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 Vipin Sanghi and Sanjeev Narula, JJ., decided a matter while reasoning out on why a person with Bipolar Disability should be granted reservation under the mental illness category for the appointment as Judicial Officer.


The present petition was preferred to assail the notice/result published by the Registrar General, Delhi High Court dated 21-5-2019, whereby the candidature of the petitioner for Delhi Judicial Services-2018 under the category of Persons with Disabilities was rejected on account of the petitioner’s mental capacity not being found to be permanent in nature.

For the above, the respondent relied upon the Disability Certificate issued by the All-India Institute of Medical Sciences.

Issue for Consideration

Whether the petitioner who is certified to have been suffering from the mental illness i.e., BPAD which is in remission and is likely to improve, is entitled to the benefit of Reservation provided to PwD under the RPwD Act?

Analysis, Law and Decision

High Court relying on the Supreme Court decision of Pankaj Mahajan v. Kajal, (2011) 12 SCC 1, wherein the nature of the said illness was considered i.e. BPAD in the context of a claim for divorce on the ground of the wife being incurable of unsound mind, and on the ground of cruelty. In this decision, Court accepted the position that BPAD was a lifelong/permanent and incurable mental illness, premised on statements and evidences led by medical doctors.

This Court in view of the above-cited Supreme Court decision along with medical literature concluded that Bipolar Affective Disorder was a serious lifelong and permanent incurable mental illness that can, at best, be suppressed with medications and treatment, but cannot be cured.

People who suffer from Bipolar Disorder can live a healthy life, albeit they will have to take treatment all their lives.

In the present matter, the petitioner had been suffering from Bipolar Affective Disorder since 2010 and was in treatment for the same since 2010.

In Court’s opinion, the petitioner successfully competed with other PwD candidates, and he was permanently disabled. Hence, he cannot be denied reservation on an assumed basis, as done by the respondent.

The true reason why the respondent rejected the petitioner’s candidature was not that his mental illness was not of permanent nature, or that it may fall below 40% but because the respondent was of the opinion that the medical condition of BPAD rendered the petitioner incapable of rendering service as a Judicial Officer.

Bench expressed that,

Once the posts are advertised – seats are reserved for, inter alia, persons with mental illness, it is not open to respondent to deny the petitioner reservation under the RPwD Act, merely on the basis of an opinion or belief entertained by it – that the petitioner would not be able to discharge his duties as a Judicial Officer due to his mental illness.

Parliament granted reservation, inter alia, to PwD – who suffer from mental illness (which does not include retardation, as taken note of hereinabove), so that such persons get an opportunity to lead a normal life with encouragement and dignity.

It was also stated that

“Merely because they may need medication and treatment throughout their lives, or may suffer setbacks from time to time, cannot be a reason to deny them equal opportunity to assimilate in the society, make their contribution and have a life of dignity.”

Further, the Court elaborated its above observation stating that, such person has a fully developed mind like any normal human being. They may suffer from a substantial disorder of thinking, mood, perception, orientation or memory that may grossly impair judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demand of life, but with medication and treatment such manifestations can be kept at bay.

Why Respondent was not right in not granting reservation to the petitioner?

High Court added that,

  • the respondent could not place any medical opinion on record to come to the conclusion that a person suffering from BPAD and is under remission, would not be able to discharge his responsibilities as a Judicial Officer.
  • Respondent cannot discriminate against any person with a disability in any matter relating to employment.
  • Respondent has no competence to take a decision on the issue of whether the post of a Judicial Officer should be exempted from the rigor of Section 20(1), having regard to the type of work carried out in the establishment of the judicial service.
  • Mere apprehension that there is a possibility that, in future, the petitioner’s disability may deteriorate – once he is appointed as a judicial officer and takes charge, and he may not be able to handle the responsibilities because of its stressful nature, cannot be a reason to deny him the benefit of reservation – to which he is statutorily entitled, and discriminate against him on the basis of his disability.

In view of the above reasons, denial of reservation was in clear breach of Sections 20 and 30 of the RPwD Act.

In the Supreme court decision of LIC of India v. Chief Commissioner for Disabilities, (2002) 101 DLT 434, it was held that a possible future eventuality cannot be a ground to deny employment.

The intent and object of the RPwD Act is to protect and preserve the rights of disabled persons, and employment is an essential aspect of utmost importance and the RPwD Act has to be read liberally, keeping in mind that it is a beneficial and social welfare legislation which has to be given effect to in order to protect the rights of the PwD, and not to defeat their rights.

 Concluding the matter, High Court set aside the notice which declared the petitioner’s disability to be not permanent.

The direction was issued to the respondent to declare the petitioner as selected to the Delhi Judicial Service without any further delay since he was the only qualified candidate in the ‘mental illness’ category.

Upon his appointment, the petitioner would retain his notional seniority along with his other batchmates and he would be deemed to have joined his post along with his other batchmates, though he would not be entitled to any back wages.

 In view of the above petition was disposed of. [Bhavya Nain v. High of Delhi, WP (C) No. 5948 of 2019, decided on 8-5-2021]

Advocates before the Court:

For the Petitioner:

Mr. Arvind K. Nigam and Mr. Mohit Mathur, Senior Advocates with Mr.Kawal Nain, Mr. Rohit Dadwal, Mr. Mehtaab Singh Sandhu and Mr.Pratishth Kaushal, Advocates.

For the Respondent:

Mr. Viraj R. Datar, Ms. Meenal Duggal, Advocates.

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 Government of Himachal Pradesh has amended Himachal Pradesh Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2008. The amendment introduces new rates towards financial assistance for the education of the children of the Beneficiary.


