MINIMUM WAGES RULES, 1951
Rule 22(l) Criminal Complaint No
averment that accused partners in any way responsible for conduct of business
Not maintainable Minimum Wages Act, 1948 Sections 18(2) and 19(2)(a).
Sreeram
Construction v. S.K.S. Ali [1999]
Proved in domestic enquiry or before
Labour Court There is no hard and fast rule that Labour Court should adopt
policy of non interference with order of dismissal or discharge Labour Court
has discretion to act where misconduct is proved but ends of justice demands
lesser punishment Industrial Disputes, Act, 1947 Section 11 A.
Rajasthan
State Road Transport Corporation. v. Gopal Singh. [1999]
Burden of Proof Burden to prove
allegation of misconduct is on employer Punjab Civil Services (Punishment and
Appeal) Rules, 1970 Rule 8.
Geeta Ram v.
Presiding Officer,
·
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.
State Bank
of
Discharge
from service of Bank Employee on charge of disclosing information to public
through News paper regarding destruction of fake currency note by officer of
Bank to public through newspaper On basis of such charge no misconduct held
disclosed Penalty imposed set aside.
Narayan
Shankar Mukane v. Union Bank of
·
Delinquent Officer drawing HRA based on
false certificates Amounts to misconduct Especially when benefits have been
obtained from public funds on false certificates High Court's order erroneous.
Indian
Council of Medical Research v. Dr. Anil Kumar Ghosh. [1999]
Motor Vehicles Act, 1939 Sections 92 A,
92 D, 92 E, 93(ba) and 95 Commissioner for Workmen's Compensation can pass
award against insurer, under Section 92 A of Motor Vehicles Act, even in cases
where liability of employer arises only under W.C. Act.
National
Insurance Co. Ltd. v. Philomina Mathew. [1999]
Section 95 Liability of insurer under
compulsory policy does not cover sum which may be recovered as penalty.
Shanthamma
(Santa) v. Kamalamma (Smt.). [1999]
Sections 95, 96 110 A, 110 AA, 110 D
Workmen's Compensation Act, 1923 Section 3 and Section 19 (per Full Bench) Duty
of owner of goods vehicle to cover by insurance risk of liability for death of,
or bodily injury to, his employee, under Workmen's Compensation Act, 1923, is
mandatory (per dissenting opinion of BHARUKA, J.) if employee of owner of goods
vehicles approaches claims Tribunal under Motor Vehicles Act, and obtains award
of compensation, employee cannot hold insurer liable under said award (per
majority opinion Of VISHWANATHA SHETTY J. and GOPALA GOWADA, JJ.) Insurer is
liable to pay compensation awarded to such employee by claims Tribunal under
Motor Vehicles Act.
Appellant additional driver of a goods
vehicle owned by the first respondent (owner) suffered injuries in an accident
while travelling in the said goods vehicle. The appellant filed an application
for compensation before the Motor Accidents Claims Tribunal under Section 110 A
of the M.V. Act, 1939. The Tribunal awarded compensation in the sum of a little
over Rs. 52,000/ making only the first respondent owner liable to pay the
compensation but exonerating the insurer (insurance company) (second
respondent) from such liability on the ground that the insurance policy did not
cover an additional driver. The driver claimant filed the present appeal under
Section 110 D of the M.V. Act, 1939, challenging the Tribunal's award so far as
it exonerated the insurer second respondent from liability to pay the sum of
compensation awarded in favour of the appellant. The question thus raised in
the appeal was placed before the present Full Bench for its opinion. The
majority opinion of the Full Bench (delivered by VISHWANATHA SHETTY and GOPALA
GOWDA JJ.) held the insurer second respondent liable. The dissenting (minority)
opinion of BHARUKA, J. held the insurer second respondent not liable.
Held: The majority opinion was based on
the following grounds:
(i) Chapter VIII of the M.V. Act, 1939, is
welfare legislation intended to protect victims of motor accidents. (Para 6)
(ii) Section 95(2)(a) of the said Act,
suggests that liability of insurer would include not only one arising under
Workmen's Compensation Act, 1923 but also liability arising under law of
Torts.(Para 7)
(iii) If insurer is not held liable to pay
compensation awarded by the Tribunal, it would negate the very object of
Chapter VIII of the M.V. Act. (Para 7)
(iv) Section 19(2) of the Workmen's
Compensation Act, 1923 cannot be considered to oust the jurisdiction of the
Motor Accidents Claims Tribunal, as it does the jurisdiction of the Civil
Courts, to direct compensation payable under the Workmen's Compensation Act.
(Para 10)
(v) The proviso to sub section (1)(b) of
Section 95 of the M.V. Act, 1939, indicates that the insurance policy should
cover liability of employer liable under Workmen's Compensation Act, 1923.
(Para 11)
The minority opinion was based on the
following grounds:
(i) Accident Claims Tribunal constituted
under M.V. Act, 1939 cannot exercise jurisdiction of determining amount of
compensation payable under the Workmen's Compensation Act, 1923. (Para 26)
(ii) Appellant having opted, as required by
Section 110 AA of the M.V. Act, 1939, to get compensation adjudicated by the
Motor Accidents Claims Tribunal, could not fix liability on the insurance
company arising under Workmen's Compensation Act, 1923. (Para 27)
The Full Bench, however was unanimous in
its opinion that the owner of goods vehicle was under a mandatory duty to get
insured against risk of liability to his employees arising under the Workmen's
Compensation Act, 1923. (Para 19)
Noorulla v.
P.K. Prabhakar. [1999]
Sections
95 and 110 A Though Option of forum for obtaining compensation is given,
liability of insurer is limited to one arising under Workmen's Compensation
Act.
In this appeal by the insurer of a motor
vehicle, an award of the Motor Accidents Claims Tribunal, granting compensation
to the heirs of a deceased workman (who was working as a cleaner in the motor
vehicle) was challenged. The High Court, observing that the appellant insurer's
liability was limited to that specified in the Workmen's Compensation Act,
1923, reduced the amount of Compensation, as well as the default rate of
interest payable thereon, and upheld the claim of the respondents (heirs) (in
their cross objections) for getting interest from date of claim.
Held: The High Court observed that the
liability of the insurer was limited to that arising under the Workmen's
Compensation Act, 1923. (Para 4) Oriental
Insurance Co. Ltd. v. Chandra Panigrahi, (Smt.). [1999]
Section 95(2) Orissa Motor Vehicles
Rules, 1940 Rule 95(a) Bona fide employee of owner carried in his vehicle and
dying in accident Policy of insurance would cover liability incurred in respect
of such death.
Held: The High Court further observed
that the insurer was liable to pay the compensation in respect of the death of
driver of another vehicle belonging to the same owner as such liability arose
under Section 95 of the M.V. Act, 1939 read with Rule 95(a) of the Orissa M.V.
Rules. (Para 21) Sharma S.D. v. Ramesh
Mahakud. [1999]
Section 96(2) Appeal by insurer against
award under Workmen's Compensation Act on grounds other than those mentioned in
Section 96(2) of M.V. Act is not maintainable.
Oriental
Insurance Co. Ltd. v. Veronica Obrin (Smt.). [1999]
Section
110 A If accident in course of employment resulting in death of employee is held
to be due to act of tortfeasor, it would not be open for Tribunal to fasten
liability on employer, and this insurer under Workmen's Compensation Act.
Subramania
Naicker v. Kuppuswamy. [1999]
Section
147(l) Even in case of spare driver not actually driving vehicle at time of
accident causing injury statutory cover as employee of owner (of vehicle) for
injury suffered in course of employment, would be available.
National
Insurance Co. v. Thimma Reddy. [1999]
Section
149(2) Appeal by insurer not maintainable if not founded on grounds by which
Insurer is entitled to defend under Section 149(2) of Motor Vehicles Act, 1988.
New India
Assurance Co. Ltd., Davangere v. Raja Naika. [1999]
Section
167 Bar created by Section 53 of E. S. 1. Act with respect to claim for
compensation under any other law like Motor Vehicles Act, for injuries in
accident arising out of and in course of employment, operates even upon filing
claim application before E.S.I. authorities and is in stage of being processed.
United
India Insurance Company Ltd. v. Saraswathi. [1999]
Section
48 Administrator appointed on supersession of Board of Co operative Bank, being
nominee of Central Registrar, held amenable to writ jurisdiction.
Writ petitioners, respondents in the
present appeals, sought quashing of certain orders of an Administrator of the
appellant co operative Bank questioning inter alia the appointment of the
Administrator. These appeals arising out of those petitions by the appellant
Bank were dismissed.
Held: The High Court first considered
the question as to the maintainability of the writ petitions against the
appellant, a Co operative Bank. It held the petitions maintainable as the
petitioners had questioned the action only on the part of the Administrator who
was appointed by the Registrar of Co operative Societies. Referring to Section
48(3) of the Multi State Co operative Societies Act, 1984, the High Court held
the administrator to be amenable to writ jurisdiction. (Paras 10 to 13) SBISA Co operative Bank Ltd. v. Tarun
Kumar Saha. [1999]
Section 61 Obligatory duties of Municipal
Corporation Removal of garbage, silt, house gully and solid waste material
being one such duty Corporation continuing to engage contract labour for
discharging such statutory obligation even after passing of 1970 Act it had to
comply with provisions of said Act Contractors employed on such work also had
same duty to comply with said Act These provisions ensure that contract labour
is not subject to exploitation Respondent Corporation continuing system of
contract labour without so complying and subjecting that labour. to continuous
exploitation Petitioner Union of Contract Labour granted reliefs under
directions of High Court.
Kachara
Vahatuk Shramik Sangh v. Bombay Municipal Corporation. [1999]
Notification dated January 23,
1982Municipal Board, by virtue of provision of Municipal Act, itself is an
establishment Provisions of Gratuity Act also applicable as also Notification
dated January 23, 1982.
