Gujarat High Court
Case BriefsHigh Courts

Gujarat High Court: The instant petitions came up before the Court challenging the Award of the Labour Court, Vadodara, whereby which it was held that since the workmen had applied for withdrawal from their company’s Voluntary Retirement Scheme after having enjoyed the benefits of the scheme and without refunding the same, therefore they cannot challenge their termination. The Bench of Biren Vaishnav, J., while deciding upon the petition, observed that once the Labour Court has exercised its jurisdiction judiciously, the High Court can interfere with the Award, only if it is satisfied that the same is vitiated by any fundamental flaws.

Two Sides of The Story: Indian Petrochemicals Corporation Ltd. (originally owned and managed by the Central Government) in the course of implementing the policy of disinvestment, diverted its share capital to Reliance Industries Ltd., which became a major stakeholder of the Company. The Company then promoted two schemes via Circular dated 06-03-2007 – the Voluntary Separation Scheme (VSS) and Special Separation Scheme (SSS), in order to downsize its staff. Under the scheme, regular employees of the Vadodara Complex were eligible to apply and the same was operative from 06-03-2007 to 20-03-2007.

The Petitioners stated that about 2400 employees applied under the scheme; however, the Scheme did not mention any period vis-a-vis providing an opportunity to an employee to withdraw themselves from the scheme. Under the threat of being transferred to Jamnagar, the petitioners were compelled to apply under the scheme, which they did on the last date i.e. 20.03.2007.

Having so applied, in the late evening of 20.03.2007, they orally requested for withdrawal of their Voluntary Retirement Applications. Their request was refused by the Officer of the Company on the grounds that the data was already locked in their computer and reconsideration / withdrawal was not possible.

The petitioners further stated that on 21-03-2007 they requested for the withdrawal of their applications, however, an endorsement was made that the competent authority shall take a decision. According to the petitioners, the letters dated 20.03.2007 were posted on 26.03.2007 informing the petitioners of the acceptance of their applications. The petitioners claimed that this “acceptance of letters” was a deception put on by the Company to show that the offer of the employees was accepted and that there was concluded contract and, therefore, no withdrawal can be permitted. The case of the petitioners was that despite letters in June and August 2007, no decision was taken and, therefore, the action of the Company in accepting their applications was illegal and that the petitioners must be reinstated in service.

The Company stated that the VSS / SSS Scheme was open up to 20-03-2007 and 19 employees who made applications for withdrawal on or before 20.03.2007 were considered by the Company and such employees were allowed to withdraw their applications. They stated that the present petitioners did not withdraw their applications before acceptance. Moreover, they accepted all the benefits flowing from the scheme and after receiving the benefits, they raised an industrial dispute. The Company’s stand was that once having accepted the amounts under the Scheme, it was not open for them to turn around and claim benefits of reinstatement.

Award of the Labour Court: The dispute came up before the Labour Court, Vadodara, who, upon perusal of the facts and contentions, held that the workmen (petitioners herein) were unable to establish that they were threatened to be transferred to Jamnagar if they did not take VRS. The Labour Court also held that the employees had applied for withdrawal after having enjoyed the benefits of the scheme and after being silent for a period of three months, have objected to the VSS/SSS without refunding the benefits; therefore, they have no right to challenge their termination now.

Observations by the High Court: After a detailed perusal of the proceedings before the Labour Court, facts and evidence presented, the Court noted that the VSS/SSS scheme was open from 06-03-2007 to 20-03-2007 and there is nothing on record to show that even oral request for withdrawal was made even before the scheme closed. The withdrawal was made only on 21-03-2007, by which time an acceptance was issued.

The Court further stated that the Labour Court, considering the evidence of workmen and other relevant documentary evidence, concluded that it was only three months after the employee was relieved and had accepted the benefits available under the VRS, that he objected to the scheme. The Court also pointed out that the employee, after five months, lodged his protest to say that he had accepted the amounts subject to his objection. This clearly was an afterthought.

With the afore-stated observations, the Court held that the Labour Court had judiciously exercised its jurisdiction while deciding the instant matter, therefore the High Court does not need to interfere with the Award. The instant petitions were thus dismissed.

[Gohil Rameshbhai Amarsinh v. Indian Petrochemicals Corporation Ltd., 2022 SCC OnLine Guj 1304, decided on 15-09-2022]


Advocates who appeared in this case:

P.R. Thakkar, Advocate, for the Petitioner(s) No. 1;

J. P. Thakkar, Advocate, for the Petitioner(s) No. 1;

K. S. Nanavati, Sr. Counsel assisted by Pratik Bhatia for Nanavati Associates, Advocate, for the Respondent(s) No. 1.

New Jersey Supreme Court
Case BriefsForeign Courts

   

Supreme Court of New Jersey: While considering whether certain workers employed by East Bay Drywall, LLC, were properly classified as employees or independent contractors as per the “ABC Test” set forth under the Unemployment Compensation Law; the Supreme Court of New Jersey held that East Bay did not supply sufficient information to prove the workers' independence under the ABC Test and the Commissioner's findings of the same was not arbitrary, capricious, or unreasonable. The Court decided that East Bay misclassified its workers as independent contractors. The Bench of the Court comprising Stuart Rabner, CJ., and Anne M. Patterson, Lee Solomon and Fabiana Pierre-Louis JJ., joined the opinion delivered by Jose L. Fuentes, J.

Facts and Legal Trajectory: East Bay (a business registered as an employer), is a drywall installation business that hires on a per-job basis. Once a builder accepts East Bay's bid for a particular project, East Bay contacts workers to see who is available. Workers are free to accept or decline East Bay's offer of employment. East Bay provides the workers with the raw materials necessary to complete the drywall installation. The workers perform the labor but must provide their own tools and arrange for their own transportation to the worksites. East Bay does not dictate who or how many laborers the workers must hire to complete the project and also does not direct how the workers install drywall. However, East Bay remains responsible for the finished product.

On 30-06-2013, East Bay ceased reporting wages to the Department of Labor and Workforce Development (hereinafter Department). Consequently, an auditor for the Department conducted a status audit that reviewed the workers hired between 2013 and 2016, to determine whether they were independent contractors, as defined by the ABC Test, or employees of East Bay, requiring the employer to contribute to the unemployment compensation and temporary disability funds. In addition to meeting with East Bay's principal and accountant, the auditor requested documentation such as tax forms, business cards, and business insurance to determine whether the workers' businesses were independent entities. The auditor found that approximately half of the alleged sub-contractors working for East Bay between 2013 and 2016 — four individuals and twelve business entities (total- 16) should have been classified as employees. East Bay owed $42,120.79 in unpaid unemployment and temporary disability contributions as per the findings of the auditor.

East Bay challenged the results of the audit and requested a hearing in the Office of Administrative Law, which concluded that three of the workers were employees but the other thirteen were independent contractors. The Commissioner of the Department determined that all sixteen workers failed all three prongs of the ABC Test and that they were therefore employees of East Bay. The Appellate Division affirmed the Commissioner's final determination as to five workers but reversed as to the eleven other workers. The Department then appealed for the eleven workers, and the Court granted certification.

What is the ‘ABC Test' under Unemployment Compensation Law? 1

The ABC test is used in some states to determine whether a person is an employee or an independent contractor for the purpose of determining state unemployment tax. Some courts use this test to look at whether a worker meets three separate criteria (prongs) to be considered an independent contractor:

  1. The worker is free from the employer’s control or direction in performing the work.

  2. The work takes place outside the usual course of the business of the company and off the site of the business.

  3. Customarily, the worker is engaged in an independent trade, occupation, profession, or business.

Observations and Conclusion: The unanimous decision of the Court was delivered by temporarily assigned Justice Jose L. Fuentes, P.J.A.D.

  • The Court observed that The Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to -71, acts as a “cushion against the shocks and rigours of unemployment”. The law requires that employers and employees make contributions to the unemployment compensation and temporary disability benefit funds. However, even if a worker receives compensation for work performed, the worker will not be considered an employee if the ABC Test is fulfilled.

  • Regarding the ABC Test, the Court observed that test is conjunctive; thus, all three prongs must be satisfied for a worker to be considered an independent contractor. The ABC Test presumes a worker is an employee therefore, the party challenging the classification carries the burden to establish the existence of all three criteria of the ABC test.

