challenged a
Labour Court's award of a sum of Rs. 37,000 as back wages payable to the first
respondent workman. The High Court dismissed the appeal with costs.
Held:
The appellant was
indulging in vexatious litigation all along in fighting a poor worker (first
respondent) by initiating and opposing proceedings, wasting public money. (Para 4) Arasu Rubber Corporation Ltd. v.
Thangamuthu. [1999]
Termination
found to be illegal Reinstatement ordered with 50% backwages Full backwages are
normally to be ordered once order of termination is found to be illegal and set
aside Backwages can be reduced only in exceptional circumstances.
Held:
It is well settled law that normally when termination
order is set aside full backwages has to be awarded. But it is only in
exceptional cases that it is not. No such exceptional circumstance has been
pointed by Labour Court for award of 50% of backwages after directing
reinstatement of the employee. (Para 5) Durga Singh v.
Labour Court, Dehradun. [1999]
Termination found illegal by Labour Court Ordering reinstatement with 50 per cent backwages Management not having proved that workman was gainfully employed, full backwages should be paid to workman Industrial Disputes Act, 1947 Section 11 A Schedule 2, Item 3.
Jagmal
Singh v. Presiding Officer, Labour Court, Haryana, Rohtak. [1999]
If termination of service is held neither proper nor justified and if workmen were ready to work but kept away there from, not awarding them full backwages will not be justified.
The present writ petitioner, a Traffic
Controller in the respondent Transport Corporation had to fight this long legal
battle extending over nearly two decades, to establish his innocence against a
charge of having obtained his appointment illegally on false representations.
This writ petition was necessitated, as he failed to get backwages and
continuity of service, although his removal from service was set aside and
reinstatement was ordered under the impugned order of the Industrial Tribunal.
The High Court granted continuity of service and 50% backwages, while allowing
the writ petition.
Held:
The High Court observed
that there could be no dispute in this case that the petitioner was a workman
within the meaning of I.D. Act. (Para 4)
Taking all the facts and circumstances
of the case, there could be no dispute that the petitioner would be entitled to
continuity of service and substantial portion of backwages. (Para 7) Ratnakar Arnrith Karnath S. v.
Karnataka State Road Transport Corporation. [1999]
Whether workman, on reinstatement, should be paid full back wages A question of fact Whether workman was gainfully employed elsewhere an important factor to be considered Public interest also to be considered in awarding back wages.
Held:
In this appeal, the
U.P. Financial Corporation challenged the judgment of a single Judge who
directed payment of full back wages to the first respondent employee of the
Corporation, while allowing his writ petition and quashing the order of
dismissal passed by the Corporation's Board of Directors against the first respondent.
The only question raised in the appeal was whether the first respondent was
entitled to full back wages on his reinstatement. The High Court, while
confirming the single Judge's Judgment, and disposing of this appeal directed
the appellant Corporation to hold an enquiry on the question whether the first
respondent should be given full back wages and decide the same upon such
enquiry. (Para 13) U.P. Financial Corporation v.
V.P. Sharma. [1999]
·
Employer was found to be indulging In
unfair labour practice Industrial Court coming to conclusion that termination
of services of employee would amount to unfair labour practice Employee
reaching age of superannuation during pendency of proceedings of High Court
High Court directed employer to pay wages and other benefits from date of
retrenchment till date of retirement Considering all aspects, employer directed
to pay to workman one third of back wages with all other consequential benefits
from date of retrenchment till date of superannuation within three months
Failure on part of employer to pay suit amount would result in employer paying
interest @12% on the expiry of three months till date of actual payment.
Lokmat
Newspapers Pvt. Ltd. V. Shankarprasad [1999]
·
Employee not joining duty on award of
Labour Court directing reinstatement Labour Court's award of full back wages
reduced to 50% and payment thereof made conditional on employee reporting for
duty within four weeks.
A dismissed Conductor of appellant
Transport Corporation did not rejoin duty pursuant to an award of the Labour
Court holding his dismissal to be not sustainable and directing his
reinstatement with full back wages. The appellant Corporation having failed in
its writ petition challenging the Labour Court's award, came up in the present
appeal to the Supreme Court. The Supreme Court disposed of the appeal with
directions.
Held: Finding that the respondent workmen
had no justification not to have reported for duty after the Labour Court's
order or at any rate after the dismissal of the writ petition or the limited
stay by the Supreme Court which was only in regard to payment of back wages,
the Supreme Court limited the payment of back wages to 50% and that, too,
conditional upon the respondent reporting for duty within 4 weeks. (Paras 6 & 7) Bihar State Road Transport
Corporation v. Kameshwar Prasad Thakur. [1999]
·
Chapter VII Para 22(iv)(e) Major
Misconduct Minor Misconduct Likelihood of serious loss coupled with negligence
would amount to Gross Misconduct Proof of serious loss is not necessary and
likelihood of loss is sufficient to prove charge of Gross Misconduct Simple
negligence also will come under Gross Misconduct if on account of such
negligence, Bank is likely to get involved in serious financial loss.
Bank of Cochin got amalgamated with
State Bank of India w.e.f. April 27, 1985. The Manager of the Madras Branch of
Bank of Cochin was issued a Charge Memo in respect of misconduct committed said
to have been committed by him during 1977 1981. On August 25,1981, he was
transferred to Calcutta and he received Letters of Commendation during March
1983 and April 1984 as the Branch in which he was Manager Stood at No. 1 in the
matter of mobilisation of Advances. Some advances given by him, while working
as Manager at Madras during 1977 1981 could not be recovered and hence, on
February 4, 1984 he was reposted at Madras for the purpose of recovering the
advances. He made substantial recoveries but he was suspended on July 13, 1984
and was served with a Charge Sheet on September 18, 1984 for giving advances
unauthorisedly and without observing the lending norms. He denied the charges.
A domestic enquiry was held by the Advocate who was appointed as the Enquiry
Officer. The Enquiry Officer found that there was no proper
sanction/ratification from Head Office with regard to certain sanctions and
certain other charges he found not proved. The Disciplinary Authority issued a
second Show Cause Notice on January 22, 1986 proposing dismissal without notice
accepting the findings of the Enquiry Officer that he was found guilty of
'Gross Negligence' and also for violation of Head Office instructions. The
Disciplinary Authority passed orders dismissing the Manager from the services
without notice on March 20, 1986. On Appeal, the Appellate Authority modified
the said order to one of removal in terms of Rule 49(g) of State Bank of India
(Supervisory Staff) Rules. A writ petition was filed questioning the said
order. The learned single Judge allowed the writ petition and held that the
findings of the Enquiry Officer on Item 23 was that no financial loss was
proved and it was a case of not taking adequate 'security' from the loaners and
not obtaining ratification as per Head Office instructions. These charges were
not sufficient for imposing the penalty of dismissal or removal and only a
Minor Penalty could be imposed. The High Court also took the view that the
S.B.I. Rules would not be applicable since the misconduct alleged related to
the period of the service in the Bank of Cochin. It was also found by the
learned single Judge that the punishment of removal could not have been imposed
as it was not one of the enumerated punishments under the Bank of Cochin Rules.