Municipal
Board, Pilkhua, Ghaziabad v. Union of India. [1999]
Section 48 Fruit and Vegetable Project
Officers; (Conduct, Discipline and Appeal) Regulations, 1991 Regulation 44
Termination of service on giving month's notice or salary in lieu thereof
Regulation 44 and clause 18 of offer of appointment enabling such termination
held arbitrary, discriminatory and violative of principles of natural justice
In circumstances of case payment of compensation instead of reinstatement held
apt.
This appeal by an Executive Procurement
Officer in the first respondent organisation, whose services were terminated by
the first respondent in the purported exercise of a right under clause 18 of
the offer of appointment on payment of a month's salary, challenged an order of
a single Judge so far as it did not direct reinstatement in service but awarded
only a sum (of Rs. 4 lakhs) as compensation for the illegal termination of his
services. The High Court dismissed the appeal.
Held: It observed that the impugned
order of termination based on clause 18 of the offer of appointment based on
Regulation 44 of the Fruit and Vegetable Project Officers (Conduct, Discipline
and Appeal) Regulations, 1991 which were framed under Dairy Development Board
Act, 1987, was held by the single Judge in the impugned order to be illegal and
invalid, as Regulation 44 was arbitrary, discriminatory and violative of
principles of natural justice. (Para 8)
Absolute and unquestionable integrity
was crucial to the job of the petitioner. An independent outside investigating
agency did not speak well of ' the appellant. There was therefore lack of
confidence of the first respondent in the appellant's integrity. In such
circumstances it was not fit case for ordering reinstatement. Approving these
conclusions of the single Judge the High Court saw no reason to interfere with
the impugned decision. (Para 10) Virender
Singh v. G.M., Fruit and Vegetable Project. [1999]
Termination Probationer Appointment terms
providing for period of probation and/or extension thereof Termination does not
attract principles of natural justice Only where termination is by way; of
punishment requirement of natural justice becomes mandatory.
Union of
India v. Subhas Jha. [1999]
Termination of service on giving month's
notice or salary in lieu thereof Regulation 44 and clause 18 of offer of
appointment enabling such termination held arbitrary, discriminatory and
violative of principles of natural justice In circumstances of case payment of
compensation instead of reinstatement held apt Fruit and Vegetable Project
Officers (Conduct, Discipline and Appeal) Regulations, 1991 Regulation 44.
Virender
Singh v. G.M., Fruit and Vegetable Project. [1999]
Before dismissing Government servant, it
is mandatory to hold enquiry in accordance with principles of natural justice.
Narendra
Pal Singh Teotia v. State of U.P. [1999]
Violated if enquiry is discreet Also
amounts to violation of principles of natural justice Domestic enquiry based on
discreet enquiry report Invalid Validity of social status certificate issued by
Tahsildar valid until cancelled Discreet enquiry into caste factor of employee
not valid Sufficient opportunity to employee is a must.
Siddi
Raajan M. v. District, Collector, Periyar District, Erode. [1999]
·
Appointment of Vice Chancellor Order
Issued on August 20, 1997 appointing appellant as Vice Chancellor with effect
from September 4, 1997Very next day, on August 21, 1997, Chancellor cancelling
the order on ground that a criminal case was pending against him Cancellation
order held valid Order is neither stigmatory nor principles 4 of natural
justice attracted Karnataka State Universities Act, 1976 Section 11.
Dr. J.
Shashidhara Prasad v. Governor of Karnataka. [1999]
Disciplinary proceedings Disciplinary
action under repealed Rules in face of current Rules Proceedings bad Order of
punishment without hearing delinquent Ex parte enquiry on vague charge Steel
Authority being a State is bound to act fairly State should be model employer
Employee cannot be deprived of livelihood without complying with procedure
prescribed.
Steel
Authority of India Ltd. v. Bela Ghosh. [1999]
Principles of Where such principles are
violated, that would per se constitute prejudice to party against whom order is
passed.
Appellant management challenged in this
appeal an order of a Single Judge dismissing its writ petition. In the writ
petition an order of the Labour Court setting aside the dismissal of second
respondent, an employee of the appellant, and directing his reinstatement with
full back wages, was challenged. The High Court dismissed the appeal.
Held: The High Court observed that where
principles of natural justice were violated, as they were in this case, that
would per se constitute prejudice to the delinquent employee. Since the Labour
Court had given opportunity to the appellant to lead further evidence, the High
Court left the further questions raised in the matter open, declaring the
appellant to be at liberty to raise all objections against final order that
might be passed. (Paras 6 to 9) Voltas
Ltd., Patancheru, Medak District v. Presiding Officer, Labour Court II,
Hyderabad. [1999]
Principles of Authority making an order
affecting civil rights must always pass a speaking order after giving a fair
hearing to person adversely affected Existence of alternative remedy is no
Inhibition to interfere in appropriate cases under Article 226 of Constitution.
Gujarat
State Civil Supplies Corporation Ltd. v. Regional P.F. Commissioner. [1999]
Principles
of Penalty imposed on employed persons Recovery from wages of such employees
Management bound to give notice In instant case principles of natural justice
complied with.
Mohd Sultan
v. A.P. Dairy Development Cooperative Federation Ltd. [1999]
Principles
of natural justice must be complied with before passing orders imposing
damages, penalty etc., for failure to make P.F. contributions, even if statute
be silent on the point.
India
Supplies Engineering Works Ltd. v. State of
NEW BANK OF
·
Regulation 7 Finding of fact by single
Judge Not challenged in appeal It cannot be re opened in appeal in Supreme
Court Promotion policy in New Bank of
Sharma K.B.
v. Union of
There
cannot be controversy that person will not be entitled to wages when no service
has been rendered by him In present case person reported for duty, not allowed
to join He was held entitled to earn salary from time of reporting for duty.
The respondent in the present appeal
succeeded in his writ petition before a single Judge for a writ of mandamus
directing the appellants not to interfere with his joining duty and the payment
of salary from October 22, 1984. The appellants challenged the order of the
single Judge in this appeal.
Held: The appeal was dismissed as the
appellate (Division) Bench did not find any reason to interfere with the
impugned order of the single Judge. The Acting Chief Justice observed that the
appellant's justification for their action by reference to certain orders of
the High Court, was not sustainable as the respondent's appointment was earlier
than those orders. (
Mr. Justice AMITAVA LALA in a concurring
judgment added that balance of convenience in the present case did not go
against the respondent. (
"No work no pay" If employee
even before voluntary retirement could come into effect abandons on his own
volition, service, he will not be entilled to salary for period taken to give
such effect.
Held: The High Court further observed
that in the peculiar fact situation of the instant case, the petitioner having
unilaterally abandoned post and service even before his voluntary retirement
could come into effect, he was not entitled for the salary and allowances for
the interregnum period. (Paras 8 & 9) Devdas
Rao v. Syndicate Bank. [1999]
Occupier means a person who has ultimate
control over affairs of factory Demand that a Director can only be 'Occupier'
in case of company, held erroneous.
Rule 56 Sub rule (19) Deals with family
pension and death cum retirement gratuity to family members of Government
employee who disappear or abscond from Government service.
Pravasini
Panda (Smt.) v. State of
ORISSA CIVIL SERVICES REHABILITATION ASSISTANCE RULES,
1990
Rule 11 Compassionate Appointment Action
of Grade, an instrumentality of state in refusing rehabilitation as per State
rules, held arbitrary and not sustainable.
Prakash
Kumar Debata v. Executive Engineer (Grideo). [1999]
Rule 95(a) Bona fide employee of owner
carried in his vehicle and dying in accident Policy of insurance would cover
liability incurred in respect of such death.
·
Section 81 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.
Appellant State challenged in this
appeal a judgment of the Orissa High Court (Full Bench) setting aside their
action under Section 81 of the Orissa Municipal Act, grouping different posts
in the municipalities within a cadre. Respondent employees argued that the
impugned action of the appellant in constituting a common cadre of officials in
the Octroi and general sections was not proper and this argument was accepted
by the Full Bench of the High Court. The Supreme Court allowed the appeal.
Held: The Supreme Court observed that the
question of parity in pay and duties would arise only in case of constituting a
cadre by integrating several cadres. In the present case, there was no
integration of cadres inasmuch as the respondents were holding post which were
interchangeable and within one cadre. (
The Supreme Court allowed another appeal
against a judgment of the High Court setting aside promotions given to the
appellants on the basis of the Full Bench decision. Since the Full Bench
decision was held, as noted above, not to take the correct view, the Supreme
Court allowed this appeal also. (
SEE ALSO UNDER
THE HEADING "EQUAL PAY FOR EQUAL WORK"
1. Denial
of pay
2. Parity/Discrimination
in pay
3. Payment
4. Revision
of pay
5. Scale
of pay
Retirement
Before due date No salary paid for subsequent period Employer cannot take advantage
of its own wrong and deny said salary.
A Peon was retired from service before
his time. He was not paid salary due for period subsequent to such retirement.
He filed this petition for getting a direction to the respondents to pay him
such salary and retiral benefits. The High Court allowed the petition and
issued the direction sought.
Held : The High Court observed the
respondents having prevented the petitioner from discharging his duty illegally
could not take advantage of their own wrong direction. (
2. PARITY/DISCRIMINATION IN PAY
Karnataka
Education Act, 1982 Karnataka Private Educational Institutions Rules Private
educational institutions Employees of such institutions entitled to same scales
of pay and privileges as are available to their counterparts in Govt.
educational institutions Private institutions not getting Government grant is
no ground to deny employees what is legitimately due to them.