  • It was further observed that East Bay did not supply sufficient information to satisfy prong C burden regarding the eleven entities whose classification has been challenged by the Department. Prong C of the ABC Test broadly asks whether a worker can maintain a business independent of and apart from the employer. If the worker “would join the ranks of the unemployed” when the relationship ends, the worker cannot be considered independent under prong C.

  • The information East Bay provided is insufficient to prove the entities' independence. The probative value of refusal to accept or complete work is limited because, like an employee, even a bonafide independent contractor is not free from the pressure to accept a job. “A certificate of insurance could be a significant indication of independence, and business registration information may bolster the inference of independence. Here, however, these documents do not elucidate whether the disputed entities were engaged in independent businesses separate and apart from East Bay”.

  • The Court concluded that the instant case presents one of those less-obvious situations of whether the workers are truly independent business entities. Thus, consideration of the prong C factors is appropriate; but, in attempting to meet its burden, East Bay has provided little or no documentary evidence to address those factors. “For example, East Bay has not provided evidence that the entities maintained independent business locations, advertised, or had employees”.

  • It was further stated that any business practice that requires workers to assume the appearance of an independent business entity, can give rise to speculation that such a practice was intended to obscure the employer's responsibility to remit its fund contributions. “That type of subterfuge is particularly damaging in the construction context, where workers may be less likely to be familiar with the public policy protections afforded by the ABC test and consequently particularly vulnerable to the manipulation of the laws intended to protect all employees. Such a business practice also undermines the public policy codified in the UCL”.

Decision: With the afore-stated observations, the Court held that, since each entity at issue fails prong C of the ABC Test, therefore they can be properly classified as an employee. The Court remanded the matter to the Department for calculation of the appropriate back-owed contributions.

[East Bay Drywall, LLC v. Department of Labor & Workforce Development, (A-7-21) (085770), decided on 02-08-2022]


Advocates who appeared in this case :

Christopher Hamner, Deputy Attorney General, Advocate, for the Appellant;

Jennifer B. Barr, Advocate, for the Respondent;

Ravi Sattiraju, Advocate, for the Amicus Curiae.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.


1. ABC Test, LII, Cornell Law School

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri J. dismissed the petition as the employer-employee relationship was established by a witness before the court and strict rules of evidence are not applicable in such cases. 

  

The facts of the case are such that Respondent 1 (hereinafter, referred to as ‘the workman’) filed a claim application seeking compensation under the Employees’ Compensation Act, 1923 for injury suffered by him during the course of his employment with the firms namely, Sanjeev Hosiery and Maha Laxmi Hosiery. He was working as a Machine Man since January, 2003 till November, 2005 and his last drawn salary was Rs.8, 000/- per month when he met with an accident. It was claimed that the workman at the time of the incident was about 33 years of age and had suffered disability of about 60%. It was also stated that the services of the workman were terminated on the same day i.e., the date of the incident. The Commissioner, while passing the impugned order allowed the claim petition of the workman and awarded him compensation of Rs. 2, 87,136/- along with interest @ 12%. The instant appeal under Section 30 of the Employees’ Compensation Act, 1923 (hereinafter, referred to as the ‘Act’) was filed seeking setting aside of the order/judgment passed by the Commissioner, Employee Compensation, North District, Delhi. 

  

Counsel for appellants submitted that that the workman has failed to discharge the onus of proving the employer-employee relationship as the workman has claimed that no appointment letter, identity card, attendance card, etc. was ever given to him by the management in question. 

  

Counsel for respondents submitted that the procedure before the Employee Compensation Commissioner is summary in nature and thus rules of evidence are not to be strictly followed. 

  

Issue 1: Relationship of Employer and Employee 

The Court observed that inasmuch as the workman has claimed that no appointment letter, identity card, attendance card, etc. was ever given to him by the management in question. The statement of the workman to this effect is supported by that of co-workman, who was admittedly an employee of the firm(s) on the date of the accident and stated that such documents were not provided to employees by the management. It has also come on record by way of the Inspectors’ reports that the firm(s) in question was not registered. 

  

Issue 2: Reports not proven by scribe 

The Court relied on judgment Om Prakash Batish v. Ranjit, (2008) 12 SCC 212 and opined those proceedings before the Commissioner under the Workmen’s Compensation Act, the provisions of Code of Civil Procedure and Evidence Act are not applicable. The Commissioner can lay down his own procedures and for the purpose of arriving at the truth, rely upon such documents which are produced before it. 

  

The Court held “respondent 1/workman was able to establish his case before the Commissioner; the appeal is dismissed and directed the Commissioner to release the compensation amount in favor of the workman forthwith.” 

[Maha Laxmi Hosiery v. Govind Singh, FAO 548 of 2016, decided on June 6, 2022] 


Appearances: 

For petitioner- Mr Kaushal Yadav and Mr Manish Bansal 

For respondent- Mr Hari Kishan and Mr HS Kohli 


*Arunima Bose, Editorial Assistant has reported this brief.

 

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. while noting that there were no legitimate grounds to deny the employee of gratuity and other retrial benefits directed the employer to release gratuity, pension and other retrial benefits to the employee.

The petitioner was an employee and had served for as many as 40 years under the respondents. There was no adverse entry in his service record. After his retirement, a letter was sent to him alleging that there were some outstanding dues and that he could not produce vouchers relating to the expenditure under the various schemes of the government for some financial years. It must be noted that before his retirement there was no allegation of financial irregularities or misappropriation levelled against him. The petitioner also offered an explanation by letter that he had duly submitted the vouchers.

The Court remarked that since the respondents could not level any allegation against the petitioner during his service period, he should not be deprived of his legitimate gratuity and leave encashment.

The Court said that if there was any irregularity regarding the submission of vouchers, it could have been brought to the notice of petitioner within a reasonable period of time, which in Court’s opinion would have been one and a half years at maximum. The Court noted that it was a case of merely harassing the petitioner.

Therefore, in view of the above facts, the Court ordered to release the gratuity and other retrial benefits to the petitioner within a period of 3 months. Additionally, the petitioner was granted a statutory interest of 6% till the release of the gratuity. [Prabhati Debbarma v. State of Tripura, 2022 SCC OnLine Tri 379, decided on 02-06-2022]


For the Petitioner(s): Mr P. K. Pal, Advocate Mr H Debbarma,

For the Respondent(s): Mr D. Sarkar, Advocate Mrs Sarama Deb, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise & Service Tax Appellate Tribunal, Bangalore (CESTAT): The Coram of S.K. Mohanty (Judicial Member) and P. Anjani Kumar (Technical Member) reiterated that, any compensation paid by the employee to the employer for resigning from the service without giving the requisite notice, would not be termed as consideration for the contract of employment and as such, would not fall within the preview of taxable service.

Factual Background


Appellants in the present matter had collected a certain amount as ‘Notice Period Pay’ or ‘Bond Enforcement Amount; from their employees, who wanted to quit the job without notice or do not serve the organization for the prescribed period as per the terms of the employment contract.

Further, during the audit of records maintained by appellants, it was observed that the appellants did not pay service tax on the consideration received on account of ‘notice pay’ from the employees.

In view of the above, show cause proceedings were initiated against the appellants, which culminated into the adjudication order, wherein service tax demand of Rs 6,21,514 and Rs 3,43,561 along with interest was confirmed. Besides, the said order had imposed penalties of Rs 6,21,514 and Rs 34,256 under Sections 78 ibid and 76 ibid respectively.

On appeal against the above adjudication order, the Commissioner (Appeals) vide the impugned order upheld the adjudication orders.

On being aggrieved with the above order, appellants preferred the appeals before the Tribunal.

Analysis, Law and Decision


Tribunal expressed that the term ‘notice pay’ mentioned in the employment contract cannot be considered as a service, more specifically as a taxable service inasmuch as neither of the parties to the contract provided any service to each other.

Coram added that the amount received as compensation by the appellants cannot be equated with the term ‘consideration’ inasmuch as the latter is received for performance under the contract; whereas, the former is received, if the other part fails to perform as per the contractual norms.

Therefore, the impugned orders were set aside, and the appeal were allowed. [XL Health Corpn. India (P) Ltd. v. Commissioner of Central Tax, Final Order Nos. 20225 – 20226 / 2022, decided on 6-5-2022]


Advocates before the Tribunal:

Ravi Banthia & Madhuri Rau, CA: For the appellants

Rama Holla, Superintended (AR): For the respondent

Case BriefsHigh Courts

Gujarat High Court: Biren Vaishnav, J., reiterated that, interest on delayed payment of gratuity is mandatory and not discretionary.

