Case BriefsHigh Courts

Kerala High Court: Addressing a matter wherein maternity benefits were not being allowed to female officers, Raja Vijayaraghavan V, JJ., expressed that the employer is to take all steps possible to ensure that they are sympathetic to the cause of the female officer so that she can achieve her potential in the workplace and the time spent by her to deliver and raise her child shall not be detrimental to her career or her prospects.

The petitioners who were working as Programmer (IT) were denied the Maternity Benefits, hence they approached this Court.

Analysis, Law and Decision

The Supreme Court decision in Municipal Corpn. of Delhi v. Female Workers, AIR 2000 SC 1274 was cited wherein the female workers (Muster roll) engaged by the Municipal Corporation of Delhi raised a demand for grant of maternity leave which was made available only to regular female workers but was denied to them on the ground that their services have not been regularized.

In the present matter, earlier the maternity benefit was rejected on the ground that female officers appointed on contract for a period of one year or less were not eligible for maternity leave.

It was noted by the Court that, benefit of maternity leave on full pay as per Rule 100, Part I KSR has been granted up to a period of 180 days or till the expiry of the existing contract, irrespective of its tenure.

The Government inserted a caveat that no officer shall be entitled to the above benefits unless she has “actually” worked under the employer for a period of not less than 80 days immediately preceding her expected date of delivery or date of miscarriage.

As held by the Supreme Court, women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work, they must be provided with all the facilities to which they are entitled.

Bench expressed that becoming a mother is the most natural phenomenon in the life of a woman. The employer has to be considerate and sympathetic to the cause of the female officer and no action shall be taken to lower the dignity of the women employee in the workplace.

Hence, the impugned order insofar as it denied the maternity benefits will be quashed. [Naziya B. v. State of Kerala, 2022 SCC OnLine Ker 2343, decided on 10-5-2022]


Advocates before the Court:

For the Petitioners:

BY ADVS.

M.R.VENUGOPAL

DHANYA P.ASHOKAN

MUHAMMAD ALIKHAN

For the Respondents:

BY ADVS.

ADVOCATE GENERAL OFFICE KERALA

SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES

SMT. ANIMA, GOVT.PLEADER.

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 BriefsForeign Courts

As the proceedings in the Hijab Case are still going on, here we try and look back at one of the decisions from a foreign Court, which addressed the issue with regard to right to practice religion.

In today’s post we look at a case from Canada Supreme Court from the year 1985.

Remember what Canada Supreme Court ruled out in K.S. Bhinder v. Canadian National Railway Company, 1985 SCC OnLine Can SC 76, Case?


In this case, a work rule was introduced, as per which all the employees had to wear a hard hat at a particular work site, but Bhinder a Sikh employee refused to comply with the said rule because his religion did not allow the wearing of headgear other than the turban.

Due to the above said, Bhinder’s employment was ceased but the Canadian Human Rights Tribunal found that the said rule was discriminatory in practice and ordered reinstatement and compensation for loss of salary. Though when the matter was appealed, the decision was set aside and referred back for disposition on the basis that the work rule was not a discriminatory practice.

As per Section 14 of the Canadian Human Rights Act,

“It is not a discriminatory practice:

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;”

In Court’s opinion, the Tribunal did not err in law in holding the bona fide occupational requirement of Section 14 (a) of the Act.

“The wearing of safety helmets by Sikhs, a requirement which has a prima facie discriminatory effect, is a matter governed by the Canadian Human Rights Act, not the Canada Labour Code, where the requirements of the two Acts conflict. Thus, even if the safety helmet policy is necessary under the Canada Labour Code and Regulations, it does not follow that the policy is ipso facto a bona fide occupational requirement for the purpose of the Canadian Human Rights Act.”

“With respect to the financial hardship of Canadian National in the event of an injury to Mr. Bhinder as a result of his not wearing a safety helmet, the Tribunal concluded the potential additional costs of an exemption from its safety helmet policy in favour of the complainant, and Sikhs in general, was de minimis and, therefore, did not constitute undue hardship.”

Further, it was noted that, the Tribunal found that the rule was useful, that it was reasonable in that it promoted safety by reducing the risk of injury and, specifically, that the risk faced by Bhinder in wearing a turban rather than a hard hat was increased, though by a very small amount. The only conclusion that can be drawn from the reasons for the decision is that, but for its special application to Bhinder, the hard hat rule was found to be a bona fide occupational requirement. Indeed, it would be difficult on the facts to reach any other conclusion.

The conclusion in the said case was that the safety helmet policy of the employer was not a bona fide occupational requirement in respect of its application to Mr Bhinder.

“The Tribunal found that the rule was useful, that it was reasonable in that it promoted safety by reducing the risk of injury and, specifically, that the risk faced by Bhinder in wearing a turban rather than a hard hat was increased, though by a very small amount. The only conclusion that can be drawn from the reasons for decision is that, but for its special application to Bhinder, the hard hat rule was found to be a bona fide occupational requirement. Indeed, it would be difficult on the facts to reach any other conclusion.”

Supreme Court of Canada found error in law for the Tribunal, having found that the bona fide occupational requirement existed, to exempt the appellant from its scope.

What the UN Human Rights Committee held in the case?

Whether the imposition of a ‘hard hat’ policy for reasons of workplace safety was incompatible with Article 18 of the International Covenant on Civil and Political Rights, where particular religious groups were unable to comply with the requirement?

While holding that, the facts of the case did not disclose a violation of any provision of the International Covenant on Civil and Political Rights, Committee noted that,

“If the requirement that a hard hat be worn is regarded as raising issues under article 18, then it is a limitation that is justified by reference to the grounds laid down in article 18, paragraph 3. If the requirement that a hard hat be worn is seen as a discrimination de facto against persons of the Sikh religion under article 26, then, applying criteria now well established in the jurisprudence of the Committee, the legislation requiring that workers in federal employment be protected from injury and electric shock by the wearing of hard hats is to be regarded as reasonable and directed towards objective purposes that are compatible with the Covenant.”

[KARNEL SINGH BHINDER v. CANADA, 23 October – 10 November 1989]


How the Kerala High Court had dealt with the wearing of ‘headscarf’ issue? Read below


To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

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.

