Reinstatement

Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. while holding the reason assigned by the Director-General of Police (DGP) while rejecting the claim of the petitioner to review the order of his suspension bad in law, directed the DGP to reconsider the matter.

The petitioner had preferred this writ petition for quashing the order of the Director-General of Police, Government of Jharkhand, whereby, the revision application preferred against the order passed by the Inspector General of Police had been affirmed.

The petitioner, a Sub-Inspector was alleged to have shot his wife dead and was charged with offences under Section 302 of the Penal Code, 1860 and Section 27 of the Arms Act, 1959. Pursuant to which the petitioner was suspended from service and a show cause notice was issued. Meanwhile, the Trial Court convicted and sentenced the petitioner to undergo life imprisonment in the said case and accordingly, the inquiry report was submitted in the departmental proceeding.

The petitioner assailed the impugned order on the ground that in the departmental proceeding, inquiry report was submitted only on the ground that the petitioner had been convicted by the Trial Court and without adducing any evidence in the departmental proceeding, the inquiry report was submitted without giving him any opportunity, hence, the same was against the principle of natural justice. Moreover, the petitioner was acquitted by the High Court in an appeal against the judgment of the Trial Court.

On the contrary, the State argued that the departmental proceeding and criminal proceeding are two different subjects and parameters of both the proceedings are different. Merely on the ground that the petitioner had been acquitted in the criminal case by the High Court, the case of the petitioner could not be considered for reinstatement.

Noticeably, when the inquiry report was submitted in the departmental proceeding, the petitioner was being treated in Ranchi Institute of Neuro-Psychiatry & Allied Sciences (RINPAS), for mental illness (Schizophrenia), which was why reply to the show-cause had not been received. Considering the stand taken by the State that the Director General of Police had rejected the revision application of the petitioner after acquittal by the High Court, on the ground that the High Court had not directed for reinstatement of the petitioner in service while acquitting the petitioner, the Bench stated that,

“It is well known that the High Court while acquitting the petitioner has decided the criminal case only and the authority concerned has to consider the reinstatement of the petitioner in service while passing a reasoned order.”

From the inquiry report, it transpired that the petitioner was being treated in RINPAS and the inquiry report had been submitted only taking into consideration that the petitioner had been convicted by the Trial Court. Hence, the Bench held that the reason assigned by the Director General of Police while rejecting the claim of the petitioner did not sound good.

In the light of above, the impugned order was quashed and the matter was remitted to the Director General of Police to consider the case of the petitioner afresh and pass a reasoned order.  [Anil Kumar Singh v. State of Jharkhand, W.P. (S) No. 6342 of 2017, decided on 10-09-2020]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Mr. Diwakar Upadhyay, Advocate

For the Respondent-State: Mr. Rahul Kamlesh, A.C. to SC.-VI

Case BriefsSupreme Court

Supreme Court: In a case where an employee of the Rajasthan Rajya Vidyut Prasaran Nigam had suppressed the material facts of conviction in a case of trivial nature and penalty at the time of applying for the post, the bench of MR Shah* and AS Bopanna, JJ, has held that the reinstating such a person will be wholly untenable and unjustified as the question in such cases is of trust.

“The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment, i.e., while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case.”

Brief Facts

  • The respondent was appointed to the post of Technical Helper. The appointment of the respondent was subject to production of a character certification/verification report issued by the Superintendent of Police of the concerned District where he belongs.
  • On 5.8.2013, he was convicted by the Trial Court for the offences under Sections 341 and 323 IPC, however, given the benefit under the Probation of Offenders Act, 1958.
  • The respondent suppressed the material facts of conviction and penalty at the time of applying for the post in 2013 and also submitting a false declaration at the time of documents verification on 14.04.2015
  • While giving the benefit of Act 1958, the respondent-employee was ordered to be released on probation for good conduct.
  • Even subsequently such conviction of the respondent was confirmed, however, the Sessions Judge vide judgment dated 09.09.2015 granted the benefit of Section 12 of the Act 1958 to the respondent-employee which provides that a person shall not suffer disqualification attaching to the conviction.
  • On 06.05.2016, the respondent was terminated from the services for non-disclosure of material facts.