The learned Single Judge, while setting aside the Order of removal, observed
that the Bank could impose any punishment for Minor Misconduct as per Rules of
Bank of Cochin. The writ appeal preferred in the said Judgment was also
dismissed. Hence the Civil Appeal by Special Leave.
Held:
The definition of
"Gross Misconduct" in Para 22 (iv) of Bank of Cochin Code, inter alia provides that doing of any
act prejudicial to the interest of the Bank or gross negligence or negligence
involving or likely to involve the Bank in serious loss is Gross Misconduct. In
other words, likelihood of serious loss coupled with negligence is sufficient
to bring the case within gross misconduct. The Enquiry Officer's finding of
'gross misconduct' on the ground of not obtaining adequate security is,
therefore, correct and it cannot be said to be based on no evidence. This can
be contrasted with Para 22(vi)(c) under minor misconduct which deals with
"neglect of work and negligence in performing of duties". Therefore,
serious loss is not necessary but likelihood of loss is sufficient to bring
home Gross Misconduct. (Para 15)
Gross negligence or negligence likely to
involve the Bank in serious loss would come under major misconduct within Para
22 (iv)(1). Even assuming that there is no gross negligence, simple negligence
will come under major misconduct if accompanied by 'likelihood' of serious loss
and this is clear from Para 22 (iv)(1). Therefore, the findings of the Enquiry
Officer regarding gross misconduct is correct and could not have been set aside
by the High Court. The findings of the Enquiry Officer clearly bring the case
under 'major misconduct'. (Para 16) State Bank of
India v. T.J. Paul. [1999]
Rule 8
Employee getting benefit of higher post Under scheme requiring resignation from
post previously held by employee, Employee cannot approbate and reprobate
Having received benefit of higher post, he cannot say resignation was obtained
by coercion.
Bank
of India v. Kalyan Kumar Sarkar. [1999]
BANK OF INDIA OFFICER EMPLOYEE9S (CONDUCT)
REGULATIONS, 1976
·
Regulation 7(l) Restriction imposed on
officer employee to own, conduct or participate in editing or management of any
Newspaper or Periodical publication where such newspaper or periodical
publication does not publish matters which are purely literary, artistic,
scientific, professional, cultural, educational or social character Restriction
imposed by Clause (1) of Regulation 7 cannot be validly challenged Clause (1)
of Regulation 7 is valid and reasonable Proviso to Regulation 7 applies to all
3 Clauses.
The Bank of India Officers' Association
filed a Writ petition challenging, inter
alia, Regulation 7 of the Bank of India Officer Employees' (Conduct)
Regulations, 1976, on the ground that it encroached upon the fundamental rights
of the Officer Employees. The High Court struck down Regulation 7 even though
the challenge restricted to Clause (1), of Regulation 7. Bank of India and
others filed an appeal against the decision of the High Court.
Held:
Clause (1) of
Regulation 7 cannot be validly challenged. It is eminently reasonable that an
officer employee of the Bank should not own, conduct, edit or manage a
newspaper or other periodical publication that does not deal with literary,
artistic, scientific, professional, cultural, educational, religious and social
matters. The Proviso to Regulation 7 applies to all the three clauses of the
said Regulation. Clauses (2) and (3) of the Regulation were not challenged. The
appeal is allowed and the Judgment of the High Court set aside in so far as it
strikes down Regulation 7 of the Bank of India Officer Employees' (Conduct)
Regulations, 1976. (Paras 3 & 4) Bank of India v.
Bank of India Officer 'Association. [1999]
BANK OF INDIA OFFICER EMPLOYEES' (DISCIPLINE &
APPEAL) REGULATIONS, 1976
Regulation
12(l)(a) Objection that authority passing order of suspension or of removal had
no competence to do so Not countenanced Removal could not be held as one based
on no evidence.
Satish
Mehra v. Bank of India. [1999]
BANKING COMPANIES (ACQUISITION AND TRANSFER OF
UNDERTAKINGS) ACT, 1970
Indian
Overseas Bank Officers Employees Discipline and Appeal Regulations, 1976
Regulation 6(6) Appointment of Presenting Officer It is directory, and not
mandatory Inquiry Officer acting both as prosecutor and judge in the domestic
enquiry renders enquiry unfair.
Radhakrishna Setty v. Deputy General
Manager, (Disciplinary Authority), Indian Overseas Bank. [1999]
Section
19 United Bank of India Officer Employees (Discipline and Appeal) Regulations,
1976 Regulation 17 Opportunity of being heard or assistance of lawyer Not
provided for in Regulations Order cannot be assailed on this ground Non supply
of inquiry report Does not ipso facto vitiate
enquiry Bias objection Raised after an order is made Not maintainable Appeal
New plea, Plea not maintainable.
Held:
There is no provision
in the Regulations while considering an appeal against the order of the
disciplinary authority to give an opportunity of personal hearing by the
employee appellant or to grant assistance of a lawyer. The order of the
appellate authority, therefore, cannot be assailed on the ground of non
opportunity for hearing. However, where the appellate authority decides to
enhance the penalty imposed, it is the duty of the appellate authority to
afford show cause notice to the employee. (Para
6)
Non supply of preliminary enquiry report
does not ipso facto vitiate the enquiry held. (Para 18)
Any objection regarding any bias against
the enquiry officer cannot be raised after the enquiry was completed and order
of appointment was passed. (Para 21)
A new plea cannot be raised for the
first time during the appeal. (Para 2 1) Dilip K. Shah v.
United Bank of India. [1999]
Section
19 Canara Bank Officer Employees (Discipline and Appeal) Regulations, 1976
Regulation 8(2) Delinquent seeking disciplinary authority to hold impartial
enquiry Minor penalty imposed without an enquiry Held, it is not proper.
Held: Delinquent officer, in his reply to
the charge memo, requests the disciplinary authority to hold an impartial
enquiry, if he is not satisfied with the explanation. The disciplinary
authority has imposed a minor penalty. There is nothing in record to show that
the authority had given a finding on the question. There is no express
provision in the regulation for the disciplinary authority to consider the same
or pass an appropriate order. But when such a request is made by the delinquent
officer, it is for disciplinary authority to consider it and pass appropriate
orders. This unwritten duty is fundamental to a just decision by any authority
which decides a controversial issue affecting the rights of the parties. (Para 9) Sundaram G. v. General Manager,
(Disciplinary Authority) Canara Bank, Bangalore. [1999]
·
Section 52 New Bank of India (Officers)
Service Regulations, 1982 Regulation 7 Finding of fact by single Judge Not
challenged in appeal cannot be re opened in appeal in Supreme Court Promotion
policy in New Bank of India Policy held not discriminatory.
