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Thursday, January 11, 2018

Effective Letter To IBA On Pension

ALL INDIA BANK RETIREES’ FEDERATION (Regd.)

Ref:2018/006                                                                Date 09.01.2018

   To     
   The Chairman
   Indian Banks’ Association
   Mumbai

   Sir
Re: Implementation of Para 12 of 1993 settlement on   
     Pension  Scheme   .

   We wish to invite your kind attention on Para 12 of Memorandum of Settlement dated 29.10.1993 introducing pension scheme in the banking industry which reads as under:

Provisions will be made by a scheme, to be negotiated and settled between the parties of this settlement by 31st December, 1993 for applicability, qualifying service, amounts of pension, payment of pension, commutation of pension, family pension, updating and other general conditions etc. on the lines as are in force in Reserve Bank of India.”

2.As per the above, it is obligatory on the part of the parties to the settlement to make suitable provisions  on various issues of the pension including on Updation aspect in the final scheme to be adopted and implemented. First part of Para 12 “ Provisions will be made by a scheme” and its last part “on the lines as are in force in Reserve Bank of India” are of mandatory nature with no discretion to the parties to the settlement to drop any one aspect covered in Para 12 of the settlement. As per the above, it is necessary to make suitable provisions for Updation on the lines of RBI and modalities of the scheme can be negotiated and finalised.

3. But we find that suitable provisions for Updation of pension have still not been finalised through negotiation as provided in Para 12 0f 1993 settlement even after lapse of considerable period of 22 years.

4. In this regard we also wish to invite your kind attention on Judgement of Punjab & Haryana High Court dated 16.04.2012 on Civil Writ Petitions filed by some retirees on the issue of Updation of pension. While delivering the judgement, Honourable High Court judge has mad the following observations in Para 10 & 11 which are reproduced below:

10. “It is set out through the written statement itself that the decision was communicated in the year 2005, but the writ petitions came to be filed more than 3 years in CWP No.6233 of 2008 and more than 5 years later in the batch of writ petitions in CWP No.12211 of 2010. No explanation has been given in the petitions as to why the petitioners had not immediately approached this Court. I am merely stating this in the passing that the petitioners could not have come to the High Court for enforcement under Article 226 when they could have only pressed for better rights through negotiations in the manner that the settlement talks provided. It would be open for the petitioners to make the demands for parity if they are so advised and use their bargaining skills through their associations and press for the reliefs though the mechanism provided under the



Industrial Disputes Act. There existed no vested right now for the petitioners to claim the benefits in the manner sought.

11. All the writ petitions are consequently dismissed, however, subject to the above observations.”

6.In this regard, we also draw your attention on  your  circular No. HR&IR/KU/2015-16/G2/506 dated 17.10.2015 addressed to member banks on the subject.

5.The Honorable court has observed that petitioners can press for better rights on the issue through negotiation  as provided in the settlement and the mechanism provided under Industrial Dispute Act. In Para 11 of the judgment, it is stated that disposal of  writ petitions are subject of the above observations.

6. All India Bank Retirees’ Federation (AIBRF) represents more than 1.70 lakhs retirees who are members of the pension scheme as formulated as per provisions of 1993 settlement. As you are aware, AIBRF is body registered under Trade Union Act. AIBRF and its 1.70 lakh members feel aggrieved and concern for inordinate delay in formulating provisions of Updation as provided in Para 12 of the settlement of 1993 signed and filed under provisions of Industrial Dispute Act and is legally enforceable.

2. We therefore demand that discussion should be held with AIBRF for negotiation and finalizing provisions of Updation scheme as provided in Para 12 of 1993 and as per the observations/ directions of Honorable Punjab & Haryana High Court.

    With Regards    
 
                                                                      Yours Sincerely,
                                                           
                                                                   


                                                                      ( S.C.JAIN)
                                                               GENERAL SECRETARY

C.C.to:-

The Deputy Labour Commissioner (Central), Mumbai.