Held: Employees of the private educational
institutions are, in the light of Rule 5, entitled to the same scales of pay
and privileges as are available to their counterparts in Govt. educational
institutions. The fact that the private institutions are not getting any grant
from the Govt. is no ground to deny the employees what is legitimately due to
them. (
The repealing Act of 1982 saves the
validity of the rules framed under the earlier Act of 1975, till new rules are
framed under the Act of 1983. The Rules of 1978, therefore, continue to be
applicable to the instant case. (
Salary
And Bonus Due for period of medical leave granted Allegations in reply to or
defence of, claim made could not be gone into in writ petition Claim upheld.
Held: The petitioner's claim for salary
and bonus due for period of medical leave granted to the petitioner, was
allowed in this writ petition. The High Court observed that the allegations
made against the petitioner in answer to the claim of the petitioner for salary
and bonus could not be gone into in the writ petition. (
Equal
pay for equal work Temporary employee Denial of payment of salary extended to
work charged employees It is arbitrary as petitioner is similarly placed.
Madhab
Chandra Pradhan v. Orissa Construction Corporation Ltd. [1999]
Pay
Scale Revision of Revised pay scale not given effect from date on which,
decision to remove anomaly, taken But imaginary subsequent date for giving
effect Held to be not justified.
Petitioners who were linemen in the
respondent Board were aggrieved that in giving effect to the revised pay scale
on the recommendation of an Anomaly Committee, the Board fixed May 1, 1990 as
the date on which the revision would be effected but not January 1, 1986 or the
date of their joining service. The High Court allowed the petitions.
Held: The High Court observed that
nothing at all has been shown why the revised pay scale was not made applicable
from date on which the decision, pursuant to the anomaly pointed out by the
committee, was taken and as to why an imaginary date was fixed from which such
scales were to be made applicable. (Para 6)
The delay of about six years in
approaching the High Court through these petitions was held to be not of
consequence, as they were under the r legitimate expectation that the Board
would implement the decision in their case as well. (Para 7) Rajbir Singh v. Secretary, Haryana State Electricity
Board. [1999]
Pay
scale Revision in public sector undertaking Covered by judgment of Supreme
Court Appeal challenging order to pay revised scale, dismissed in limine.
This appeal by public sector undertaking
challenging an order of a Single Judge allowing the claim of the respondent for
revised pay scales, was dismissed in limine.
Held: The High Court observed that the
Supreme Court's judgment in C.M.P. No. 10864 of 1984 in Writ Petition No. 13044
of 1984 left no scope for argument raised on behalf of the appellant. (Para 4) Indian Road Construction Corporation Ltd.
v. K.P. Grover. [1999]
·
Pay scale Fitters (T&G) seeking
fusion in category of Jig Borers and parity in Pay with them Held, pay scale
nomenclature, equation of posts and fitment are matters of executive policy of
Government Such questions are to be left for decision by Expert Committees and
Government Courts cannot interfere unless there is invidious discrimination
between similarly situated persons or arbitrariness.
Shiba Kumar
Dutta v. Union of India. [1999]
·
Employees entitled to bonus are a class
by themselves There cannot be discrimination within a class.
The petitioners were industrial
employees and they sought through the present petition order directing parity
of treatment in the matter of payment of bonus with federation of employees.
The Supreme Court allowed the writ petition.
Held: The Supreme Court observed
employees entitled to bonus under the Payment of Bonus Act, 1965 were a class
by themselves and there could not be discrimination within the class. The
division of its employees by the National Agricultural Cooperative Marketing Federation
into industrial employees and federation employees was for purposes of internal
working but they could not be classified differently for purposes of payment of
bonus. (Para 2) C.F.F.P. Employees'
Association (ATTUC) v. Chairman and Managing Director. [1999]
Settlement
regarding payment of bonus No specific terms in regard to disputed claim for
bonus Hence finding that employees were entitled to bonus on basic of alleged
settlement held not justified Payment of Bonus Act, 1965 Sections 8, 22 and 31
A Industrial Disputes Act, 1947Section 10(2).
S.G.
Pharmaceuticals v. Sarabhai Chemical Staff Association. [1999]
When
employee is prevented from working by act of employer, branded illegal by
Court, employee's eligibility for bonus is not lost Payment of Bonus Act, 1965
Section 8.
Ahmad
Hussain v. Management of Swadeshi Cotton Mills, Pondicherry. [1999]
Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971Item 9 of Schedule IV
Payment of Bonus Act, 1965 Sections 31 A and 35 Bonus Act is confined in its
application to profits bonus and other kinds of bonus recognised by industrial
law like customary, traditional or contractual bonus are not governed by Bonus
Act Nor are employees drawing more than Rs. 1600 covered by said Act, as they
are not employees within meaning of Section 2(13) of Bonus Act Bonus or ex
gratia payments to them are not governed by said Act.
Modistone
Ltd. v. Modistone Employees Union. [1999]
Entitlement
of bonus would be from date service is sold, that is, service rendered by
establishment set up for purpose of selling it (service) Appellants acted as
commission agents only before commercial production had not started Work as
commission agents was undertaken (only) with a view to develop customer
awareness in respect of productions to be made Liability to pay bonus would
not, in such circumstances, arise Payment of Bonus Act, 1965 Section 16(1 B).
Interest
on Grant of Dispute as to payment of bonus Award made belatedly due to parties
of lis as well as systematic reasons Its validity decided after a decade
Employees got relief of same after long delay Interest of 12% awarded on bonus amount.
Van
Sangathan Orient Paper Mills v. Industrial Tribunal, M.P. [1999]
Section
8 When employee is prevented from working by act of employer, branded illegal
by Court, employee's eligibility for bonus is not lost.
This writ petition by an employee whose
dismissal from service was duly set aside, sought direction for payment of
bonus for the years during which his dismissal and setting aside thereof took
place. The High Court allowed the petition in part.
Held: The High Court observed that when
an employee was illegally dismissed, it could not be said that such an employee
did not work in the establishment; the employee's eligibility for bonus could
not be said to have been lost. (Para 6) Ahamad
Hussain v. Management ofSwadeshi Cotton Mills, Pondicherry. [1999]
Section
11 Bonus Interest on Grant of Dispute as to payment of bonus Award made
belatedly due to parties of lis as well as systematic reasons Its validity
decided after a decade Employees got relief of same after long delay Interest
of 12% awarded on bonus amount.
Held: Noticing that the employees had to
wait for years together to receive the fruits of the impugned award, as it took
nearly a decade to decide the matter, the High Court gave a direction for
payment of interest to the employees at 12% p.a. on the bonus amount. (Para 34)
Van Sangathan Orient Paper Mills v.
Industrial Tribunal, M.P. [1999]
Section
16(1 B) Entitlement to bonus would be from date service is sold, that is, service
rendered by establishment set up for purpose of selling it (service) Appellants
acted as commission agents only before commercial production had not started
Work as commission agents was undertaken (only) with a view to develop customer
awareness in respect of productions to be made Liability to pay bonus would
not, in such circumstances, arise.
These Appeals and writ petitions by
management on the one hand and union of workmen on the other raised a question
under Section 16(l B) of the Payment of Bonus Act, 1965. Workmen claimed bonus
to be payable by the management even though the infancy period of 5 years was
not over and it had not started selling its manufactured goods, as the
management had earned income in its different venture as Commission agents. The
High Courts negatived the claim of the workmen.
Held: The High Court referred to the
relevant statutory provisions and observed that the entitlement to bonus under
Section 16(1 B) of the Act would be from the date the service was sold from the
establishment set up for the purpose of selling the service. (Para 8)
The appellants (management) acted as
commission agents only for the period (during which) the commercial production
had not started. The work as commission agents was undertaken by the management
with a view to develop customer awareness in respect of the productions to be
made by the appellants so as to be assured of the local market. That being so,
the liability to pay bonus as claimed under Section 16(1 B) would not arise.
(Para 10) Mishra Dhatu Nigam Limited,
Hyderabad rep. by its Managing Director v. Industrial Tribunal A. P. Hyderabad.
[1999]
Sections 31 A and 35 Bonus Act is
confined in its application to profit bonus and other kinds of bonus recognised
by industrial law like customary, traditional or contractual bonus are not
governed by Bonus Act Nor are employees drawing more than Rs. 1600 covered by
said Act, as they are not employees within the meaning of Section 2(13) of
Bonus Act Bonus or ex gratia payments to them are not governed by said Act
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971Item 9 of Schedule IV.
Petitioner company challenged in this
writ petition an order of the Industrial Court holding that the company was
engaged in unfair labour practice under item 9 of Schedule IV of the
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 by not implementing clause 27 of a settlement dated
September 28, 1973 between the petitioner and the then union of its employees,
relating to payment of bonus to the workers of the company. The High Court
dismissed the petition.
Held: The High Court observed that the
company was not right in invoking Section 34 of the Bonus Act, 1965, in its
defence against complaint of unfair labour practice, as the bonus for non
payment of which the complaint was made was one paid under settlements and had
no link with profit made by company, it was a customary bonus which had ripened
into a contract. (Para 15)
It was true, the High Court said,
payment of the disputed bonus was, no doubt, not at an uniform rate throughout.
But uniformity was not required to be established from the beginning to end.
(Para 16)
With regard to employees drawing more
than Rs. 1600, bonus or ex gratia payment to them was not covered by the Bonus
Act since they were not employees within the meaning of Section 2(13) of the
Act. Therefore in respect of these employees also, the bar under Section 34 of
the Act did not arise. (Para 17) Modistone
Ltd. v. Modistone Employees Union. [1999]
Section 32(iv) Employees in industry
carried on by or under authority of any department of Central or State
Government or local authority Not within purview of Act Daily wage employees of
Haryana Roadways who had not completed 3 years of service held not entitled to
ex gratia payment announced by Government.
The State of Haryana was made liable by
the impugned order of the Labour Court to pay exgratia payment to daily wage
employees of Haryana Roadways, which was part of the State's Transport
Department. Hence the writ petition by the State. The High Court allowed the
civil petition.