Some important judgments on employer’s right to terminate employee for non-disclosure of material facts

Secretary, Department of Home Secretary, A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746

When a candidate suppresses material information and/or gives false information, he cannot claim any right for appointment or continuance in service.

Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC 363

The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. It is further observed that the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information and in that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.

Daya Shankar Yadav v. Union of India, (2010) 14 SCC 103

An employee can be discharged from service or a prospective employee may be refused employment on the ground of … suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case).

Avtar Singh v. Union of India, (2016) 8 SCC 471

Even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate.

Ruling

The Court took note of the important fact that on the date of submitting an application and even at the time when declaration was filed on 14.04.2015, there was already an order of conviction against him. Even at the relevant time, the benefit of Section 12 of the Act 1958 was not granted to the respondent, which was given subsequently vide judgment of the Sessions Court dated 09.09.2015.

Further, from the judgment and order passed by the Sessions Court, it appeared that only submission on behalf of the respondent was with respect to granting the benefit of Section 12 of the Act 1958, hence, only with a view to get out of the disqualification of conviction, belatedly he preferred an appeal and obtained the order of granting the benefit of Section 12 of the Act 1958.

“Even otherwise, it is required to be noted that on getting the benefit of Section 12 of the Act 1958 subsequently by that itself the respondent 12 cannot get away of the allegations of suppression of material fact and filing a false declaration that neither any criminal case is pending against him nor he has been convicted by any court of law, which was filed on 14.04.2015.”

The Court held that if the correct facts would have been disclosed, the employer might not have appointed him. The question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee.

“The choice/option whether to continue or not to continue such an employee always must be given to the employer. (…) such an employee cannot claim the appointment and/or continue to be in service as a matter of right.”

The Court, hence, held that, both, the Division Bench as well as the Single Judge have clearly erred in quashing and setting aside the order of termination terminating the services of the respondent on the ground of having obtained an appointment by suppressing material fact and filing a false declaration. The order of reinstatement is wholly untenable and unjustified.

[Rajasthan Rajya Vidyut Prasaran Nigam Limited v. Anil Kanwariya, 2021 SCC OnLine SC 739, decided on 17.09.2021]

______________________________________________________________

Counsels:

Senior Advocate Dr. Manish Singhvi, for appellants

Advocate Navin Prakash, for respondent-employee

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: The bench of R. Subhash Reddy* and Sanjiv Khanna, JJ has held that reinstatement with full back wages is not automatic in every case, where termination/dismissal is found to be not in accordance with procedure prescribed under law.

The ruling came in the matter where,

  • A Clerk-cum-Cashier was dismissed by the Allahabad Bank, alleging his involvement in the incident relating to burning of relevant Bank records.
  • The respondent was appointed in the Bank as Clerk–cum– Cashier on 23.09.1985 and he was placed under suspension on 13.02.1989 and dismissed from service vide Order dated 22.08.1991.
  • The Industrial Tribunal–cum–Labour Court found that though there was a strong suspicion, but there was no sufficient evidence to prove his misconduct to dismiss from service. However, on the ground that a case is made out by the management of loss of confidence, ordered payment of compensation of Rs.30,000/- in lieu of reinstatement.
  • The respondent, aggrieved by the award of the Industrial Tribunal–cum–Labour Court, seeking reinstatement with back wages, carried the matter to the High Court wherein it was held that suspicion, however, high may be, can under no circumstances be held a substitute to legal proof. The High Court, hence, directed reinstatement with all consequential benefits.
  • The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings, the respondent – workman had attained age of superannuation.

Considering the aforementioned facts and circumstances, the Supreme Court held,

“Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court.”

Noticing that reinstatement with full back wages is not automatic in every case, where termination / dismissal is found to be not in accordance with procedure prescribed under law, the Court held that in the present case, the ends of justice would be met by awarding lump sum monetary compensation. It, hence, directed payment of lump sum compensation of Rs.15 lakhs to the respondent, within a period of eight weeks, failing which, the respondent will be entitled for interest @ 6% per annum, till payment.