Shanna
K. B. v. Union of India. [1999]
Section
10(l)(B)(i) Conviction for offence involving moral turpitude Probation of
Offenders Act, 1958 Section 4(l) Indian Penal Code Section 498 A Husband of
woman subjecting her to cruelty Employee of Bank convicted by Criminal Court
for offence u/S 498 A and sentenced for imprisonment as well as fine High Court
on revision giving benefit of Probation of Offenders Act to such employee
Subsequently disciplinary action initiated by Bank resulting in disciplinary
action imposing punishment of discharge from service Husband subjecting his
wife to cruelty within meaning of Section 498 A Is offence involving moral
turpitude Release under Probation of Offenders Act will not wipe away guilt and
conviction Mere release under Probation of Offenders Act is not ground to
escape from provision of Section 10(l)(B)(i) of Banking Regulation Act No
lesser punishment can be imposed than Discharge from Service Employee convicted
by Criminal Court for offence under Section 498 A and released under Probation
of Offenders Act cannot claim reinstatement and Order of Discharge cannot be
set aside.
A Bank Employee was discharged from
service for the reason that he committed an offence involving moral turpitude.
He was prosecuted for commission of an offence u/S 498 A of the Indian Penal
Code and he was convicted for imprisonment as well as punishment of fine. The
conviction and sentence were upheld by the Appellate Court. On revision, the
High Court upheld the conviction but the employee was given the benefit of Section
4-1 of the Probation of Offenders Act, 1958. Though convicted, the employee did
not undergo imprisonment. Departmental proceedings were initiated against the
employee on the ground that he was found guilty by the Criminal Court of an
offence involving moral turpitude as a result of which he was as already
stated, discharged from service. The employee unsuccessfully filed an Appeal
before the Appellate Authority.
Held:
A reading of Section 19(l)(B)(i) of the Banking
Regulation Act, 1949, makes it clear that the offence under the said Section
involves moral turpitude. An offence under Section 498 A of the I.P.C.
Provides, inter alia, that the
husband or the relative of the husband of woman, subjecting her to cruelty
shall be punished with imprisonment for a term which may extend upto 3 years
and shall also be liable to be punished with fine; if established can be
regarded as one involving moral turpitude and in such cases Section 19(l)(B)(i)
of the Banking Regulation Act is attracted to send away the offender from
service. (Paras 4 & 5)
Benefit under Section 4(l) of the
Probation of Offenders Act, if extended to an accused to escape from the
sentence of imprisonment, will not wipe away the guilt established on him. The
Supreme Court in Harichand
v. Director of School Education reported
in [1998] has
held that a Government servant cannot escape from dismissal from service on the
basis of the conviction on the reason that he had been released on the basis of
Section 4(l) of the Probation of Offenders Act. Naturally, the revisional order
enabling the release of the petitioner on such basis cannot be said to be a
ground to impose any lesser penalty than that of sending him away. Out of the
several modes of such sending away, the simplest form of discharge is imposed
upon the petitioner by the disciplinary authority as well as by the appellate
authority. (Para 6) Vincent Varghese v. State Bank of
India. [1999]
Section
23 Appellant bank could not have opened, new branch without permission of
Reserve Bank of India Though opening a branch without such permission was
illegal, appointments of employees were not shown to be for purpose of working
at said branch Directives of Reserve Bank of India under Banking Regulation Act
could not adversely affect such employees.
Held:
On the substantial
question whether the impugned action of the Administrator in stopping payment
of salary to the writ petitioners, the High Court held the directives of the
Reserve Bank of India in terms of Section 23 of the Banking Regulation Act, 1948
could not adversely affect the petitioners who were not shown to have been
appointed solely for the purpose of working at the branch opened without
permission of the Reserve Bank of India. (Para
19)
Further the Administrator in directing
such stoppage of salary payment was taking a major policy decision which he
could not take without leave of the Court, as per its directions in the matter.
(Para 21) SBISA Co operative Bank Ltd. v.
Tarun Kumar Saha. [1999]
Section
45(7) Scheme of amalgamation Notification for, declaring all liabilities,
duties and obligations of Hindustan Commercial Bank taken over by Punjab
National Bank Appeal by dismissed employee pending with Hindustan Commercial
Bank, at time of amalgamation Punjab National Bank not taking steps for
disposing of appeal Writ petition against it maintainable.
In this writ petition, an employee of
the Hindustan Commercial Bank Ltd. challenged his dismissal for which he had
preferred an appeal to the appellate authority of the Bank. While the appeal was
pending the Bank was amalgamated with the Punjab National Bank through a scheme
notified by the Government of India under Section 47(7) of the Banking
Regulation Act, 1949. The High Court allowed the writ petition.
Held:
The High Court observed
that at the time of amalgamation the appeal preferred by the petitioner was
pending with the Hindustan Commercial Bank Ltd. The Punjab National Bank on
taking over all liabilities and obligations of the Hindustan Commercial Bank
should have also undertaken the task of disposing of the appeal. Admittedly
that had not been done. The stand taken by the Punjab National Bank that the
writ petition was not maintainable inasmuch as the Hindustan Bank was not a
nationalised Bank ran counter to the scheme of amalgamation. (Para 13)
Even on merits the impugned order of
dismissal was held to be contrary to well established principle. No inquiry was
held, no finding given and no material on record to sustain the dismissal. (Para 14) Poddar S.K. v. Chairman, Punjab
National Bank. [1999]
BEEDI AND CIGAR WORKERS (CONDITIONS OF EMPLOYMENT) ACT,
1966
Sections 2(f)(i), 2(h) Payment of Gratuity Act, 1972 Section 1(3)(b) and 2(e) 'Home worker' although working away from factory would still be considered working in establishment and covered by Gratuity Act.
The petitioner Beedi Factory denied
payment of gratuity to the widow of one of its 'home workers' on the ground
such 'home worker' was not an ,employee' within the meaning of Section 2(e) of
the Gratuity Act. Having failed in such denial before the authorities under the
said Act, the petitioner came forward with the present writ petition
challenging the order of the said authorities. The High Court dismissed the
writ petition.
Held:
The High Court observed
'home worker' like the husband of the third respondent was very much a person
working in the establishment within the meaning of Section 2(e) of the Gratuity
Act, since the place where he rolled the beedies, though situated away from the
Beedi Factory was nevertheless a part of the establishment within the meaning
of Section 2(h) of the Beedi Act. (Para 9)
Bagi Beedi
Factory v. Appellate Authority. [1999]
Section 4 Merely because certain benefits are given to workmen under another Act, they could not be deprived benefits under E.S.I. Act.