                                                

Important Legal Decisions

COMPASSIONATE APPOINTMENT

           Lapse of Time – Father of Petitioner/Road worker died while in service – Application for compassionate appointment of Petitioner after death of his father, rejected after lapse of ten years, hence present petition – Whether order rejecting Petitioner’s application for compassionate appointment, justified – Held, State justified in directing that no claim for compassionate appointment should be entertained beyond reasonable period – If family of deceased civil servant can survive for long period entirely on their own, it presupposes that surviving members have wherewithal to survive notwithstanding departure of breadwinner – Compassionate grounds cannot be made after long years have gone by from date of death of civil servant – Time limit prescribed for entertaining claims for compassionate appointment should not be kept open for more than two decades – Attempt to entertain such claim would convert scheme of making compassionate appointments into different form of hereditary employment – Petition dismissed. [A. Selvam v. Government of Tamil Nadu]


(S.M. SUBRAMANIAM, J.)
2017-IV-LLJ-225 (Mad)
LNINDORD 2017 MAD 4507

DISMISSAL FROM SERVICE



             Misconduct – TPE (CCA) Regulation, 1979, Rule 15 – Central Civil Services (Classification Control and Appeal) Rule, 1965 (Rule 1965), Rule 19 – Constitution of India, 1950, Article 20 – Petitioner/employee convicted in criminal case for murder and committed to life imprisonment – In exercise of powers by Regulations 15(i) of Regulation 1979 and Rule 19(i) of Rules 1965, 2nd Respondent/employer removed Petitioner from service – Aggrieved, Petitioner filed writ petition – Whether order of 2nd Respondent removing Petitioner from service, sustainable – Held regarding magnitude of proved misconduct, Petitioner deserves punishment of removal from service – Conduct of Petitioner which led to conviction made his employer think that it was undesirable to retain him in service – Charge against Petitioner in criminal case is grave misconduct and not desirable to keep him in service in public interest – Departmental proceeding is not prosecution within meaning of Article 20(2) of Constitution – It is open to Respondent to remove employee from service on basis of conviction of such employee by Criminal Court – Service Rules applicable to Petitioner confers power of 2nd Respondent to dismiss or remove employee from service, if he is convicted for murder – No question of applying principles of double jeopardy in present case – Petition dismissed. [V. Palanisamy v. Chairman]


(S.S. SUNDER, J.)
2017-IV-LLJ-21 (Mad)
LNINDORD 2017 BMM 3492

INDUSTRIAL DISPUTE


             Employer-Employee Relationship – Maintainability of Reference – Petitioner is principal employer – 2nd Respondent is Trade Union, whose members are contract employees deployed by 3rd Respondent/society – Employees petitioned to be treated at par with regular employees – Government referred issue for adjudication and Tribunal by order, gave preliminary finding that there exists industrial dispute, justifying reference – Petition filed challenging maintainability of reference – Whether order of Tribunal on preliminary issue valid – Held, Tribunal not decided preliminary issue on basis of statements filed subsequent to reference and also not decided whether contract is genuine – Central Government to form opinion, whether there is dispute even in relation to existence of employer and employee relationship – Tribunal, to decide as to whether there exists dispute regarding existence of employer-employee relationship between Petitioner and 2nd Respondent at time of seeking reference before Government and also to go into issue whether 2nd Respondent can be permitted to raise such important issue for first time before Tribunal – Central Government Industrial Tribunal failed to consider issues which are relevant and important to decide preliminary issue – Impugned order set aside – Matter remitted to Central Government Industrial Tribunal to decide preliminary issue – Petition allowed. [Executive Director, B.H.E.L. v. Central Government Industrial Tribunal]


(S.S. SUNDAR, J.)
2017-IV-LLJ-233 (Mad)
LNINDORD 2017 BMM 4305



REINSTATEMENT


           Illegal Termination – Apprentice – Industrial Disputes Act, 1947 (Act 1947), Section 25F – U.P. Industrial Disputes Act, 1947 (UP Act 1947), Section 6N – Appellants engaged as apprentice under Respondent and underwent training for term – Respondent terminated contracts of Appellants after term was over – On industrial dispute raised, Labour Court held termination to be illegal and ordered reinstatement with back pay – On petition filed by Respondent, High Court, placing reliance on Apex Court’s decision, allowed petition – Whether High Court right in setting aside awards by which Labour Court held that termination of Appellants illegal and directed their reinstatement Held, unfortunate that Labour Court did not take note of law laid down in earlier decision of present Court case and wrongly set aside termination orders – Court earlier held that as per terms and conditions of appointment as apprentice in designated trade, Apprentice cannot be declared to be worker – Apprentice cannot claim benefit of Section 25F of Act 1947 or Section 6N of UP Act 1947 – Reasoning and conclusion arrived at by High Court concurred – Impugned judgment upheld – Appeals dismissed. [Ram Gopal Dwivedi v. Kanpur Electricity Supply Co. Ltd.]