[Allahabad Bank v. Krishan Pal Singh, 2021 SCC OnLine SC 751, decided on 20.09.2021]

______________________________________________

Appearances before the Court:

For Bank: Advocate Rajesh Kumar Gautam

For Respondent: Advocate Rakesh Taneja

*Judgment by: Justice R. Subhash Reddy

Know Thy Judge| Justice R. Subhash Reddy

Case BriefsSupreme Court

Supreme Court: In a long awaited verdict in the Tata-Mistry Row, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has upheld the removal of Cyrus Mistry as Chairman by the Tata Sons and has also answered all questions in favour of Tata Sons. The Court said that NCLAT has, by reinstating Mistry without any pleading or prayer, “has forced upon the appellant an Executive Chairman, who now is unable to support his own reinstatement.” 

The Court said,

“The relief of reinstatement granted by the Tribunal, was too big a pill even for the complainant companies, and perhaps Cyrus Mistry, to swallow.”

The dispute

From 25.06.1980 to 15.12.2004 Shri Pallonji S. Mistry, the father of Cyrus Pallonji Mistry was a Non-Executive Director on the Board of Tata Sons. On 10.08.2006 Cyrus Mistry was appointed as a Non¬Executive Director on the Board and by a Resolution of the Board of Directors of Tata Sons dated 16.03.2012, Mistry was appointed as Executive Deputy Chairman for a period of five years from 01.04.2012 to 31.03.2017, subject however to the approval of the shareholders at a General Meeting.

He was then redesignated as the Executive Chairman with effect from 29.12.2012, even while designating Ratan Tata as Chairman Emeritus.

On 24.10.2016, the Board of Directors of Tata Sons replaced Mistry with Ratan Tata as the interim NonExecutive Chairman. It is relevant to note that Mistry was replaced only from the post of Executive Chairman and it was left to his choice to continue or not, as Non¬Executive Director of Tata Sons.

As a follow up, certain things happened and by separate Resolutions passed at the meetings of the shareholders of Tata Industries Limited, Tata Consultancy Service  Limited and  Tata Teleservices Limited, Mistry was removed from Directorship of those companies.

Mistry then resigned from the Directorship of a few other operating companies such as the Indian Hotels Company Limited, Tata Steel Limited, Tata Motors Limited, Tata Chemicals Limited and Tata Power Company Limited, after coming to know of the impending resolutions to remove him from Directorship.

Thereafter, 2 companies by name, Cyrus Investments Private Limited and Sterling Investment Corporation Private Limited, in which CPM holds a controlling interest, filed a company petition before the National Company Law Tribunal under Sections 241 and 242 read with 244 of the Companies Act, 2013, on the grounds of unfair prejudice, oppression and mismanagement.

NCLT on Mistry’s removal

  • The removal of CPM as Executive Chairman of Tata Sons on 24.10.2016 and his removal as   Director on 06.02.2017, were on account of trust deficit and there was no question of a Selection Committee going into the issue of his removal. n
  • There was no material to hold that CPM was removed on account of purported legacy issues. CPM created a situation where he is not accountable either to the majority shareholders or to the Trust nominee Directors and hence his removal.
  • The letter dated 25.10.2016 issued by CPM could not have been leaked to the media by anyone other than CPM and hence his removal from Directorship on 06.02.2017 became inevitable.

NCLAT on Mistry’s removal

  • Ratan Tata was determined to remove Mistry even prior to the meeting of the board and the majority shareholders of Tata Trust knew that there was a requirement of advance notice before the removal.
  • There is nothing on the record to suggest that the Board of Directors or any of the trusts, namely— Sir Dorabji Tata Trust or the Sir Ratan Tata Trust at any time expressed displeasure about the performance of Mistry.
  • The record suggests that the removal of CPM had nothing to do with any lack of performance. On the other hand, the material on record shows that the Company under the leadership of Mistry performed well which was praised by the ‘Nomination and Remuneration Committee’ a Statutory Committee under Section 178, on 28th June, 2016 i.e. just few months before he was removed.