Advani LawExperts Corner


Introduction


Many construction contracts require the contractor to enter into an agreement with a subcontractor for a specialised task of the contractor’s scope of work. The subcontractor can be either selected by the contractor or the employer of the contractor. When the subcontractor is selected and employed solely by the contractor the subcontractor is termed as a domestic subcontractor, however when the subcontractor is selected and employed by the employer, the subcontractor is then termed as a nominated subcontractor. Although the employer has selected the subcontractor, the contractor signs the agreement with the subcontractor and remains responsible for the works done. In simple words, a nominated subcontractor is selected by the employer and imposed on the contractor. However, whether the nominated subcontractors’ defaults and delays place a liability on the employer or the contractor has always been a point of contention.

 

Domestic subcontractors.– The contractor and the employer will shortlist certain number of potential subcontractors for the purpose of issuing the tender but will be finally selected and employed by the contractor. Therefore, the main contractor is solely responsible and liable for that subcontractor. Even though the employer is involved in the selection process of the subcontractor, the contractor is the one that chose the subcontractor for the specialised work and is responsible for the completion of the work without delay.

 

Nominated subcontractors.– The contractor and the employer will shortlist a certain number of potential subcontractors, but it is the employer that negotiates the terms of the contract, selects and employs the subcontractor. However, the contractor is responsible for the completion of the work, the liability of the subcontractor falls in the hands of the employer and the contractor has no cause of action against the employer in respect of any delay or default on the part of the nominated subcontractor.[1]


Development in law


  • Foreign jurisprudence

 

The concept of nominated subcontractors has been more nuanced in English law. As per various authorities, the contractor cannot bear liability of a subcontractor over which it has no control over.

  1. In Young & Marten Ltd. v. McManus Childs Ltd.[2], the Court of Appeal held that the contractor is not liable to the employer for any defects in design, quality of workmanship and materials provided by the subcontractor.
  2. In Gloucestershire County Council v. Richardson[3], the House of Lords held that the main contractor’s liability to the employer was limited to the extent of the nominated supplier’s liability to the main contractor by operation of the terms of the nominated subcontract.
  3. In North West Metropolitan Regional Hospital Board T.A. Bickerton & Son Ltd.[4], the Court held that in the absence of clear language, to make the contractor liable for a nominated subcontractor over whose appointment or activities he has little control is simply unjust.
  4. In Sinclair Woods of Winchester Ltd.,[5] the Court held that the main contractor has no liability for the design under the terms of the main contract, and that he cannot mysteriously acquire that liability merely because he is instructed to enter a subcontract with a nominated subcontractor who is going to do some design work on behalf of the employer.

 

Under JCT Standard Form of Building Contract, 1998, the contractor is entitled to claim an extension of time (EOT) but is not entitled to claim loss and expenses as confirmed in Norwest Holst Construction Ltd. v. Coop. Wholesale Society Ltd.[6] If the subcontractor is nominated, the contractor will be entitled to an extension of time since he had very less control over the subcontractor’s selection and therefore on the performance too (for example under Cl. 25.4.7 of the JCT, 1998). However, things have changed under the JCT 2005 Standard Form nomination which has done away with nomination. Instead the JCT has adopted the “the three persons” scheme which gives the employer the advantage of specifying a competent specialist subcontractor whilst leaving the risk of defective work and delay on the part of the subcontract with the contractor.[7]

Non-performance by the nominated subcontractor, does not entitle the contractor to additional time or expense, according to FIDIC’s Red Book Form of Contract, 1999. Under FIDIC 1999, the employer may appoint the subcontractor, once the subcontractor has accepted the nomination, the employer becomes responsible for the actions of the nominated subcontractor. Therefore, the contractor may not claim for any failures of the nominated subcontractor. The idea that the contractor is liable for the actions of nominated subcontractors is predicated on the fact that the main contractor has the option to object to the employer’s nomination at the outset. The contractor can make a legitimate objection by stating the reasons why the subcontractor chosen by the employer is unsuitable.

 

  • Indian jurisprudence

Indian law does not make a distinction between domestic subcontractors and nominated subcontractors. The Indian courts have adhered to the rules of privity of contract and have held that the relationship between the employer and the contractor is on one hand and the relationship between the contractor and the subcontractor is on the other hand keeping it distinct and separate as was held in Ircon International Ltd. v. Vinay Heavy Equipments[8]. In order to avoid legal battles on the issue of liability of the subcontractor, careful consideration must be given to drafting the terms and conditions of the subcontract.

 


Conclusion


The English law on nominated subcontractor seems to be more nuanced. The relationship between a subcontractor and the contractor depends upon the construction of the subcontract.[9] Much will be influenced by what the main contractor agreed to with the employer in the contract, and the contract’s provisions are always the launching point for determining the contractor’s liabilities. In the absence of any clause which expressly permits the contractor to claim time or cost, the risk of a nominated subcontractor lies with the contractor.[10]

 

Furthermore, because Indian courts have not dealt with the issue of nominated subcontractor defaults and delays, there is very little jurisprudence on the subject. However, based on the approach taken by English Courts, it is best to conclude that the most important factor in determining the contractor’s liability for defects and delays caused by the nominated subcontractor would be influenced by the selection process, negotiation of the terms of the subcontract, the employment and the subcontract.


† Hiroo Advani, Founder and Chairman, Advani Law.

†† Kanika Arora, Partner, Advani Law.

††† Surbhi Ahuja, Associate, Advani Law.

* Ria Garg, Associate, Advani Law.

[1]North West Metropolitan Regional Hospital Board v. T.A. Bickerton & Son Ltd., (1970) 1 WLR 607 at 615 : (1970) 1 ALL ER 1039.

[2](1969) 1 AC 454 : (1968) 3 WLR 630.

[3](1969) 1 AC 480.

[4](1970) 1 WLR 607 : (1970) 1 ALL ER 1039.

[5] 2006 EWHC 3003.

[6]1998 EWHC Technology 339

[7]JCT Standard Form of Building Contract, 2005, Cl. 3.8.

[8](2015) 13 SCC 680

[9]Calder v. H. Kitson Vickers & Sons (Engineers) Ltd., [1987] EWCA Civ J0730-9

[10]Percy Bilton Ltd. v. Greater London Council, (1982) 1 WLR 794.