Key Amendments:

1. Following Rules have been inserted

  • Rule 298: Female Birth Gift Scheme: The Board may provide a sum of Rs. 51000/- only in shape of FDR which may be given to the beneficiary on the birth of his/her female child (upto 2 girls), which will be enchashed at the completion of 18 years of the said daughter. If the girl in whose name an FDR has been made unfortunately dies before attaining the age of eighteen years, the FDR will get transferred to the third girl child of beneficiary if any,  otherwise the entire amount will be paid the nominee.
  • Rule 299: Mentally Retarded Children Benefit Scheme: A financial assistance for the care of mentally retarded or handicapped children with disability of 50% and above beneficiary @ Rs 20000 per year will be provided to him/her on production of valid medical certificate issued by competent authority.
  • Rule 300: Widow Pension: The widow of a deceased beneficiary will be provided a pension of sum of Rs. 1500/- per month after the death of the said beneficiary, provided that she is not employed in any Govt./semi-govt.  or autonomous body under the Government of India/Government of Himachal Pradesh on regular, contract or daily wage basis.
  • Rule 301: Hostel Facility Scheme: A beneficiary will be provided a maximum amount of Rs. 20000/- for the expenses incurred by him/her on lodging, boarding and food of his children living in any hostel.
  • Rule 302: Mukhyamantri Awas Yojna: A beneficiary who is already enrolled either under Pradhan Mantri Awas Yojna or Mukhya Mantri Awas Yojna, will be provided a financial assistance of Rs. 1,50,000 to build his/her home.

2. Rule 281(1) has been modified to provide new rates for financial assistance for education of children of the beneficiary from the Fund.

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., allowed a petition which was filed mainly seeking a writ, order or direction directing the respondents to provide employment to the petitioner in terms of the agreement executed between their forefather and sugar factory.

At the time of establishment of the Kisan Sahkari Chinni Mill Ltd. some farmers provided their land for the Mill, in lieu whereof, they were given share in the respondent Mill as per the area of their land. Besides this, the land owners/shareholders and the respondent Mill were entered into an agreement whereby it was provided that on the basis of land provided, employment will be given to the farmer himself, his son/grandson as per their qualification in the factory.

The grievance of the petitioner was that he was the heir /member of one of such family whose land was acquired for the purpose of establishment of factory but he had been denied employment by the respondent.

Counter affidavit had been filed by the respondent 2 stating that as per the agreement executed between shareholder Chandan Singh and the respondent Mill, employment was provided to two grandsons of Late Shri Chandan Singh. Petitioner was great grandson of shareholder Shri Chandan Singh and was therefore not entitled to get the employment.

The fact that the land of the petitioner’s grandfather was taken for the establishment of the sugar mill was not disputed and no compensation was paid for the land acquired, instead a share certificate was issued to the land donor and a unilateral letter was written on behalf of the sugar mill which suggests that employment will be provided to the landowner, his son/grandson, as per their eligibility.

The Court noted that in the instant case, on the one hand, the petitioner had been deprived of the land, whereas on the other, he was being denied employment by the respondent. The respondent 2 Sugar Mill, which was an instrumentality of the State, should have considered the fact that the land owner who donated the land for establishment of sugar mill, their future generation should not be left starving. The interpretation of the agreement by the respondent to the effect that either the son or grandson will be provided employment was unsustainable in the eyes of law.

The Court allowed the petition and held that denial of employment to the petitioner by the respondent mill was arbitrary and illegal.[Shashikant Singh v. State of Uttarakhand, Writ Petition (S/S) No.862 of 2019, decided on 17-09-2020]

Suchita Shukla, Editorial Assistant has reported this brief.

Call For PapersLaw School News

About National Law Institute University, Bhopal and Centre for Labour Laws

The National Law Institute University, Bhopal (NLIU), was established by the Rashtriya Vidhi Sansthan Vishwavidyalaya Adhiniyam, by an Act No. 41 of 1997, enacted by the Madhya Pradesh State Legislature. NLIU is recognized by the University Grants Commission and the Bar Council of India. National Law Institute University’s important rock pillar- Centre for Labour Laws (CLL) was established in 2019. Although born in one of the most uncertain times mankind has ever seen; i.e., Covid-19 Pandemic, CLL is destined to grow as a bearer of light and empathy. The Centre is one of its kind and serves as an embodiment of labour rights for the brick bearers of the nation- our labourers & workmen. One of the aims of the Centre is to provide a platform for research on policy, institutional, legal and regulatory issues and act as a platform for exchanging ideas amongst Govt. Authorities, Lawyers, Policymakers, Regulators and Academia.


About the Labour & Employment Law Blog

Labour and Employment law is a niche area, and has a plethora of opportunities and potential in terms of research. CLL strives to provide a forum for exchange of ideas in this field. The Labour and Employment Law Blog has been established to stimulate academic research and discussion to help develop accessible understanding of contemporary labour and employment law issues.

We request you to read the Submission Guidelines carefully before sending your work.

  1. Submissions are invited on a rolling basis.
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The author will hold the moral rights and the Centre for Labour Laws will hold the copyright over the manuscripts published in the CLL Blog.

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Legislation UpdatesStatutes/Bills/Ordinances

The Government of Manipur has published the Manipur Shops and Establishments (Regulation of Employment and Conditions of Service) Ordinance, 2021 vide notification dated August 4, 2021. The Ordinance consolidates the laws relating to regulation of employment and to protects basic rights of employees of Shops and Establishments at Manipur. Special protection has been provided to women at workplace.


The regulations under the Manipur Shops and Establishments (Regulation of Employment and Conditions of Service) Ordinance, 2021 includes the following provisions:

  • Registration of Shops and Establishment and issue of Labour Identification Number
  • Duties of Employer
  • Leave and Holidays
  • Welfare provisions
  • Facilitators and power and functions
  • Records and returns
  • Offence and Penalties


*Tanvi Singh, Editorial Assistant has reported this brief.