Supreme Court on NCLT and NCLAT’s approach

NCLT dealt with every one of the allegations of oppression and mismanagement and recorded reasoned findings. But NCLAT, despite being a final court of facts, did not deal with the allegations one by one nor did the NCLAT render any opinion on the correctness or otherwise of 64 the findings recorded by NCLT. Instead, the NCLAT summarised in one paragraph, its conclusion on some of the allegations, without any kind of reasoning.

“The allegations relating to (i) over priced and bleeding Corus acquisition (ii) doomed Nano car project (iii) undue favours to Siva and Sterling (iv) loan by Kalimati to Siva (v) sale of flat to Mehli Mistry (vi) the unjust enrichment of the companies controlled by Mehli Mistry (vii) the Aviation industry misadventures (viii) losses due to purchase of the shares of Tata Motors etc., were not individually dealt with by NCLAT, though NCLT had addressed each one of these issues and recorded findings in favour of Tata Sons. Therefore, there is no escape from the conclusion that NCLAT did  not expressly overturn the findings of facts recorded by NCLT, on these  allegations.”

Supreme Court on NCLAT’s decision to reinstate Mistry

Sections 241 and 242 of the Companies Act, 2013 do not specifically confer the power of reinstatement, nor is there any scope for holding that such a power to reinstate can be implied or inferred from any of the powers specifically conferred.

The following words at the end of sub¬section (1) of 242 “the Tribunal may, with a view to bringing to an end the matters complained of, make such order as it thinks fit” cannot be interpreted a conferring on the Tribunal any implied power of directing reinstatement of a director or other officer of the company who has been removed from such office.

“These words can only be interpreted to mean as conferring the power to make such order as the Tribunal thinks fit, where the power to make such an order is not specifically conferred but is found necessary to remove any doubts and give effect to an order for which the power is specifically conferred.”

Hence, the architecture of Sections 241 and 242 does not permit the Tribunal to read into the Sections, a power to make an order (for reinstatement) which is barred by law vide Section 14 of the Specific Relief Act, 1963 with or without the amendment in 2018.

Further, NCLAT appears to have granted the relief of reinstatement gratis without any foundation in pleadings, without any prayer and without any basis in law, thereby forcing upon the appellant an Executive Chairman, who now is unable to support his own reinstatement.

Not just this, but NCLAT has gone to the extent of reinstating Mistry not only on the Board of Tata Sons, but also on the Board of Tata group companies, without they being parties, without there being any complaint against those companies under section 241 and without there being any prayer against them. These companies have followed the procedure prescribed by Statute and the Articles and they have validly passed resolutions for his removal.

For instance, TCS granted an opportunity to CPM and held a general meeting in which 93.11% of the shareholders, including public institutions who hold 57.46% of shares supported the resolution. In any case CPM’s tenure itself was to come to an end on 16.06.2017 but NCLAT passed the impugned order reinstating him “for the rest of the tenure”.

“Now by virtue of the impugned order, CPM will have to be reinstated even on the Board of companies from which he has resigned. This is why even the complainant companies have found it extremely difficult to support the order.”

Interestingly, one of the grounds of challenge to the order of NCLAT, raised by SP group in their appeal is that the Tribunal ought not to have granted the relief of reinstatement. Mistry has himself stated clearly that he had no intent to once again taken charge of Executive Chairman and Director of the Tata Group companies.

[Tata Consultancy Services Ltd. v. Cyrus Investments Private Ltd., 2021 SCC OnLine SC 272, decided on 26.03.2021]

Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., addressed a group of petitions that challenged four sets of identical awards passed by Labour Courts under the Industrial Disputes Act, 1947.

What led to Industrial Disputes and Complaints of Unfair Labour Practice?

Workmen’s case was that though the work in the factory was of perennial nature, it was performed through temporaries from a pool of workers by a rotational system, seeing it that throughout the relevant period none could complete 240 days of continuous service and thus keeping them away from secure permanent jobs.