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

Case BriefsTribunals/Commissions/Regulatory Bodies

Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad: Noting the fact that a patients Kidney was removed instead of the stones in the Kidney, Dr J.G. Mecwan (Presiding Member) expressing its’ opinion on medical negligence and hospital’s vicarious liability expressed that,

Hospital is liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees.

Facts in Nutshell

Complainant stated that the present appellant was a hospital run by a charitable trust and Dr Shivubhai Patel was working as a Medical Officer/surgeon at the KMG General Hospital.

Complainant’s case was that the husband of the complainant approached the opponent with the complaint of back pain and difficulty in urination in the K.G.M Hospital and thereafter the Surgeon examined him and advised for USG. In the USG report it was revealed that the deceased’s left kidney was maltreated and therefore he was advised to go to some higher center for operation but as the complainant was unable to go there due to his financial condition, necessary medicines were prescribed by the opponent Doctor.

Complainant visited the opponent hospital with unbearable pain and therefore, a special investigation was done and the report was suggestive of 14mm stone with obstruction at P.U.J in left kidney and the right kidney was normal.

It is further submitted by the complainant that the operation was performed for removal of the stone from the kidney but instead of stone, the Kidney was removed by Dr Patel without any consent of her husband.

After the above incident, patient’s condition worsened, and he eventually died and therefore the complainant filed a consumer complaint against the opponent for gross medical negligence and deficiency in service before the District Commission.

District Commission partly allowed the complaint of the complainant.

Being aggrieved by the impugned order of the District Commission, Nadiad the original opponent 02 has filed the present appeal against the original complainant before this Commission.

Main Consideration:

Opponent Doctor removed the Kidney instead of removing the stone from the kidney.

Opponent 3 – Insurance Company contended that Opponent 2 Hospital had taken an insurance policy for the legal liability and therefore OP-3 was not at all liable for the payment of the medical negligence for the opponent Doctor i.e. employee of the opponent 2 Hospital.

Commission noted that that the policy was taken for legal liability for the indoor patients and outdoor patients of the hospital and therefore in the opinion of this Commission when policy was taken for the legal liability of the indoor and outdoor patients and not taken for professional Indemnity then medical negligence for the opponent 01 doctor i.e. employee of the opponent 02 – Hospital, Insurance Company cannot be held liable to make payment.

Hospital’s Liability

Coram expressed that Hospital was liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees.

An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of ‘respondent superior’ meaning ‘let the master answer’.

Concluding the matter, the Commission held that when Doctor is liable for the act of medical negligence then the Hospital is also vicariously liable for the act of Doctor and therefore District Commission Order was not just and proper, hence was modified as under:

“Opponent No. 02 – K.M.G. General Hospital is hereby ordered to pay Rs. 11,23,000/-(Rupees Eleven Lac Twenty Three Thousand Only), to the complainant with interest at the rate of 7.5% from the date of filing of the compliant till its realization and also ordered to pay Rs. 5000/- (Rupees Five Thousand Only) towards mental agony and cost of the complaint.”

[KMG General Hospital v. Devendrabhai K. Raval, Appeal No. 1457 of 2013, decided on 7-10-2021]


Advocates before the Commission:

Mr M.K. Joshi, L.A. for the appellants,

Mr V.K. Bhatt, L.A. for respondent no. 01, Mr M.K. Joshi, L.A. for respondent no. 02,

Mr. V.P. Nanavaty, L.A. for the respondent no. 03.

Case BriefsHigh Courts

Chhattisgarh High Court: Narendra Kumar Vyas J. allowed the petition and remarked “any victim of sexual harassment at workplace should not run pillar to post to get her redressal”.

The petitioner is a Senior Professor of English posted at Government J.P. Verma, P.G. Arts and Commerce College, Bilaspur. Respondent 5, an Assistant Professor in English and posted at Government College, Akaltara visited Government J.P. Verma P.G. Arts and Commerce College, Bilaspur and used obscene language about the petitioner. He used words “Tripathi Chalo Maja Kare Tum to Janti Ho Pichle Bara Varso se Tumhare Mere Saririk Sambandh Hai Aur Itne He Varso Se Tum Meri Rakhel Ho” in presence of number of professors. The petitioner informed the authorities to take action but no action was taken, and thus, she made a complaint to respondent 1 to the Government of Chhattisgarh. A preliminary fact finding inquiry was conducted but not to much avail and neither the principal after receiving complaint lodged any report nor has given permission or direction to the petitioner to lodge FIR, so she has not lodged the report directly. The above events demonstrate that the guidelines given by the Vishaka Committee was not followed as the incident has been taken place in the workplace, therefore, the employer should have forwarded the copy of the complaint along with inquiry report to the police station, so the police can take cognizance on the complaint.

Counsel for the State submitted that the allegation of the petitioner that she was sexually harassed at workplace is not applicable to the present facts of the case as respondent 5 was working at Government College, Akaltara whereas the petitioner was working at J.P. Verma, P.G. Arts and Commerce College, Bilaspur. As such inquiry cannot be initiated against respondent 5 for sexual harrassment at workplace as the workplaces are entirely different.

The Court relied on Vishaka v. State of Rajasthan, (1997) 6 SCC 241 and observed that Prevention of Sexual Harassment at Workplace Act i.e. POSH Act has been formulated in pursuance of the guidelines of the Supreme Court in case of Vishaka (supra).  Also, the petitioner and respondent 5 are employees of State Government working in the Higher Education Department. Their service conditions are governed by Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966.

 Will the incident attract the term “employer” within its ambit?

The Court observed that they are appointed by State Government, Higher Education Department, as such, they are employed by the same employer. The employer has been defined in Section 2(g) of the Act, 2013 which means in relation to any department, organization, undertaking, establishment, enterprises, office, branch or unit of the appropriate government or a local authority, the head of that department and clause (II) of the Section provides that in any workplace not covered under clause (I) any person responsible for the management, supervision and control of the workplace will be called as employer, thus, Secretary Higher Education Department, Director of Higher Education Department and Principal of the Institution will be employer so far as the Act, 2013 is concerned, therefore, respondent 4 can very well fall within ambit of ‘employer’ under the Act, 2013, thus, respondent 1 and respondent 4 being employer should have taken action as per the Act, 2013 and they have failed to discharge their duties.

Whether, the act committed by respondent 5 against petitioner would amount to sexual harassment within “workplace”?