(ABHAY MANOHAR SAPRE, J.)
2017-IV-LLJ-147 (SC)
LNIND 2017 SC 358
WAGES

            Minimum Wages – Maintainability of Petition – Minimum Wages Act, 1948 (Act 1948) -  Industrial Disputes Act, 1947 (Act 1947) – Contract Labour (Regulation and Abolition) Act, 1970 (Act 1970) – Constitution of India, 1950 (Constitution), Article 226 – Applications preferred by Petitioner/Union seeking directions against Respondents to ensure that minimum wages prevalent in State paid to Petitioners – Whether direction can be issued against Respondents to pay minimum wages to Petitioners – Whether petitions are maintainable – Held, without impleading other contractors with whom Petitioners allegedly worked, it is difficult to ascertain as to whether Petitioners worked with said contractors – Petitions are not only bad for non-joinder of necessary parties, it also lacks incorporation of basic facts – Without exhausting alternative efficacious remedies available under Act 1947, Act 1970 and Act 1948, Petitioners could not have invoked extraordinary jurisdiction under Article 226 of Constitution, particularly when petitions involve disputed questions of facts – Not disputed that Petitioners never raised objection or made complaint before Authority or even before Respondent Board with regard to violation of any of these statutes – It is for first time, Petitioners raised such grievance in present petition, which could not be entertained – Petitions dismissed. [PWD Employees Union Through President v. State of Gujrat]

(BELA M. TRIVEDI, J.)
2017-IV-LLJ-134 (Guj)
LNIND 2017 GUJ 1991


WORKMEN’S COMPENSATION


            Accident in course of Employment – Employees’ Compensation Act, 1923, Sections 3 and 22 – Appellants’ son/deceased/engineer assigned duty of promoting sales – Deceased left for field work on instruction and direction of employer and when he returned back, met with accident – Appellants filed application under Section 22 – Commissioner dismissed claim application – On appeal, High Court confirmed Commissioner order – Aggrieved, Appellants preferred present appeal – Whether Commissioner and High Court justified in deciding that  accident in question cannot be said to have arisen out of and in course of employment – Held, words ‘arising out of’ and ‘in course of employment’ are in fact two different phrases and understood as such – If accident occurred on account of risk which is incident of employment claim shall succeed, unless workman exposed himself to added peril by his own imprudent act – Phrase ‘in course of employment’ suggests that injury must be caused during currency of employment – But, expression ‘out of employment’ conveys idea that there must be causal connection between employment and injury caused to workman as result of accident – No material on record to show that deceased workman exposed himself to added peril by his own imprudent act – There is notional extension at both entry and exit by time and space – There may be some reasonable extension in both time and space – Workman may be regarded as in course of his employment even though he did not reach or left employer’s premises – Nature of employment made it necessary for deceased to be there and it needs to be held that accident took place in course of employment – Presence of deceased on road was incidental to his employment – His accidental death on way back after completing his work falls squarely within Section 3(1) – Appeal disposed of. [Daya Kishan Joshi v. Dynemech Systems Pvt. Ltd.]


(MOHAN M. SHANTANAGOUDAR, J.)
2017-IV-LLJ-168 (SC)
LNIND 2017 SC 386






CONTRACT LABOUR (REGULATION AND ABOLITION ACT, 1970 (37 OF 1970)


            Section 21 – Payment of Wages – Duty cast on Contractor and Employer – Eventhough Contractor is responsible for payment of Wages to each Worker employed by him as Contract Labour, Principal Employer is obliged to nominate a Representative duly authorized by him to be present at time of disbursement of

Wages by Contractor – Such Representative is required to certify amounts paid as  Wages – Duty is also cast upon Contractor to ensure disbursement of Wages in presence of Authorized Representative of Principal Employer – If Contractor fails to make payment of Wages within prescribed period or makes short payment, then Principal Employer is liable to make payment of Wages in full or unpaid balance due, as case may be, to Contract Labour employed by Contractor – Contravention of any of provisions regarding employment of Contract Labour attracts penal consequences and also revocation or suspension of Licence granted under said Act. PWD Employees’ Union v. State of Gujrat (Guj.)


            Section 21 – Primary object of Act is to stop exploitation of Contract Labourers by Contractors or Establishments – Act does not purport to abolish Contract Labour in its entirety, not to treat Employees of Contractor as Employees of Establishment – A duty is cast upon Principal Employer under Section 21 to ensure that Wages are paid to Workers employed by Contractor in manner prescribed under Act. PWD Employees’ Union v. State of Gujrat (Guj.)