·
Emergency
Commissioned Officers and Short Service Commissioned Officers (Reservation of
Vacancies) Rules, 1971 Rule 6 Benefit conferred for limited purpose of
seniority, pay and pension By a deeming fiction of commencement of service from
earlier date Such fiction cannot be extended in respect of other service
conditions As, for example for claiming benefit of service beyond 58 years,
under First proviso to Rule 19(l) of State. Bank of India Service Rules.
State
Bank of India v. Hanumantha Rao D. [1999]
Government has to examine whether
benefits provided by employer are similar or superior to benefits under Act
Hearing employer/union must be afforded.
Lohiya
Machines Karmachari Sangh, Kanpur v. State of U.P. [1999]
·
Request
of E.S.I. Corporation to initiate recovery proceedings under State Act Corporation
having the option to recover under either Central or State Act Refusal to grant
Corporation's request held, not proper Employees' State Insurance Act, 1948
Section 45 13 Revenue Recovery Act, 1890.
Employees'
State Insurance Corporation v. Overseas Metal Industries. [1999]
Opportunity of being heard or assistance of lawyer Not provided for in regulations Order cannot be assailed on this ground Non supply of inquiry report Does not ipso facto vitiate enquiry Bias objection Raised after an order is made Not maintainable Appeal New plea, Plea not maintainable.
Dilip
K. Shah v. United Bank of India. [1999]
Rule 43(b) Retiral benefits Mere pendency of criminal proceedings is not ground for withholding pension in absence of disciplinary proceedings and order for withholding pension.
Held:
A Section Officer in
the Home Department of Bihar filed this petition for a writ of mandamus commanding the respondents
to pay his retiral benefits. They were withheld on the ground that a F.I.R. had
been lodged and criminal proceedings against him for embezzlement were pending.
The High Court allowed the petition. It observed that mere pendency of the
criminal proceeding was not a ground for withholding pension of an employee; No
disciplinary proceedings had at all been initiated against the petitioner and
no order for withholding the retiral benefits of the petitioner under Rule
43(b) of Bihar Pension. (Para 5) Ram Prasad v.
State of Bihar. [1999]
·
Compulsory
retirement Not a punishment Order is passed on subjective satisfaction of
Government Principles of natural justice have no place in context of such
retirement Order would however be subject to judicial scrutiny if it is mala fide, or based on no evidence or is
arbitrary. .
Madan
Mohan Choudhary v. State of Bihar. [1999]
·
Clauses
19.2, 19.3(a) and 19.12(b) FIR filed against Clerk cum Cashier of Nationalised
Bank in connection with alleged criminal offence under Section 304 of Indian
Penal Code Employee detained in connection with said offence Nationalised Bank
suspending employee from service in view of detention for offence under Section
304 of Indian Penal Code Clause 19.3(a) empowers Bank to suspend Employee when
Bank is of opinion that employee has committed offence and is being prosecuted
Order of Suspension issued by Bank is valid and cannot be interfered.
A Clerk cum Cashier in Punjab National
Bank was suspended from services on June 4, 1998 in view of his detention under
Section 304 of the Indian Penal Code consequent upon filing of FIR on April 27,
1998. The employee filed a writ petition challenging the Order of Suspension
before the High Court. The High Court quashed the Order of Suspension on the
ground that there was no provision in the Bipartite Settlement empowering the
Bank to suspend the employee. Hence the Civil Appeal by Special Leave.
Held:
The High Court only
refer Ted to Clause 19.12(b) of the Bipartite Settlement which gives power to
the Bank to suspend an employee pending departmental enquiry against him. In
addition, there is also Clause 19.3(a) in which when in the opinion of the
Management an employee has committed an offence and he is being prosecuted, the
Bank has power to suspend the employee. Clause 19.3(a) also further provides
that if the employee is not otherwise prosecuted, the Bank may take steps to
prosecute him or get him prosecuted also. In all these circumstances, the Bank
has the power to suspend an employee. The High Court is wrong in coming to the
conclusion that the Bank did not have any power to suspend the employee when
criminal prosecution is pending against him. (Para 4) Punjab National Bank v. Jagdish Singh. [1999]
Rule
152 Order under this Rule not passed Before passing such order opportunity of
being heard should be given.
Ramsunder
Shamlal v. J.B. Jhala or his successor, Commissioner of Police, Ahmedabad. [1999]
Rule
161(l)(i)(aa) Compulsory retirement Whether order casts stigma Court can lift
veil to find out if it is based on misconduct or with oblique motive Adverse
remarks not communicated Can be considered for compulsory retirement.
Held:
Even if an order of
compulsory retirement is couched in innocuous language and without making
imputations, in appropriate cases the Court can lift the veil to find out
whether the order of compulsory retirement is based on misconduct or passed
with an oblique motive. Where the order itself mentions that an enquiry into
charges was pending, the order certainly casts a stigma and it can be presumed
that it is passed to short circuit the enquiry.
Uncommunicated adverse remarks can
certainly be considered in the exercise of powers of compulsory retirement. (Vide 1992 2 SCC 317 and 1992 2 SCC
299). Narendrakumar
V Parikh v. State of Gujarat. [1999]
·
Rule 161(l)(aa) Appointing authority can
retire Government servant in public interest Meaning of "Public
interest" is that only honest and efficient persons are to be retained in
service and inefficient, corrupt, dishonest employees are to be weeded out.
"Bombay Civil Service Rules,
1959" Rule 161(l) (aa). [1999]
Workman
cannot be prevented from filing complaint, in exercise of right created by
statute and for which statutory remedy is provided.
Tata
Hydro Electric Power Supply Co. Ltd. v. N.L. Mansukhai. [1999]
·
Sections 3(25), 15(b)(ii) Proviso and
Explanation Meaning of "Member" Cancellation of Registration of Union
Meaning of "More than 3 calendar months" Person can be member of
Union if he is ordinary member and pay subscription of not less than 25 paise
per calendar month Ordinary member of Trade Union means "Employee Workman
engaged in concerned industry and who is other than an ex officio member of Union" Such ordinary member can be treated
to be member of Union if he is shown to have paid subscription of not less than
25 paise per calendar month Member would be treated to be in arrears for
calendar month if he has actually not paid subscription by end of concerned
calendar month for which it was due Explanation to Section 3(25) refers to
proviso which precedes it and qualifies term "Arrears of
Subscription" but it does not travel backward so as to qualify entirely a
different phraseology found in main part of Section 3(25) about payment of subscription
of not less than 25 paise per calendar month Words "arrears for period of
more than 3 calendar months cannot be equated with "3 calendar
months" Continuous period of three calendar months is not found in proviso
to Section 3(25) Proviso requires defaulting members to pay subscription for
requisite calendar months subsequently to satisfy authorities that during
period of six months immediately preceding month in question which is on anvil
of scrutiny he had so behaved that subscription was not in arrears for period
of more than three calendar months failing within relevant period of six months
Period of more than three months deals with time span during relevant period of
six months and not continuous period of three months Provision in BIR Act is
based on principle of Industrial Democracy Proviso has to be construed to
subserve legislative intent of industrial democracy and collective bargaining
Interpretation which fructifies benevolent scheme guaranteeing continuance of
membership has to be preferred.