The petitioner had prayed for a declaration that the respondent’s action in not paying the entire amount of Rs 10 lakhs towards gratuity to the petitioner was arbitrary. Hence, a direction was sought that respondents be directed to pay the remaining amount of gratuity to the petitioner along with 18% interest from the date of his retirement.

Analysis and Decision


High Court expressed that, in the Supreme Court decision of H. Gangahanume Gowda v. Karnataka Agro Industries Corpn. Ltd., (2003) 3 SCC 40, it was decided that the interest on delayed payment of gratuity is mandatory and not discretionary. When it is not the case of the respondent that the delay in the payment of gratuity was due to the fault of the employee and that it had obtained permission in writing from the controlling authority for the delayed payment on that ground, the respondent had been directed to pay interest @ 10% on the amount of gratuity to which the appellant is entitled from the date it became payable till the date of payment of the gratuity amount. 

Hence, Bench stated that the present case was covered by the Supreme Court’s decision as stated above.

Therefore, Court directed the respondents to pay the petitioner the amount of gratuity of Rs 10 lakhs within a period of 10 weeks, and since the petitioner was superannuated in 2013 and the gratuity amount had been wrongfully withheld, the petitioner shall be entitled to interest at the rate of 9% from the date of his superannuation till the date of actual payment. [Ashvinkumar Ramniklal Jani v. State of Gujarat, 2022 SCC OnLine Guj 575, decided on 19-4-2022]


Advocates before the Court:

MR JAYRAJ CHAUHAN(2966) for the Petitioner(s) No. 1

MR MUKESH N VAIDYA(5197) for the Petitioner(s) No. 1

MR MUKUND M DESAI(286) for the Petitioner(s) No. 1

MS.SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3

NOTICE SERVED BY DS for the Respondent(s) No. 4

Op EdsOP. ED.

To develop a workforce of world-class competence, skilling and upskilling is the sine qua non. Towards this endeavour, the Government of India has taken an initiative in collaboration with All India Council for Technical Education (hereinafter referred to as “AICTE”) and in this exercise emerged is the National Employment Enhancement Mission (hereinafter referred to as “NEEM”) Scheme to impart on-the-job training (OJT) to eligible candidates to enhance their employability. For this purpose, the AICTE had exercised its power under Section 23(1)[1] read with Section 10 of the AICTE Act, 1987[2] and in supersession of the AICTE Regulations, 2013[3], the AICTE had made the All India Council for Technical Education [National Employability Enhancement Mission (NEEM)] Regulations, 2017 (hereinafter referred to as “the AICTE NEEM Regulations, 2017”).

The objective of this Scheme is specified under Regulation 2.1 as follows:

The objective of National Employability Enhancement Mission  is to offer on the job practical training to enhance the employability of a person either pursuing his or her postgraduation/graduation/diploma in any technical or non-technical stream or has discontinued studies after Class 10th to enhance his or her employability.

Under this Scheme, establishments can induct trainees under the NEEM Scheme and engage them under the OJT programme and after the completion of the programme, there is no compulsion on the establishments/organisations to provide the said trainees fixity of tenure in their respective organisations. The training period ranges from 3 months to 3 years and should be National Skills Qualifications Framework (NSQF) compliant.

The trainees under the NEEM Scheme are regulated by a facilitator. The NEEM facilitator shall be in the business of training for at least five years. A person registered under the NEEM Regulations is called a trainee under NEEM. A contract needs to be signed between NEEM facilitator and the NEEM trainee to capture all terms and conditions which would govern the relationship. The NEEM training shall be deemed to have started from the date of joining of the NEEM trainee. The NEEM contract shall not be either an offer of employment or a guarantee of employment. The duration of NEEM training shall be determined by the nature of industry or trade where a NEEM trainee would be engaged in such training and shall be at the sole discretion of NEEM.

In accordance with Regulations 15.1 and 15.2 of the AICTE NEEM Regulations, 2017, the NEEM facilitator shall pay the enrolled NEEM trainees a stipend which shall be at par with the prescribed minimum wages for unskilled category. The said stipend shall be paid as single consolidated amount and such payment will not attract any statutory deductions or payments applicable to regular employees, namely, provident fund (PF)/Employees’ State Insurance (ESI)since the NEEM contract assures training and does not constitute employment.

Even prior to the advent of the AICTE NEEM Regulations, 2017, the Employees’ Provident Fund Organisation (EPFO) Head Office vide their Circular Coord/40 (5) 2015/Misc/Clarification/ 27300 dated 12-10-2015, has clarified that in the matter of student trainees of educational/technical institutes recognised by Central/State Government or any authority constituted by them, there is no employer-employee relationship between the industry and the student trainee who is on industrial on-the-job training. Therefore, payment of stipend, if any, provided by the industry to such student trainees do not attract the provisions of the EPF Act[4]. However, it was clarified that so far as the students getting placement in companies and appointed as employees of establishments, the EPF Act will be applicable on such employees even during the on-the-job training after becoming an employee.

In contra, the EPFO Head Office vide their Circular ACC (HQ)/ACC dated 24-2-2022, clarified as under:

  1. The NEEM trainees are not exempted from the definition of “employee” under Section 2(f) of the EPF Act[5].
  2. Under Para 26-B of the EPF Scheme[6], the Regional Provident Fund (RPF) Commissioner has been vested with the power to decide whether an employee is entitled to or required to become a member of the Scheme after ascertaining the facts and circumstances of the case.
  3. Cases of subterfuge shall be distinguished from genuine arrangements for training.
  4. Any question whether a person is a trainee or employee may be decided as per the law and considering the Circular dated 12-1-2015.

Hence, the questions whether the NEEM trainee should be treated as an “employee” under the EPF Act and whether the RPF Commissioner is having the power to decide that matter under Para26-B of the EPF Scheme and all the more the construction of Section 2(f)of the EPF Act, assume significance.

Section 2(f) of the EPF Act which defines the term “employee” reads as under:

2.(f). “employee” means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment and who get his wages directly or indirectly from the employer, and includes any person

  • employed by or through a contractor in or in connection with the work of the establishment;
  • engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961[7] or under the Standing Orders of the establishment.[8]

(emphasis supplied)

It is pertinent to note that by virtue of an Amendment Act dated 1-8-1988[9] (Act 33 of 1988) the words “and includes any person” and the two sub-clauses to this section were incorporated. Against this scenario, it may be noted that the AICTE NEEM Regulations were brought into force only in 2017. Hence, the definition does not speak about NEEM trainees.

In Regional Provident Fund Commr. v. Central Arecanut & Coca Mktg. and Processing Coop Ltd.[10], the  Supreme Court has categorically held that if the trainees were paid stipend during the period of training and neither they had any right to employment nor any obligation to accept employment if offered by employer, therefore they were engaged under the Standing Orders and they were specifically excluded from the definition of employee under Section 2(f) of the EPF Act. In view of the above authoritative decision of the Supreme Court, it is inappropriate to construe the NEEM trainee as “employee” under Section 2(f) of the EPF Act.

About Para 26-B of the EPF Scheme, in Express Publication (Madurai) Ltd. v. Regional Provident Commr. II[11], the Kerala High Court has held that the Regional Provident Fund Commissioner is competent to determine the employee-employer relationship and to determine whether a particular employee comes under the definition of “employee” as defined under the EPF Act.

As elaborated in the second paragraph of this article, the nature of the NEEM Scheme is very much unique wherein the contract will be between the facilitator and the NEEM trainee, and the NEEM trainee will be deputed to an establishment for on-the job training. The said trainee will undergo training in the said establishment for a prescribed period and after the completion of the traineeship programme, there is no obligation on the part of the establishment to absorb him as a full-time employee and the said trainee also does not have a reciprocal obligation to accept the offer if given by the establishment.

In addition to the above, the NEEM trainee is entitled to only stipend during the traineeship programme and that too will be paid by the facilitator and not by the establishment wherein he or  she is undergoing training. Hence, it is clearly established that there is no employee-employer relationship between the NEEM trainee and the establishment concerned.

Without prejudice to the above contention, the NEEM Scheme is a creature of the AICTE Act and as such in the event of any subterfuge, the AICTE alone should abrogate the registration made by the NEEM facilitator and as a natural consequence, the approval given to them by the AICTE as NEEM facilitator will be cancelled.