(B.M. TRIVEDI, J.)
2017 (4) LLN 158

EVIDENCE ACT, 1872 (1 OF 1972)


            Sections 3 – Workmen’s Compensation Act, 1923 (8 of 1923), Section 30 – Appeal – Daily Allowance – Settled law that Daily Allowance would form part of Salary – Commissioner has rightly included same as part of Wages – No interference warranted. Oriential Insurance Co. Ltd. v. Md. Abdul Rahim (Gau.)


(KALYAN RAI SURANA, J.)
2017 (4) LLN 143

TERMINATION


            Reinstatement with full Wages vis-à-vis Lump sum Compensation – March of law – Once Termination held to be illegal, Court earlier used to automatically order Reinstatement with full Back Wages – Said view has been diluted by various Judgments of Apex Court wherein it was held that though award of Back Wages was Statutorily sanctioned, same was not inevitable appendage to Reinstatement – Interest of Management and Workman had to be kept in mind – This view of Apex Court swung from Theory of “Reinstatement with Back Wages’ to “Theory of Lump sum Compensation” which can be noted in Senior Superintendent Telegraph (Traffic) v. Santosh Kumar Seal, 2010 (6) SCC 773 – Said view has been consistently followed by Apex Court – Hence, merely because Petitioner’s  Termination was illegal, Reinstatement with Back Wages cannot be granted – But on facts of case, Award of Lump sum Compensation is clearly inadequate, particularly when Respondents have neither chosen to let in evidence or have chosen to challenge it or even appear before this Court – Hence, taking into account that Petitioners have been litigating for past 12 years, Compensation enhanced to Rs.75,000 – Writ Petition disposed of. Ashok Kumar v. Hindustan Vegetable Oil Co. (Del.)

(C. HARI SHANKAR, J.)
2017 (4) LLN 132

WORDS AND PHRASES
            “Damages” and “Penalty” – Different and distinct terms – Damages is a sum recoverable as amends for wrong by a process of law – Penalty is a liability composed as a punishment on party committing violation. Quilon District Automobile Workers’ Cooperative Society Ltd. v. Employees’ State Insurance Corporation  (DB) (Ker.)

(C.T. RAVI KUMAR, J.)
2017 (4) LLN 219























COMPASSIONATE APPOINTMENT
[[[[[[



            Delay – Application of Petitioner for compassionate appointment after 9 years of his father’s death was rejected, hence this petition – Whether Petitioner could take advantage of scheme introduced later – Held, scheme introduced nine years after death of Petitioner’s father – Application, in terms of scheme had to be made within six months from date of death of predecessor-in-interest – Scheme could not be applied to Petitioner, as she had not attained majority within six months after death of her father – Employers retain scheme only to help family tide over immediate financial crisis caused by sudden death of sole bread-earner – 14 years elapsed from date of death of Petitioner’s father – Unless Rule specifically mentioned, keeping name of minor heir on live roster merely because heir was minor was no reason for directing Court to consider case of such minor – Court could not confer benediction impelled by sympathetic considerations – Petition dismissed. [Tapast Pal State of West Bengal]


(DR. SAMBUDDHA CHAKRABARTI, J.)
2017-IV-LLJ-490 (Cal)
LNIND 2017 CAL 3244

            Delay – Scheme for compassionate appointment for Dependents of deceased employees introduced by Appellants/Bank Authorities – Application made by Respondent for compassionate appointment – Appellant introduced new Scheme of payment of ex-gratia lump sum amount in lieu of appointment on compassionate grounds and Respondent received letter that request for compassionate appointment cannot be considered in view of new Scheme – Petition filed by Respondent to quash said letter and to consider for compassionate appointment allowed – Aggrieved, Appellant filed appeal – Whether order of Court directing Appellant to consider application of compassionate appointment by Respondent, sustainable – Held, non-application of mind in consideration of Petitioner’s application for compassionate appointment – No plausible or valid reason stated by Appellant for delay of about four years to take decision on Petitioner’s application – Excepting introduction of New Scheme, no other reason stated for non-consideration of compassionate appointment of Respondent – Cause of action arose when old scheme was in force and Respondent cannot be faulted for delay – No infirmity in Single Judge order – Appeal dismissed. [Chief General Manager v. M. Santhosh]