An application was moved by the
Maharashtra Girni Kamgar Union before the Registrar functioning under the
Bombay Industrial Relations Act for cancellation of Registration of Respondent
No. 4 Union as a representative union of workmen in the textile industry for
the local area of Bombay. The Additional Registrar, after finding that the
Membership of Respondent No. 4 had gone below the minimum requirement for
registration i.e. 25% for the period of continuous three calendar months,
declined to cancel the registration on the ground that during the relevant
three months there was strike in the textile industry in Bombay and, therefore,
the workers could not pay their subscriptions. The said Order of the Additional
Registrar of Trade Unions resulted in two cross Appeals before the Industrial
Court, Maharashtra. The Industrial Court, Maharashtra, dismissed the appeal
filed by the Maharashtra Girni Kamgar Union under Section 15 of the Bombay
Industrial Relations Act. Writ petition was filed challenging the Order of the Industrial Court and the same was dismissed
by the Single Judge as also the Division Bench of the Bombay High Court.
On a certificate of fitness granted by the Bombay High Court, this civil
appeal.
Held:
A mere look at Section
3(25) shows that the definition of a "Member" which applied in the
relevant time and which is in the same form on the statute book till date
clearly indicates that a person can be a member of a Union if he satisfies the
following two requirements: i) that he
is an ordinary member of a Union and (ii) he has paid the subscription of not
less than 25 paise per calendar month. The "Ordinary Member of a Trade
Union" connotes a member employee workman engaged in the concerned
industry and who is other than an ex
officio member of the Union. Thus, an ordinary member of a Trade Union
would be an employee in that industry with which the trade union is concerned
and would not include honorary or temporary members, like office bearers.
Further, Section 3(25) requires that for such an ordinary member to be treated
as member of the Union it has to be shown that he has paid the subscription of
not less than 25 paise per calendar month. A
small amount of minimum 25 paise is required to be shown to have been paid
by such an ordinary member for the given calendar month. It is not as if the
subscription must be shown to have been paid by such ordinary member on or
before the end of the concerned calendar month. The legislature has advisedly
used the terminology "has paid a subscription of not less than 25 paise
per calendar month". It has obviously not used the phraseology "has
paid a subscription of not less than 25 paise before the end of a calendar
month." The phrase "has paid" is very significant. Payment of
subscription of such a meager amount of 25 paise per calendar month at any
point of time for any of the past calendar months would entitle such member to
continue on the roll of membership of a Union. If he pays at a time, say Re.1/
covering the subscription for each of the calendar months i.e. December 1981, January 1982, February 1982 and March 1982,
itself, he can legitimately say that he has paid subscription of not less than
25 paise per each of the aforesaid calendar months. It is not the requirement
of the main part of Section 3(25) that such subscription should have been paid
on or before the expiry of the concerned calendar month. The explanation of the
aforesaid Section discl6ses a different legislative intention. While
considering the question of arrears of subscription per calendar month, the
requirement of the provision is entirely different. A member would be treated to be in arrears for that calendar month
if he has actually not paid such subscription by the end of the concerned calendar month for which it was due.
The explanation naturally is a reference to the proviso which precedes it and
qualifies the term "arrears of subscription" but it does not travel
backward any further so as to qualify entirely a different phraseology found in
the main part of Section 3(25) of the BIR
Act about the payment of subscription of not less than 25 paise per
calendar month. Therefore, if on facts it is found that subscription for the
relevant 3 calendar months has already been paid up by the concerned member
even in lumpsum at a later point of time after the expiry of the calendar month
concerned such payment in lumpsum may ensure for his continuance as a member if
he so behaved and paid up subscription of not less than 25 paise per calendar
month concerned. The legislature has enacted a safety valve and a road block
against such activities of the Union to sustain application under Section 3(25)
of the BIR Act whose registration was sought to be cancelled on the relevant
date. (Para 8)
On a conjoint reading of the proviso to
Section 3(25) and the explanation attached thereto, it becomes clear that even
if a person may have paid the subscription of not less than 25 paise per
calendar month for the relevant three calendar months at a time subsequently
and, therefore, may have remained out of the sweep of the main part of Section
3(25), his membership is liable to be displaced if he is hit by the proviso and
the explanation. Meaning thereby, if a member is shown to have paid
subscription for December 1981, January and February 1982 in March or April
1982, and who can legitimately contend that he had paid subscription of not
less than 25 paise per each of these calendar months his membership for each of
these calendar months which would remain guaranteed under the first part under
Section 3(25) would be deemed to be non existent once the provisions of the
proviso and the explanation hit such membership. The proviso requires such a
defaulting member who seeks to pay up subscription of requisite calendar months
at a time subsequently to satisfy the authorities that during the period of 6
months immediately preceding the month in question which is on the anvil of the
scrutiny, he had so behaved that his subscription was not in arrears for a
period of more than 3 calendar months falling within the aforesaid six months.
In other words, for deciding whether a person was an ordinary member of
respondent No. 4 union in the month of December 1981, which is the first month
on the anvil of scrutiny for the purpose of consideration of appellant's
application under Section 15(b)(ii) of the Act, the period of six months
immediately preceding such time, namely December 1981, will consist of the
block from June 1981 to November 1981. It has to be shown by the respondent No.
4 Union that its members concerned had not been in arrears of subscription for
more than 3 calendar months during the period beginning from June 1981 and
ending by November 1981. If it is shown that such a person had so behaved and
had not attracted the adverse effect laid down in the proviso, then only such
member will be treated to have continued as per the main part of Section 3(25)
but if it is shown that during the block June 1981 to November 1981, for a
period of more than 3 calendar months he was in arrears, meaning thereby, as
seen from the explanation to the proviso, the subscription of such a member for
a particular calendar month during this period was not paid up by the end of
the calendar month concerned. Such a member would be treated to be in arrears
for that calendar month and even if he had paid such arrears by next month, his
subscription for the calendar month would be treated to have remained in
arrears. If such arrears cover more than 3 calendar months then his payment of
subscription for December 1981 will be of no avail. This safety valve has been
enacted by the legislature to provide for a contingency in which such chronic
defaulters in clearing the arrears of subscription may not get a locus paenitentiae and may not also afford an
equal locus paenitentiae for their
union to get subscription paid up in lumpsum. subsequently for each of the
three calendar months on the anvil of scrutiny in proceedings for cancellation
of representative character of such unions. (Para
9)
The BIR Act is based on the principle of Industrial
Democracy. Any provision of the Act which tries to cater to the needs of these
illiterate masses of workmen has to be so interpreted as to subserve the
legislative intent underlying the principles of industrial democracy and
collective bargaining guaranteed by the Act. Any interpretation which
fructifies such benevolent scheme and which guarantees continuance of
membership of such illiterate masses of workmen has to be preferred to the
interpretation which frustrates the scheme underlying such a benevolent enactment.