Hot Off The PressNews

Karnataka Government on Wednesday decided in favour of 1% horizontal reservations to be given to the transgender community in government jobs, after it did not receive any objections to the draft notification in so far as the amendment to Rule 9 is concerned within the stipulated time.

The State of Karnataka issued a notification with Draft rules namely Karnataka Civil Services (General Recruitment) Rules, 1977 on May 13 proposing to amend Rule 9 by inserting Sub Rule 1 D providing 1 % vacancies to be filled in any post or service by the state government from among the transgender candidates in each category of general, Scheduled Castes, Scheduled Tribes and in each of the categories among the Other Backward Classes.

In the case of Sangama v. State, WP No. 8511 of 2020, Division bench of Abhay Shreeniwas Oka, CJ and Suraj Govindaraj, J. was informed by the State that Department of Personnel and Administrative Reforms State has taken steps to amend the Karnataka Civil Services (General Recruitment) Rules, 1977 and subsequently, on July 6 amended it by inserting sub-rule (1D) to the Rules which reads as follows:

 “Notwithstanding anything contained in the rules of recruitment specially made in respect of any service or post, in all direct recruitment one percentage of vacancies set apart for that method in each of the categories of General Merit, Scheduled Castes, Scheduled Tribes and in each of the categories among Other Backward Classes shall, subject to any general instructions that may be issued by the Government regarding the manner of appointment, be filled from among transgender candidates:

Provided that, every Appointing Authority shall provide a separate column of “Others” along with male gender and female gender in the application for recruitment to any category of Group-A, B, C or D posts for the convenience of transgender persons. The Recruitment Authority or the Appointing Authority shall not discriminate a transgender person while making selection of appointment to any category of post.

Provided further that, if sufficient number of eligible transgender persons are not available, to the extent of one per cent, the unfilled vacancies shall be filled by male or female candidates, as the case may be, belonging to the same category.

Explanation: For the purpose of this sub-rule a Transgender Person shall have the same meaning as defined in Clause (k) of Section 2 of the Transgender Persons (Protection of Rights) Act, 2019 (Central Act 40 of 2019)”.

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where a woman had sought compassionate appointment for her son 10 years after her husband had gone missing, the bench of L. Nageswara Rao and S. Ravindra Bhat, JJ refused to grant the said relief and held,

“As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondent’s son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.”


The respondent’s husband was an Operator, Helper Category (Category II) at Gidi Washery. He had gone missing in the year 2002. A charge-sheet was issued by Central Coalfields Limited to the Respondent’s husband for desertion of duty since 01.10.2002 and an inquiry was conducted in which the Respondent participated on behalf of her husband. On the basis of Inquiry Officer’s report, the Respondent’s husband’s services were terminated with effect from 21.09.2004.

The Respondent filed a suit in the Court of the Additional Munsif, Hazaribagh seeking a declaration of civil death of her missing husband. The said suit was decreed with effect from the date of filing of the suit i.e. 23.12.2009 by a judgment dated 13.07.2012.

The Respondent then made a representation on 17.01.2013 seeking compassionate appointment for her son which was rejected on 03.05.2013 on the ground that the Respondent’s husband was already dismissed from service and therefore, the request for compassionate appointment could not be entertained.

Jharkhand High Court’s decision

The High Court was of the opinion that the reasons given by the employer for denying compassionate appointment to the Respondent’s son were not justified. There was no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement.

Supreme Court’s ruling

Explaining the object behind grant of compassionate appointment, the Court explained,

“The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family[1].”

However, compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future.

The object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a significant lapse of time and after the crisis is over.

In the present case, it cannot be said that there was any financial crisis created immediately after Respondent’s husband went missing in view of the employment of the Respondent. Though the Court agreed with the High Court’s views that the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, it was of the opinion that the Respondent’s son cannot be given compassionate appointment at this point of time.

“The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondent’s husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondent’s son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.”

[Central Coalfields Limited v. Parden Oraon, 2021 SCC OnLine SC 299, decided on 09.04.2021]

[1] Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138

*Judgment by: Justice L. Nageswara Rao

Know Thy Judge| Justice L. Nageswara Rao

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

Rajasthan High Court: The  Division Bench of Satish Kumar Sharma and Indrajit Mahanty, JJ., dismissed the petition remitting the matter to State Government for consideration.

The present writ application has come to be filed by the petitioner seeking a direction to the State of Rajasthan to include persons with locomotive disabilities as well as who are hard of hearing (hearing impairment) under the category of reservation for the purpose of induction as employee under the Rights of Persons with Disabilities Act, 2016 i.e. PWD Act, 2016.

Counsel for the petitioners submitted that pursuant to the decision in State of Rajasthan v. Vikas Kumar Agarwal, DB SAW No. 1484/2012, the State of Rajasthan has carried out necessary amendments in the notification and included blind people in the area of reservation for recruitment of Primary School Teachers. It was further submitted that the recent notification issued by the Union of India dated 04.01.2021 notified by the Ministry of Social Justice and Empowerment in terms of which identified posts are to be reserved for persons with disabilities after review of such list. It was also submitted that that in so far as serial No. 1520 is concerned, Primary School Teachers, other persons with hard of hearing (HH) have been included for the purpose of consideration for appointment

Counsel for the respondents submitted that in terms of the notification issued by the State of Rajasthan, the petitioner cannot be given the benefit of reservation or consideration of posting under the Act of 2016 since persons with hearing impairment cannot be inducted as Primary School Teachers.

The Court observed that the State of Rajasthan shall consider amending its earlier notification and to bring it in line with the suggestions made by the Union of India to the extent that the State Government shall issue necessary modified notification under the Act of 2016 and shall reconsider the applicability of the notification issued by the Union of India in all the various departments of the State of Rajasthan within a period of three months from the date of the order.