(A.D. JAGADISH CHANDIRA, J.)
2017-IV-LLJ-442 (Mad)
LNIND 2017 MAD 2513

            Dependents – Constitution of India, 1950, Article 309 – 1st Petitioner’s son appointed on compassionate basis after death of his father and 1st Petitioner/mother granted no objection certificate – Son of 1st Petitioner died in accident – Claim of 1st Petitioner for grant of compassionate appointment under provisions of Clause 9.3.0 of National Coal Wage Agreement (NCWA) rejected by 7th Respondent on ground that mother does not come within definition of dependent, under provisions of Clause 9.3.0 of NCWA-IX, hence present petition – Whether order rejecting claim of 1st Petitioner for compassionate appointment, sustainable – Held, appointment on compassionate ground cannot be claimed as matter of right – Public appointment must be offered to person who is entitled thereof – All requirements subject to just exception must be made in terms of rules framed under proviso appended under Article 309 – No appointment can be made dehors constitutional scheme of making offer of public appointment – Mother does not fall within definition of dependents – No error committed by Respondents in refusing appointment on compassionate ground to 1st Petitioner – Petition dismissed. [Madhubala State v. Central Coalfields Ltd.]


(DR. S.N. PATHAK, J.)
2017-IV-LLJ-355 (Jhar)
LNIND 2017 JHAR 1047
            Rejection – Petitioner was minor at the time of death of his father, employed with Respondent – Application for compassionate appointment of Petitioner after attaining majority age rejected, hence present petition – Whether Petitioner entitled to appointment on compassionate grounds – Held, for entry into any service in state, minimum age is 18 years – No minor can be appointed to any service – One cannot make application for appointment to any post in service and no post can be kept vacant for him, till Applicant attains majority – Posts which fall vacant have to be filled up as per recruitment Rules – Employment Assistance on compassionate appointment, is only for suitable post, in service, in which, Employee/Government servant died in harness – It is not right, which can be exercised by minor on attainment of majority – Continuation of penury or indigent circumstances of family, alone is not factor to be considered by Department, while examining request of Applicant for appointment on compassionate grounds – Petition dismissed. [K. Mathiyalagan v. Director of Medical Education]


(S.M. SUBRAMANIAM, J.)
2017-IV-LLJ-300 (Mad)
LNINDORD 2017 MAD 2621
INDUSTRIAL DISPUTE


             Preliminary Order of Labour Court – Industrial Disputes Act (Act), Section 2A – Constitution of India, 1950 (Constitution), Article 227 – Dispute raised under Section 2(A) of Act by workman for termination on proved misconduct – Labour Court passed preliminary order, setting aside order of Enquiry Officer of Petitioner/Management – Present petition filed – Whether preliminary order of Labour Court setting aside order of Enquiry Officer, sustainable – Held, it is open to Petitioner to seek permission for conducting fresh enquiry or to proceed with proceedings before Labour Court, for justifying punishment based on proved misconduct – It is open to Petitioner to challenge final award passed by Labour Court under Article 227 of Constitution – Petitioner should be relegated to proceedings before Labour Court and await final award in pending petition before approaching this Court under Article 227 of Constitution – Petition dismissed. [State Bank of India v. Smt. Prasanna Kumari T.V.]


(A.K. JAYASANKARAN NAMBIAR, J.)
2017-IV-LLJ-423 (Ker)
LNIND 2017 KER 10813

MINIMUM WAGES


            Entitlement – Industrial Disputes Act, 1947 (Act 1947), Sections 33-C(1) and 33-C(2) – Minimum Wages Act, 1948 (Act 1948), Section 20 – Claim petitions filed by Employees / Drivers before 1st Respondent / Labour Court claiming Minimum wages – Petitioner / Management filed interlocutory application to decide as preliminary issue as to whether employees were contract employees receiving retainer salary or not – 1st Respondent dismissed application – Aggrieved, Petitioner filed petition – Whether application filed before Labour Court claiming Minimum Wages maintainable – Held, application claiming minimum wages not filed under Section 33-C(1) of Act 1947, but filed under Section 33-C(2) of Act 1947 – No time prescribed for filing petition before Labour Court under Section 33-C(2) of Act 1947 for computation of wages due to workers – After determination of amount, if amount not paid to employee, he could approach Labour Court under Section 33-C(1) of Act 1947 for recovery of amount for which period of one year fixed – Contention that period of one year limitation prescribed for maintaining application under Section 33-C(2) of Act 1947 rejected – Had Petitioner not disputed with regard to entitlement of minimum wages to employees, they could have approached Government under Section 33-C(1) of Act 1947 before Labour Court – As minimum wages disputed, only recourse was to Section 33-C(2) of Act1947 – Jurisdiction of Labour Court under Section 33-C(2) of Act 1947 should not be treated as excluded in view of Section 20 of Act 1948 – Act of employees in approaching Labour Court justified and their rights protected in terms of provisions – No reason to interfere with impugned order – Petition dismissed. [Management, Hari and Co. v. Presiding Officer]