Held: The High Court observed the
Haryana Roadways, being run by a Government department, would not come within
the provisions of Payment of Bonus Act as per Section 32(iv) of the Act. (Para
7)
Nor could the employees on daily wage
basis, who had not put in 3 years of service, make out a case of
discrimination. The Court observed it was open to the State Government to
specify the employees who could be considered eligible for the ex gratia
payment. (Para 8) Haryana State through
General Manager, Roadways, Hissar v. Presiding Officer, Labour Court, Hissar.
[1999]
Section 32(v)(c) For applicability of
section, no specific exemption is required Enough if it is shown to be
charitable institution, despite its making some profit.
Appellant, a charitable trust,
challenged in this appeal an order of the Labour Court allowing inter alia the
claim of the second respondent for bonus, which order was confirmed by a single
Judge while dismissing the writ petition of the appellant against the Labour
Court's order. The High Court allowed the appeal.
Held: The High Court observed that as
per Section 32 of the Payment of Bonus Act 1965, employees of institutions
including hospital established not for purposes of profit would not come within
the purview of the Act. (Para 4)
The mere fact that despite being a
charitable Trust, some profit had accrued to it, would not deprive the Trust
from claiming benefit under Section 32(v)(c) of the Act. (Para 6) Dr. (Ms.) Sita Bhateja Nursing Home (Trust), Bangalore v.
Presiding Officer, Labour Court, Bangalore. [1999]
Section 36 Exemption Power under Section
36 is not quasi judicial; it is conditional legislation Factors governing
exercise of conditional legislation enumerated.
Matter sent back to the appropriate
authority for considering the petitioner's prayer for exemption in the contest
of the guidelines. (Para 13) Pradip
Lamp Works v. State of Bihar. [1999]
Gratuity
Payment of Delay No justification for denying interest to employee Interest
determined in order Cannot be interfered with.
Held: In view of the decision already
taken by the State Government to grant interest on delayed payment of gratuity,
there could be no justification whatsoever for depriving the petitioner of the
amount of interest on the delayed payment of the amount of gratuity. The right
that had accrued in favour of the petitioner entitling him for the payment of
interest at the rate determined by the aforesaid order could not be denied in
the manner, as has been done by the respondents. (Para 5) Capoor R.N. v. State of U.P. [1999]
Rajasthan
Non Government Educational Institutions Act, 1989 Grant in aid to Non
Government Educational etc. Institutions Rules, 1963 Teachers in educational
institutions receiving grant in aid are entitled to gratuity and pension at
rates admissible to teachers in Government Educational Institutions.
Retired teachers of Non Government
(Aided) Educational Institutions were the petitioners here who sought in these
petitions benefits of gratuity and pension given to teachers in Government Educational
Institutions, but denied to the petitioners. The High Court allowed the
petitions.
Held: After referring to the relevant
statutory provisions and rules, the High Court observed that the petitioners
being employees of non Government Educational Institutions receiving grants
inaid were entitled for payment of gratuity, pension as well as other
allowances as admissible to employees of Government Educational
institutions.(Para 16) Tara Chand
Chokdayat v. State of Rajasthan. [1999]
Sick
Industrial Companies (Special Provisions) Act, 1985 Section 22 Sick company
cannot take shelter of Section 22 in respect of workers' wages and other dues
like gratuity which cannot be called arrears of wages.
Petitioner company, declared sick under
Sick Industrial Companies Act, 1985, challenged, in this petition, orders of
the Controlling and Appellate Authorities under the Payment of Gratuity Act,
1972 for recovery of gratuity payable to the concerned employee.
The High Court dismissed the petition.
Held: The High Court observed that it
was not open for the sick company to take shelter under Section 22 of the Sick
Industrial Companies Act, 1985, in respect of workers wages and other dues like
gratuity which could not be called arrears of wages. (Para 9) Modistone Ltd. v. Deputy Commissioner of Labour, Mumbai.
[1999]
Special Judge convicting employee High
Court setting aside conviction Gratuity cannot be withheld Payment of Gratuity
Act, 1972 Section 4(6)(b)(ii).
Union of
India v. Assistant Labour Commissioner (Central), Patna. [1999]
Grant in aid to Non Government
Educational etc. Institutions Rules, 1963 Teachers in educational institutions
receiving grant in aid are entitled to gratuity and pension at rates admissible
to teachers in Government Educational Institutions Payment of Gratuity Act,
1972 Rajasthan Non Government Educational Institutions Act,
Tara Chand
Chokdayat v. State of Rajasthan. [1999]
Gratuity and Provident fund Payment of To
employee who has voluntarily retired Employer's direction to withdraw
proceedings in Court, held, not proper Payment of gratuity and provident fund
to employee directed.
An employee of the respondent company,
which was a 'state' within Article 12 of the Constitution of India, filed this
writ petition for getting inter alia gratuity and provident fund after having
voluntarily retired from service. The High Court disposed of the petition by
giving directions.
Held: The Court directed payment of
gratuity and provident fund to the petitioner, while declaring the respondent
to be entitled to take steps for eviction of the petitioner from the quarter in
question. (Para 6) Sushil K. Sarkar v.
Chairman Cum M.D., Hindustan Steel Works Construction Ltd. [1999]
Overriding nature of
provisions in special enactments Employer cannot substitute pension scheme for
Payment of Gratuity Act unless exempted by appropriate Government under
Sections of the Act Employee can have no right to claim benefit of pension
scheme as well as benefit under Gratuity Act.
Rajkot
Municipal Corporation v. Anirudh Fulshankar Shukla. [1999]
·
University of Udaipur (Sukhadia
University) Payment of Gratuity to Employees Rules, 1979Rule 11, Notes I &
2 Employee of Rajasthan Agricultural University constituted under Rajasthan
Agricultural University Bikaner Act, 1987 retired from service on attaining age
of superannuation Gratuity was calculated only on basic pay instead of
calculating last drawn pay including dearness allowance and Ad hoc dearness
allowance Board of Management of Rajasthan University adopted statutes of such
University of Udaipur (Sukhadia University) Payment of Gratuity to Employees
Rules are applicable to employers of Rajasthan Agricultural University
Employees of Rajasthan Agricultural University are entitled to calculate
emoluments for purpose of gratuity by including (1) Pay as defined in Rule
7(24) of Rajasthan Service Rules (2) amount of dearness allowance and (3)
amount of ad hoc dearness allowance as amended from time to time.
Rajasthan
Agricultural University v. Ram Krishna Vyas. [1999]
Death cum Retirement Gratuity scheme for
Employees in Public Sector Enterprises Scheme was for employees outside purview
of Payment of Gratuity Act, 1972 Management introducing scheme from July 1,
1993 Fixation of date for introducing scheme does not affect constitutional or
other rights of petitioner employees who retired before said date.
Srinivasan
v. Government of India. [1999]
Right to receive gratuity on retirement
is vested right and cannot be affected by amendment made after retirement
Payment of Gratuity (Amendment) Act, 1994 Section 3.
Kerala
Electrical & Allied Engineering Co. Ltd. v. Raveendran Pillai. [1999]
Amendment enhancing maximum limit of
gratuity to one lakh of rupees, is only prospective Employee retiring before
amendment held not entitled to benefit under enhanced maximum limit Payment of
Gratuity Act, 1972 Section 4 (as amended in 1994).
Gratuity of employee can be forfeited to
extent of damage or loss caused to employer by reason of his act, omission or
negligence, on termination of his services Termination includes one by
superannuation Similarly with pension Payment of Gratuity Act, 1972 Section 4
Civil Service Regulations Regulation 351 A.
Krishna
Kumar (Dead) by L.Rs. v. State of U.P. [1999]
Constitution of India, 1950 Article 226 Noncompliance
of provisions of Act Writ jurisdiction can be invoked.
Held: There is no need to consider
whether the first respondent is amenable to writ jurisdiction vis a vis Article
12 of the Constitution as we are of the opinion that this Court can issue an
appropriate writ for non compliance of the provisions of the Payment of
Gratuity Act which is a welfare legislation. (Para 6) Aggarwal B.L. v. Himachal Consultancy Organisation.
[1999]
Overriding nature of
provisions in special enactments Employer cannot substitute pension scheme for
Payment of Gratuity Act unless exempted by appropriate Government under Section
5 of the Act Employee can have no right to claim benefit of pension scheme as
well as benefit under Gratuity Act.
Petitioner Corporation had introduced a
pension scheme with death cum retirement gratuity and the respondent employees
had opted for the same. Accordingly the respondents had received certain
amounts of gratuity and were also receiving pension regularly. However, these
respondents later on claimed gratuity as per the Act, and the Controlling
Authority allowed their claim, and appeal by the Corporation before the
Appellate Authority was dismissed. Hence Civil Application by the Corporation
in the High Court.
Following the ratio in Municipal Corporation of
Delhi case AIR 1999 SC 293, the learned Single Judge.
Held: Payment of Gratuity Act is a
special enactment and its provisions will have overriding effect over any other
scheme adopted by employer for payment of gratuity. The employees would be
entitled to receive amount of gratuity under the Act. (Para 5) Rajkot Municipal Corporation v. Anirudh Fulshankar
Shukla. [1999]
Sections 1(3) and 14 Code of Civil
Procedure, 1908 Section 92 Employees of trust Such employees not entitled to
gratuity as Gratuity Act is not applicable to public and charitable trusts
Jurisdiction of Civil Court barred.
Held: The definition of an establishment
in the Shops Act does not apply to a charitable trust. Moreover, it is not
argued that the Central Government has issued any notification extending the
provisions of the Payment of Gratuity Act to public and charitable trusts.