The Court thus held “the petitioner is not entitled to any relief before the decision of the State Government to be taken in light of the said notification dated 04.01.2021 issued by Union of India.”

In view of the above, petition was dismissed.[Kaushalya v. State of Rajasthan, 2021 SCC OnLine Raj 176, decided on 16-02-2021]

Arunima Bose, Editorial Assistant has put this story together.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Navin Sinha and Indu Malhotra* has set aside the impugned judgment of Uttaranchal High Court, whereby the High Court had set aside the award passed by the Labour Court on the ground that no disciplinary enquiry was held by the School regarding alleged abandonment of service by the respondent.


 The Respondent was initially engaged as an Assistant Teacher in Jai Bharat Junior High School, Haridwar during the period July, 1993 to 21-05-1994, which was an unaided private institution. Subsequently, she worked as a Clerk from 01-07-1994. From 24-05-2005 the School started receiving grants-in-aid from the State, and came to be governed by the Uttaranchal School Education Act, 2006. The Respondent filed a complaint before the School contending that she had worked continuously up to 07-03-2006. It was that her services were illegally retrenched since 01-07-1997 without granting her any hearing, or payment of retrenchment compensation. The school, on the other hand, argued that on account of her continuous absence, the School had to engage another clerk in her place. The Respondent never made any grievance about her alleged termination till 2006, which was made after 9 years only when the School started receiving grants-in-aid from the State and became a Government School. It was further argued that the employment of the respondent was illegal, since the father of the respondent was a member of the Managing Committee, and her mother was the Chairman employed by the School. It was also stated that minimum qualification requirement for teachers was of B.Ed. and Teacher training while the respondent was only 12th passed.

Findings of the Courts Below

Labour Court vide Award dated 22-08-2016 held that the respondent was not entitled to get any relief as there was sufficient evidence adduced by the Management to prove her continued absence from the School since 01-07-1997. However, the said award of the Court was set aside by the High Court on the ground that the respondent had failed to discharge the onus to prove her employment till 08-03-2006. It was only after the School started receiving grants-in-aid, the respondent filed the present application after over 9 years. Hence, the High Court had set aside the Award dated on the sole ground that no disciplinary enquiry was held by the School regarding alleged abandonment of service by the respondent.

 Observation and Decision

The Bench cited Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory, (1965) 3 SCC 588, wherein, it had been held that, “A defective enquiry stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper.”

Reliance was also placed on Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. Management of Firestone Tyre & Rubber Co. of India (P) Ltd., (1973) 1 SCC 813, wherein the Court had made following observations:

  • Even if no enquiry had been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order; had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
  • The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. A case of defective enquiry stands on the same footing as no enquiry.
  • It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
  • It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points.

The Court observed that full opportunity was given to the parties to lead evidence to substantiate their respective case and the High Court had not even adverted to the said evidence, and had disposed of the case on the sole ground that the School had not conducted a disciplinary enquiry before discharging the respondent from service. The School had led sufficient evidence before the Labour Court to prove that the respondent had abandoned her service from 01-07-1997 when she got married, and moved to another District, which was not denied by her in her evidence. The record of the School also revealed that she was not in employment of the School since July 1997.  The Bench stated,

“Only because some documents had not been produced by the management, an adverse inference could not be drawn against it.”

 In the light of above, it was held that initial employment of the respondent as a teacher from July 1993 to 21-05-1994 was itself invalid, since she was only inter-mediate, and did not have B.Ed. degree, which was the minimum qualification to be appointed as a teacher. Therefore, the impugned judgment of the High Court was set aside and the award passed by the Labour Court was restored. [State of Uttarakhand v. Sureshwati, 2021 SCC OnLine SC 34, decided on 20-01-2021]

*Justice Indu Malhotra has penned this judgment.

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Case BriefsHigh Courts

Madhya Pradesh High Court: Atul Sreedharan, J., addressed the instant contempt petition. The Court while expressing concern over State inaction, stated, “The inaction on the part of the State for a good seven years shows the sheer insensitivity of the State and its bureaucracy and is worthy of dereliction in the strongest terms.”

The present contempt petition was filed for non-compliance of order passed in W.P. No. 806 of 2013 on 18-01-2013. The facts of the case were that the petitioner who was a daily wage cook, employed in the Government Post-Matric Scheduled Caste Boys Hostel filed a petition seeking direction to the respondents, that regular pay-scale be granted to him in the light of circular dated 17-03-1978. It was submitted that the aforesaid circular gave daily wage employees engaged in the Tribal Welfare Department, benefit which had been given by the order passed in Dhanu Bai v. State of M.P., (W.A. No. 85/2011). The Court had ordered the State to consider if the order of Dhanu Bai case would squarely apply on the petitioner; and the State was given liberty to take into consideration any subsequent circular issued by the State Government in respect of grant of wages to daily wage.

The Court observed that, undue liberty that had been granted from time to time and again by this Court for the compliance of its orders, was being taken for granted. The abject disdain of the State and its functionaries to the orders passed by this Court was only on account of the leniency shown by this Court. Time and again, looking at the work load of the State and its functionaries, this Court has been loath to proceed against the guilty in contempt. This has emboldened them repeatedly and they put the orders passed by this Court in the back-burn. It had taken seven years to the State to come out with a pathetic response. The Court said,

The power that is given to the State and its functionaries are not without concomitant responsibility. Rudyard Kipling, a famous author whose association with the State is legendary on account of his work ” The Jungle Book”, has observed “power without responsibility – the prerogative of the ****** throughout the ages. Time and again, the State has, by its violation or its non-compliance to the orders passed by this Court; shown that it is an institution that prefers to have powers without responsibility.