(S. VAIDYANATHAN, J.)
2017-IV-LLJ-314 (Mad)
LNINDORD 2017 BMM 3755  








REINSTATEMENT


            Proportionality of Punishment – Industrial Disputes Act, 1947 – 2nd Respondent/Workman while being employed as driver with Appellant/Management, hit a young boy – In departmental enquiry, finding returned that workman was negligent, however, Management dismissed workman – On industrial dispute raised, Labour Court directed reinstatement with continuity of service, hence present petition by Management – Whether award of Labour Court for reinstatement sustainable – Held, after careful and critical analysis of domestic enquiry, Labour Court returned finding that enquiry officer, in domestic enquiry itself, stated that accident happened when the boy crossed road from right to left side – On this basis, Labour Court concluded that it could not be held that workman was only negligent – With regard to delay of six years, Labour Court held that there was no limitation under Act – Delay could not be put against workman – With regard to past service record of workman, no material placed either before Labour Court or before present Court by Management – No compelling ground to interfere with impugned award – Reinstatement subject to workman satisfying conditions necessary for discharging duties as driver of public passenger vehicle – Management shall pay last drawn wages as stated in interim order, order, from date of interim order to date on which workman would have attained superannuation – Petition disposed of. [Tamilnadu State Transport Corporation (Salem) Ltd. v. Presiding Officer]


(M. SUNDAR, J.)
2017-IV-LLJ-427 (Mad)
LNINDORD 2017 MAD 4720

COMPASSIONATE APPOINTMENT


           Divorcee Daughter – Entitlement to – Daughter of Employee-Mother totally dependent on Mother’s income after she got divorced – Divorcee Daughter nominated by Mother to receive all Service benefits – Post demise of Mother, daughter denied Compassionate Employment on ground that she was not an ‘unmarried daughter’ as required by relevant Rules – Married daughters not completely excluded from scheme of Compassionate Appointment, as widowed daughter/daughter-in-law included to be excluded from species of dependents, expression ‘daughter, who is a spinster’ would have been mentioned in relevant provisions, conveniently excluding Divorces Daughter – No such expression made in relevant provisions – Divorcee Daughter, held, post divorce completely severs ties her ex-husband and his family and becomes totally dependent on her parents again – Such Divorcee Daughter, held, entitle to Compassionate Appointment on demise of her Employee Mother – Order of General Manager rejecting claim of Divorcee Daughter, set aside – Divorcee Daughter, held. Entitled to Compassionate Appointment or Monetary Compensation – Appeal allowed – National Coal Wages Agreement-IV, Chapter IX, Para 9.3.3 – Service Law. Putul Rabidas v. Eastern Coalfields Ltd. (FB) (Cal.)

(DIPANKAR DATTA, J.)
2017 (4) LLN 323

DISMISSAL


            Workman dismissed from service for certain misconduct – Workman was served with Charge-sheet – Departmental Inquiry initiated – As Workman has not  submitted reply to Charge-sheet, charges were treated to be proved – However, no oral evidence was given to prove charge – Workman challenged Order of Dismissal – Initial burden is in Department to prove charge – In case of major penalty, Department must prove charges by oral evidence – No oral evidence recorded before passing impugned Order – Order of Punishment set aside – Industrial Disputes Act, 1947 (14 of 1947). Pramod Kumar Singh Sishodia v. State of U.P. (DB) (All.)


(SUDHIR AGARWAL & MUKHTAR AHMAD, JJ.)

2017 (4) LLN 299

INDUSTRIAL DISPUTES ACT, 1947 (14 OF 1947)


           Section 2-A – Jurisdiction of Industrial Tribunal – Individual Dispute vis-à-vis Industrial Dispute – From perusal of Ex.P5, it is very clear that dispute raised by Writ Petitioner was supported by Secretary of Trade Union – Merely because same is not found in Letterhead of Union, it cannot be said that espousal made was not properly made – Industrial Tribunal is creation of Statute, therefore it gets jurisdiction on basis of reference – Hence impugned Award of Tribunal refusing to entertain reference suffers from serious error of law and same is liable to be set aside – Writ Petition allowed – Tribunal directed to decide issue on merits and pass Award within six months. Chhabra K.L. v. Punjab National Bank (Del.)