The petitioner was working at J.P. Verma, P.G. Arts and Commerce College, Bilaspur where respondent 5 has visited and made certain obscene remarks against petitioner, therefore, as per the Section 2(o) of the Act the incident has taken at workplace where petitioner was working. The workplace has to be considered, the place of working of the victim not on the basis of offender, as such, it is held that petitioner was subjected to harassment at workplace. Therefore, the incident has taken place at workplace and since the incident has happened at workplace, either respondent 1 or respondent 4 should have taken action as per the judgment of Vishaka (supra) and the Act, 2013.

The Court thus directed “the Secretary / Director / their authorized persons from Higher Education or Principal of the College where the petitioner was posted, shall initiate proceedings against respondent No. 5 for registration of FIR on the basis of complaint made by the petitioner and materials collected by the facts finding Committee within two months from the date of receipt of copy of this order.”

[Savitri Tripathi v. State of Chhattisgarh, 2021 SCC OnLine Chh 3203, decided on 25-10-2021]


Appearances

For Petitioner: Mr. Awadh Tripathi

For State: Mr. G.I. Sharan

For Respondent 4: Mr. Kishore Bhaduri and Mr. Sabyasachi Bhaduri

For Respondent 5: Shri Arvind Shrivastava


Arunima Bose, Editorial Assistant has reported this brief.

Foreign LegislationLegislation Updates

The California’s Governor has signed Assembly Bill 1003, concerning wage theft by employer, into law on September 28, 2021. The highlights of the new legislation are:

 

  • The legislation creates a new offence for the intentional theft of wages by an employer, punishable as either a felony or a misdemeanor.
  • The legislation creates a new type of grand theft for the intentional theft of wages in an amount greater than $950 from any one employee, or $2,350 in the aggregate from two or more employees by an employer in any consecutive 12-month period.
  • The new legislation allows wages, tips, or other compensation that are the subject of a prosecution to be recovered as restitution.
  • The grand theft is punishable either as a misdemeanor by imprisonment in a county jail for up to 1 year or as a felony by imprisonment in county jail for 16 months or 2 or 3 years, by a specified fine, or by a fine and that imprisonment.

*Tanvi Singh, Editorial Assistant has reported this brief.

Legislation UpdatesRules & Regulations

The Delhi Labour Department has notified the Delhi Shops and Establishments (Amendment) Rules, 2021 on September 24, 2021 to further amend the Delhi Shops and Establishments Rules, 1954.

The Rules make the following amendment under the Act:

 

  • Rule 3, substituted, deals with form for submitting statement and other particulars relating to name of the employer, the category of the establishment etc. The Rule provides that the occupier of the establishment, within 90 days of the commencement of work of his establishment shall apply for the registration under the Act, online on the Shop and Establishment Portal of Labour Department.
  • Rule 4, substituted, states that on submission of application online on the Shop & Establishment portal of Labour Department, Government of NCT of Delhi, the registration certificate shall be generated online in Form C.
  • Rule 6, substituted, the occupier shall notify any change in respect of any information under section 5(1) of the Act within 30 days after such change has taken place, online, on the Shop & Establishment Portal of Labour Department, Government of National Capital Territory of Delhi.

 


*Tanvi Singh, Editorial Assistant has reported this brief.

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] 

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., emphasizing the principle of res ipsa loquitur and placing a detailed explanation on the same granted just and fair compensation to a person who was 100% disabled due to an accident at his place of work.

Factual Backdrop

Petitioner’s son (Bharat) who was 28 years of age was the victim of an accident at the age of about 21 years which had left him 100% disabled. Instant petition was filed by petitioner’s father since petitioner was stated to be virtually bed ridden and not in a position to file to pursue his claim against the respondents.

Petitioner had made claims against the respondents BSES Rajdhani Power Limited and Bryn Construction Company.

Further, it was submitted that petitioner had suffered an accident due to certain work performed by Bryn for BRPL, which led to the filing of the present petition.

Cause of Permanent Disability

 Bharat, who was then about 21 years of age, while working as an electrician with Bryn, was tasked with rectifying a fault in an electricity pole that was causing fluctuation in the electricity supply at a farmhouse and suffered a fall while performing the task since the electricity pole that he had climbed on, snapped and fell.

Bharat’s dismal physical state apart, it was also evident to this court that Bharat was a psychological wreck, not least because in the course of interaction with this court, he broke- down on several occasions.

Depression and Anxiety

 As per medical opinion in regard to Bharat’s psychological state, his level of mental depression and anxiety fall in the “abnormal range”.

Questions for Consideration

  • Given his medical condition, what course of action should be adopted for Bharat’s further rehabilitation, continuing care and welfare?
  • Is Bharat entitled to receive any monetary compensation for the injury suffered by him as a result of the accident; if so, from which of the respondent or respondents?
  • If the answer to (ii) above is in the affirmative, in what manner should the compensation be calculated?

Analysis, Law and Decision

While analyzing and penning down this interesting decision, Court addressed a very fundamental issue, whether Bharat was an ‘employee’ of Bryn or was engaged by Bryn to perform the task that led to the accident.

It was noted that Bryn did not expressly admit that Bharat was their employee; nor that he had been engaged by them to perform the task in question.

However, there was also no denial of any kind, whether express or implied, that Bharat was working for Bryn. The thrust of Bryn’s counter-affidavit is that BRPL is responsible to compensate Bharat for the injury, since at the relevant time Bharat was working under BRPL’s supervision and performing BRPL’s tasks.

Court took note of the fact that while BRPL and Bryn both contended that all requisite safety equipment and precaution were made available by them, neither BRPL nor Bryn explained why such equipment, if available, failed to protect Bharat from the serious injury he suffered. 

Opinion of the Court

Bench opined that Bharat was working for Bryn and was tasked with certain maintenance work to be performed on an electricity pole owned by BRPL; which pole, it turned-out, was not strong enough to take Bharat’s weight or was not rooted securely in the ground, and thereby fell, as a result of which Bharat sustained serious injuries. It is also evident that Bharat was not provided any safety gear before he was directed to climb the pole to undertake the task.

 Principle of res ipsa loquitur

High Court added to its analysis that the instant matter would be squarely covered by the principle of res ipsa loquitur, whereby no detailed evidence, much less a trial, is required to establish ex-facie negligence on the part of BRPL and Bryn.