Finally, when Section 2(f) of the EPF Act defines the term “employee” in such a way to exclude the apprentices under the Apprentices Act, 1961 and the apprentices/trainees under the Standing Orders of the establishment and in view of the authoritative decision of the Supreme Court in Central Arecanut case[12], invoking Para 26-B of the Scheme under Employees’ Provident Fund Scheme, 1952 is not at all feasible and far-fetched.

In any case, assuming that if there is a subterfuge and the payment of employees’ provident fund contribution on NEEM trainees is adhered to, will it allow AICTE to remain as a silent spectator and allow the facilitator to continue as a NEEM facilitator?


*Chief Human Resource Officer, Global HR, Automotive Robotics (India) (P) Ltd. Author can be reached at srajagoplan@arigs.com.

[1]All India Council for Technical Education Act, 1987, S. 23(1).

[2]All India Council for Technical Education Act, 1987, S. 10.

[3]All India Council for Technical Education [National Employability Enhancement Mission (NEEM)] Regulations, 2013.

[4]Employees’ Provident Funds and Miscellaneous Provisions Act, 1952.

[5]Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, S. 2(f).

[6]Employees’ Provident Funds Scheme, 1952, Para 26-B.

[7]Apprentices Act, 1961.

[8]Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, S. 2(f).

[9] Employees’ Provident Funds and Miscellaneous Provisions (Amendment) Act, 1988.

[10](2006) 2 SCC 381.

[11]2013 SCC OnLine Ker 6852.

[12](2006) 2 SCC 381.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D. Dhanuka and S.G. Mehare, JJ., expressed that, for condoning the interruption in service, the total service pensionary benefit in respect of which will lost should not be less than five years duration, excluding one or two interruptions.

Question for Determination


Whether the employee can seek condonation of interruption in service to enhance the pension where the employee has qualifying service for pension?

Factual Background


The petitioners were permanent in service as teachers in Municipal Corporation. However, before permanency, there were interruptions in their service from the date of their first temporary appointments.

The Maharashtra Civil Services (Pension) Rules, 1982 were made applicable to the employees of Aurangabad Municipal Corporation.

Qualifying service is sine qua non for pension.

‘Qualifying service’ means a service that may be considered in determining whether an employee is eligible by the length of service for a pension. 

It was noted that as per Rule 30 of the Pension Rules, ten years of qualifying service is a condition precedent for the entitlement of pension. Where the employee retires on superannuation or is declared permanently incapacitated for further service, or voluntarily retires after twenty years of service, the employees’ service is to be counted for qualifying service for pension. The servant, at the time of retirement, shall hold substantively a permanent post.

Condonation of breaks in service for enhancement of pension and other retiral benefits

The appointing authority has a discretionary power to condone the interruption in service provided, the interruptions should have been caused by reasons beyond the control of the Government servant.

In view of the pension scheme, where the employee in substantive service has rendered the service less than ten years, then his previous temporary or officiating service is counted for completing the minimum ten years of service subject to the other rules and his personal service record.

Conjoint Reading Rules 30, 33, 48 and 110 of Pension Rules elucidate that the pension scheme is for the benefit of the employee, and the amount of pension is determined by the length of qualifying service.

High Court opined that, if the service of an employee at his superannuation is less than ten years, then the previous temporary or officiating service needed to be counted for the qualifying service for pension.

Bench also added that, the purpose of condoning the interruptions in service is to make an employee entitled to the pension by adding the days of his service and not to enhance the pension for the reason that the pension is to be calculated and paid on the basis of last salary drawn on the substantive permanent post.

Hence, the petitioners were eligible for pension as per the Pension Rules and not entitled to claim the condonation of the interruption in their services to enhance their pension.

In view of the above, petitions were dismissed. [Muktabai v. State of Maharashtra, 2022 SCC OnLine Bom 887, decided on 22-4-2022]


Advocates before the Court:

Mr. D.R. Irale Patil, Advocate for the Petitioners.

Ms. R.P. Gaur, AGP for respondent/State.

Mr. A.P. Bhandari, Advocate for Respondent Nos.2 &

Madras High Court
Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., expressed that employees cannot seek any direction to fill up the post or claim a promotional post.

What was the relief sought in the present matter?

To direct the respondent to consider petitioner’s representation in connection with the acceptance of reviewed cadre strength by relying upon the vacancy position available during 2019-2020 as expeditiously as possible as to enable him to get his name included in the select list prepared in the said regard.

High Court expressed in the above regard that,

Promotion per se cannot be claimed as a matter of right by the employee.

No doubt, consideration for promotion is a fundamental right of the employee.

Further, the Court added that, administrative prerogative cannot be insisted upon by the employees though they are eligible for promotion/appointment, as the case may be.

The petitioner claimed that he was working as District Revenue Officer and was eligible for the conferment of post in Indian Administrative Service and if Cadre Strength Review Committee has been constituted duly in time, he would be getting an opportunity of securing appointment as I.A.S Officer. However, such a claim is hypothetical in nature.

Bench stated that it cannot make a decision on future events.

 “…once a decision is taken by the Authority Competent to prepare a panel for promotion, then all eligible persons are to be included for grant of promotion to the post of I.A.S.”

 High Court added that, as far as I.A.S. is concerned, the Central Government has to take a decision and therefore, the petitioner cannot have any right to claim that Cadre Strength Review Meeting is to be conducted for the purpose of granting promotion.

Additionally, the Court observed that mere preparation of panel by the Authority Competent would not be a ground to confer any right on the petitioner to seek a direction against the Government of India to convene a Review Committee Meeting and to prepare a panel.

In the present matter, petitioner had not established even a semblance of legal right to direct the respondent to consider his representation and mere direction to the Authority concerned to consider the representation would do no service to the cause of justice in the absence of establishing any legal right.

The above petition was dismissed on being devoid of merits.[B. Muthuramalingam v. Government of India, 2022 SCC OnLine Mad 1306, decided on 15-3-2022]


Advocates before the Court:

For Petitioner: Mr R. Anand

For Respondent: Ms L. Victoria Gowri, Assistant Solicitor General of India

Case Briefs

Patiala House Courts: Preeti Parewa, SCJ/CCJ/ARC, NDD, while addressing the alleged case of sexual harassment against the CEO of ScoopWhoop, wherein it sought an interim injunction, Court expressed that,

Expression of a victim’s trauma or experience is his / her fundamental right which can only be curtained it is falls under four broad categories i.e. “libel, slander, defamation”, “contempt of court”, “offends against decency or morality” and “undermines the security or tends to overthrow the State”. 

In the present matter, the plaintiff company submitted that defendant 1 was an employee/consultant in “UNSCRIPTED” with his last contract ending on 30-9-2021. Further, it was stated that defendant 2 was an employee of the company and Chief Executive Officer of “ScoopWhoop Media Private Limited” and its Director and Founding Member.

A sexual harassment complaint was filed by defendant 1 against defendant 2 and his wife, which was sub0judice before the Grievance Committee constituted under the POSH Act.

Adding to the above, it was noted that defendant 1 had published/circulated regarding the allegations of sexual harassment through Instagram posts and YouTube which may damage the reputation of the plaintiff company and hamper the fair enquiry.

Plaintiff company, as an interim relief sought grant of temporary injunction in favour of the plaintiff and against the defendants restraining their associates, agents, representatives, correspondents, officers, employees or any other person, entity, in print or electronics media or on social media or via internet otherwise from writing, speaking, content creation, publishing, republishing, circulating, carrying out any reports or articles or posts or reporting of any kind, directly or indirectly or in any manner pertaining to the allegations against each other and/or any other person/plaintiff’s organization pertaining to pending complaint and allegations by the defendant 1 qua alleged incident on intervening night till pendency of suit.

In view of the present application, a notice was issued to both the defendants.

Challenging the application, defendant 1 submitted that the complaint was filed before the Internal Complaints Committee of ScoopWhoop wherein no action had been taken without any consent of defendant 1, the complaint was transferred to the plaintiff company.

It was also submitted that the plaintiff could not prima facie establish that there was a loss of subscribers or goodwill or reputation of the plaintiff company which was formed 4 months and had hardly been able to generate reputation in its favour. Further, it was added that the balance of convenience did not lie in favour of the plaintiff company which was a separate entity and the sexual harassment complaint had not been made to the said company.

Analysis, Law and Decision

Court firstly mentioned the three main principles that govern the grant/refusal of injunction:

(a) prima facie case;

(b) balance of convenience; and

(c) irreparable injury;

Elaborating further, in light of the background of the present case, Bench found that the plaintiff company was in no way injured with the acts of defendant 1 since the complaint was not filed before the plaintiff company nor was defendant 1 employed with the plaintiff company.