 Considering that the respondents were aware with the order passed by this Court at least from 03-04-2013, if not before that, the Court remarked that, the inaction on the part of the State for a good seven years shows the sheer insensitivity of the State and its bureaucracy and is worthy of dereliction in the strongest terms. It was further stated by the Court, “The State through its inactivity is partly responsible for the flood of writ petition before this Court and after the orders passed by this Court, it leads to filing of the contempt petition because the State and its instrumentalities do not comply with the order passed by this Court within the time period given in the order.”

In the light of above, the instant petition was disposed of with the direction to the respondent to take a decision within a period of two weeks from passing of this order. [Sona Bai v. Principal Secretary Tribal Welfare Department, Mantralaya, CONC-1455-2014, decided on 13-01-2021]

Case BriefsHigh Courts

Kerala High Court: T.V. Anilkumar, J., allowed the instant appeal against the impugned order of Commissioner for Workmen’s Compensation, Thiruvananthapuram.

The brief facts of the case are; an application for compensation was filed by mother of the deceased, who was working as a lorry driver. The lorry had a national permit, was driven by the deceased from Thiruvananthapuram to Baroda. The contention of the applicant before the Commissioner was that when the lorry reached Surat on 23-02-1999, the deceased felt severe stomach pain and he was rushed to the hospital for treatment, where he died on the same day. The claim for compensation was made after seven years and a separate delay petition was also filed along with claim petition. The cause pleaded in the delay petition was that the applicant and her husband being illiterate and poor had to depend on intermediaries, who did not give proper advice. Further, her husband was on bed rest due to rheumatic fever and she was with him as bystander looking after his affairs.

The Commissioner, while condoning the delay held that the applicant had a legal claim for compensation and accordingly, impugned order for compensation of Rs 4,11,900 was passed with interest against the appellant, Kerala State Insurance Department.

The appellant-insurer and the employer filed objections to the delay petition as well as claim. It was submitted that according to Section 10 of the Employee’s Compensation Act, 1923(“the Act”) the claim for compensation ought to be filed within two years of the cause of action. The contention of the appellant was that there was no evidence on record establishing the sufficient cause pleaded and the order condoning delay was passed without evidence, thus, such a decision could not be legally sustainable.

The Court observed that, delay petition was not independently considered before entertaining the claim for compensation. In the absence of evidence in support of alleged sufficient cause, the Commissioner was not justified in condoning of delay, that too, without assigning reasons. Further, on the question of cause of death, the court noticed that in the post-mortem report, the final cause of death was shown as poisoning. Hence, considering the evidence on record, it was held that the death was on account of food poisoning and it could not be said to be causally connected with the work in which the deceased was engaged. The Court stated that, unless stomach pain had causal connection or association with the work in which the deceased was employed, it cannot be reckoned to be an accident to fasten liability on the employer for payment of compensation.

It was held that, a grave error was committed by the Commissioner in upholding the claim of the applicant for compensation. The impugned order passed was not legally sustainable, hence, it was ordered to be set aside. [Kerala State Insurance Department v. Radha,  2020 SCC OnLine Ker 7729, decided on 22-12-2020]

Case BriefsHigh Courts

Gauhati High Court: Manojit Bhuyan J., simplifying the applicability of Rule 3 and Rule 4 of Assam Public Service (Preferential Appointment) Rules, 1999, said, “It would not be open to the petitioners to ask for a blanket direction to the respondents for providing employment in the government service under the Rules of 1999.”


The petitioners claim that they belong to a family, a member of which had been rendered physically disabled on account of participation in the Assam Movement on the issue of foreigners. It is stated that they also hold necessary certificates issued by the Deputy Commissioner of the concerned district. In the above regard, submission made is that they come within the definition of “Affected Candidate” in terms of Rule 2(a) of the Assam Public Service (Preferential Appointment) Rules, 1999. Case laid is that although they made application before the Deputy Commissioner, Dhemaji, claiming appointment to Government service on preferential basis and despite such application being forwarded to the Government of Assam in the Implementation of Assam Accord Department, no positive action came about, thus, compelling them to institute the present writ petition. Prayer made is for a direction to the respondents to expedite the process of granting employment to the petitioners in Government service as per the aforesaid Rules of 1999.

 Assam Public Service (Preferential Appointment) Rules, 1999

Rule 3 Application

These rules shall apply to all the services and posts under the Government of Assam, recruitment to which are made through the Assam Public Service Commission or otherwise than through the Assam Public Service Commission.

Rule 4 Preference for Appointment

  • Subject to the provisions of these rule wherever any recruitment to services and posts referred to in Rule 3 is made, one affected candidate who is otherwise eligible under the normal rules shall, ceteris paribus be given preference in making appointments;

Provided that such preference shall be subject to reservation in favour of candidates who are members of the Scheduled Castes, Scheduled Tribes (Plains & Hills), Other Backward Classes (including More Other Backward Classes), Ex-Servicemen and physically handicapped persons:

Provided further that appointment of any affected candidate who is also a candidate of the category mentioned in the preceding proviso shall be set off against the percentage reserved for the members of that particular category.

Explanation- For the purpose of this Rule the expression ‘who is otherwise eligible under the normal Rules” shall mean an affected candidate whose name is included within the range of 3 (three) times of the number of vacancies in the result sheet of the candidates arranged in order of merit.

  • If any affected candidate applies for any post claiming preference, he shall enclose a certificate from the Deputy Commissioner concerned to the effect that he is an affected person being a member of the family of a martyr or the family of a physically disabled person.


Applying strict rule of interpretation, the Court observed, “If the petitioners are keen to secure employment under the Government of Assam, they will have to strictly abide by the manner and procedure provided under the Rule 3 and 4 of the aforesaid Rules. It would not be open to the petitioners to ask for a blanket direction to the respondents for providing employment in the government service under the Rules of 1999. What would be required for making a valid claim for preferential appointment is that they must (i) possess a certificate issued by the Deputy Commissioner concerned showing that they are persons falling within the definition of ‘Affected Candidate’ under Rule 2(a) and (ii) while making application for recruitment to any service or post under the Government of Assam must enclose therewith the certificate issued by the Deputy Commissioner concerned. Further, they must otherwise be eligible under the normal Rules and their candidature, as per the Explanation appended to Rule 4, would only stand if their names are included within the range of three times the number of vacancies in the result sheet of the candidates arranged in order of merit.”