The said maxim was lucidly explained in the leading Supreme Court decision of Shyam Sundar v. State of Rajasthan, (1974) 1 SCC 690,

 The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if the proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. 

Elaborating further, the Court stated that the accident could not have occurred had Bryn and/or BRPL not been negligent in taking reasonable precautions to avoid it; which gave rise to their strict liability for the injuries sustained by Bharat.

The undated declaration with no proof of payment made to Bharat, though the declaration signed by Bryn accepting payment of a small sum of compensation in full and final settlement from Bryn and absolving them of any further liability.

In Court’s view, the above-mentioned declaration, deserved no credence or value since it smacked of being a document procured by Bryn precisely for the purpose of absolving itself of any further claim or liability vis-à-vis Bharat, by suborning a hapless and resourceless victim with a small amount of monetary bait, knowing full well that their actual liability would be much more.

Bench further expressed that merely because there were more than one respondent attempting to foist blame or liability on each other, that would not defeat the just claim of the petitioner’s son.

Hence, both respondents would be held jointly and severally liable, giving them liberty to recover the whole or any part of compensation paid, from one another.

High Court’s Inference

  • Without delving into the technical semantics of whether Bharat was an ‘employee’ of Bryn within the meaning of the Employee’s Compensation Act, suffice it to say that Bharat was performing the task in question for Bryn and at their instance
  • Bharat is unable to perform even the most basic, personal, daily chores himself and is all but 100% dependent on others; and as a result, though Bharat is living, he is barely alive;
  • On the principle of ‘strict liability’, both Bryn and BRPL are, jointly and severally, liable to compensate Bharat for putting him in his current state;
  • Section 4(2)(a) of the Employee’s Compensation Act mandates that apart from the liability to pay compensation, the employer is also under obligation to reimburse all actual medical expenses incurred by an employee for treatment of injuries. Furthermore, section 4-A provides that failure of an employer to pay compensation in a timely manner would attract payment of both interest and penalty for the delayed payment of compensation;
  • Reading the Bryn-BRPL Agreement and section 12 of the Employee’s Compensation Act together, it is seen that section 12 also fixes liability upon the “principal” for payment of compensation to an injured employee, with a right in the principal to recover the same from the contractor, if work was being carried-out by a contractor. In the present case the principal would therefore be BRPL and the contractor would be Bryn
  • Allowing the petition, Court awarded Bharat relief in two broad categories:
  1. Monetary Relief
  2. Non-Monetary Relief by way of directions.

Details of the relief can be referred to in the Judgment.

In view of the above discussion, petition was disposed of. [Kehar Sigh v. GNCTD, 2021 SCC OnLine Del 4198, decided on 25-08-2021]


Advocates before the Court:

For the Petitioner: Prabhsahay Kaur, Amicus Curiae.

Saraswati Thakur, Advocate.

For the Respondents: Satyakam, Additional Standing Counsel for GNCTD/R1

Ravi Gupta, Senior Counsel with Sunil Fernandes, Standing Counsel for BRPL-RPL with Anju Thomas, Shubham Sharma and Sachin Jain, Advocates for R2.

A.K. Sharma, Advocate for R3. Saurabh Sharma, Advocate for Indian Spinal Injuries Centre.

Sayli Petiwale, Advocate for Anil Mittal, Advocate for State of U.P.

Case BriefsHigh Courts

Punjab and Haryana High Court: Girish Agnihotri, J., held that the decision of the employer to fill up the vacancies at any particular time depends upon the public need, administrative exigencies and availability of infrastructure or budgetary provision. There was no legal obligation on the part of the State that if the vacancies had fallen vacant, the State must fill up the said vacancies immediately.

The petitioner Navdeep Singh Brar and 55 others had filed the instant writ petition with a prayer to direct the State of Punjab to give age relaxation to them for applying against the posts of Police Sub Inspectors, in the cadre of District Police, Armed Police Intelligence and Investigation advertised on 06-07-2021. A further prayer was made to count their age in lines with the judgment of the Supreme Court in Cognizance for Extension of Limitation whereby the period starting from 15-03-2020 till further orders was directed to be considered as Zero Period in view of COVID-19 pandemic: In Re. The prayer was also made to allow the petitioners to provisionally appear in the examination scheduled for the above-said posts.

Although, the petitioners had conceded that they do not fulfill the age criteria prescribed in the advertisement and that their age was beyond the age of 28 years which was required for the said post. The petitioners had based their case on the official tweet of the Chief Minister of Punjab made on 12-07-2020, wherein the CM had responded to the query of one Mr Amarpal Singh from Ludhiana and had said that, “the official announcement of the increase in recruitment age from 28 years to 32 for DSPs and Sub Inspectors will be made in the coming days…”

The petitioners pleaded that since 2016 to till date, no recruitment process had been initiated by the Government and that the inaction on the part of the respondents had adversely affected their chances to appear and compete for the said posts of Sub Inspector as they had lost their chance to face the recruitment due to non-conducting of the exams by the respondents.

Reliance was placed by the petitioners on the recent decision of the Delhi High Court in Najma v. Govt. of NCT of Delhi, WP(C) No. 8956 of 2020, wherein the High Court had held that the promise of CM is of binding nature.

Differentiating with the said judgment of the Delhi High Court, the Bench clarified that the decision of the Delhi High Court was with regard to Chief Minister’s statement relating to governmental policy. On the contrary, the case at hand dealt with a prescribed procedure which required to be followed so as to amend the statutory Rules (especially Rule 12.6 of the Rules). Further, observing that after the said tweet, the matter for increase of upper age limit of SI from 28 to 32 years was examined in the office of Director General of Police, Punjab, various field officers were consulted and most of the field officers were not in favour of increase of upper age limit due to the questionable physical fitness at the age of 32 years, particularly physical part of basic training; and also because the same would further increase the upper age limit of reserved categories, the Bench was of the view that the petitioners could not claim to increase the maximum age limit or relaxation merely because the Chief Minister had tweeted in regard thereto.