Prima facie the alleged posts/contents/video in question did not mention the name of the plaintiff company nor were obscene/derogatory/ defamatory.

Court did not find that the alleged posts fell under the category of libel, slander, defamation, contempt of court, offends against decency or morality and undermines the security or tends to overthrow the State.

Hence, no relief was granted to the plaintiff company and the application was dismissed. [WhoopScoop (P) Ltd. v. Samdish Bhatia, CS SCJ 100/22, decided on 14-2-2022]

High Court Round UpLegal RoundUp

“One of the basic tenets to be followed by every Hindu is tolerance. Tolerance must be his own community or religion and in particular, to also to every other religious practice.”[Paulraj v. District Collector, WP (MD) No. 1276 of 2020]


Here are some of the interesting Legal Stories from the Second Week of February 2022.


Bombay High Court


Law on Custody | 9-year-old child prefers to stay with mother’s father and his family members and shows animosity towards father: Whether father will get custody of child or not? Bom HC decides 

“At an impressionable age such articulation about the opposite party, in a custody battle, often affects the capacity to exercise an intelligible preference. It is quite possible that when a child spends time with a non-custodial parent, he may be disabused of such perception.”

Read full report here…

Employer setting big targets, not granting leave and not accepting resignation would be acts in normal course of business: Bom HC grants anticipatory bail to employer accused of abetting suicide committed by employee 

High Court remarked that the acts as mentioned like not providing a driver for vehicle, deceased being asked to stand for a meeting daily, etc. were not things that could be covered under the meaning of Sections 107 read with 306 IPC.

Read full report here…


Calcutta High Court


 14-yr old girl subjected to penetrative sexual assault by man who called her grand daughter: Is girl’s complaint vital to form basis of conviction? Cal HC explains

“In a case relating to sexual assault and rape, the evidence of the victim girl is very much vital and if found reliable can form the basis of conviction of the accused without seeking for further corroboration.”

Read full report here…


Kerala High Court


“Marrying a Christian man would not wipe off the benefit of reservation granted to a scheduled caste persons”, HC reiterates caste of a person is to be decided on the basis of birth

Kerala High Court held that marrying a Christian man would not wipe off the benefit of a reservation granted to scheduled caste persons.

Read full report here…


Madras High Court


“One of the basic tenets to be followed by every Hindu is tolerance. Tolerance must be his own community or religion and in particular, to also to every other religious practice”: Madras HC

“Fundamental Rights and Duties are sacrosanct and binding on the Courts which adjudicate issues relating to the religion.”

Read full report here…


Tripura High Court


Exclusion of married daughters from the die-in-harness scheme of the State Government discriminatory? Court discusses

“Marriage does not break the bond between a daughter and her parents as it does not do between a son and his parents. A crisis in the family of her parents equally worries a married daughter. As such, there is no rationale behind exclusion of a married daughter from the scheme.”

Read full report here…


District Court


Tis Hazari Court


Can an unemployed husband escape from his responsibility to maintain wife? Tis Hazari Court answers

“It is trite to state that it is the moral and legal obligation of the appellant (husband) to maintain his wife and provide her same comforts commensurate to his status and standard of living.”

Read full report here…

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J., addressed a matter wherein an employer was accused of abetting the suicide of an employee.

The applicant sought anticipatory bail for offence registered under Sections 306 read with 34 of the Penal Code, 1860 (IPC).

First Information Report was lodged by the wife of the deceased, whose suicide was the subject matter of the investigation. The applicant was the director of the company, for which the deceased was working.

In 2011, the applicant’s children joined the company as directors, but they were unhappy with the performance of the deceased, and they started humiliating the deceased. The FIR also mentioned that recently the company had implemented unfair rules.

It was added that due to the humiliation the deceased was disturbed as the company did not provide him with leaves and basic facilities like a driver for his vehicle.

In view of the above, the deceased started suffering from weakness and other medical ailments.

In addition to the above, it was stated that the informant had advised the deceased to leave the company. At that time, the deceased had told her that, those who had left the company had to face different cases. The company had not given gratuity to them. Therefore, the deceased was reluctant to leave the job.

Later, the deceased approached the applicant with a resignation letter, but the applicant did not entertain him and told him that he was free to do whatever he wanted to. Also, the applicant told the deceased that he would see that the deceased would not get any other job and the deceased was threatened regarding the future of his career.

On 30th September, 2021 the deceased went to the office and there were allegations that during the lunch hours he was sitting with the applicant and applicant’s son and within a short time after that, he jumped from the office building.

In view of the above, FIR was lodged.

Analysis, Law and Decision

High Court observed that while it is true that the deceased had written in the Notebook that the applicant was the main cause, the reason for this grudge is elaborated in the F.I.R.

Bench remarked that the acts as mentioned like not providing a driver for vehicle, deceased being asked to stand for a meeting daily, etc. were not things that could be covered under the meaning of Sections 107 read with 306 IPC.

Court observed noted that,

The F.I.R. itself shows that the deceased was taking treatment for his stress management. He was disturbed and in the disturbed state of mind he had committed suicide. So, there is possibility that his commission of suicide was a result of his mental state. Though, there are allegations that he was disturbed because of stress in the company, the company was entitled to carry its business in the manner that was in the best interest of the company. That by itself would not mean that the bigger targets were given and meeting was arranged, so that the deceased would commit suicide. The only serious allegation in the F.I.R. is about the applicant threatening the deceased about his prospects in career.

Whether the applicant’s custodial interrogation in this background is necessary?

High Court held that it was doubtful whether the offence, under Sections 306 read with 107 of IPC was made out.

The main allegations are about the company setting big targets, not granting leave and not accepting the resignation. These acts would be in the normal course of business. The deceased was earning Rs.1,35,000/-p.m. He was working with the company since the year 2001. The company had not stopped his salary, even during the period of lockdown.

Therefore, in Court’s opinion applicant was granted anticipatory bail. [Dr Surendra Manjrekar v. State of Maharashtra, 2022 SCC OnLine Bom 287, decided on 28-1-2022]


Advocates before the Court:

Mr Ashok Mundargi, Sr. Advocate i/b. Jayant J. Bardeskar for Applicant.
Mr Rajesh More, for Intervenor.
Smt. A. A. Takalkar, APP for State/Respondent.

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., Whether the Insurance Company can be absolved of its liability to pay compensation under the Employees Compensation Act, 1923, if the employee who has succumbed to an accident which took place during the course of employment, is a minor?

Appellants filed a claim based on the premise that the deceased was aged 18 at the time of the accident and was receiving wages of Rs 5,500 per month and compensation of Rs 6,22,545 was assessed.

The insurer opposed the above-said claim before the Commissioner/Labour Court, and it was disputed that the accident suffered by the deceased arose out of or in the course of employment with the OP.

Further, it was denied that there was any nexus between the alleged injury and the alleged accident and since the police papers revealed the deceased’s age was 15 years, it was stated that the claim was not maintainable under the Workmen’s Compensation Act, 1923, hence the same shall be dismissed.

Analysis, Law and Decision

Workmen’s Compensation Act, 1923 does not prohibit payment of compensation to a minor.

There is no age limit for a person to be employed as an employee under the Workmen’s Compensation Act, though Article of the Constitution of India, employment of child labour before 14 years in any factory or mine or any hazardous employment, there are enactments in the form of Child & Adolescent Labour (Prohibition & Regulation Act), 1986 where engaging services of children below 14, in any hazardous avocation, is an offence.

Elaborating further, it was stated that Workmen’s Compensation Act is a beneficial piece of legislation and if a person engaged by an employer, as an employee is a minor and his appointment, though is prohibited by any law in existence, meet with an accident and sustain a disability which can be a total or partial disability, the moot question is:

Whether an employee should be denied the compensation merely on the ground that the employer had engaged him by contravening the law and he shall be kept out of the benefits which would have been otherwise available to him on account of an accident which he has suffered, which occurred in his workplace and out of the course of his employment or whether his family can be denied compensation on his death?

Bench expressed that the impugned decision took a harsh stand and refused to fasten liability of compensation on the Insurance Company by recording that the deceased was a minor and insurance company was not liable to pay compensation on the said ground.

The insurance policy in the present matter clearly covered two persons and the liability covered a person employed by the insured for operation and maintenance or loading/unloading which covered a cleaner.