Making aforesaid observations, the Court reiterated the necessity of procedural compliance with respect to preferential appointments.[Narayan Borah v. State of Assam, 2020 SCC OnLine Gau 4644, decided on 01-12-2020]

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Case BriefsHigh Courts

Jharkhand High Court: Deepak Roshan J., allowed the petition on merits.

 The facts of the case are such that the husband of the petitioner was appointed on the post of Loader on Hudag Colliery. The husband of the petitioner left the place of work without intimation and was found to be mentally ill later. Later, after being treated and a certificate being issued to that effect, he died of harness suddenly on 11-12-2011 leaving behind the petitioner as his widow and four children. Pursuant to this, an application by the petitioner was filed for employment of one of her sons on grounds of compassionate appointment under the provisions of National Coal Wage Agreement (NCWA for short) which was thereby rejected vide letter dated 25-09-2013. Aggrieved by the same, instant petition has been filed to quash the impugned letter and a direction to be issued for employment of his son.

Counsel for the petitioner Ajit Kumar submitted that the allegations leveled against the petitioner’s husband with regards to him being absent from duty without any intimation stand no ground for rejection of compassionate appointment to his son as no disciplinary proceedings were conducted against him then and his name was also struck off from the roll only on 15-03-2012 which is only after petitioner made an application for compassionate appointment i.e. on 09-01-2012. He further submitted that as the dead husband was the only bread earner of the family, it is a fit case for a compassionate appointment.

Counsel for the respondents D K Chakraverty submitted that at this stage to allow the son for employment on compassionate grounds would frustrate the objective and legislative intent as the husband of the petitioner was absent for 8-9 years without any information. However, the Counsel did not dispute the submissions regarding the struck off date being after the date of application. He even agreed that no disciplinary action was taken against the husband of the petitioner.

After perusal of facts and submissions the Court observed that this is a beneficial legislation and totally governed by the National Coal Wage Agreement and as such, the general principle of compassionate appointment should not be strictly applicable.

The court directed the respondent to consider the application of the petitioner for appointment of any of her sons as per NCWA provided the other criteria are fulfilled as per the Company policy and NCWA.

In view of the above, petitions stand allowed and disposed of.[Jai Murti Devi v. Central Coalfields Limited, 2020 SCC OnLine Jhar 768, decided on 20-08-2020]

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Case BriefsHigh Courts

Kerala High Court: A Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J. while dismissing a petition seeking a writ of Quo Warranto, made significant observations upon what constitutes employment under the Central or the State Government, as mentioned under Article 319(d) of the Constitution.

Brief Facts

In the present case, a retired Judge of the Kerala High Court was appointed as the Chairperson of the Kerala State Commission for Backward Classes after serving as Upa Lokayukta. By the instant public interest writ petition, the petitioner seeks to issue a writ of quo warranto against Respondent 1 and further prays to declare Respondent 2 as disqualified for the post of Chairman, Kerala State Commission for Backward Classes citing restrictions under the Constitution and the State Laws.


               “The concept of employment involves ‘three ingredients: (1) employer (2) employee and (3) the contract of employment. The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee hereunder the employee agrees to serve the employer subject to his control and supervision.”

  • Hargovind Pant v. Dr Raghukul Tilak, (1979) 3 SCC 458, a member of the Rajasthan Public Service Commission after the termination of his position as the member, was appointed as Governor of Rajasthan. While considering the challenge, in the light of Article 319(d) of the Constitution of India, the Supreme Court observed,

 “Howsoever wide and expansive a meaning we may give to the words employment under the Government of India, the office of Governor cannot come within it. The word ’employment’ is not a word with a single fixed meaning but it has many connotations. On the one side it may bear the narrow meaning of relationship of employer and employee and on the other, it may mean in its widest connotation any engagement or any work in which one is engaged. If the former be the sense in which the word ’employment’ is used in clause (d) of Article 319, the office of Governor would certainly not be an employment, because the Governor of a State is not an employee or servant of any one. He occupies a high constitutional office with important constitutional functions and duties. The executive power of the State is vested in him and every executive action of the Government is required to be expressed to be taken in his name. He constitutes an integral part of the legislature of the State though not in the fullest sense, and is also vested with the legislative power to promulgate ordinances while the Houses of the Legislature are not in session. He is also entitled to address either House of the Legislature or both Houses assembled together and he may send messages to the House or Houses of the Legislature with respect to a bill then pending in the legislature or otherwise. It is the Governor’s report which generally forms the basis for the President taking action under Article 356 of the Constitution. It will be seen from this enumeration of the constitutional powers and functions of the Governor that he is not an employee or servant in any sense of the term.”

 In view of the distinct facts of the present case, the Court reproduced relevant sections of the Kerala State Commission for Backward Classes Act, 1993, Parliament (Prevention of Disqualification) Act, 1959, Legislative Assembly (Removal of Disqualification Amendment) Act, 1979 and the Kerala Lokayukta Act, 1999.

The Court, relying on the above precedents and in the light of the facts and circumstances of the present case observed,

“As such, it is necessary to consider whether the office of Lokayukta is under the Government, that is to say, whether there exists a relationship of master and servant between the Lokayukta and the State. It cannot be disputed that as per the scheme of the Lokayukta Act, to discharge the functions and duties of the office, the Lokayukta is not controlled by the State Government in any manner. The State Government is not at all empowered to ask the Lokayukta to discharge its functions or to perform its duties in the manner which it likes. No doubt, the Lokayukta receives his salary from the State Government. But that is not again the sole criteria to hold that he is under the employment of the State. The post of Lokayukta is an independent statutory post and by no stretch of imagination, can it come under the purview of ’employment under the Government’. As such, we find that, the post of Lokayukta is a public authority, which has public or statutory duties to perform and it is in no way under the control of the State Government. We find that the contention of the petitioner that Lokayukta being the post under the Government, as per Section 24(3) of the Protection of Human Rights Act, 1993, the first respondent is disqualified or ineligible, is devoid of merits.”