Cogitating that the Chief Minister along with Council of Ministers had earlier taken a decision as reflected in the memo dated 25-05-2016 (R2) to increase the age limit from 25 to 28 years, the Bench held that the petitioners had no legal right to support the plea that they were entitled to age relaxation/increase in the upper age limit beyond 28 years merely because since 2016, no recruitment process had been initiated by the Government and accordingly their chances of recruitment were affected because the decision of the ‘employer’ whether to fill up the vacancies at any particular time depends upon the public need, administrative exigencies and availability of infrastructure or budgetary provision. There was no legal obligation on the part of the State that if the vacancies had fallen vacant, the State must fill up the said vacancies immediately. The Bench stated,

“There is no legal right with the petitioners to claim that all the vacancies should have been advertised prior to 2021 or even to allege that the inaction of the Department in this regard could be termed as violation of any right.”

In the light of the above, the petition was dismissed and it was held that the petitioners could not claim extension in the upper age limit by taking the plea of COVID situation. More so, because it was not the case of parties that an advertisement in this regard had been initially issued in the year 2019 or 2020 (when the petitioners were allegedly within the maximum age limit) and the selection process had been deferred or delayed because of COVID situation.[Navdeep Sinh Brar v. State of Punjab, CWP-12723 of 2021, decided on 11-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioners: Mr Pardhuman Garg, Advocate, Mr DK Bhatti, Advocate, Mr BS Dhatt, Advocate and Mr Saurav Bhatia, Advocate

For the State of Punjab: Ms Monica Chhibber Sharma, Sr. DAG, Punjab

Case BriefsHigh Courts

Jharkhand High Court: S.N.Pathak, J., held that the employees of Telco Recreation Club cannot claim parity in pay and other benefits at par with the regular employees of Telco Ltd. The Bench held that,

“When the initial appointment letter of the workmen has not been issued by the petitioner-Management, the question of parity in pay etc. with the employees of the petitioner-Management does not arise.”

Factual Matrix of the Case

The petitioner Company-Telco Ltd., was a leading manufacturer and seller of automobiles in the Country. In 1958, the company had started a separate department under the name and style of “Telco Recreation Club” for carrying activities of welfare and recreation of its employees. The said Telco Recreation Club was a Society registered under Societies Act having a separate legal entity of its own with its own source of income, its own constitution and bye-laws and had no direct connection with the petitioner-company and the petitioner company, under its corporate responsibility, provide financial assistance to several Societies in the area including the said Club.

The case of the petitioner-company was that it had no control over TELCO Recreation Club, which was run and managed by a Managing Committee elected/ selected by its members, yet one Indra Deo Prasad on behalf of 21 persons employed in Telco Recreation Club made a claim of parity in pay and other benefits at par with the regular employees of Telco Ltd. It was also the stand of the company that the government of Bihar had found Telco Recreation Club to be an independent establishment and had made a reference being Ref. Case No. 06 of 1991 to Industrial Tribunal, Ranchi, which was never challenged or objected by the employees of the said Club and therefore, the petitioner-company could not be treated to be the employer of the workmen of Telco Recreation Club.

Decision by the Labour Court

 The Labour Court held that there existed a relationship of employer and employees between the parties, and Telco Recreation Club was a department/wing of the company, and that petitioner-company provided all facilities to said Club and had direct control over the Managing Committee of the said Club as the General Manager of Telco Ltd. was the President of the Club; the reference was maintainable. The Labour Court had further held that the concerned workmen were also permanent employees of  Teclo Ltd., and hence, they were entitled to get pay and other benefits at par with the employees of Telco Ltd. Accordingly, the issue was decided in favour of the workmen.

Findings of the Court

Considering the rival submission of the parties and on perusal of Judgments brought on record, the Bench reached the conclusion that the impugned Award suffered from patent illegalities and was based upon errors of law. Admittedly, there was no relationship of employer-employee between the petitioner-Management and the concerned workman. The Bench clarified,

“Neither in the appointment of workmen nor in the process of their engagement, the petitioner-Management has played any role, therefore, the industrial disputes against the petitioner-Management is wholly illegal and uncalled for.”

The concerned workmen were being governed by the rules, regulations and bye-laws of the Club and not the petitioner-Management. Even the disciplinary control was of the Club and not of the Management. Hence, the findings of the Tribunal were totally perverse and error of law. Finding force in the arguments of the petitioner-company that the Club was incorporated as a separate body and concerned workmen were admittedly appointed by the Club and not by the petitioner-Management, the Bench opined that the claim of the concerned workmen was not sustainable.

Reliance was placed by the Court upon the decision of Supreme Court in Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635,  wherein it had held that two of the well-recognized tests to find out whether the contract labourers are the direct employees of the principal employer are-

  • Whether the principal employer pays salary instead of the contractor?
  • Whether the principal employer control and supervises the work of the employees?

Accordingly, the Bench held that in the instant case on both these counts, the workmen had failed to establish their case as they could not establish that they were working directly under control and supervision of the management, hence, the question of the employer-employee relationship did not arise at all.

Placing reliance on Bhuwanesh Kumar Dwivedi v. Hindalco Industries, (2014) 11 SCC 85,wherein, the Supreme Court had held that, “where Labour Court commits patent mistake in law in arriving at a conclusion contrary to law, the same can be corrected by the High Court. In the instant case, the Tribunal has committed a patent error of law to hold that the employer-employee relationship exists between the petitioner-Management and the concerned workman”; the Bench opined that

“In the instant case, the concerned workmen have sought for parity in pay and other benefits at par with the regular employees of TELCO Ltd. whereas the fact is that the petitioner-Management has never issued appointment letters to them rather these workmen were appointed by the Club, which is a separate entity.  When the initial appointment letter of the workmen has not been issued by the petitioner-Management, the question of parity in pay etc. with the employees of the petitioner-Management does not arise and as such the impugned Award suffers from patent illegalities and is fit to be interfered.”

In the backdrop of above, the impugned Award was quashed.  [Management of Motors Ltd. v. State of Jharkhand, 2021 SCC OnLine Jhar 413, decided on 18-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Sr. Adv. Kamal Nayan Choubey, Sr.Adv. V.P. Singh, Adv.  Amit Kumar Das, Adv. Rashmi Kumar and Adv. Arun Kumar Singh

For the Respondents:     Sr. Adv. Ajit Kumar and Adv. Kumari Sugandha

For the State: GP-III O.P. Tiwari

Case BriefsInternational Courts

European Court of Justice (ECJ): The Second Chamber composed of A. Arabadjiev, President of the Chamber, A. Kumin, T. von Danwitz (Rapporteur), P.G. Xuereb and I. Ziemele, JJ., held that Tesco’s work conditions might be gender discriminatory with regards to equal pay for equal work. The Bench clarified,

“The pay conditions of workers of different sex performing equal work or work of equal value can be attributed to a single source comes within the scope of Article 157 TFEU and that the work and the pay of those workers can be compared on the basis of that article, even if they perform their work in different establishments.