Labour Court’s approach defeated the very spirit and rationale behind the Employees Compensation Act and the claimants who were the parents of the deceased were held entitled to recover compensation only from the employer with very negligible chance of recovering the compensation.

High Court disapproved the above approach of the labour court and opined that the Insurance Company cannot be absolved of its liability to pay compensation to the claimants, the dependents of the deceased. Therefore, the impugned judgment of the Commissioner was modified to the limited extent of fixing the liability jointly and severally upon the employer and the Insurance Company.

First Appeal No. 246 of 2015

In this matter, Insurance Company was aggrieved by the award of compensation to the parents of the deceased, who succumbed to the injuries in the accident.

Labour Court had directed the employer and the Insurance company jointly and severally liable to pay compensation.

Claimant 1 had set up a claim under the Workmen’s Compensation Act by filing the application claiming that his son was employed by the OP on his Motor Tempo as loader and the said tempo met with an accident due to which the son died.

High Court stated that when the written statement on oath before the Commissioner and the certificate issued by the employer is juxtaposed against his statement recorded by the police during the course of investigation, the statement recorded under oath, admitting that deceased Deepak was his employee, assumed importance.

Bench expressed that in view of the inconsistency in the statement given to the police by the employer, denying any employer-employee relationship on one hand and the statement on oath filed in the form of written statement before the Commissioner, the Commissioner has rightly given weightage to the statement on oath and accepted the employer-employee relationship.

In view of the above, Court found no reason to interfere with finding of the Commissioner. [Mohammed Ali Abdul Samad Khan v. Dawood Mohd. Khati, 2021 SCC OnLine Bom 6670, decided on 10-12-2021]


Advocates before the Court:

Mr. Amol Gatne i/b Ms. Swati Mehta for the appellants in First Appeal No.169 of 2014 and for the respondents in First Appeal No.246 of 2015.

Mr. D.R. Mahadik for the appellant in FA No.246/2015 and for respondent in FA No.169/2014.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Shakdher and Talwant Singh, JJ., decided a matter with regard to payment of full wages to workman while proceedings are pending pertaining to him in the Court.

Respondent 1 – workman moved the application under Section 17B of the Industrial Disputes Act, 1947 read with Section 151 of the Code of Civil Procedure, 1908.

The present appeal was preferred by the appellant-Corporation against the decision by which Single Judge was pleased to set aside the award passed by the Labour Court and vide the said order, Single Judge had granted regularization to the workman with 30% back wages and continuity of service for all purposes.

Labour Court had dismissed the workman’s claim, but the Single Judge had set aside the award and granted reinstatement with regularization but the NrDMC, instead of implementing the said decision challenged the same before the Division Bench.

Applicant-workman moved this application under Section 17B of the Act for payment of full back wages last drawn or minimum wages, whichever was higher, inclusive of any maintenance allowance as per provision of Section 17B of the Act.

Analysis, Law and Decision

“17B. Payment of full wages to workman pending proceedings in higher court:

where in any case a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:

Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.”

 As per NrDMC, it was difficult to find details of the present employment of the applicant-workman-respondent 1 and if an order under Section 17B of the Act is passed, it will burden the public exchequer as NrDMC was reeling under a financial crunch and the public money would go in wrong hands.

In Court’s opinion, the grounds by NrDMC were not tenable.

Law

“…if re-instatement has been ordered by Court and the employer, instead of complying with the said directions, chooses to challenge the said order, the workman is entitled to full wages last drawn by him, inclusive of any maintenance allowance admissible to him during the pendency of the said challenge by the employer.”

Court noted that a point was raised by the management that since the award passed by the Labour Court was not in favour of the workman, he had no right to move an application under Section 17B of the Act.

There is no provision for appeal provided in the Industrial Disputes Act against the decision of a labour court, which is in the form of an award.

The Bench opined that the writ petition was only a continuation of the reference/claim originally filed by the workman before the labour court, hence, the decision of the Single Judge to reinstate the workman with 30% back wages and to consider his case for regularization as per prevalent policy, was in the nature of Award in favour of the workman.

The said decision of the Single Judge had been challenged by the management, hence this Court had the jurisdiction to grant relief under Section 17B of the Industrial Disputes Act.

In the present matter, NrDMC failed to negative the claim of the workman that he was not gainfully employed. Since the disposal of the appeal would take some time, the workman and his family members cannot be allowed to starve in the meantime.

Concluding the matter, the workman was entitled to full wages last drawn by him and since respondent 1 had been ordered to be regularized with all consequential benefits, the Management, i.e., NrDMC shall pay his full last drawn wages or minimum wages, which ever higher from 18-2-2020 onwards and keep on paying during the pendency of the present appeal. [North Delhi Municipal Corporation v. Bal Kishan, 2021 SCC OnLine Del 5543, decided on 24-12-2021]


Advocates before the Court:

For the appellant: Ms Namrata Mukim, Standing Counsel with Ms Garima, Jindal, Adv.

For the Respondents: Ms Namrata Mukim, Standing Counsel with Ms Garima, Jindal, Adv. For R-1

Saket Court
Case BriefsDistrict Court

Saket Courts, New Delhi: Naresh Kumar Laka, Additional District Judge – 03 decided a matter wherein an employee claimed full back wages from the date he was terminated till the date of his superannuation.

On being aggrieved by the decision of Tis Hazari Court, both parties preferred separate appeals under Section 96 CPC.

Factual Background

Plaintiff was appointed by the defendant as Law Officer (Taxation). The services of the plaintiff were confirmed with the defendant, and it was alleged that the defendant company did not allow the plaintiff to enter into premises of the defendant company and the plaintiff was informed that the defendant company terminated his services with immediate effect.

Analysis, Law and Decision

Court stated that none of the trial court judgments granted any relief of full back wages to the plaintiff.

Main contention was that the plaintiff was not granted full back wages from the date of his termination till the date of his superannuation, and he also claimed other service benefits.

In the instant case, the termination letter provided that the services of the plaintiff were terminated due to business exigencies and administrative reasons and, therefore, it cannot be said that the termination of the plaintiff was the infliction of punishment.

Retrenchment 

Bench stated that the termination by way of retrenchment can be for any reason whatsoever.

Apart from the issue of definition, what is critical is that an employer must carry out retrenchment (other than dismissal on grounds of misconduct), as per the requirements of Section 25F of the ID Act. Section 25F provides for the employer to fulfill certain conditions before retrenching any employee.

Trial Court had noted that notice of termination was not served upon the plaintiff, therefore, plaintiff was not retrenched properly as per the procedure provided in the ID Act. Court added that although the ID Act does not apply to the plaintiff, yet an analogy can be drawn about the course of action to be followed in that eventuality.

Bench expressed that if the case of the plaintiff is presumed to be covered within the ambit of ID Act, in that case the plaintiff will not be entitled to automatic reinstatement or full back wages.

How will the compensation of plaintiff be assessed?

In view of absence of applicability of any special statute, the compensation can be assessed as per the contract of a master and servant read with Sections 73 and 74 of the Indian Contract Act, 1872.

It was noted that, the appointment letter of the plaintiff provided a clause of severing of the contract by either side upon serving one month’s notice or on payment of one month’s salary in lieu of notice period.

Plaintiff’s counsel had contended that the defendant had admitted liability of Rs 5,46,737 and the said admission was upheld by ADJ as well as the Delhi High Court. Defendant’s counsel stated that the said amount was shown as a contingent liability.

The word “Contingent” shows that there was no admission of the liability of the defendant and the said amount of Rs 5,46,737 was shown as an estimated or guessed or contingent liability which may or may not arise. Further, the said amount of Rs 5,46,737 could not be said to be estimated towards making payment of the plaintiff only and rather it would include the expenses for litigation, court fees, advocate’s fees etc. for contesting the claim of the plaintiff in different courts of law.

Court held that mere mentioning of the said amount before a third party/agency cannot be treated as an admission against the defendant. Hence, Trial Court treating the said amount as an admission is illegal and not as per the established principles of law of evidence.

Bench decided that the plaintiff was entitled only to one month’s salary as per the original employment contract for one month’s notice period besides the other service dues which had been decided by the trial court.

With regard to plaintiff claim of DA, HRS, Bonus, LTA and Gratuity, Court stated that when it was already held that plaintiff was not entitled or full back wages, he cannot be said to be entitled to the said reliefs. Further, HRA, LTA are permissible only when a person is into service which is not the case in the present matter. The Bonus and Gratuity can be claimed from the competent authority as prescribed in the Bonus Act and Gratuity Act as per law. The amount already received by the plaintiff is deductible and excess, if any, to be refunded to the defendant within 30 days.