(Para 8)
The procedure contained in the Gratuity
Act has an overriding effect and no Civil Court has any jurisdiction to
adjudicate upon the matter covered by the said Act. Thus, the High Court, in
exercise of its powers under Section 92 of the Code of Civil Procedure could
not adjudicate upon the rights and liabilities of the parties with regard to
payment of gratuity. (Para 9) Surendra
Vikram Singh Agarwala v. Kanhaya Lal Agarwalla. [1999]
Section
1(3)(b) Municipalities Act, 1916Notification dated January 23, 1982 Municipal Board,
by virtue of provision of Municipal Act, itself is an establishment Provisions
of Gratuity Act also applicable as also Notification dated January 23, 1982.
Held: The Municipal Board, Pilkhua, by
virtue of the provisions contained in the Municipalities Act, 1916 itself is an
establishment and to term it an establishment it is not necessary to search
provisions in any other enactment. It is true that the Municipal Board may not
be a commercial establishment but it is an establishment under the provisions
of the Municipalities Act itself and the provisions of the Payment of Gratuity
Act, 1972 could be applicable under Section 1(3)(b) of the Act. Moreover, the
Notification, dated January 23, 1992 issued by the Central Government, in
exercise of its powers under Section 1(3)(c) has said that all local bodies,
which will obviously include the Municipal Boards, shall be governed by the Act
if they employ 10 or more persons. (Para 2)
As the provisions of Section 1(3)(b) are
comprehensive, it may include even the provisions of the Act under which the
Municipal Board has been constituted for ascertaining whether it is an
establishment or not. (Para 3) Municipal
Board, Pilkhua, Ghaziabad v. Union of India. [1999]
Sections
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.
Bagi Beedi
Factory v. Appellate Authority. [1999]
Sections
2, 4 and 7 Gratuity Entitlement to Continuous or seasonal employment It is for
employer to prove Burden of proof is on employer Finding of fact recorded Even
if there is a contract to the contrary, that will not debar employee from
claim.
Held: For the purpose of payment of
gratuity whether an employee is entitled to it, whether he is in continuous
service or whether he is a seasonal employee are all matters on which the
burden of proof is on the employer.
Even if there is a contract to the
contrary, that would not debar the employee from claiming gratuity. In this
case the existence of a contract, to the contrary, is found to be incorrect.
The employees would therefore be entitled to payment of gratuity. (Para 10) Co operative Cane Development Union Ltd.,
Daurala, Meerut v. Nahar Singh. [1999]
Section
2(a) and proviso to 4 Person employed on monthly basis Entitled to leave like
regular employee Period of leave to be included in computing period of service
If employer raised question as to period of service, he has to prove it Five
years period of service not insisted upon if termination is due to death.
This employer's writ petition challenged
an award of the Controlling Authority, and the Appellate Authority passed under
the Payment of Gratuity Act, 1972, in favour of a workman. The High Court
dismissed the petition.
Held: The High Court observed that the
period of service disputed by the petitioner should have included period of
leave, the workman having been employed on monthly basis. (Para 4)
Since the question was raised by the
employer it was its burden to prove the case. The employer had not discharged
it. (Para 5)
Five years continuous service as
specified in Section 2(a) of the Act, would not be insisted upon, if
termination was by reason of death, as per proviso to Section 4. (Para 6) General Manager, U.P. State Cement Corpn.
Ltd., Dalla v. Singari Devi. [1999]
Sections
2(a) and 4 Continuous service Strike in respondent Mill Petitioner could not
attend duty during strike period Is for no fault of his, His service is
continuous one Is entitled to gratuity.
Held: By the artificial definition of
"continuous service" in Section 2(a) of the Act, even an interrupted
service on account of strike or lockout without any fault on the part of the
employee is not treated as break in service and the employee is deemed to be in
service. The controlling authority cannot be said have erred in reaching the
finding that there was no break in the service of the employee and the employee
was able to establish that he was in continuous service. Ramachandra Ganpat Dalvi v. Phoenix Mills Ltd. [1999]
Section 2(e) Demand of gratuity by
teacher is neither employee nor workman He is not entitled to claim gratuity
under Act.
Ved Prakash
Pathak Nirala v. State of Bihar. [1999]
Sections
2(e) and 4 Constitution of India, 1950 Article 311 Employee of Government
Roadways Sent on deputation to Corporation Continued to be Government servant
and not became employee of Corporation Not an 66employee" as defined in
Section 2(e) Hence not entitled to gratuity as per Act.
Held: In the U.P.S.R.TC. v. State of
U.P., a Full Bench has held that the provisions of Article 311 of the
Constitution applied to an erstwhile employee of the U.P. Government Roadways
who was sent on deputation to the Corporation and who had not ceased to be a
Government servant. In view of this, it is obvious that the employee of the
U.P. Government, even after he went on deputation and prior to his final
absorption on August 28,1982 continued to be a Government servant and did not
become an employee of the Corporation. Since he was holding a civil post under
the State Government, he was not an "employee", as defined under
Section 2(e) and the provisions of Section 4 did not apply to him. He is
therefore not entitled to any gratuity under the Act as he was not covered by
the said Act. (Paras 6, 7) U.P. State
Road Transport Corporation v. Asst. Labour Commissioner, Gorakhpur. [1999]
Section
2(r) (as amended in 1984) Age of superannuation Where no age is prescribed it
shall be 58 years Amendment deleting age of superannuation Any one reaching age
of superannuation before can be superannuated.
Held: By virtue of the meaning assigned
to superannuation, the age of superannuation of an employee where no age is
fixed for superannuation will be 58 years. So after attaining the age of 58 years
no employee is entitled, as of right, to be in employment in any establishment.
However, Section 2(r) was amended in 1984 and superannuation of an employee at
the age of 58 was deleted. That amendment was prospective. Therefore, anybody,
who has reached the age of 58 years before the amendment came into force could
be superannuated. (Para 10) Sir J.P.
Srivastava Group of Industries v. State of U.P. [1999]
Section 2(s) Andhra Bank (Officers)
Service Regulations 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 Constitution of India,
1950 Articles 14 and 16.
Held: Whenever revised pay scales are
given with retrospective effect, it is open to Government or concerned
authority either not to pay or to pay in full or in part the arrears from the
date from which they were given retrospective effect till the date on .which
they are published. But once the arrears are given, in toto or in part, it
cannot be held that they were given ex gratia.
The notional pay has to be taken as the
basis for calculating the gratuity payable to the petitioners. The notional pay
has to be arrived at in terms of the proceedings No. PD/76/665(1)/1078, dated
May 30, 1983 of the Indian Banks' Association, Personnel Department, Bombay.
The notional pay from April 5, 1980 has to be taken as basis for the
calculation of the bank's contribution to the P.F. (Para 24) Veerabhadra Rao K. Ch. v. Government of India, Ministry
offinance, New Delhi. [1999]
Section 2 A Continuous service Service
before regularisation Not counted for payment of gratuity There is no authority
to exclude period for purpose of paying gratuity.
Held: No rules or regulations or
resolutions of the Board have been placed before the Court to show that the
period of five years service put in by the petitioner before his regularisation
shall not be counted for the purpose of payment of gratuity. (Para 8)
Petitioner is entitled to get gratuity for
the entire period of service of 10 years. (Para 9) Aggarwal B.L. v. Himachal Consultancy Organisation.
[1999]
Section
4 Employee of State Public sector undertaking Claiming gratuity on resignation
Controlling authority can order payment of gratuity only in terms of Act Any
other claim under the terms of service condition will have to be agitated
before the appropriate authority.
Held: Section 7 of the Act enables an
employee to approach the controlling authority by a person who is eligible for
payment of gratuity under this Act. The section can be invoked only for
determination of the amount towards gratuity. Under the Act, the petitioner is
entitled only to the rate as mentioned in Section 4(2). Gratuity payable under
the Act is limited to 15 days wages for every completed year and an employee
can claim gratuity from the employer if he is entitled for better terms in
accordance with any other better provisions of conditions of service. The
gratuity in terms of the Government order providing for one month's wages for
every year of completed service is not gratuity payable under the Act. Finding
to the extent that the petitioner be paid at the rate under the Act is
justified and is upheld. The finding that the Government order is not
applicable to the petitioner is set aside. That question is left open. The
petitioner is free to agitate his claim before the appropriate forum. (Paras 3,
4) Ayyappan v. Joint Labour
Commissioner. [1999]
Section
4 (as amended in 1994) Amendment enhancing maximum limit of gratuity to one
lakh of rupees, is only prospective Employee retiring before amendment held not
entitled to benefit under enhanced maximum limit.
Petitioner Co operative Bank assailed in
this petition an order of the controlling authority under the Payment of
Gratuity Act, 1972, holding the respondent entitled to benefit of gratuity,
maximum for which was raised from Rs. 50,000 to 1 lakh by an amendment to the
Act in 1994, under the amended provision, although he had retired much before
the amendment. The High Court allowed the petition.
Held: The High Court observed that a
(statutory) provision was to be treated as prospective (only) unless it was
expressly or by implication made to have retrospective operation.
The amendment in question in the present
case was held to be prospective in nature and hence would not be applicable to
a case like that of the respondent herein, who had already attained the age of
superannuation before the amended provision came into force. (Para 10) District Co operative Central Bank Ltd.,
Jabalpur v. Controlling Authority under Payment of Gratuity Act. [1999]
·
Section 4 Meaning of 'completed year of
service' It is reckonable from date of joining employment and cannot be
confused with calendar year In seasonal establishment employer has to pay
gratuity at rate of 7 days' wages for each season Workmen employed in seasonal
establishment of curing coffee were declared entitled to benefit of getting of
gratuity at rate of 7 days' wages for two seasons in a calendar year, first by
controlling authority under Payment of Gratuity Act, 1972, later by a Single
Judge and by a Division Bench of Karnataka High Court in writ appeals. Hence
present appeals which were, by a common order, allowed by Supreme Court.