The request had been made in proceedings between approximately 6000 workers and Tesco Stores Ltd., which employs or employed those workers in its stores, concerning a claim for equal pay for male and female workers.

Legal context

EU law: Provisions relating to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union The Court of Justice of the European Union shall continue to have jurisdiction to give preliminary rulings on requests from courts and tribunals of the United Kingdom made before the end of the transition period.

Article 119 of the European Economic Community (EEC) Treaty (which became, after amendment, Article 141 EC, now Article 157 of TFEU (Treaty on the Functioning of the European Union) was worded as follows:
Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.

Article 157 TFEU provides:
Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

The Dispute in the Main Proceedings and the Questions Referred for a Preliminary Ruling

Tesco Stores is a retailer that sells its products online and in 3 200 stores located in the United Kingdom. The stores, of varying size, have a total of approximately 250 000 workers, who are hourly paid and carry out various types of jobs. The company also has a distribution network of 24 distribution centres with approximately 11 000 employees, who are also hourly paid and carry out various types of jobs.

The claimants in the main proceedings were female employees or former employees of Tesco Stores, who brought proceedings against Tesco Stores before the Watford Employment Tribunal (United Kingdom), from February 2018 onwards, on the ground that they had not received equal pay for equal work, contrary to the Equality Act 2010 and Article 157 TFEU. In support of their equal pay claims, the claimants submitted that their work and that of the male workers employed by the company in distribution centers were of equal value and, that they were entitled to compare their work and that of those workers under both the Equality Act 2010 and Article 157 TFEU, although the work was carried out in different establishments.

The company disputed that the claimants had any right to compare themselves with the male workers at the distribution centers in its network, on the ground that there were not common terms of employment, for the purposes of section 79(4) of the Equality Act 2010. The company further argued that Article 157 TFEU was not directly effective in the context of claims based on work of equal value, and therefore the female claimants could not rely on that provision. Similarly, the Tesco Stores contended that it cannot be classified as a ‘single source’ for the terms and conditions of employment in the stores and the distribution centers in its network.

Findings of the Tribunal

The referring Tribunal stated that the female claimants in the main proceedings and the male workers taken as comparators, although employed in different establishments, had the same employer. In order to determine whether the jobs of the female claimants were of equal value to those of their comparators, the referring Tribunal observed there was uncertainty within UK Courts regarding direct effect of Article 157 TFEU, in particular with the distinction articulated in Defrenne (43/75, EU:C:1976:56), between discrimination which may be identified solely with the aid of the criteria based on equal work and equal pay and discrimination which can only be identified by reference to more explicit implementing provisions of EU or national law.

Question Referred

  1. Is Article 157 [TFEU] directly effective in claims made on the basis that claimants are performing work of equal value to their comparators?
    2. Is the single source test for comparability in [Article] 157 [TFEU] distinct from the question of equal value, and if so, does that test have direct effect?

In other words, whether Article 157 TFEU must be interpreted as having direct effect in proceedings between individuals in which failure to observe the principle of equal pay for male and female workers for ‘work of equal value’ that the criterion of ‘work of equal value’, unlike the criterion of ‘equal work’, requires definition by provisions of national or EU law. Furthermore, whether the findings of the Court Defrenne (43/75, EU:C:1976:56), when work of equal value is being compared, is founded on a claim of discrimination that is identifiable only by reference to provisions more explicit than those of Article 157 TFEU?

Analysis and Findings of the ECJ

According to Article 157 TFEU, each Member State is to ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. Therefore, it imposes an obligation to achieve a particular result and is mandatory as regards both ‘equal work’ and ‘work of equal value’. Thus, the Court remarked,

“Since Article 157 TFEU is of such a mandatory nature, the prohibition on discrimination between male and female workers applies not only to the action of public authorities but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals.”

In Defrenne (43/75, EU:C:1976:56), the Court had stated that discrimination which has its origin in legislative provisions or collective labour agreements is among the forms of discrimination which may be identified solely by reference to the criteria based on equal work and equal pay laid down by Article 119 of the EEC Treaty (which became, after amendment, Article 141 EC, now Article 157 TFEU) – in contrast to those which can only be identified by reference to more explicit implementing provisions.

Accordingly, the Court held that it was apparent from settled case-law that contrary to Tesco Stores’ submissions, the direct effect of Article 157 TFEU is not limited to situations in which the workers of different sex who are compared perform ‘equal work’, to the exclusion of ‘work of equal value’. In the light of the above factors, the Bench held that

“The interpretation that a distinction should be drawn, as regards the direct effect of Article 157 TFEU, according to whether the principle of equal pay for male and female workers is relied upon in respect of ‘equal work’ or of ‘work of equal value’ is such as to compromise the effectiveness of that article and attainment of the objective that it pursues.”

Hence, the Bench held that a situation in which the pay conditions of workers of different sex performing equal work or work of equal value can be attributed to a single source comes within the scope of Article 157 TFEU and that the work and the pay of those workers can be compared on the basis of that article, even if they perform their work in different establishments. Accordingly, the Bench reached to the conclusion that Tesco Stores constitute in its capacity as employer, a single source to which the pay conditions of the workers performing their work in its stores and distribution centers may be attributed and which could be responsible for any discrimination prohibited pursuant to Article 157 TFEU, which it was for the referring tribunal to determine.[K v. Tesco Stores Ltd., Case C‑624/19, decided on 03-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.C. Gupte and M.S. Karnik, JJ., expressed that for an employer to come to a conclusion of a possible case of cartelization, it is not necessary that the same can happen only after the opening of commercial bids.

Petitioner claimed to be a sole proprietor of a firm carrying on the business of fresh water supply through barges. Petitioner had been one of the contractors supplying water to respondent 1 ONGC.

Respondent 1 invited Indigenous Open Tender for e-procurement for supply of water to its offshore facilities, including the Nhava Supply Base. The said tender was a two bid system – a technical bid followed by a commercial bid.