In view of the above discussion, appeal were disposed of. [Ashok Gupta v. Modi Rubber Limited, RCA No. 25 of 2020, decided on 17-11-2021]

Case BriefsHigh Courts

Allahabad High Court: Siddhartha Verma, J. reiterated the law laid down by the Supreme Court in Lal Mohammad v. Indian Railway Construction Co. Ltd., (2007) 2 SCC 513, wherein it was decided that when a workman is employed for a particular project then the services of that employee came to an end as soon as the project was over and he could not be given permanent status. It was also held that shortfall of period of notice or compensation, after completion of the project would not render the termination bad on that count.

The instant writ petition was filed challenging the award passed by the Labour Court. The petitioner was employed by the Indian Railway Construction International Ltd. initially as a peon on casual basis for period of six months by the order of the Project Manager, Vindhya Nagar. After completion of such service, the petitioner was re-employed on monthly basis and was attached with Anpara Project. This was done by the order of Regional Manager IRCON – Anpara. He continued for four years in this arrangement, after which he was brought in the regular scale. Thereafter, he was transferred to another Rihand Nagar Project. However, subsequently, his services were dispensed with. The petitioner raised an industrial dispute praying for reinstatement with back wages pursuant to which the Labour Court passed the order which was challenged by the petitioner in the instant writ petition.

At the outset, the Court noted that several other workmen of the Company who were found surplus and their services were also dispensed with, had filed writ petitions before the High Court. After moving to and fro, the case ultimately reached for decision in appeal before the Supreme Court in Lal Mohammad v. Indian Railway Construction Co. Ltd., (2007) 2 SCC 513. The Supreme Court found that the petitioners were not entitled to be regularised in the services of the Company as they were not employees of the company. It, however, held that the petitioners were entitled to compensation and thereafter the appeals were dismissed.

The petitioner in the instant writ petition claimed that his case was different from the case of Lal Mohammad. However, after hearing the parties and perusing the written arguments and also going through the award, the High Court found that no interference was warranted in the award of the Labour Court. It was observed:

“The Supreme Court in the case reported in Lal Mohammad v. Indian Railway Construction Co. Ltd., (2007) 2 SCC 513 has categorically laid down that when a workman is employed for a particular project, the services of that employee came to an end when the project was over and, therefore, could not be given a permanent status. It has also held that the workman could not be considered as employee of the company under which various other projects ran.”

The High Court also found that there was similarity in the case of the instant petitioner and the case already decided. Under such circumstances, the writ petition was dismissed. [Bipin v. Union of India, 2021 SCC OnLine All 787, dated 25-10-2021]

Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J., partly allowed a petition which was filed aggrieved whereby respondent 3 had initiated the recovery of the amount paid in excess.

The petitioner being a non-ministerial employee was given the benefit of increment and the Supreme Court had upheld that amount was wrongly paid to the non-ministerial staff after which State Government had initiated the recovery against all the employees who had been given the said benefit.

Counsel for the petitioner submitted that the petitioner was not challenging the recovery of the principal amount, but he was aggrieved by the recovery of interest as there was no fault on the part of the petitioner to get the increment.

The Court agreed that the Petitioner being the ministerial staff of the police department was not entitled to get the said ad-hoc increment, but the same was given to him along with others by the department itself, hence, recovery of the interest was not justified.

The Court allowed the petition to the extent that recovery of the principal was justified but the recovery of the interest wasn’t thus the part of the order was quashed and further directed that any amount already recovered as interest be returned to the petitioner.[Radheshyam Yadav v. State of M.P., 2021 SCC OnLine MP 2032, decided on 27-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Counsel for the petitioner: Shri L. C. Patne

Counsel for the respondents/State: Shri Aditya Garg

Case BriefsHigh Courts

Delhi High Court: Noting allegations against an employer with regard to the sexual harassment Sanjeev Sachdeva, J., expressed that,

“…instead of providing assistance to the aggrieved woman in prosecuting her complaint of sexual harassment, the Akademi has been opposing her tooth and nail and has even terminated her services pending the inquiry before the Local Committee.”

Note:

In view of Section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the petitioners name has been kept confidential and would be referred to as the “aggrieved woman” and similarly, the name of the officer against whom the complaint has been made shall be kept confidential and he would be referred to as the “Secretary”.

Questions for Determination:

(i)  Whether the Secretary is an employer in terms of section 2(g) of the Act?; and

(ii)  Whether the complaint of sexual harassment against the Secretary could have been made only to the Local Committee and not to the Internal Complaints Committee in terms of Section 6(1) of the Act?; and

(iii)  Whether the Internal Complaints Committee was validly constituted in terms of Section 4 of the Act?; and

(iv)  Whether the aggrieved woman made any complaint to the Internal Complaints Committee in terms of Section 9 of the Act?’ and

(v)  If the answer to question (iv) is in the negative, then whether the report of the Internal Complaints Committee dismissing the complaint is sustainable?

(vi)  Whether the non confirmation/extension of probation of the aggrieved woman during pendency of the proceedings is sustainable?

(vii)  Whether the Petition by the aggrieved woman is not maintainable as she has not exhausted the alternative remedy of an appeal against the finding of the Internal Complaints Committee?

Background

In the present matter, it was stated that the aggrieved woman faced severe sexual harassment from March 2014 onwards at the hands of the Secretary.

Further, it was alleged that he regularly made racist and sexist comments on women hailing from the North-East, particularly from the home state of the aggrieved woman.

As a counterblast to aggrieved woman’s objections, with regard to inappropriate sexual advances by the Secretary, he in the presence of other officers screamed at her and kept accusing her of poor performance or not working properly.

Adding to the above allegations, the aggrieved woman also stated that he tried to hold her hand, saying that she should have understood his ‘hints’ and should have provided him ‘bodily satisfaction’ if she did not want her probation to get extended.

Further, she was also served with frivolous office memoranda which were sent to tarnish her employment record.

In 2019, she submitted a complaint to the police station detailing out the acts of sexual harassment and assault perpetrated by the Secretary, later an FIR was registered.

Aggrieved woman protested and informed the ICC that it did not have the jurisdiction to look into her complaint against the Secretary and only the Local Committee was vested with the jurisdiction to initiate proceedings based on her complaint, as the Secretary was the employer in terms of Section 2(g) of the Act.

Further, the ICC stated that if the aggrieved woman will not appear, the Committee shall have no option but to terminate the proceedings.

Local Committee granted aggrieved woman relief of 3 months paid leave in terms of Section 12(1) of the Act.

In February 2020, the aggrieved woman was discharged from her duties due to unsatisfactory performance.

Analysis, Law and Decision

High Court expressed that since the Secretary was the employer for the purposes of the Act, the complaint of the said employer would not lie to the Internal Committee but shall lied only to the Local Committee.

Therefore, ICC does not have any jurisdiction to entertain a complaint against the Secretary.

In the present matter, the aggrieved woman had emailed to the Executive Board requesting them to set up an independent committee to enquire into her complaint of sexual harassment and assault in the same email she had alleged that the ICC lacked jurisdiction to enquire into her complaint as her complaint was against the Secretary who was the ‘employer’ within the meaning of Section 2(g) of the Act.

Since no complaint was made by the aggrieved woman to the Internal Committee in terms of Section 9 of the Act, the Internal Committee could not have conducted any inquiry or submitted a report.

Court while reasoning out further stated that,

  • No rule or provision pointed out on behalf of the Akademi to justify the procedure of constituting a Review Committee to review the performance
  • Office memoranda and calling explanations relied upon were issued either by the Secretary or by the officers junior to the Secretary, who also report to him
  • If there was any merit in the allegations of the aggrieved woman then the office memoranda and calling explanations were all issued because she rebuffed his advances
  • Timing of the termination order was such that it prima facie smacks of malafides. Especially, when a complaint of sexual harassment was pending against the Chief Executive Officer of the Akademi, the Executive Board should have waited for the decision on the complaint of the aggrieved woman.

Note:

Section 19 of the Act stipulates the duties of the employer to inter alia provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace; display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under Section 4(1); provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force; cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place; and treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.

 Conclusion

Petition was disposed of in the following terms:

(i)  The Secretary is held to be an employer in terms of Section 2(g) of the Act.