While making the above-mentioned observations, the Court dismissed the instant writ petition filed for issuance of a writ of quo warranto on the lack of merits.[S. Subramaniam v. State of Kerala,  2020 SCC OnLine Ker 4284, decided on 6-10-2020]

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., while determining the compensation in the cases of accident, observed that,

“…job of Homemaker can never be compared with employee or employment and the importance and the values are also to be considered by the Courts, while assessing the compensation.”

Claimant who is the appellant has sought enhancement of compensation in the present appeal.

Claimant sought who sustained grievous injuries resulted in permanent disability.  A Bus had hit the appellant/claimant when she was standing near the bus stand to catch a bus, causing her grievous injuries in the back along with other serious injuries.

Permanent Disability

Perusal of the nature of injuries revealed that the appellant/ claimant sustained not only grievous injuries but resulted in permanent disability and she is continuously taking treatment for that.

Tribunal concluded that due to the rash and negligent driving of the bus driver, the grievous injuries were caused to the appellant.

A monthly income of the appellant was fixed as Rs 4,500 ad accordingly a sum of Rs 4, 86, 000 was granted towards loss of income by the Tribunal.

Analysis & Decision

Court noted that the appellant/claimant is unable to support the family and the husband and children have to take care of her. Undoubtedly, no document has been produced to establish employment as well as the income of the appellant/claimant.

 “…as a woman at home is the Homemaker and for this purpose, the fixation of income for grant of compensation, assessment can be made considering the appellant/claimant as to the Homemaker.”

It happens the claimants are advised either by the relatives, friends, or counsels to say as if they are employed and earning and in order to get compensation, the claimants are ill-advised to provide such facts before the Tribunal in their claim petitions.

In the present matter, there is no dispute between the parties that the appellant is a Homemaker with husband and children. Thus, the tribunal ought to have drawn factual inference in the absence of any material to establish employment and income.

High Court found the amount of compensation fixed to be inadequate and improper.

Bench also emphasized on the importance of “Homemakers”. Thus, the importance, value as well as the materialistic factors are to be considered, while fixing the compensation as far as the Homemakers are concerned.

Keeping in view the amount of fairness to be adopted in the cases of Homemakers, we cannot forget that the Homemakers are the Nation Builders.

If the Homemaker died, the impact would be unmeasurable and the family will become scattered. It would be very difficult to cope with the family.

Therefore, homemakers are standing on a higher pedestal than that of the earning member in a family. Thus, mitigating factors, family status, the income of the husband and other aspects are to be considered while fixing the compensation for Homemakers.

Bench stated that it has no hesitation in arriving at the conclusion that the permanent disability caused to the appellant/claimant would affect not only her family life but also a great loss to the entire family.

Tribunal has mechanically on the basis of proof for employment as well as income decided the compensation without taking the aspects in the right perspective.

Once the fact of an accident is established and the Insurance Policy Coverage is not disputed and negligence is decided, then the claimants are entitled to ‘Just Compensation’.

Enhancement of Compensation

Hence, it was held that the compensation of Rs 4,86,000 awarded by the Tribunal towards loss of income is to be modified. This apart, the compensation granted under the head of ‘Pain and Sufferings’ is also very less, which is to be enhanced as the appellant/claimant has suffered continuously, and therefore, the enhancement is to be granted to the appellant/claimant.

Total compensation of Rs 14,07,000 with an interest at the rate of 7.5% per annum is to be granted to the appellant/claimant. [Bhuvaneswari v. Mani, 2020 SCC OnLine Mad 2163, decided on 01-09-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ujjal Bhuyan and Riyaz I. Chagla, JJ., rejected the relief of payment of full wages to the petitioner employees union holding that there case is not covered by the March 29th Order of the Central Government directing all establishments to pay full wages to employees during the period of lockdown due to COVID-19.

Premier Union Employees had approached the Court seeking direction to the State of Maharashtra and Commissioner of labour to ensure that workers of Premier Limited are pid wages for the duration of the lockdown in terms of Ministry of Home Affairs order dated 29th March, 2020, order of Department of Industries, Energy and Labour, Government of Maharashtra dated 31.03.2020; and order dated 20.03.2020 passed by the Industrial Court, Maharashtra at Pune.

Appropriate proceedings to be initiated against Premier Limited under Disaster Management Act for failure to comply with government orders.

On the other hand, Premier Limited assails the legality and correctness of the Order passed by the Industrial Court.

Union has raised grievance of unfair labour practice against the company. Complaint pertaining to the said grievance was registered at the Industrial Court.

Company obtained No Objection Certificate (NOC) from the office of Commissioner of Labour for shifting its plant, NOC was conditional in as much as the company had to give an undertaking that it would make full payment of wages and dues to the workmen and ensure continuity of their employment.

However, the company defaulted and has not paid wages and dues to the workmen since May, 2019.

Thus, Union in view of the above filed a petition before the Court seeking a direction to the State and Commissioner of Labour for cancellation of the NOC, both the matters are pending with no orders passed thereon.

On 3rd March, 2020, company had issued a notice addressed to all the workmen and staff stating that the management had decided to suspend operations with immediate effect. In response to this notice, Union raised the grievance of unfair labour practice and filed a complaint.

Industrial Court directed the company to pay wages to the workmen w.e.f. 01.03.2020 on or before the tenth day of each month.