(SUNIL GAUR, J.)
2017 (4) LLN 361  

SERVICE LAW


            Dismissal from Service due to Criminal proceedings – Subsequent acquittal in Criminal proceedings – Effect of – Reinstatement in service – Whether automatic – Dismissal Order challenged through Writ Petition by 1st Respondent – Subsequently, Writ Petition withdrawn and alternative remedy of Statutory Appeal filed – During pendency of Statutory Appeal, 1st Respondent acquitted from all Criminal charges – No specific Service Rules governing reinstatement after such dismissal and subsequent acquittal – Dismissal Order successfully challenged, not reached finality – Held, subsequent acquittal will have bearing on pending Dismissal, irrespective of Service Rules provisions. The Secretary, Virudhunagar Hindu Nadar’s Senthikunara Nadar College Committee, Virudhunagar v. Dr. K. Rajaram Pandian (DB) (Mad.)


(R. SUBBIAH, J.)
2017 (4) LLN 454



COMPASSIONATE APPOINTMENT


           Family Pension – Petitioner’s application for compassionate appointment after death of his father, rejected considering financial status of his family, hence present petition – Whether compassionate  ground could be denied to legal heir of  deceased employee whose family received terminal benefits and also getting family pension – Held, after death of Petitioner’s father, his family received certain amount as lump sum compensation and also monthly amount paid as family pension – Circulars laying down financial criteria were not in existence when Petitioner applied for compassionate appointment – Benefits accrued to family members like family pension or payment of terminal benefits could not be treated as substitute for providing employment assistance – Appointment on compassionate ground could not be denied to legal heir of deceased employee whose family received terminal benefits and also getting family pension – Impugned communication quashed and set aside – Petition allowed. [Chandrakant Kacharabhai Dantani v. State of Gujarat]


(A.S. SUPEHIA, J.)
2017-IV-LLJ-673 (Guj)
LNIND 2017 GUJ 3022  

DISCHARGE FROM SERVICE


           Misconduct – Proportionality of Punishment – Disciplinary Authority discharged workman from service for misconduct – On industrial dispute raised, Tribunal held workman guilty but directed reinstatement without back wages and withholding his two increments – Aggrieved, both employer/bank and workman filed petitions – Whether delinquency proved – Whether punishment of discharge from service disproportionate to delinquency proved – Held, workman volunteered that letter obtained from him on pretext that no action would be taken against him, if he gave in writing – Contents of letter fortified by voluntary deposit of amount by workman – Tribunal rightly observed that evidence although not sufficient to record conviction in criminal case, was sufficient to hold workman guilty in departmental enquiry – In order to avoid damage to reputation of bank and consequent erosion of public faith and confidence, bank may choose not to file police complaint, particularly when amount realized – On consideration of circumstance, nature of misconduct and delinquency proved, punishment of discharge not shockingly disproportionate – Impugned award, directing reinstatement set aside – Petition filed by bank allowed – Petition filed by workman dismissed. [State Bank of India v. Sanjay Nakul Morajkar]


(C.V. BHADANG, J.)
2017-IV-LLJ-642 (Bom)
LNIND 2017 GOA 473  

REGULARISATION OF SERVICE


            Condition – Petition filed by Petitioners/ Daily wage workers who worked for over 10 years continuously, claimed relief of absorption/regularization – Petitioners directed to file representation – Claim of Petitioners rejected by Collector, due to non-completion of 240 days in every year prior to certain date in regular five year, hence present petition – Whether Petitioners eligible for regularization, having worked continuously for more than 240 days up to certain date – Held, resolution relied upon by State duly considered, interpreted and explained by present Court in reported decision – State not disputed that Petitioners case falls within first category as explained by said decision and completed requisite period of work as mentioned in Annexure-B and F/1 of counter affidavits filed by Respondents – Cases of Petitioners covered by said decision – Petitioners worked for 240 days prior to certain date and fell in first category as explained in said decision – District Magistrate, directed to consider case of Petitioners in light of said judgment and Annexures to counter affidavit and supplementary counter affidavit – District Magistrate shall also have regard to provisions of Service Code in matter of grant of age relaxation to Petitioners and pass orders in  accordance with law – Petition allowed. [Ramdhyan Kushwaha v. State of Bihar]


