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Clarification regarding checking of records beyond 5 year period for conducting test inspections

The present clarification has been issued in view of the representations of employers regarding the demand for records for test inspection beyond 5 years by the Employees State Insurance Corporation officials.

As per the second proviso to Section 45-A(1) the time limit of 5 years is strictly to be adhered to in determining the contributions and issue of speaking orders of the authorized officer. The said officer shall not ask for any records beyond the period of 5 years from the employer. As the contribution cannot be determined for the period beyond 5 years the SSO shall not ask for any records beyond 5 years from the employer.

Employees State Insurance Corporation

[Circular dt. 28-01-2020]

Case BriefsForeign Courts

Supreme Court of Canada: A Full Bench of Wagner, CJ. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin, JJ. allowed the present appeal of Canada Post Corporation, superseding the rulings of Occupational Health and Safety Tribunal and Federal Court of Appeals.

In the present case, the appellant was Canada Post Corporation, a federally regulated corporation, which provides mail services throughout Canada and the respondent was the Canadian Union of Postal Workers that represents employees of the appellant, including letter carriers. Since the federal government is responsible for the mail services in the country, Canada Post is expected to follow Canada Labour Code. A part of this code deals with workplace health and safety of the employees during the course of their employment. Section 125(1) (z.12) of the Labour Code mandates every employer to ensure that every part of the workplace is inspected once every year for the health and safety of the employees.

The issue in the present case was whether Canada Post Corporation is obligated to inspect every letter carrier routes and points of call as a part of the workplace, according to the code.

While the Health and Safety Officer agreed with the union’s claim, the Appeals Officer at the Occupational Health and Safety Tribunal agreed with the Post. The matter went to the Federal Court of Appeal which let the Appeals Officer’s decision stand and dismissed union’s request for Judicial review (Judicial review is where a court looks at a decision by someone acting on behalf of the government.) But the Federal Court of Appeal said the Appeals Officer made mistakes and decided that the Health and Safety Officer’s decision should stand. This meant Canada Post had to inspect all the routes and places mail was delivered.

The matter finally went to the Supreme Court of Canada for reviewing the decision of the Appeals Officer on the grounds of reasonableness according to the Vavilov framework, which lays down the applicable standard of review. Justice Rowe used the brand new Vavilov framework as laid down in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, to analyze the officer’s decision, finding that the Officer’s decision was reasonable  As provided for in Vavilov, when conducting reasonableness review, a reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with respectful attention, seeking to understand the reasoning process followed by the decision-maker to arrive at a conclusion. What is required of statutory delegates to justify their decision will depend on the context in which the decision is made. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker.

The majority held that it was open to the Appeals Officer to make the decision, and concluded that his decision was based on an internally coherent and rational line of reasoning.

It was held that some parts of the Code are applied in general, to all places where workers had to be during their course of employment but some parts are applied only to places that the employer controlled. The section about inspections was one of these. The purpose of the inspections is to ensure the safety of the workers. Canada Post didn’t control the mail routes or most of the places where the mail was delivered as many of them were on private property. If there were a danger, Canada Post did not have the power to fix it.

Hence, the Supreme Court after exercising its power of judicial review, allowed the decision of the Appeals Officer to stand. [Canada Post Corpn. v. Canadian Union of Postal Workers, 2019 SCC OnLine Can SC 60, decided on 20-12-2019]

Case BriefsHigh Courts

Rajasthan High Court: Mohammad Rafiq, J. disposed of an application seeking a grant of last wages drawn by the employee under the Industrial Disputes Act, 1947.

In the present case, the respondent-employee had moved an application under Section 17-B of the Industrial Disputes Act, 1947 for receiving the amount of wages last drawn by him from the date of filing the application.

The counsel representing the petitioner-employer, Neeraj Jain submitted that the labour court erred in passing the award since there was no master-servant relationship subsisting between the parties.