Held: The Supreme Court observed that,
as per the second proviso to Section 4(2) of the Act, in the case of an
employee employed in a seasonal establishment, the employer has to pay gratuity
at the rate of 7 days' wages for each season. One has therefore to see the
number of seasons in each year of completed service of a workman, i.e., his
continuous service not regulated by the calendar year. (Para 8) Aspinwall & Co., Kulshekar, Mangalore v. Lalitha
Padugady. [1999]
Section 4(2) Explanation As amended in
1987 Employer bound by method specified in Explanation, calculating "15
days' wages" for purposes of gratuity.
Retired employees of respondent
Corporation challenged its action in calculating contrary to statutory explanation
(Explanation to Section 4(2) of the Payment of Gratuity Act, 1972). The High
Court allowed the writ petition.
Held: The High Court observed that since
the applicability of the Act as amended in 1987 adding the said Explanation,
was not in controversy, the respondent Corporation was bound by the method
specified in the Explanation. (Para 4) Sastry
V.S.N. v. A.P. State Warehousing Corporation. [1999]
Section 4(6)(b) Forfeiture of gratuity
Services terminated after an enquiry Employer empowered to forfeit gratuity
wholly or partly Forfeiture held justified in facts of case.
Held: The respondent herein was
dismissed from service for carrying 37 passengers without ticket and was
further found to have misbehaved with the checking staff. He has, therefore,
not rendered unblemished services and the provisions of Section 4(6)(b) of the
Payment of Gratuity Act empowered the employer to wholly or partly forfeit the
gratuity payable to such an employee. (Para 5)
The facts, held, there was justification
to forfeit the gratuity payable to the workman in the case. (Para 6) M. P. State Road Transport Corporation v.
Dy. Labour Commissioner, M.P., Indore. [1999]
Section 4(6)(b)(ii) Prevention of
Corruption Act, 1948 Indian Penal Code Special Judge convicting employee High
Court setting aside conviction Gratuity cannot be withheld.
Held: Following AIR 1961 Madras 486 held
as a result of the order of acquittal passed by the High Court, against the
order of conviction by the Special Judge, which does not have any existence in
the eye of law, the second respondent cannot be said to have committed any
offence involving moral turpitude and consequently the claim of the second
respondent for gratuity cannot be objected. (Para 11) Union of India v. Assistant Labour Commissioner
(Central), Patna. [1999]
Section 7(3 A) Delayed payment of
gratuity Writ petition not maintainable Act being a complete code, claims can
be made only under it Similarly, writ remedy not available to fix rate of
interest for delayed payment.
Balakrishna
V. v. G.M., MTH Division, H.M.T. Ltd., Hyderabad. [1999]
Section 7(7) Proviso Application for
condonation of delay, not heard Order passed without such hearing rejecting
condonation, not sustainable.
An employee of the second respondent
filed this writ petition challenging an order of the appellate authority under
the Payment of Gratuity Act, 1972 rejecting his appeal and the application for
condonation of the delay in filing the appeal. The High Court allowed the
petition.
Held: The High Court observed that the
appeal having been filed within the extended period of 60 days in addition to
the normal period of 60 days from date of receipt of order appealed against,
under the proviso to sub section (7) of Section 7 of the Gratuity Act with an
application for condonation of delay, the application deserved consideration by
the Appellate authority. Since it had not considered claim of the petitioner on
the question of condonation of delay, the impugned order was set aside and the
matter remitted back to the authority for fresh disposal. (Para 5) Palaniswamy L. v. Appellate Authority under Payment of
Gratuity Act, Coimbatore. [1999]
Section 10(l) 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 Industrial
Disputes Act, 1947Section 25 FF.
Madras
Aluminum Co., Salem v. Regional Labour Commissioner. [1999]
PAYMENT OF GRATUITY (AMENDMENT) ACT,
1994
Section
3 Right to receive gratuity on retirement is vested right and cannot be
affected by amendment made after retirement.
Appellant company challenged in this appeal
an order of single Judge allowing the respondent employees' writ petition. The
writ petition was filed by the respondents for getting the amount of gratuity
not paid to them by virtue of the ceiling of Rs. one lakh fixed in the Payment
of Gratuity Act, 1994 pursuant whereto the Standing Orders applicable to them
were accordingly amended. The High Court dismissed the appeal.
Held: The High Court observed that the
amendment could not take away with retrospective effect the accrued rights of
the respondents on the date of their retirement. (Para 10) Kerala Electrical & Allied Engineering Co. Ltd. v.
RaveendranPillai. [1999]
Claim
of workman for wages allowed exparte Employer shown to have evaded service of notice
Ex prate order not interfered with.
s
Held: This petition by an employer
impugning an ex parte order of the Authority under Payment of Wages Act, 1936
to pay the wages claimed by the workman, was dismissed as the High Court found
that the petitioner always evaded service of notice. (Paras 2, 3) Surat Ram Gagrani v. Authority under Payment of Wages
Act, Bhilwara. [1999]
Sections
1(4), 2(ii)(a) to (g) and 15(2) Last proviso Payment of Wages Act applicable to
Indian Statistical Institute When condonation of delay has been extended to
workmen, appeal Court cannot deny it Factories Act principles would be
applicable.
Held: The Payment of Wages Act is
applicable to the Indian Statistical Institute.(Para 7)
Condonation of delay has been done
already by the authority, we do not want to reverse that decision. (Para 6) Indian Statistical Institute v. State of
West Bengal. [1999]
Section
2(ii)(f) Meaning of 'industrial or other establishment' Workshop or
establishment where articles are inter alia adapted with a view to their use or
sale Food Corporation of India's primary duty to purchase, store and sell food
grains Held to be industrial establishment and Act applicable to it.
The Food Corporation of India challenged
in this writ petition an order of respondents 1 and 2, by which the Payment of
Wages Act, 1936 was held applicable to it. It contended that it was neither an
"industry nor other establishment" within the meaning of Section
29(ii)(f) of the Act. The High Court dismissed the writ petition.
Held: The High Court observed that the
term adapted" used in sub clause (f) of Section 2(ii) was very relevant.
The primary duty of the Corporation appeared to be to purchase, store,
transport and sell food grains and other foodstuffs. Hence it was covered by the
definition in Section 2(ii)(f) of the Act. (Para 13)
It was clear from a circular of 1977
that the Shops and Establishments Act was applicable to the corporation and on
this count too the Payment of Wages Act was held applicable to the petitioner
Corporation. (Para 12) Food Corporation
of India, Agra v. Special Judge, Distt. & Sessions Judge, Evam District.
[1999]
Sections 3 and 17 Code of Civil
Procedure, 1908 Section 115 Authority under Payment of Wages Act not a Civil
Court Held not subject to revisional jurisdiction of High Court However, order
passed by District Judge in an appeal under Act, is revisable by High Court.
Held: It is true that an authority
appointed under the Payment of Wages Act is not a Civil Court subject to the
revisional jurisdiction of the High Court under Section 115 of the C.P.C. and
orders passed by such authority cannot be disturbed, set aside or varied by the
High Court in exercise of its revisional jurisdiction. However, when an appeal
is preferred under the Act before a District Judge, the order passed by the
appellate Court cannot be equated with the order passed by the authority under
the Act. Section 115 of the C.P.C. empowers the High Court to call for records
of any case which has been decided by any Court subordinate to the High Court
and if such subordinate Court appears to have exercised its jurisdiction not
vested in it by law or to have failed to exercise a jurisdiction so vested, or
to have acted in the exercise of its jurisdiction illegally or with materail irregularity,
or to have caused failure of justice, the High Court may make such order as it
thinks fit. The District Court is admittedly a Court subordinate to the High
Court. Whether a person appointed is a persona designate or is a Court subject
to the jurisdiction of the High Court has to be decided by applying the tests
laid down in the Full Bench of this Court's decision in AIR 1971 J&K Page
76. (Para 4) Shankar Dass v. Shankar
Singh. [1999]
Section
7 Natural Justice Principles of Penalty imposed on employed persons Recovery
from wages of such employees Management bound to give notice In instant case
principles of natural justice complied with.
Held: Before any recovery of penalty
from the. wages of an employee, the management employer is bound to give prior
notice. The petitioner in this case submitted his explanation and after
considering it, the management concluded that recovery should be made from the
petitioners. The explanation was considered by the management and ultimately
they concluded that the recovery should be made from five of the employees,
including the petitioner. Therefore, the petitioner has been given an
opportunity before the proposed recovery of the amount, his objections were
considered and then only the impugned decision has been taken to recover the
amount at the rate of Rs. 150/ per month upto 142 instalments and the balance
of Rs. 61.45 in the 143rd installments, every month commencing from September
1986. This recovery, being within the limit of sub section (3) of Section 7 of the
Act, it is clearly legal and does not warrant interference. (Para 4) Mohd. Sultan v. A.P. Dairy Development Co
operative Federation Ltd. [1999]
Section 7(2)(b) Deduction from wages Can
be only pro rata for duration of absence from duty But not full day's wages, as
management had acquired in resumption of duty by employees.
Held: Staff members of the
respondent Bank's Erode Branch filed
this writ petition seeking to restrain the Bank from deducting full day's wages
for their absence from duty for about 15 minutes in the day. The High Court
held full day's wages could not be cut, as the Bank had acquiesced in
resumption of duty by the petitioners after their un authorised absence from
duty for 15 minutes in the day. However the conduct of petitioners deserved
punishment and so the Bank could deduct only pro rata wages for the duration of
the absence. (Paras 7 and 8) Sugunaraj
C. T v. Syndicate Bank. [1999]
Section 9(2)(b) Stoppage of work by employees
Great inconvenience caused to public Employees having undertaken to work in a
public utility, stopping work, without reasonable cause, amounts to
indiscipline Authority has right to impose punishment Penal wage cut upheld
even though provisions of Payment of Wages Act are not applicable to these
employees.