Despite the above order, no payment has been made to the workmen.

Ministry of Home Affairs order dated 29-03-2020:

“all the employers, be it in industry or in shops and commercial establishments, shall make payment of wages to their workers at their workplaces and on the due date without any deduction for the period their establishments are under closure during the lockdown.”

Government of Maharashtra in the Industries, Energy and Labour Department issued a government resolution dated 31.03.2020 declaring that all the workers / employees including contractual, temporary and daily wagers working in private establishments, shops (except essential services), factories etc., who had to remain indoors due to outbreak of COVID-19 and the lockdown, shall be deemed to be on duty and shall be paid full salary / wages and allowances.

On 2nd June, 2020, this Court had directed the company to comply with the Order of the Industrial Court, to which company filed a petition with regard to the legality and validity of the Industrial Court’s Order.

Company alleged that the union had adopted an obstructionist approach leading to the company losing many precious orders thereby causing substantial loss. This prevented payment of salary / wages to the employees and workers on regular basis post May, 2019.

Due to the stated circumstances, company had to suspend all its operations.

Analysis & Decision

A conjoint reading of the central government order and the Maharashtra government resolution would go to show that those have been issued to meet the situation arising out of the COVID-19 lockdown.

Question to be addressed is:

Could the central government order and the Maharashtra government resolution be invoked in a situation where the management and workmen are engaged in an industrial adjudication relating to non-payment of salary / wages and suspension of work much prior to closure of the establishments due to the lockdown?

Or where the related cause of action arose prior to the lockdown?

In Court’s opinion, the claim of the workmen to wages will not be covered by the central government order and the Maharashtra government resolution.

Adding the reasoning to its’ conclusion, bench stated that measures introduced by the above two would cover a situation where an employee / worker was in employment as on the day the lockdown was declared and had received salary / wages for the previous month i.e., the month immediately preceding the lockdown.

The said  measure was introduced to ensure maintenance of status quo with regard to payment of salary / wages and employment.

Industrial Court’s Order

Industrial Court noted that a prima facie case for interim relief was made out by the union. It was further observed that if the management was not directed to pay wages, members of the union would suffer hardship and inconvenience.

Since according to the Industrial Court, complainant had made out a strong prima facie case, interim direction was issued to the management to pay wages to the workmen from 01.03.2020 onwards till final disposal of the complaint.

In Courts opinion, the above view of Industrial Court was found to be contradictory and therefore, High Court held that, in the interest of justice it would be just and proper if a direction is issued to the management to pay 50% of the full monthly wages to the workmen with effect from 01-03-2020 till disposal of Complaint (ULP) No.32 of 2020.

Industrial Court is directed to complete the adjudication process within a period of six months.

In the above view, petitions were been disposed off. [Premier Employees Union v. State of Maharashtra, 2020 SCC OnLine Bom 794 , decided on 13-07-2020]

Case BriefsForeign Courts

Supreme Court of United Kingdom: Full Bench of Lady Hale (President), Lord Reed (Deputy President), Lord Hodge, Lady Black and Lord Kitchin, JJ., examined the considerations to be taken into account when deciding whether it is appropriate to award compensation to an employee for an invention made during employment. The instant appeal was filed by Professor Ian Shank (appellant) for compensation under Section 40 of Patents Act, 1977 for an invention made by him in 1982 that was granted patent and which provided benefit to his employer Unilever UK Central Resource Ltd. (3rd respondent/ CRL).

Appellant was the inventor of technology used in glucose testing for diabetics while he was employed at CRL, a wholly-owned subsidiary of Unilever Plc. In October 1982, Shank built the first prototype and was known as ECFD. Appellant accepted that right of his invention belonged to CRL from Section 39(1) of Patents Act, 1977 later these rights were given to Universal Plc. Universal Plc filed for the patents application for both ECFD and FCFD technologies. Since Universal was not interested in developing business so they did little to develop ECFD. Appellant left Unilever in October 1986.

The appellant represented by Patrick Green submitted that court didn’t consider that CRL was appellant employer and the entire Unilever Group can’t be considered as CRL undertaking. The argument was made it is impossible for an employee to establish benefits from the patent of a business and it will also be unjust to employ employee inventors.

The respondent represented by Daniel Alexander submitted that CRL should not be considered as undertaking because it never generated any material revenue and was neither the beneficiary of royalties in question. It was merely a service company for Unilever Group.

The exact amount of the compensation is to be determined in accordance with Section 41 of the Patents Act, which requires that the employee is awarded a “fair share” of the benefit which the employer has derived (or may reasonably be expected to derive) from the invention and/or the patent. To determine what constitutes a “fair share”, Section 41(4) of the Act provides a number of matters that must be taken into account, including the nature of the employee’s duties and remuneration, the effort and skill which the employee has devoted to making the invention, the contribution of other employees (be they joint inventors or not) and the contribution of the employer to the making, developing and working of the invention by the provision of advice, facilities and other assistance, opportunities, and managerial and commercial skill.

The Court analysed overall profit and turnover of Unilever Group and found there was an extreme disparity in numerical terms between the amount that Unilever received and the salary that the appellant was paid. It opined that the correct approach is to determine the part played by the size and success of the employer’s business as a whole in securing the benefit from the invention. Shank patent had produced a very high rate of return and Unilever made a small effort to commercialise it. Unilever had generated benefits from Shank’s patent.

The appeal of Professor Shank was allowed and it was held that Universal and CRL had an outstanding benefit from the patents of Shank and fair share was not given to appellant. Professor Shanks was awarded £2m compensation, roughly a 5 per cent share of the £24m benefit derived by Unilever from the invention, uplifted from 1999 at an average inflation rate of 2.8 per cent. [Shanks v. Unilever Plc, [2019] 1 WLR 5997, decided on 23-10-2019]