The Court upon hearing both the parties stated, that once the labour court has declared in its award that the retrenchment of respondent-employee as illegal, even if the execution of the award has been stayed, according to mandate of Section 17-B of the Industrial Disputes Act, 1947 the respondent-employee is having statutory right to receive amount of wages last drawn by him from the date of filing of the application. However, the petitioner-employer will have an option to re-engage the respondent-employee as per the payable wages. The Court directed the petitioner-employer to pay the amount due to the petitioner within a period of six weeks.[Manager Employer v. Judge Industrial Dispute, 2019 SCC OnLine Raj 3027decided on 19-09-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): Justice S.V.S. Rathore and Air Marshal BBP Sinha (Member) partly allowed an application to consider applicant’s disability as aggravated by military service. The applicant filed a petition for grant of disability pension with a delay of 09 years, 09 months and 09 days. He was commissioned fully fit as an officer in the Indian Army in 1972 and was discharged from service in low medical category in 1997. The Release Medical Board (RMB) assessed his disabilities (i) I.H.D. ICDN 411 (CAD) at 11-14% for two years and (ii) Ankylosing Spondylitis at 11-14% for two years, composite assessment at 20% for two years as neither attributable to nor aggravated (NANA) by military service. Therefore, his disability pension claim was rejected. The respondents contended that the applicant approached the Tribunal after a gap of 20 years and such inordinate delay cannot be condoned. The Tribunal rejected this contention of the respondents primarily because the pension is a recurring cause of action. They further contended that disabilities of the applicant have been regarded as NANA by the RMB, hence the applicant is not entitled to disability pension. They further submitted that an incumbent is granted disability pension when invalidated out of service on account of a disability which is attributable to or aggravated by military service and is assessed at 20% or over. On the other hand, the applicant argued that he had picked up these diseases due to stress and strain of service. 

The Tribunal went on answering as to whether the disabilities of the applicant are attributable to or aggravated by military service? The Tribunal relied on Dharamvir Singh v. Union of India, (2013) 7 SCC 316 to address the law on attributability/aggravation of a disability where the Supreme Court took note of the provisions of the Pensions Regulations, Entitlement Rules and the General Rules of Guidance to Medical Officers to sum up the current legal position. ‘Ankylosing Spondylitis’ is an inflammatory disease which, over time, can cause some of the vertebrae in the spine to fuse resulting in a hunched-forward posture. This disease has no known specific cause, though genetic factors seem to be involved. Since the cause of the disease is not clearly known and there is no mention of genetic loading in RMB, therefore, the Tribunal gave the benefit of doubt in favour of the applicant.

The Tribunal held that the RMB had denied attributability/aggravation to the applicant only by endorsing a cryptic sentence that his disability is not connected with military service and that the disabilities of the applicant should be considered as aggravated by military service. The applicant was held entitled to 20% disability element (composite) for both the disabilities for two years after discharge which would round off to 50%. However, the Supreme Court in the case of Shiv Dass v. Union of India, (2007) 9 SCC 274 held that arrears of disability pension are to be restricted to three years prior to the filing of the application if the same has been filed belatedly and the delay is condoned. Since the applicant approached the Tribunal after a gap of more than 09 years, he was not entitled to any arrears due to the law of limitations.[DS Jasrotia v. Union of India, 2019 SCC OnLine AFT 3883, decided on 15-07-2019]

Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J. set aside the order of termination and the decision of the Screening Committee CISF, with a direction to reconsider the case of the petitioner.

The petitioner was appointed as constable in CISF. Later Assistant Commandant to CISF informed that the petitioner was involved in a criminal case earlier and this information was sought for by the screening committee. The petitioner submitted the relevant document stating that he had been involved in a land dispute between his family and others and a case had been instituted against him. He also submitted that he was never taken into custody and was finally acquitted. The services of the petitioner were terminated without any hearing. As the letter of termination did not follow the principle of natural justice, the termination order was set aside. Later the petitioner got a show cause notice as to why his services should not be terminated as in the attestation form it was asked that whether the petitioner was involved in any prosecution and he mentioned “no”. Thus on the ground of suppression of factual information and on the ground of furnishing false information, the petitioner was dismissed from service. This order was under challenge before Court.