The deeming fiction contained in the proviso to Section 3(25) for dis membering
a person, has therefore, to be raised only on a strict construction of the
proviso and not on a liberal construction of such a disabling provision. (Para 10)
The application of Maharashtra Gimi Karngar Union for
cancellation of registration of Respondent No. 4 under Section 15 of the BIR
Act would fail as the requirements of the said provisions to the effect that
for each of the three relevant months preceding March 1982, February 1982 and
also for June 1982, the respondent No. 4's Membership must be said to have
fallen below 25% would not remain established. Even if for one month of
December 1981 the membership is above the requisite 25 % the application has to
fail. (Para 11)
The phrase "period of more than
three calendar months" necessarily takes in its fold the conduct of the
defaulting member with reference to not only three calendar months but more
than three calendar months meaning at least 4 months if not more than four
calendar months within the block period of six calendar months immediately
preceding the month in question. (Para
12) Maharashtra
Girni Kamgar Union v. S. Bhattacharji. [1999]
Sections 42(4) and 85 Workman's refusal to accept lower type of work Unless Industrial Court in revision could hold that work offered was equal to work he was doing earlier, it could not revise Labour Court's order.
This writ petition was filed by a
workman of the respondent company challenging an order of the Industrial Court
passed in the exercise of its revisional jurisdiction. By its impugned order
the Industrial Court dismissed the claim of the petitioner that the
respondent's action in not assigning him work as Helper but offering in another
Department work as "Begari" which was of a lower type of work, was
illegal and his prayer for a direction to the respondent to assign him the
usual work of a Helper was disallowed.
The High Court quashed the impugned
order.
Held:
The High Court observed
that it was not possible for the Industrial Court to interfere with the Labour
Court's finding unless the Industrial Court itself came to the conclusion on
appreciation of evidence that the work of "Begari" was equivalent to
the work of 'helper'. In the absence of such finding, the Industrial Court had
no ground for interfering with the Labour Court's order. (Para 8) Singraj Sewaswaini v. Kanzala Mills Ltd. [1999]
Section
97(l)(b) Dismissal of employee after illegal strike followed by compromise
before Industrial Court Categorical admission by employee of having accepted
fresh employment in pursuance of compromise Employee's claim of gratuity on
ground of continuous service rejected Interest at 12% for delayed payment,
however allowed Payment of Gratuity Act, 1972 Sections 2 A and 4.
Ramappa
Bhimappa v. Phoenix Mills Ltd. [1999]
Section
119 D Dismissal of employee without enquiry Subsistence allowance during
pendency of proceeding in Labour Court Should be paid.
These Writ Petitions challenge the
orders passed by the Industrial Court, Vadodara. The question that came up for
consideration is :
When the employer, without any enquiry,
dismisses or discharges his worker and if the worker approaches the Labour
Court, is the employer to pay an amount to the worker equal to subsistence
allowance during the pendency of the proceedings in the Labour Court.
The Petitioner in both the Writ Petitions is a Co operative Bank.
The relationship between the petitioner Bank and its workmen is governed by the
Bombay Industrial Relations Act, 1946. The workers involved are a clearing
clerk and a peon. The allegation was that a cheque dated January 23, 1996 for
Rs. 41,360 which was meant for a third party was got credited by the peon in
the Current Account of his father with the active connivance of the clearing
clerk. Therefore both these workers were discharged straightaway as the Bank
Management thought it unnecessary to have a departmental enquiry since the Bank
had lost its confidence in the workmen.
Held:
If the employer
dispenses with the enquiry which is mandatory the employee cannot be made to
suffer. It is open to the employer to suspend the employee during the period of
enquiry on payment of subsistence allowance. However, if the employer chooses
not to hold the enquiry and straightaway dismisses the employee this protection
to receive the subsistence allowance until the charge is proved has got to be
extended to the employee. In such a situation the Labour Court should grant an
amount equal to subsistence allowance during the pendency of the proceeding in
the Labour Court. Otherwise the provision for subsistence allowance will be
made nugatory and the employee will be made to starve though the charge is yet
to be proved. Section 119 D of B.I.R. Act empowers the Labour Court to pass
such interim orders in appropriate cases. (Para
16)
The plea of termination simpliciter even
if permitted under the Standing Order is also not tenable for the reason that
the present case is obviously one involving specific allegation of misconduct
and therefore a departmental enquiry is necessary to prove the allegation and
the employee cannot be terminated by simple one month's notice. The power to
simply terminate is held to be bad in
law, Even if such power is
there, it cannot be invoked where it is a case of specific allegation of
misconduct. (Para 19)
Holding of a departmental enquiry
particularly where it is so provided in the service regulations or Standing
Orders is a rule and dispensing with the same is an exception. If the employer
does not want an employee to be in actual service during the pendency of an
enquiry, he may suspend him but during that period he has to pay him
subsistence allowance as provided in the Standing Orders. In the absence of any
such Standing Orders, the ad judicatory authority can grant such allowance.
Where there are insurmountable difficulties in holding Enquiry and where such
difficulty is created by the employees, the employer cannot be blamed if he
straightaway proceeds to discharge or dismiss the employee. (Para 30)
What applies to subsistence allowance at
departmental level will also apply equally to such an allowance or amount
equivalent to such an allowance paid in Labour Court, since the enquiry in the
Labour Court is held at the instance of the employer, something which the employer
ought to have done at departmental level. Hence, the doctrine of relation back
will not affect the grant of subsistence allowance in any way. (Para 39)
Subsistence allowance is to be paid to
tide over the immediate difficulties and, by the very nature of it the same is
non refundable. (Para 39) Bharat Co operative
Bank Ltd. v. K.L. Baria, Judge, Labour Court. [1999]
Rule
16 Enquiry as contemplated in said Rule, pending which payment of Board's
contribution to provident fund was not to be made, was domestic enquiry
Withholding such payment on ground of pending criminal case is held not
justified.
Vasant
Ramkrishna Bhide v. Board of Trustees of Port. [1999]
·
Directions of Supreme Court for rehabilitation
of 445 families in State of Bihar Contempt petition for not complying
directions Supreme Court calling for report from District Judge On examining
report, held, no case made out for contempt proceedings.