Divisional
Secretary, APSRTC National Mazdoor Union, Sangareddy v. APSRTC. [1999]
Section 15 Entitlement for back wages
Recovery proceedings Two orders of High Court On basis of one Magistrate ordering
closing of proceedings Held, it is not improper.
Held: The order of the learned
Magistrate appears to be legal as he was not supposed to interpret the orders
of two Division Benches. The remedies before the petitioner are that either to
file a review petition before the Division Bench or should file a special leave
petition so that the matter may finally be decided by a larger Bench. By saying
that the learned Magistrate has committed an illegality by closing the
proceedings in view of the Division Bench judgment which held the petitioner
not entitled to any amount, the petitioner does not get any benefit. The
Magistrate rightly closed the proceedings. (Para 7) Rain Singh v. Divisional Personnel Officer, Northern
Railway, Bikaner. [1999]
Section 15(2) Order of appellate
authority Will not be interfered with in exercise of power under Article 227 of
Constitution by meticulous examination of fact and evidence.
Petitioner employer challenged in this
under Article 227 of the Constitution an order of the appellate authority under
the Payment of Wages Act directing payment to third respondent, who has working
as Supervisor in the petitioner company, a sum of money on the finding that
there was revision in his pay. The High Court dismissed the petition.
Held : It was observed that the High
Court while exercising its power under Article 227 of the Constitution would
not enter meticulous examination of fact and appreciate evidence unless
(impugned) finding was shown to be perverse which was not the case in the
present impugned order. (Para 3) Durg
Transport Co. Pvt. Ltd., Durg v. Industrial Court, Raipur. [1999]
Sections 15(2) and 15(3) 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 riled within 12
months.
Held: The petitioners are all class III
employees and there is no provision in the rules for supply of uniforms etc.,
as in the case of Class IV employees, and as such they cannot claim supply of
uniform and shoes as of right. It is an amenity and the employer may continue
to provide this amenity or discontinue it at any point of time or even may not
at all provide it. (Para 6)
It is clearly mentioned in Section 15(2)
that an application can be filed within 12 months. Admittedly the claim herein
was delayed and barred by limitation. (Para 7) Gurbux Singh v. Executive Engineer, Ropar Division, Sirhind
Canal, Ropar. [1999]
Section
17 If appeal against original authority has been disposed of, aggrieved party
can maintain application under Articles 226 and 227 of Constitution of India.
Petitioner employee sought quashing of
orders of original and appellate authorities under Payment of Wages Act,
1936.The High Court while upholding the maintainability of the writ petition,
dismissed it.
Held: The High Court observed the
preliminary objection to the maintainability of the writ petition was without
substance. When the appeal under Section 17 of the Payment of Wages Act, had
been disposed of, it could not be said that the only remedy left for petitioner
was to invoke the High Court's jurisdiction under Section 115 of the Code of
Civil Procedure. Application under Articles 226 and 227 of the Constitution of
India was maintainable. (Para 6)
In the circumstances of the case, it was
apparent that as per order of the Supreme Court all disputes between petitioner
and respondents had been settled on the terms mentioned therein. Hence the
petitioner was not held entitled to the reliefs claimed. (Para 10) Sadha Ram Satnami v. State Of Bihar.
[1999]
Sections
406 & 409 Deposit of amount deducted from wages of employees, before
accused acquired knowledge of launching of prosecution, would not absolve him of
criminal liability Framing charges and holding joint trial for offence
committed beyond the period of one year, not justified.
Mukesh Kr.
Aggarwal, Prop. Mahalakshmi Industries, Khanna v. E.S.T Corporation,
Chandigarh. [1999]
·
Major penalty Reduction to lower Time
Scale or Lower Stage in Time Scale Penalty of reduction in basic pay by one
stage in Time Scale of Pay is Major Penalty Insurance Company was justified in
not promoting employees against whom departmental proceedings for major penalty
was started till enquiry was completed High Court should have corrected and
reviewed its earlier order which is based on wrong concession made by Counsel
appearing for Insurance Company that punishment imposed was minor and not major
General Insurance (Conduct, Discipline & Appeal) Rules, 1975 Rule 33.
Oriental
Insurance Co. Ltd. v. Gokulprasad Maniklal Agarwal. [1999]
1. Acts,
rules, schemes
(a)
Bihar Pension Rules
(b) Central
Civil Services (Pension) Rules, 1972
2. Cut
off date
3. Discrimination/Arbitrariness
4. Entitlement
to pension
5. Forfeiture
Of/cut in pension
6. Right
to pension
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.
Ram Prasad
v. State of Bihar. [1999]
(b) Central Civil Services (pension)
Rules, 1972
·
Rule 9 Grave misconduct Withholding of
pension Government officer posted abroad charged of unauthorised absence and
disobedience of Government order to join duty in India Also charged with lack
of devotion to duty and conduct unbecoming of Government servant Excuses given
for not joining duty in India untenable Disobedience of orders to join duty
found willful Conduct of officer premeditated as he had 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 9 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]
·
Pension Scheme Tamil Nadu Electricity
Board introducing cut off date for Pension Scheme w.e.f. July 1, 1986 after
getting exemption from Family Pension Scheme, 1971 and Employees' Deposit
Linked Insurance Scheme, 1976Employees who were originally Government servants
and were transferred to Electricity Board after it was established claimed benefit
of pension Delay in introducing Pension Scheme cannot be ground for granting
pension to employees who retired and received benefits under Contributory
Pension Scheme Such employees were not on roll of Electricity Board on July 1,
1986 Such employees who retired and received benefits under Contributory
Pension Scheme form separate class and those who were in employment on July 1,
1986 form separate class Both sets of employees cannot be treated alike Tamil
Nadu Electricity Board had given valid reasons for delay in introducing Pension
Scheme Electricity Board has not acted illegally in introducing Pension Scheme
prospectively from July 1, 1986 Employees who retired earlier cannot compel
Electricity Board to extend benefit of Pension Scheme with retrospective
effect.
Tandl Nadu
Electricity Board v. R. Veerasamy. [1999]
3.
DISCRIMINATION/ARBITRARINESS
·
Employees of Pune Municipal Corporation
Transport Undertaking Governed by P.F. Scheme In 1970, Pension Regulation
Scheme for employees of Transport Undertaking introduced effective from April
1, 1967 Modification made to scheme in 1975 and 1985 Municipal Corporation
extended modified scheme to its employees with effect from January 1, 1957 by
its resolution dated November 18, 1986 Applicability of Regulations to
employees of Transport undertaking who opted or governed by P.F. Scheme who
retired between January 1, 1957 and November 29, 1986High Court in writ
petition riled by employees of Transport Undertaking held that cut off date of
April 1, 1967 was arbitrary and directed Corporation to extend benefits of
modified scheme to employees who had retired after April 1, 1967 Supreme Court
held that P.F. scheme applicable to employees of Transport undertaking was
different from scheme of Municipal Corporation Hence they could not be extended
to employees of Transport Undertaking who retired before April 1, 1967 which
date was fixed under agreement Said date cannot therefore be termed 'arbitrary'
or violative of Article 14 of Constitution,
Constitution of India, 1950 Article 14.
Held: The employees of the Transport
undertaking are governed by different sets of rules. The nature of the work
done by them and other Municipal employees cannot be prima facie identical. The
transport employees were governed by P.F. Scheme and all the respondents had
drawn the benefits of the scheme. Therefore the scheme applied insofar as
pension is concerned to the employees of the Transport undertaking was entirely
different from that of the Municipal Corporation.(Para 4)
An agreement was entered into with the
employees of the Transport undertaking and the Corporation and the agreement
became effective from April 1, 1967. It cannot therefore be said that the
appellants have chosen the cut off date arbitrarily and is violative of Article
14 of the Constitution.(Para 5)
It is only for the first time in the
year 1970 that the Corporation framed pension Regulations for the employees of
the Transport Undertaking. Until then, there was no pension scheme. The said
scheme was modified from time to time and resolutions were passed by the
Municipal Corporation. Whenever it wanted to make it applicable specifically to
the employees of the transport undertaking the same was specifically mentioned.
When there was no such mention of the benefit of the scheme, it was not open to
the High Court to extend the benefit thereof from an anterior date to the
employees in question.(Para 6) Transport
Manager, Pune Municipal Corpn. Transport Undertaking v. Vasant Gopal Bhagwat
(dead) by Lrs. [1999]
·
Pension On compulsory retirement Pension
Rules Rule 22 Two conditions had to be fulfilled :i) completion of 20 years of
service and ii) must have reached age of 50 years Latter condition found not
fulfilled Claim for pension held not sustainable.
Appellant bank officer challenged in
this appeal an order of a single Judge (appeal against which was summarily
rejected by a Division Bench) holding the appellant not entitled to pension on
his compulsory retirement. The Supreme Court dismissed the appeal.
Held : The Supreme Court pointed out
that under the relevant rule, namely Rule 22(l)(a) of the Bank's Pension Rules,
two conditions had to be fulfilled for entitlement to pension, namely that at
the time of retirement age a member should have completed 20 years of service
and secondly reached age of 50 years. Even assuming that the Rule would cover
the case of compulsory retirement, the appellant could not get benefit of pension
as the second condition for its applicability was admittedly not satisfied. He
had no[ attained age of 50 years but fell short of it by six years.(Para 5) Naraindas Revachand Hamrajani v. Union of
India. [1999]
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 Central Civil Services (Extraordinary
Pension) Rules Schedule I A.
Union of
India v. Alen Varghese. [1999]
5.
FORFEITURE OF/CUT IN PENSION
Disciplinary proceedings taken while in
service can only culminate in an order for recovery from pension and cannot end
in any punishment.
Baskaran
Pillai v. Devaswonz Commissioner. [1999]
Pension Scheme Overriding nature of
provisions in special enactments Employer cannot substitute pension scheme for
Payment of Gratuity Act unless exempted by appropriate Government under
Sections of the Act Employee can have no right to claim benefit of pension
scheme as will as benefit under Gratuity Act.