(VIKASH JAIN, J.)
2017-IV-LLJ-598 (Pat)
LNIND 2017 PAT 1657


 

STRIKE


            Validity of – Industrial Disputes Act, 1947 (Act 1947), Sections 12(I), 22(a) and (d) – Constitution of India,1950 (Constitution), Articles 12 and 226 – Respondent/employees/Union demanded revision in their pay-scale in terms of recommendations of Pay Commission from State Transport Corporation/Employer – Corporation initiated conciliation proceedings under Section 12(I) of Act 1947 – Petitioners filed public interest litigation seeking declaration that strike by employees illegal and unconstitutional – Whether present Court empowered in its writ jurisdiction under Article 226 of Constitution, to hold that strike illegal when issue is sub judice before Court of competent jurisdiction – Held, action of Union resorting to strike on midnight of said date was in breach of Sections 22(I)(a) and (d) of Act 1947 – Facts disclose that because of strike, life of people in rural areas heavily disturbed and came to stand still – judicial notice can be taken of fact that private transport operators do not ply their buses on every route and no transport facilities available in interior parts of State except that of State Corporation – Judicial notice can be taken of fact that commuters, children, patients, handicapped persons and senior citizens are facing immense difficulties – Employees cannot claim that they can take society to ransom by going or strike – Even if there is injustice, they have to resort to machinery provided under statutory provisions for redressal of their grievance – Union suggested to participate in negotiations with high-powered Committee and arrive at amicable solution, but same was not accepted by Union – Corporation is State within meaning of Article 12 of Constitution and its employees stand on same footing as that of Government servants – Strike declared illegal recalled and directions issued. [Jayant Bhagwantrao Satam v. State of Maharashtra]


(SANDEEP K. SHINDE, J.)
2017-IV-LLJ-740 (Bom)
LNIND 2017 BOM 584

TERMINATION


            Validity of – Settlement – Industrial Disputes Act, 1947, Sections 12(3), 25-F and 33(I)(a) – Trade Union demanded regularization of services of 2nd Respondent/workmen in terms of settlement – Pending conciliation proceedings, services of workmen terminated without following due procedures – On industrial  disputes raised, Labour Court set aside termination and directed Management to reinstate workmen as casual employees and ordered to give preference while making regular appointment, hence present petitions by Management – Whether termination justified after entering into 12(3) settlement and in light of statutory provisions under Section 25-F and 33(I)(a) – Held, both Sections 25-F and 33(I)(a) not followed by Management while effecting termination of workmen – Workmen could not be retrenched  without notice, pay and other benefits, in terms of Section 25-F, if workmen continued work for more than 240 days in a calendar year – Existence of 12(3) settlement, its continuance and applicability not disputed by Management – Impugned awards, in so far as not directing Management to reinstate workmen in service in permanent post from date of completion of 240 days of service set aside – Transport Corporation directed to accord permanency to workmen – Petitions dismissed. [Mgmt., T.N.S.T.C. (Madurai) Ltd. v. Presiding Officer]


(DR. S. VIMALA, J.)
2017-IV-LLJ-688 (Mad)
LNINDORD 2017 BMM 5431

INDUSTRIAL DISPUTES ACT, 1947 (14 OF 1947)

           Sections 29 & 32 – Prosecution against Employer – Workman dismissed from service – Respondent ordered – Employer failed to implement Award – Workmen invoked Section 29 for prosecution of Employer – Employer pleaded guilty and paid fine – Workman filed Criminal Revision – Pending Revision, Workman filed Second Application to prosecute Employer – Grievance of Workman that Assistant Labour Commissioner is not appearing in Court to conduct proceeding, not warranted – Effect of entertaining Second Prosecution would amount to Double Jeoparty – During pendency of Revision, Workman cannot lay Second Prosecution particularly when propriety of First Order is under challenge – Writ Petition devoid of merits – Dismissed. Swapan Ghosh v. State of West Bengal (Cal.

(Dr. SAMBUDDHA CHAKRABARTI, J.)
2017 (4) LLN 591

          Section 36 – Lawyer – Whether can represent as Office-bearer of Union – Lawyer, who was Office-bearer at relevant time, held, has power to represent Trade Union of which he is a Member – Workman, who is not Member of Opposite Association, has no right to question authority of said Lawyer. Larsen & Toubro Ltd. v. Presiding Officer, Industrial Tribunal (DB) (Ori.)

(SUJIT NARAYAN PRASAD, J.)
2017 (4) LLN 793

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