This was a contempt petition by a person
who formed the Society to which the State Government gave construction work for
rehabilitating 445 families of bonded labourers in Banda village of the State
of Bihar. The rehabilitation was on the directions of the Supreme Court issued
in a writ petition, The contempt petition alleged that the State Government had
not complied with directions of the Supreme Court. The Supreme Court called for
a report from the District Judge. Upon receipt of the report, the Supreme Court
found there was no case for initiating contempt proceedings against the State
of Bihar. It therefore dismissed the contempt petition.
Held:
The Supreme Court
observed that it had been monitoring this case over a decade by issuing interim
orders from time to time. It was satisfied, the Supreme Court said, that the
State Government had substantially complied with its directions. The Supreme
Court, however issued certain directions in the nature of suggestions for the
consideration and compliance of the State Government. (Para 5) Kameshwar Prasad Shanna v. State of Bihar. [1999]
Complaint
of bonded labourers; suffering and of inadequate measures by State authorities
for their rehabilitation Directions given.
The petitioner, who was chairperson of a
Bonded Labour Liberation Front, alleged existence of bonded labourers in
certain villages in the Mirzapur District and the failure of the State
Government to take adequate measures for their rehabilitation. The High Court
disposed of the petition by giving, directions.
Held:
The High Court was not
satisfied with the averments made in the counter affidavit and therefore
directed that an enquiry be conducted by the District or Additional District
Magistrate and speaking order passed relating to the rehabilitation (of the
bonded labourers), with opportunity given to the petitioner and information
furnished as to where and how those bonded labourers were settled. (Paras 6 & 7) Champa Srivastava v. State Of
U.P. [1999]
·
Section 13 Committee with Director General,
Labour Welfare of Union Government or very senior officer as convener be set up
to check particulars furnished by petitioner and identify bonded labour, to
collect all relevant material and assist Supreme Court to make further
directions in terms of requirement of scheme to rehabilitate them.
The Supreme Court had not concluded the
matter after giving certain directions regarding bonded Labour and the present
petition was there heard which alleged that certain persons who were said to be
freed bonded Labour had to be rehabilitated in terms of a scheme framed for the
purpose.
Held:
The Supreme Court
directed the immediate setting up of a Committee with Director General, Labour
Welfare or a very senior officer from his establishment as its convener to
check up within 6 weeks the particulars provided in the list by the petitioner
and collect all relevant material as to assist the Supreme Court to make
further directions for the rehabilitation of bonded Labour. (Paras 4 & 5) Bandhua Mukhti Morcha v. Union of
India. [1999]
·
Section
6 Every obligation of bonded labour to repay any bonded debt remaining
unsatisfied on commencement of Act gets extinguished Appointment of officer to
ensure implementation of Court's order, made.
The Supreme Court's concern for
exploring ways and means to rehabilitate bonded Labour is writ large in this
judgment.
Held:
As both sides agreed
that further action was necessary for implementing the Supreme Court's orders
and indicated that the then Additional Chief Secretary of the State of Bihar
might be appointed to carry out the further work to ensure complete
implementation of Court's orders, the Supreme Court directed the appointment
and issued the necessary directions in this behalf. (Para 3) Chakkalackal T. v. State of Bihar. [1999]
Rules
16(5), 45 B and 46 Object of Rule 46 Once Commandant of accused person is
likely to be a witness, independent authority not under control of Commandant
has to take action Punishment held not justified as it was a case of no
evidence.
Jha
B.N. v. Union of India. [1999]
·
Constitution
of local fund service, with equality in time scales and same duties and degree
of responsibilities for posts Persons working in Octroi sections do not
constitute separate cadre Grouping them with others in general section held
therefore cannot be impugned Orissa Municipal Act Section 81.
State
of Orissa v. Kishore Chandra Samal. [1999]
CALCUTTAPORT COMMISSIONER'S EMPLOYEES
(DISCIPLINE & APPEAL)
RULES
·
Rules 9 & 10 Compulsory retirement
Penalty of Major Port Trusts Act, 1963 Section 25Chairman of Port Trust Whether
competent to impose compulsory retirement without sanction of Central
Government Held: In view of provisions of Calcutta Port Commissioners'
Employees (Discipline and Appeal) Rules, Chairman competent to impose penalty
without approval of Central Government.
Board
of Trustees of the Port of Calcutta v. Amal Kumar Ghosh. [1999]
CANARA BANK OFFICER EMPLOYEES (DISCIPLINE AND APPEAL)
REGULATIONS 1976
Regulation
8(2) Banking Companies (Ac question and Transfer of Undertakings) Act, 1970
Section 19 Delinquent seeking disciplinary authority to hold impartial enquiry
Minor. penalty imposed without an enquiry Held, it is not proper.
Sundaram G. v. General Manager, (Disciplinary Authority) Canara Bank, Bangalore. [1999]
Chapter
11 Regulation 21(3)(b) On reinstatement, employee entitled to full pay and
allowance during period of suspension.
Ramaswamy
P. v. General Manager, Canara Bank. [1999]
Chapter
XI Regulations 4(d) and 20Suspension Merges with dismissal Upon dismissal being
set aside by appellate authority, suspension order will not survive Hence
period between date of suspension and date of dismissal has to be treated as on
duty for purpose of service benefits.
Canara
Bank v. Ramachandrappa. [1999]
Canteen
functioning as facility to provide refreshments to employees With object of
improving their efficiency Unity of Management and functional integrality
between canteen and establishment, present Maya of legal appearances ought to
be avoided Canteen workers, held, engaged in work incidentally connected with
main activities of State Electricity Board.
Present writ petitioners were workers in
the canteen attached to the office of the first respondent Electricity Board.
They were aggrieved that they did not get pay on par with the regular employees
of the Board. Hence their present writ petitions seeking relief of such parity
in pay. The High Court upheld the claim of the petitioners and issued
consequential directions.
Held:
The High Court observed
that there was unity of management and functional integrally between the
workers in the canteen and those in other wings of the Board. (Para 7)
The High Court further observed that it
discerned the plain truth camouflaged in artistic umbrella of legal
terminology. The petitioners were held to be engaged in work which was
incidentally connected with the main activities of the Electricity Board. (Para 9)
The petitioners could therefore
certainly claim, said the High Court, that they were entitled to be treated
alike and paid equal pay for equal work. (Para
10) Ananda
v. Karnataka Electricity Board, Bangalore. [1999]
Demand
of employees in non statutory canteen for parity of emoluments with regular
employees of Electricity Board Not sustainable in absence of any legal
obligation on part of Board.
Karnataka
Electricity Board, Bangalore v. Ananda. [1999]
Difference
between ordinary and statutory canteen (i.e. within meaning of Section 46 of
Factories Act, 1948) Principles governing canteen employees' relationship with
principal employer If obligation to provide canteen is explicit or implicit in
service conditions, workers employed in such canteen become employees of
management (principal employer).