Rajkot
Municipal Corporation v. Anirudh
Fulshankar Sizukla. [1999]
Casual and temporary employment for years
Denial of permanency despite existence of permanent work Is unfair labour
practice and also denial of right to life and livelihood with dignity
Continuance of badlis for years with a view to depriving them permanent status
is unfair labour practice.
G.S.R.T.C.
v. Workmen of State Transport Corporation. [1999]
First enquiry defective Complainant and
other witnesses not examined Ordering of second fresh enquiry by another
person, quashed Enquiry by person who conducted first enquiry directed to
proceed afresh with enquiry.
An U.D. Clerk in the Court of Special
Honorary Magistrate filed this writ appeal challenging an order of a single
Judge who upheld the order of the first respondent (Chief Judicial Magistrate,
Kozhikode) directing a second enquiry against the appellant for alleged
dereliction of duty by a person other than the one who held the first enquiry.
The High Court allowed the writ appeal but directed that the enquiry be
proceeded with by the same person who held the first enquiry.
Held: The High Court observed that the
settled legal position was that a second fresh enquiry could not be ordered
only because the first enquiry was concluded without examine certain important
witnesses. The proper cause would be to direct the Inquiring Authority (third
respondent, who conducted the first enquiry) to record further evidence and
submit a fresh report. (Para 9) Rajeswaran
v. ChiefJudicial Magistrate. [1999]
Service Jurisprudence Well settled
principle If irrelevant plea accepted it would destabilise continuity of
service of different employees and raking up old matters.
The Petitioner's grievance is that
respondent No. 3 illegally entered service by manipulating his date of birth
and he (respondent 3) should have retired on January 31, 1996 instead of on
January 31, 1999 and that he stands a fair chance for consideration of
promotion to the post which respondent No. 3 is illegally and without any
authority occupying. The Court dismissed the petition.
Held: The Court observed that it is well
settled principle of service jurisprudence that if irrelevant plea is accepted
it would be destabilising the continuity of service of different employees and
raking up the old matters. If this sort of writ petition is allowed plethora of
litigation will be filed by the employees that a particular person has entered
in service illegally and his appointment be declared as invalid and in that
case he would get benefit. Some persons will file litigation that some officers
have attained age of superannuation and they be debarred from service. (Para 9)
Gaya Prasad Srivastava v. High Court
of Judicature, Allahabad [1999]
PREVENTION OF CORRUPTION ACT, 1948
Indian
Penal Code Special Judge convicting employee High Court setting aside
conviction Gratuity cannot be withheld.
Union of
India v. Assistant Labour Commissioner (Central), Patna. [1999]
PREVENTION OF CORRUPTION ACT, 1988
Section
2(c)(iii) Disciplinary Action Government servant on deputation to autonomous
Body Action by whom in case of misconduct Government has power even outside service
regulations to take action if employee can be brought under Prevention of
Corruption Act, 1988 Section 2(c)(iii).
State of
Kerala v. Sugathakumar. [1999]
Canteens
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).
Indian
Overseas Bank Staff Canteen Workers' Union v. Indian Overseas Bank. [1999]
Not
all Directors, but any of them who was in ultimate control over affairs of
factory at relevant time would be treated as principal employer Employees'
State Insurance Act, 1948Sections 2(17), 85 and 85 A.
Ghouri
Adhikary (Smt.) v. Employees' State Insurance Corporation. [1999]
Only
persons responsible for supervision and control of establishment are 'principal
employers' Employees' State Insurance Act, 1948 Section 2(17)(iii).
Vidyasagar
Kejriwal v. Employees' State Insurance Corporation. [1999]
·
If contractor was mere name lender, who
procured labour for appellant Board, as broker, Board was not principal
employer So called contract was mere camouflage which concealed real
relationship of employer Employee.
Secretary,
Haryana State Electricity Board v. Suresh. [1999]
Probation Workman's services terminated
during probation on "disciplinary ground" Enquiry conducted before
Labour Court Finding not found to suffer from infirmity Impugned order held
justified.
In this petition a workman whose
services were terminated when he was on probation, challenged the Labour
Court's order for not granting him reinstatement but only lumpsum compensation.
The High Court dismissed the petition.
Held: The High Court observed that the
Labour Court had permitted the parties to lead evidence, as it was a case of
termination stated to be on "disciplinary ground". No infirmity was
found in the impugned order based on such evidence. (Para 10) Sudipta Nag v. Deputy Commissioner of Labour. [1999]
·
Probation Confirmation Appellant
appointed temporarily and thereafter, on selection by Service Commission,
appointed on regular basis After two years, terminated on ground of
unsatisfactory performance during probation No automatic confirmation Nor
material produced to show he was confirmed Termination order upheld.
Held: No material has been produced to
show that the appellant was confirmed after the completion of the period of
probation or that there was any provision in the relevant rules which conferred
automatic confirmation on completion of the two years probationary period. The
appellant could not, therefore, be treated as a confirmed employee. (Para 4) Dr. Amritlal Dharshibhai Aankaria v.
State of Gujarat. [1999]
Termination Probationer Appointment terms
providing for period of probation and/or extension thereof Termination does not
attract principles of natural justice Only where termination is by way; of
punishment requirement of natural justice becomes mandatory.
Union of
India v. Subhas Jha. [1999]
Discharge from Service Of probationer
During pendency of disciplinary proceedings initiated against probationer
Discharge appearing to be innocuous, really intended to punish him for
misconduct Held, discharge not sustainable in eye of law.
Madhav
Gopal Garg v. Bhilwara Ajmer Kshetriya Gramin Batik. [1999]
Contract Act, 1872 Section 23 No
violation of principle of public policy is involved by stipulation in terms of
appointment that services during probation could be terminated.
Jasmer
Singh v. Chandigarh State Co operative Batik Ltd. [1999]
Regional Rural Banks Act, 1976 Section
30Prathma Bank (Staff) Service Regulations, 1980Regulations 8 and 10
Probationer Termination of service Probationary officer appointed in Regional
Rural Bank terminated from service by giving three months pay in lieu of Notice
Statutory service regulations provide that initial probation for period of two
years extendable up to period not exceeding one year Appointment order issued
to employee providing for period of probation shall be deemed to extended
unless otherwise confirmation order was served Terms and conditions of
appointment and regulation should be read together Person appointed on
probation for specific period even if allowed to continue after expiry period
of probation does not acquire status of confirmed employee unless specific
orders made No greater right to confirmation if probationer is allowed to
continue beyond initial period of probation Exception to above rule is where
service rules prohibit extension of period of probation beyond certain fixed
period and employee is allowed to work beyond that maximum period of probation
Termination of service of probationer who was allowed to continue after expiry
of initial period of probation does not give status of confirmed officer
Employment in bank rests with clean conduct and trust Probationary officer
making illegal money cannot be trusted and confidence cannot be reposed
Decision taken by Appointed Authority not to retain such employee would be
round exercise of discretion and such decision cannot be interfered with in
writ proceedings.
Uniesh
Chand Bhilawar v. State of U. P. [1999]
PROBATION
OF OFFENDERS ACT, 1958
·
Section 12 Disqualification attaching to
conviction Dismissal of Government servant from service by reason of conviction
under Section 408 of IPC Conviction for offence can be taken into account for
purpose of dismissal of person convicted from Government Service Section 12 of
Probation of Offenders Act only in respect of disqualification that goes with
conviction under law which provides for offence and its punishment.
The Appellant was dismissed from
Government Service by reason of his conviction for offence under Section 408 of
the Indian Penal Code. On Appeal, the Sessions Court upheld the conviction and
set aside the sentence of rigorous imprisonment for a term of 2 years and
payment of a fine of Rs. 1000/ but released on probation under Section 12 of
the Probation of Offenders Act, 1958 on his entering a bond for good conduct. A
Writ Petition was filed challenging the dismissal and the same was summarily
dismissed. Hence the Civil Appeal by Special Leave.
Held: Section 12 of Probation of
Offenders Act, 1958, would apply only in respect of disqualification that goes
with a conviction under the law which provides for the offence and its
punishment. That is the plain meaning of the words "Disqualification, if
any, attaching to a conviction of an offence under such law" therein.
Where the law that provides for an offence and its punishment also stipulates a
disqualification, a person convicted of the offence but released on probation
does not by reason of Section 12 suffer the disqualification. It cannot be held
that, by reason of Section 12, a conviction for an offence should not be taken
into account for the purpose of dismissal of the person convicted from
Government service. (Para 7) Harichand
v. Director of School Education. [1999]
PROMISSORY ESTOPPEL
Constitution
of India, 1950 Article 300 Land acquisition Employment to a member of the
family Sustaining loss of homestead or irrigated land Principles of legitimate
expectation and promissory estoppel Applicability Guidelines for rehabilitation
of displaced persons due to SECL Projects at Sambalpur Person retaining
property but migrating to another part of State or Country for reason of
marriage cannot be construed as he/she losing advantage conferred by said
guidelines.
Petitioner lady was denied benefit due
to her under guidelines of the State for rehabilitation of displaced persons
due to SECL Projects at Sambalpur and Dhenkanal district. She therefore filed
the present writ petition seeking direction to the opposite parties to provide
a job to the petitioner's son in the context of acquisition of her land under
the aforesaid projects. The High Court disposed of the writ petition by giving
directions.
Held: The High Court observed that if a
person lawfully retained his or her property but for reasons of marriage,
service and the like, migrated to another part of the State or Country, it
could never be construed that he or she lost the right to get the advantage due
on acquisition of the property conferred under the guidelines therefor. (Para
7)
The petitioner was declared entitled to
have the relief sought subject to availability of employment under the said
guidelines. (Para 7) Arna Sahu v.
General Manager. (Talcher Area) Mahanadi Coal Fields Ltd. [1999]