The respondents filed a counter affidavit stating the petitioner had suppressed the fact that he was prosecuted. They brought on record the guidelines and submitted that a candidate was required to declare as to whether he had been arrested, prosecuted or convicted. If the candidate did not disclose the correct facts, his candidature and appointment could be cancelled.

Reliance was placed on judgment Avtar Singh v. Union of India, (2016) 8 SCC 471 where it was directed that if incumbent was of young age and had done some petty offence, which if disclosed, would not have rendered an incumbent unfit for the post in question, the employer may, in his discretion, ignore such suppression of fact or false information by condoning the lapses. Thus, discretion had been granted to the employer to decide whether in a case of suppression, the offence is trivial in nature or not.

The Court set aside the order of termination and the matter was sent before the screening committee again to decide whether suppression of the fact is fatal on the facts of the criminal case, which was instituted against the petitioner.[Sandeep Kumar v. Union of India, 2019 SCC OnLine Jhar 498, decided on 14-05-2019]

Case BriefsSupreme Court

Supreme Court: Stating that the essential qualifications for appointment to a post are for the employer to decide, the bench of Arun Mishra and Navin Sinha, JJ said,

“The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re­writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review.”

The Court further held that if the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law.

“In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”

The Court was hearing the appeal filed against the order of the High Court holding that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors under separate advertisements dated 04.01.2012 and 31.03.2015.

It was submitted before the Court that the academic qualifications coupled with the requisite years of practical experience in the manufacturing and testing of drugs were essential qualifications for appointment. Research experience in a research and development laboratory was a desirable qualification which may have entitled such a person to a preference only. The latter experience could not be equated with and considered to be at par with the essential eligibility to be considered for appointment. It was argued that the High Court erred in misreading the advertisement to redefine the desirable qualification as an essential qualification by itself.

The Court said that the plain reading of the advertisement provides that a degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University coupled with the requisite years of experience thereafter in manufacturing or testing of drugs were essential qualifications. Preference could be given to those possessing the additional desirable qualification of research experience in the synthesis and testing of drugs in a research laboratory.

The Court also said that

“an expert committee may have been constituted and which examined the documents before calling the candidates for interview cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment.”

[Maharashtra Public Service Commission v. Sandeep Shriram Warade, 2019 SCC OnLine SC 652, decided on 03.05.2019]

Case BriefsHigh Courts

“Women who constitute almost half of the segment of our society have to be given due weightage and honoured and treated with dignity at places where they work to earn their livelihood.”

Delhi High Court: A Single Judge Bench comprising of Suresh Kumar Kait, J. while allowing a petition held that “Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the workplace while carrying a baby in the womb or while looking after the child.”

The facts of the case place that respondent advertised a public notice for “Drawing a Panel for Guest Teachers for Empanelment in Delhi Government Schools for the Academic Year 2017-18”. Respondent took out another public notice calling all the selected Guest Teachers in regard to verification of their documents and further on getting selected petitioner got her documents verified. Later in January, the petitioner gave birth to a child and after almost a day of delivery received respondent’s letter for final verification of documents. Respondent harassed the petitioner by not marking her attendance even after being present for which petitioner wrote a letter to the respondent and sought for the issuance of joining letter.

Later, respondent placed its submissions that once the panel has been finalized, further engagement as Guest Teacher is to be taken on the basis of requirement expressed by any school. Such a person, who is enrolled as Guest Teacher in the panel, has not any vested or legal right to be further engaged as a Guest Teacher.