Workmen in the Indian Overseas Bank
Staff canteens represented by their union agitated their claim to be treated as
workmen of the Bank, (the canteens having been run by local implementation
committees), first before the Industrial Tribunal and later before a single
Judge in writ petitions filed by the Bank
against a decision of the Tribunal in favour of the Union. Hence the
present writ appeals by the union, which were allowed.
Held:
The High Court
discussed the principles governing canteen employees' relationship with the
principal employer. The normal rule was that workers employed in canteens
governed by the Factories Act were employees of the management. The obligation
to provide might be explicit or implicit under an agreement or award etc. (Para 3)
On the facts of the case and applying
the aforesaid principles, the High Court found that the Bank had an obligation
to run the canteens and had in fact been running them by one or other kind of
agency. Hence the award of the Tribunal was restored and the judgment of the
single Judge was set aside. (Paras 6 and
8) Indian
Overseas Bank Staff Canteen Workers' Union v. Indian Overseas Bank. [1999]
Casual
Labour Absorption of Ex casual labourer regardless of number of working days,
could be absorbed if he was graduate Scheme for absorbing ex casual labourers
being benevolent one has to be interpreted in manner which furthers its object.
This reference to a Full Bench arose as
a result of a view taken by a single Judge and Division Bench different from
the one taken by an earlier Division Bench. The said earlier Division Bench
took the view that under a Memo of the respondent Board evolving a scheme for
absorption of its ex casual labourers, not educational qualification, but number
of working days was the criterion. The Full Bench held the Division Bench could
not be taken as laying down the law correctly.
Held:
The Full Bench observed
that setting priority to educational qualification in the context of the post
held was easily discernible from the scheme. Having regard to the benevolent
purpose of the scheme in accommodating ex casual labour, it became necessary,
the High Court said, for it to interpret the scheme in a manner which furthered
its object. (Para 7)
In the circumstances it was held that
the petitioner, seeking absorption in the post of Lower Division Clerk, was
eligible to be considered for the post of LDC/Revenue Cashier. (Para 8) Pippalla Surya Bhagavan v. Member
Secretary, APSEB, Hyderabad. [1999]
Minimum
Wages Act, 1948 Sections 3(l)(b), 4(l)(iii) and 5(2) Notification under
Categorisation of employees working in open cast mines with employees in
underground mines Effect of notification was to make unequal as equal Such
categorisation unknown to statutory guidelines Held, not permissible in law.
Essel
Mining & Industries Limited v. Union of India. [1999]
CENTRAL CIVIL SERVICES (CLASSIFICATION, CONTROL AND
APPEAL) RULES, 1965
·
Rule 24 Service rules do not expressly
or by implication take away jurisdiction of Civil Courts Civil suit challenging
dismissal from service held maintainable.
Appellant was dismissed from service
pursuant to departmental proceedings against him and he filed a civil suit for
declaration that the dismissal was void and illegal and for reinstatement. The
suit had a chequered career; it met with dismissal in the Trial Court, success
in the first appeal before the District Judge, but again dismissal in the
second appeal before a Single Judge of the High Court. Hence the present appeal
to the Supreme Court by the dismissed servant. The Supreme Court allowed the
appeal, and remitted matter for fresh decision.
Held:
The Supreme Court
minced no words to express its disapproval of the Single Judge's impugned
order. The opinion on which it was based, was that in view of the CCS (CCA)
Rules, 1965 jurisdiction of the Civil Court was ousted from dealing with an
order passed by the disciplinary authority and hence the suit of the appellant
was according to the Single Judge not maintainable. This opinion, the Supreme
Court said, was palpably erroneous. (Para
5)
Service Rules neither expressly nor by
implication have taken away the jurisdiction of the Civil Courts to deal with
service matters.
According to the Supreme Court the
opinion of the Single Judge did violence both to the Code of Civil Procedure,
the Specific Relief Act and the Service Rules. (Para 6) Ramendra Kishore Biswas v. State of Tripura. [1999]
Rule
3(l)(i) and (iii) Order holding petitioner Teacher guilty of claiming house
rent allowance on false documents, found not based on relevant evidence
Impugned order set aside.
Held:
A teacher in Kendriya
Vidyalaya filed this petition impugning an order against him passed by the disciplinary
authority for recovery of sum paid as house rent and imposing a penalty of
reduction of pay by one stage. The High Court allowed the petition as it found
the impugned order suffering from the infirmity of ignoring the relevant
evidence on record. (Para 5) Pramod Kumar T.
v. Kendriya Vidyalaya Sangathan, New Delhi. [1999]
CENTRAL CIVIL SERVICES (EXTRA ORDINARY PENSION) RULES
Schedule
I A Pension Disability pension Disease contracted after entering service and
not appearing to have been caused by irregular or intemperate habits Burden of
proving that disease is not attributable to, or aggravated by Government
Service, lay on Government Burden not discharged Government servant held
entitled to disability pension, although 10 years of required service had not
been completed.
The respondent in this appeal, in a
little over 7 years of service in the CRPF obtained directions in a writ
petition filed by him for getting disability pension. The present writ appeal
was field by the Government challenging the said directions. The High Court
dismissed the writ appeal.
Held:
The High Court observed
that the respondent had contracted the illness leading to his disability after
many years of service and the disability did not appear to have been caused by
irregular or intemperate habits. The appellant Government on whom the burden of
proof lay, had not established that the disease (disability) was not
attributable to, or aggravated by, service in Government. (Para 8) Union of India v. Alex Varghese. [1999]
l
Withholding
of or withdrawing of pension That Rule can be invoked only in cases where
pecuniary loss is caused to Government not sustainable Pension can be withheld
or withdrawn in all cases of grave misconduct or negligence of duty
during service.
Union of India v. B. Dev.
[1999]
·
Rule 8, Explanation (b) Grave misconduct
Definition not exhaustive Expression 'grave misconduct' includes communication
or disclosure of any official secret Not correct to conclude that, that only
kind of misconduct which should be held to be grave is communication of
official secret. (Para 9)
Union of India v. B. Dev.
[1999]
·
Rule 9 Grave misconduct Withholding of
pension Government Officer posted abroad charged of un authorised absence and
disobedience of Govt. order to join duty in India Also charged with lack of
devotion to duty and conduct unbecoming of Govt. servant Excuses given for not
joining duty in India untenable Disobedience of orders to join duty found
willful Conduct of officer premeditated as he has purchased house at London
indicating he had no intention to return to India No legitimate reason found
for absenting from duty or refusing to join at Delhi Finding that he is guilty
of grave misconduct proper Order withholding of pension also proper.
Union of India v. B. Dev.
[1999]
·
Rule 54(14)(b)(i) Father will not be
entitled to get family pension, as he will not be considered a member of
employee's family However, ex gratia payment was directed to be made in
circumstances of case.
State of Himachal
Pradesh v. Kedar Nath Sood. [1999]