(ii)  The complaint of sexual harassment against the Secretary would lie only to the Local Committee and the Internal Complaints Committee would not have any jurisdiction to entertain any complaint against the Secretary.

(iii)  The Inquiry report dated 14.01.2020 of the Internal Complaints Committee and its opinion and recommendations are held to be without jurisdiction and non est.

(iv) Office Memorandum dated 14.02.2020 terminating the services of the aggrieved woman quashed.

(v) The aggrieved woman would be deemed to continue in service but as a probationer in terms of her appointment letter till the conclusion of the inquiry by the Local Committee. She is reinstated to her former position, with continuity of service, full back wages, and other consequential service benefits.

(vi) The Akademi shall forthwith pay her salary for the current month and clear the arrears of her salary within four weeks.

(vii) The aggrieved woman shall be deemed to be on paid leave till the Local Committee passes appropriate interim orders with regard to provision of a safe working environment to her.

(viii) The competent authority of the Akademi would be at liberty to review her performance and take a decision on her employment status after submission and implementation of the report by the Local Committee.

(ix) Since it has been held that the Secretary is the employer in terms of Section 2(g) of the Act and that a complaint against him would not lie to the Internal Committee, the question as to whether the Internal Committee was validly constituted and details thereof displayed in terms of Section 19 of the Act, is left open.

(x) The claim of the aggrieved woman for compensation for alleged mental trauma, pain, suffering and emotional distress caused to her is left open for determination by the Local Committee in terms of Section 15 of the Act.

Therefore, petition was allowed in the above terms.[X v. Y, WP(C) 1103 of 2020, decided on 25-10-201]


Advocates before the Court:

For the Petitioners:

Mr. Ritin Rai, Senior Advocate with Ms. Shreya Munoth, Ms. Kritika Bhardwaj, Mr. Ashwin Pantula, Ms. Aditi Rao and Ms. Suhavi Arya, Advocates.

For the Respondents:

Ms. Geeta Luthra, Senior Advocate with Mr. Abhishek Aggarwal, Ms. Damini Thaker and Ms. Kamkashi Gupta, Advocates for Respondent No. 1

Mr. Anupam Srivastava, ASC, GNCTD with Mr. Dhairya Gupta, Advocate for R-2 and 3/GNCTD.

Case BriefsSupreme Court

Supreme Court: In a landmark case, the Division Bench of M.R. Shah and Aniruddha Bose, JJ., held that an employee has no right to insist/deny his transfer at a particular place.

The Bench was addressing the case of a Lecturer (Psychology) at Rajkiya Mahavidyalaya, Gajraula, District Amroha; who had made representation for her transfer to Rajkiya Post Graduate College, Noida, Gautam Buddha Nagar. The said representation had been rejected by the Additional Chief Secretary Higher Education, Uttar Pradesh. The petitioner contended before the Court that she had been working at Amroha for the last 4 years and therefore, under the Government policy she was entitled to a transfer.

However, the impugned rejection order reflected that the petitioner had remained posted at Rajkiya Post Graduate College, Noida, Gautam Buddha Nagar from the date of her initial appointment 18-12-2000 to 11-08-2013 i.e. for about 13 years and therefore, her request for posting her again at the same institution was not justified.

Noticeably, the case of the petitioner was dismissed by the High Court of Judicature at Allahabad on the ground that she was not entitled to be posted at the place where she had already worked at a stretch for about 13 years. The High Court had held that in case the petitioner had completed requisite number of years at the place of her present posting, she may request for her transfer to some other place but not to the place where she had already worked for 13 years.

Upholding the decision of the High Court, the Bench held that it is not for the employee to insist to transfer him/her and/or not to transfer him/her at a particular place. It is for the employer to transfer an employee considering the requirement. Accordingly, the Special Leave Petition was dismissed. [Namrata Verma v. State of U.P., Special Leave to Appeal (C) No(s). 36717 of 2017, decided on 06-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For Petitioner(s): Mr Parvez Bashista, Adv. Dr Nirmal Chopra, AOR

For Respondent(s): Mr Sanjay Kumar Tyagi, AOR

Case BriefsSupreme Court

Supreme Court: The Bench of K.M. Joseph and S. Ravindra Bhat, JJ. while addressing the matter, observed that,

Public service – like any other, pre-supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service.

Appellant (Commissioner of Police, Delhi) on being aggrieved by the Delhi High Court decision by which the respondents were directed to be considered for appointed to the post of Constable of Delhi Police, filed the present appeal.

Factual Background

In the year 2009, an advertisement was issued wherein applications were invited for the cadre of constable in the Delhi Police.

Applicant Deepa Tomar in her application did not disclose the fact that she was facing criminal trial and the criminal cases were ended in compromise. Standing Committee while assessing the suitability of the candidates deferred Deepa Tomar’s consideration as she was facing trial in criminal proceedings and was charged with committing the offence of kidnapping under Section 364 of Penal Code, 1860.

Division Bench of High Court allowed the petitions of the candidate and quashed their rejection.

Analysis, Law and Decision

Bench noted on perusal of the Standing Order along with Annexure-A that in relation to certain offences, acquittal or exoneration of an accused candidate, per se would not entitle her or him to consideration.

Upon an overall analysis of the Standing Order, this Court is of the opinion that an acquittal or discharge in a criminal proceeding would not per se enable the candidate to argue that the authorities can be compelled to select and appoint her or him.

Decisions for Individual case:

Civil Appeal arising from SLP(C) 13285/2014 (Raj Kumar)

The Screening Committee went through the case records and noted that a compromise was recorded with the approval of the Court with respect to two offences whereas, in the graver offences, the candidate stood trial but was acquitted on account as there was not sufficient evidence and that “material witnesses” did not support the prosecution story.

In Court’s opinion, the compromise recorded in respect of the offences, that were compounded (and the acquittal for lack of evidence) is apparently so on account of material witnesses not appearing or turning hostile, was a relevant factor that the Screening Committee could and did consider.

Shiv Singh

Shiv Singh, respondent, in another case was accused of committing offences punishable under Sections 323, 341, 325, 34 IPC.

The Screening committee considered the charge sheet and the order of the trial court, and having regard to the nature of offences involved, was of the view that the candidate was not suitable, because of his propensity to indulge in such behavior without fear of law. The High Court faulted the Screening Committee’s order, as a mechanical exercise of power, and reasoned that no charge of assaulting the modesty of a woman was made against the candidate and that the charge of theft was unsubstantiated.

Prem Singh Choudhary, SLP (C) No. 4304 of 2013

It was alleged that, he committed offences punishable under Sections 143/323/341 IPC.

It was held that in the light of the materials before the police, the informant had given an exaggerated account, of the incident, which the Screening Committee rejected, mechanically.

In Court’s opinion, scrutiny of the materials, by the High Court, was as if it was sitting in appeal over the decision of the Screening Committee. That body had the benefit of the overall record of the candidate, in the context of considering his or her suitability. Its conclusions should not have been brushed aside, on the ground that it showed the mechanical application of mind, or that the materials did not show involvement in a grave or serious offence.

Deepa Tomar

Screening committee was of the view that the acquittal was by granting benefit of doubt, and that the candidate was unfit for appointment as a Constable (Female) in the Delhi Police because she was accused of having committed a heinous crime i.e. of abduction and that the victim, her husband (Jitender) was still untraceable.

Court expressed its view that,

Courts exercising judicial review cannot second guess the suitability of a candidate for any public office or post. Absent evidence of malice or mindlessness (to the materials), or illegality by the public employer, an intense scrutiny on why a candidate is excluded as unsuitable renders the courts’ decision suspect to the charge of trespass into executive power of determining suitability of an individual for appointment.

 Lastly, expressing its view with norms and its interrelation with judicial review, Bench held that,

Judicial review, under the Constitution, is permissible to ensure that those norms are fair and reasonable, and applied fairly, in a non-discriminatory manner. However, suitability is entirely different; the autonomy or choice of the public employer, is greatest, as long as the process of decision making is neither illegal, unfair, or lacking in bona fides.

Holding that, certain types of offences, like molestation of women, or trespass and beating up, assault, causing hurt or grievous hurt, (with or without use of weapons), of victims, in rural settings, can also be indicative of caste or hierarchy-based behaviour. Each case is to be scrutinized by the concerned public employer, through its designated officials- more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society’s security, appeals were allowed. [Commissioner of Police v. Raj Kumar, 2021 SCC OnLine SC 637, decided on 25-8-021]