Along with the petitioner, there were three others who had submitted the bids.

Respondent ONGC had cleared the technical bids of all 4 bidders, including the petitioner and his father at the stage of consideration of commercial bids, the bids of both petitioner and his father were not opened.

Upon evaluation of offers submitted by petitioner and Royal Traders, it came to the notice of Respondent ONGC that the proprietors of two firms were respectively the son and father. Hence considering that the two would have access to vital information pertaining to the bid submitted by the other, the employer concluded that both the bidders have an undisclosed understanding with each other, which would restrict competitiveness thereby offending Section 2 of the Integrity Pact.

Section 2 of the Integrity Pact is as follows:

Commitments of the Bidder/contractor

  1. The Bidder/Contractor will not enter with other Bidders into any undisclosed agreement or understanding, whether formal or informal. This applies in particular to prices, specifications, certifications, subsidiary contracts, submission or non – submission of bids or any other actions to restrict competitiveness or to introduce cartelisation in the bidding process.

Analysis and Decision

High Court stated that the grounds urged by petitioner in support of their challenge to acceptance of bids did not commend the Court.

Though the petitioner and his father had shown as proprietors of different concerns, but they operate from the same premises.

Further, in an earlier contract involving another employer, the petitioner had not only acted both for himself and his father, but had also issued cheques from the same account towards the contracts of himself and his father.

Above being a purely administrative matter, to fault the respondent employer’s decision there must be a case of either perversity in the decision or a colourable exercise on the part of the employer.

Bench expressed that even if the State cannot act in a matter of commercial contract in wholly unreasonable or arbitrary or capricious manner, its administrative decision cannot be put on the pedestal of a quasi-judicial decision.

Court added that as long as the respondent’s decision was reasonably supported by material on record and there was no case of victimization or colourable exercise, the decision could not be faulted.

There is nothing sacrosanct about finding the technical bid of a bidder responsive in a two bid system so as to make it obligatory on the employer to open the commercial bid. The employer may well come upon knowledge of some relevant information, which disqualifies the particular bidder, and in that case may choose not to open his commercial bid. If his disqualification is supported by some material on record, there is nothing further for this Court to inquire.

High Court found no merit in the grounds of challenge urged by the petitioner. [O.K. Marine v. ONGC, 2021 SCC OnLine Bom 799, decided on 8-06-2021]


Advocates before the Court:

Mr. R.D. Soni, i/b. Irvin D’souza, for the Petitioner

Dr. Abhinav Chandrachud, a/w. Mr. Nishit Dhruva, Mr. Prakash Shinde, Ms. Khushbu Chhajed, Mr. Abhishek Bhavsar and Ms. Alisha Shah, i/b. MDP & Partners, for Respondent Nos. 1 and 3.

Mr. Kunal Gaikwad, for Respondent No.4.

Mr. Karl Tamboly, a/w. Mr. Ramiz Shaikh and Mr. Akshay Bafna, i/b. Bafna Law Associates, for Respondent No.5.

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of S. Manikumar, CJ and Shaji P. Chaly, J., heard the instant PIL regarding demand to give adequate and sufficient compensation to the workmen, who died on 13-04-014 inside the manhole of Kerala Water Authority sewerage pipeline. It was stated that when the employees were engaged in manhole of sewerage pipelines, adequate and necessary safeguards ought to taken by the Water Authority officials, so as to avoid any accident.

The petitioner relied on the order of Supreme Court in Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers, (2011) 8 SCC 568, wherein the Court had issued guidelines, instructions and orders to be adhered, while workers are entering inside the manhole of sewerage pipeline for cleaning. According to the petitioner, the presence of at least an Assistant Engineer of the Kerala Water Authorities in the workplace was mandatory.

Engaging of workmen by the principal employer, Kerala Water Authority, without providing adequate and sufficient gears and tools like oxygen masks to the workers, resulted in the death of two poor workmen inside the manhole.

The Police and Fire and Rescue Service personnel, who had reached the spot, did not have the necessary required tools, to rescue the poor workmen.

Reliance was also placed by the petitioner on Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224, wherein the Supreme Court had laid down detailed directions for the upliftment of manhole workers.  The following directions were issued:

(i) The persons included in the final list of manual scavengers under Sections 11 and 12 of the 2013 Act, shall be rehabilitated as per the provisions of Part IV of the 2013 Act, in the following manner, namely:-

(a) such initial, one time, cash assistance;

(b) their children shall be entitled to scholarship

(c) allotment of a residential plot and financial assistance for house construction, or a ready-built house with financial assistance;

(d) at least one member of their family, shall be given  training in livelihood skill and shall be paid a monthly stipend during such period;

(e) at least one adult member of their family, shall be given, subsidy and concessional loan for taking up an alternative occupation on sustainable basis;

(f) shall be provided such other legal and programmatic assistance, as the Central Government or State Government may notify in this behalf.

(ii) If the practice of manual scavenging has to be brought to a close and also to prevent future generations from the inhuman practice of manual scavenging, rehabilitation of manual scavengers would need to include:-

(a) Sewer deathsentering sewer lines without safety gears should be made a crime even in emergency situations. For each such death, compensation of Rs. 10 lakhs should be given to the family of the deceased.

(b) Railways – should take time bound strategy to end manual scavenging on the tracks.

(c) Persons released from manual scavenging should not have to cross hurdles to receive what is their legitimate due under the law.

(d) Provide support for dignified livelihood to safai karamchari women in accordance with their choice of livelihood schemes.

(iii) Identify the families of all persons who have died in sewerage work since 1993 and award compensation of Rs.10 lakhs for each such death to the family members depending on them.

(iv) Rehabilitation must be based on the principles of justice and transformation.  

In the light of pronouncement of the Supreme Court in Safai Karamchari Andolan case the Bench ordered the state to pay compensation of Rs 10,00,000 each, to the family members of the persons, who died in sewerage work (manholes, septic tanks). Court, within a period of two months in addition to Rs 4,00,000 which had been already paid to the wives of the deceased.[Baisil Attippety v. Kerala Water Authority, WP(C) No. 11185 of 2014, decided on 18-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the petitioner: Adv. K.P. Pradeep

For the respondents: Sr. Adv. P. Benjamin Paul, Sr. GP. V. Tek Chand and Sr. Adv. Millu Dandapani