The High Court on perusal of the submissions placed stated that the petitioner is eligible for the panel for Guest Teachers and respondent due to some communication gap has not selected the petitioner. Further, it was established that the respondent did not entertain petitioner’s case as she had recently delivered a child and would not have been able to work if any requirement comes from the school.  Hence, the Court directed the respondent to give place to the petitioner in the panel and stated that her services can be utilized as and when required. [Yogita Chauhan v. State (NCT of Delhi),2018 SCC OnLine Del 12893, decided on 12-12-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of Uday U. Lalit and Dr D.Y. Chandrachud, JJ. allowed an appeal filed against the judgment of the Madhya Pradesh High Court whereby the State was directed to appoint the respondent on the post concerned in case his name found a place in the merit list.

In 2012, the Professional Examination Board, Madhya Pradesh invited applications for filling posts of subedars, platoon commanders and inspectors of police. The respondent participated in the selection process and tendered an affidavit as per the requirements wherein he disclosed that a case under Sections 323, 325, 506 and 34 IPC was registered against him which was pending on the date of such disclosure but he was never arrested. However, within 4 days thereafter, a compromise was entered into between the parties. Still, further, the respondent was taken into judicial custody on forfeiture of bond for non-compliance. The respondent was selected in the written examination; however, after considering his character verification report, his candidature was rejected. The respondent filed a writ petition there against which was allowed by a Single Judge and further affirmed by the Division Bench of the High Court. Aggrieved thereby, the State preferred the instant appeal.

While deciding the matter, the Court referred to, inter alia, Avtar Singh v. Union of India, (2016) 8 SCC 471. In the present case, it was held that even after the disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt. Following the Avtar Singh case, the Court held that the employer, in instant circumstances, could not be compelled to appoint the respondent. Therefore, the appeal was allowed and the judgment impugned was set aside. [State of M.P. v. Abhijit Singh Pawar,2018 SCC OnLine SC 2555, decided on 26-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Rekha Palli and Siddhartha Mridul, JJ. dismissed an appeal filed against the order of a Single Judge of the High Court whereby he allowed the petition of the respondent-employee against the order of his dismissal from service.

The respondent was removed from service by the appellant-bank. He was working as a Chief Inspector, Inspection and Control Division with the bank. He was removed after conducting an inquiry in which he was found guilty on the charge of committing irregularities and not discharging his duties with utmost integrity while working in the Credit Department of the erstwhile New Bank of India. The fulcrum of articles of charge was that he recommended to the Board of the bank for a grant of loan to a party regardless of the shortcomings involved in it. The respondent’s appeal against the order of removal was dismissed by the Appellate Authority. Thereafter, he preferred a writ petition against the same before the Single Judge who modified the order of removal to that of compulsory retirement. The appellant contended that in case the Single Judge was of the view that the penalty imposed on the respondent was inappropriate, he should have remitted the matter back to the disciplinary authority. It was submitted that the Single Judge overstepped his powers.

The High Court gave due consideration to the contentions made by the parties. The Court noted that the loan concerned was initiated by the officers junior to the respondent and finally approved by the Board. Even the Board failed to notice the alleged shortcomings in the loan proposal which was approved. The case against the respondent was only on account of procedural irregularities and not for any misconduct, financial irregularities or misappropriation. Furthermore, the chargesheet was issued after an inordinate delay of more than 7 years. The fact that respondent rendered unblemished service for 29 years remained uncontroverted. The Court was of the view that considering the time period which had already elapsed and only with the aim to shorten the litigation for a senior citizen, the Single Judge took upon himself the task of modifying the penalty. The only effect would be that in the evening of his life, the respondent would at least get some retiral benefits. It was observed that there may be situations where the writ court considers it unfair harassment or otherwise unnecessary to direct fresh inquiry by the competent authority and may pass a considerable order itself. Holding thus, the contention put forth by the appellant was rejected. The appeal was, thus, dismissed. [Punjab National Bank v. M.L. Bansal,2018 SCC OnLine Del 11385, decided on 20-09-2018]