700 workmen approached the Industrial Court with complaints of unfair labour practice invoking items 5, 6 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

A group of 300 workmen chose to initiate conciliation proceedings under the Industrial Disputes Act, 1947 upon failure of which, the State Government referred the matters to Labour Courts for adjudication.

Issues for Consideration:

Precise issues, which arise for the consideration of this Court are as follows:

(I) Whether the termination of services of temporary workmen in the present case could be termed as termination as a result of non-renewal of the contract of employment on its expiry or under a stipulation in that behalf contained in the contract and thus, amounting to an exception to the definition of ‘retrenchment’ contained in Clause (oo) of Section 2 of the ID Act? Or whether the rotational arrangement, such as the one in the present case, where there are continuous temporary engagements of the same workmen over long periods of time (adopted as a strategy to deny benefits of permanency to the concerned workmen), does not amount to an engagement on a fixed period contract so as to form an exception under sub-clause (bb) of Clause (oo) of Section 2 of the ID Act?

(II) Whether,

(a) Sundays and holidays during the period of service could be counted within 240 days as per the applicable Standing Orders so as to make up aggregate service of 240 days in a year within the meaning of the Standing Orders and

(b) such 240 days should be reckoned as forming part of the calendar year of 12 months immediately preceding the dates of termination?

(III) Should a Labour Court dealing with terminations of workmen in a reference under the ID Act refuse to consider their claim of permanency?

The two factual aspects here are as follows:

  • Whether for inquiry Court can simply focus on the last termination of each of these workmen and disregard their earlier engagements and terminations?
  • Rotational Pattern said to have been adopted for engagement of these workmen – whether such pattern exists, for if it does, the legal question as to whether the terminations, including the last, come within the definition of retrenchment under Section 2(oo) and not within the excepting clause, namely, clause (bb) thereof

Analysis, Law and Decision

Clause (bb) as referred above applies to two situations:

  • where the termination is a result of non-renewal of the contract of employment between the employer and the concerned workman upon its expiry; and
  • where such termination is the result of a contractual stipulation contained in the contract of employment.

In the present case, the company’s is with regard to the contract made for a specific period and its non-renewal upon expiry.

The respondent company employed a rotational scheme for more than 13 years.

A pool of temporaries is maintained and anywhere between four to eight thousand temporaries from out of this pool are employed in rotation, some of them on 8 to 14 times, each time for a duration not exceeding seven months.

The classical idea behind retrenchment has been surplusage. A fixed period contract, on the other hand, implies either that for some particular work or project or due to a spurt in the demand and the resultant need for increased activity, there is a special need for a certain employee or number of employees and accordingly, need for a contract of employment for the particular work or project, or for the particular fixed period.

Court notes in the present case to be perennial work, work which is no different from what is performed by the permanent workmen of the company, for which temporaries were engaged. The said engagement was found to be over 13 years.

Bench found that the employment of the workmen in the present case was neither for any particular work or project nor was brought to an end after a fixed period due to wanting of work upon expiry of the period of contract.

The engagements were brought to an end purportedly at the expiry of the stipulated period of contract only to see that they get an artificial break (during which others from the waiting list were employed) only to be re-employed and this went on – again and again.

High Court in view of the above discussion stated that the above pattern appeared to have been designed with a view to avoiding any legitimate claim of permanency of tenure on the part of workmen concerned. 

Deprivation of Status and Privileges of Permanent Employees

Clear recipe of an unfair labour practice, notorious in the industry, of employing ‘badlis’, casuals or temporaries and continuing them as such for years, with the object of depriving them of the status and privileges of permanent employees.

Nature of Engagement of Workmen

Whether on a fixed tenure contract or colourable engagement on a fixed term, the real engagement being on a long term basis by adopting a rotational pattern, so as to avoid any claim of permanency.

Bench in view of the evidence recorded, held that the conclusions of the Labour Court, simply rendered as tag-lines, that there was no rotational pattern, or that it could not be said that service of anyone temporary workman was terminated and in his place and category another was employed offended the Wednesbury Principles and could not stand the scrutiny under Articles 226 or 227 of the Constitution of India.

Whether the workmen were illegally retrenched; whether, by reason of their employment (i.e. the last employment) being for a fixed tenure, their retrenchment formed an exception to the main part of Section 2(oo) of the ID Act, by falling within clause (bb) thereof.

High Court expressed that it cannot be gainsaid that both parties, being fully aware of the terms of reference and its scope, made their cases in extenso on the aspects of past engagements of the concerned workman in a rotational pattern and artificial breaks given to them so as to avoid completion of 240 days of continuous service and these were very much part of the trial before the Labour Court. It was thus clearly within the remit of the reference court to decide the issue.

Adding to its observations Court held that neither on principle nor on authority, these workmen were liable to be made permanent under Standing Order 4C by reason of completion of 240 days of continuous service in twelve preceding calendar months within the meaning of Standing Order 4C, therefore, issue no. (II) was decided against the petitioners.

Issues (I) and (III) were decided in favour of the petitioners, in light of which the impugned labour court awards were to be quashed and set aside.

Further, the Bench added that considering that the terminations challenged took place in the year 1997/98, more than twenty long years back, it would not be in the interest of justice to remit the references to the Labour Courts for consideration of monetary relief in lieu of reinstatement.

Therefore, the Court proposed to consider monetary relief in lieu of the reinstatement based on the material produced before the Court.

Bench relied upon the case of  Bajaj Auto Ltd. v. Bhojane Gopinath D, (2004) 9 SCC 488 as a model for determining compensation.[Sunil Pralhad Khomane v. Bajaj Auto Ltd., 2021 SCC OnLine Bom 129, decided on 01-02-2021]

Case BriefsHigh Courts

Gujarat High Court: A.P. Thaker J., upholding the decision of the Labour Court with respect to reinstatement of the workman, directed the employer to pay compensation of Rs 55000 as a lump sum against prayer for 100% back wages.

Being aggrieved with the award dated 23-04-2009 passed by the Labour Court, both workmen and the employer have preferred the respective petitions.

The workman has preferred Special Civil Application No. 540 of 2010 contending that he was serving with the employer on the post of supervisor and rendered his services for more than five years with no appointment letter or permanent assurance as such. One fine day, he was terminated from his position without any inquiry. It is further contended that in his reference before the Labour Court wherein he was granted prayer for reinstatement in service, the Labour Court factually and legally erred in not granting 100% back wages. Therefore, he has prayed to quash and set aside the award and grant him the same.

The employer has filed Special Civil Application No. 10377 of 2009 against the award contending that the Labour Court has committed serious error of law and facts in granting reinstatement in service as the workman has admitted that he was working on daily rated basis and in that view of the matter, when work was not available with the employer, he was automatically discharged. Further, it is also contended by the employer that the dispute is contractual in nature which, essentially, does not attract the Industrial Disputes Act, 1947.

Counsel for the petitioner relied on Talwara Cooperative v. Sushil Kumar, (2008) 9 SCC 486, Executive Engineer v. Ayubhai Ladharbhai, 2010 (2) GLH 700 and Counsel for the respondent placed reliance on, General Manager Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 and UP State Brassware v. Uday Narain Pandey, (2006) 1 SCC 479.

Court found no error of facts or law committed by the Labour Court with respect to reinstatement and for 100% back wages, it said, “… considering the materials placed on record and the decisions cited, it is found that the workman is not entitled to 100% backwages, however, granting of backwages at 25% is also not proper, especially in view of peculiar facts of this case. At the relevant time, the workman was getting Rs.1500/- and considering the peculiar facts of this case, instead of granting any back wages, it would be just and proper to pay lump sum compensation of Rs.55,000/- for back wages to the workman, which will serve the ends of justice”[Karsan Shivaji Sanghar v. Ashapura Mines, 2021 SCC OnLine Guj 61, decided on 13-01-2021]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: Ravindra V. Ghuhe, J. allowed a petition filed by Maharashtra State Road Transport Corporation against the order of the Labour Court whereby it had directed reinstatement of the respondent in service.

The respondent, at the relevant time, was working as a bus conductor with the petitioner Corporation. In August 1991, he was apprehended of having collected ticket fare and having permitted two passengers to travel ticket-less. The amount of misappropriated was Rs 17. The respondent was found guilty of the charges against him in the departmental enquiry, and he was dismissed from service. The respondent approached the Labour Court which concluded that the enquiry held against him was fair, proper and not vitiated in any manner. The findings of the enquiry were also upheld. However, while considering the proportionality of the sentence, the Labour Court concluded that the punishment awarded to the respondent was shockingly disproportionate, and therefore directed his reinstatement in service.

The Corporation, represented by D.S. Baguk, Advocate, challenged the order of the Labour Court. It was submitted that this was the third time that the respondent was dismissed for such conduct.

Relying on Damoh Panna Sagar Rural Regional Bank v. Munna Lal Jain, (2005) 10 SCC 84; Bieco Lawrie Ltd. v. State of W.B., (2009) 10 SCC 32; and Janatha Bazar v. Sahakari Noukarara Sangha, (2000) 7 SCC 517, the High Court noted that the quantum of amount misappropriated is not a decisive factor. The Court observed: “The impugned judgment of the Labour Court is an outcome of misplaced sympathy since the Labour Court concluded that a very meager amount has been misappropriated by the respondent. Showing misplaced sympathy in such matters or in matters wherein, a grave offence or misconduct has been committed, is an anathema.” In such view of the matter, the Court allowed the petition and quashed the order of the Labour Court.[Maharashtra SRTC v. Vanji Sitaram Bagul, 2019 SCC OnLine Bom 1013, decided on 13-06-2019]

Case BriefsHigh Courts

Madras High Court: A  Bench of Dr S. Vimala, J. addressed a writ petition in which it was stated that petitioner was charged with corruption and put on suspension for which no order has yet been passed in a period of 9 years.

The petitioner in the present case was working in TANGEDCO and was placed under suspension on charges of corruption. For the said charge, a criminal case was filed but after a lapse of even more than 9 years, no order has been passed by the respondents and the grievance of the petitioner for the said issue is that his suspension is prolonged for which he has made a representation seeking to reinstate him in service.

Learned Counsel for the petitioner Mr Ravi Anantha Padmanaban contended that the prolonged suspension was against the decision of the Supreme Court in Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291, which held that:

“Currency of a suspension order should not extend beyond 3 months, if within this period, the memorandum of charges/ charge sheet is not served on the delinquent officer/ employee; if the memorandum of charges/ charge sheet is served, a reasoned order must be passed for the extension of suspension”.

Thus, the High Court on perusal of records and the decision of the Supreme Court placed above held that the order of suspension be revoked and the respondents were directed to reinstate the petitioner in service and post him in any non-sensitive post. The petition was disposed of accordingly. [S.P. Chandrasekar v.  TANGEDCO, 2018 SCC OnLine Mad 3607, Order dated 04-12-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Surya Kant, CJ and Ajay Mohan Goel, J. declared that even if there was a delay in approaching the authorities, the Court shall balance out the equities while giving a decision.

An order was passed by Himachal Pradesh Administrative Tribunal whereby the petitioners through their counsels Ashok Sharma, Advocate General, with Mr. J.K. Verma and Mr Ranjan Sharma, Additional Advocate General have been directed to count the services of respondent and confer the Work Charge Status upon him on completion of eight years continuous service with financial benefits.

The respondent was engaged as a Daily Waged Beldar for thirty days. In the next year 1994, he worked for 257 days but he allegedly did not work in the year 1995. Further, there was an order for his retrenchment from service which he contended before the tribunal to be bad in law pursuant to which he was re-engaged plus his services were regularized.

The Court was of the view that once the termination of services of the respondent was found bad in law, the only consequence, which is bound to fall upon, is that he would be deemed to be continuing in service and thus no interference in the order of the tribunal was called for.[State of H.P v. Tikkam Ram, 2018 SCC OnLine 1749, decided on 10-12-2018]