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]


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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.

Background

 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.”

Background

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.

Observations

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.”

Decision

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.

Observations

               “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.”

Decision

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]

Case BriefsHigh Courts

Patna High Court: The Bench of Prabhat Kumar Jha, J. dismissed a civil writ petition claiming employment in lieu of acquisition of land on the ground that there was no policy of the Indian Railways for the same.

The instant petition sought a writ of mandamus directing the respondent to grant appointment to the petitioner in Group-C or Group-D post in the East Central Railway as per her educational qualification since her land had been acquired for construction of Neura Daniyama rail line.

The Court noted that petitioner was granted a compensation of Rs 5,26,687.92 after acquisition of her land. She never raised any objection or filed any petition before the concerned authority for providing her a job. Also, she had moved this court after long delay of more than ten years from the date of acquisition of her land without any plausible explanation. 

Reliance was placed on the judgment of Apex Court in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 where it was held that petitioner has no fundamental right to claim job in lieu of acquisition of his land for the purpose of completion of project, besides compensation for acquisition of the land. Admittedly, there was no policy for providing employment to the landlord whose lands had been acquired for completion of the aforesaid rail line project. In view thereof, it was held that the petitioner could not claim employment in lieu of acquisition of her land as a matter of right.[Neera Devi v. Union of India, 2018 SCC OnLine Pat 2328, decided on 05-12-2018]

Case BriefsHigh Courts

Allahabad High Court: The Bench of Ashwani Kumar Mishra, J. declared that employment cannot be denied to petitioner when it was previously extended to him on his merits multiple times.

This petition has been filed challenging the order of the Joint Director of Education which states the qualification for appointment to the post of part-time instructor that would be guided by the respondent as well as the letter of the Secretary of the Board. The petitioner through his counsel Jitendra Pal Singh Chauhan has contended that owing to the above-mentioned criteria he was being denied the concerned benefits. He stated that he was appointed in 1998 and has continued since then with continued extensions plus as per the rules his appointment shall operate prospectively. The respondent has contended that as his service term was fixed thus his claim shall not be accepted.

The Court was of the view that the appointment of petitioner cannot be treated to be a fresh appointment for the purposes of determining his qualification when his employment has been extended multiple times which shall be considered of him having the requisite qualifications. Thus the Court ordered that the required consideration be made. [Vineet Kumar Kaushik v. State of U.P., 2018 SCC OnLine All 3353, decided on 05-12-2018]

Case BriefsForeign Courts

United Kingdom Supreme Court: A Five Judge Bench comprising of Lord Wilson, Lord Carnwath, Lord Hughes, Lady Black and Lord Lloyd-Jones, JJ. inferred the meaning of financially independent which means “not financially dependent upon the state”.

The appellant was residing in United Kingdom with her friend who she took care of due to medical conditions in lieu of which the appellant was provided free boarding and lodging. She resided there with leave as a student for three months and was granted further leave on 12 occasions some of which were made after the previous leave expired. After her final grant failed, the appellant applied twice but failed.

She pleaded on the context of Article 8 of the European Convention on Human Rights requesting the court to respect her private life that she has now established in the UK. Her plea was rejected due to the fact that her life was established in the UK even when she knew that her continued stay would be dependent upon a further grant of leave also it was against the public interest that she was financially dependent upon her friend and father. Hence, she preferred the appeal.

The Supreme Court questioned the fact as to why would the financial dependence of the appellant be against the interests of the economic well-being of the United Kingdom and that in case of a cessation of a person’s employment the consequences would be more or less the same. Plus if consequently under Article 8 the claimant loses the financial independence then public interest may help to justify the interference with their right to respect for their private or family life in the UK. Accordingly, the appeal was allowed.[Rhuppiah v. Secretary of State for the Home Department, [2018] 1 WLR 5536, decided on 14-11-2018]

Case BriefsSupreme Court

“Judicial service is very different from other services and the yardstick of suitability that may apply to other services, may not be the same for judicial service.”

Supreme Court: The 3-Judge Bench comprising of Kurian Joseph, Sanjay Kishan Kaul and Navin Sinha, JJ., while allowing an appeal filed by a successful judicial services candidate stated that, “the consideration and candidature in the present case of the appellant are afflicted by a myopic vision, blurred by the spectacle of moral turpitude, reflecting inadequate appreciation and application of facts.”

The factual matrix of the case presents a picture in which it is stated that the appellant being a successful aspirant for judicial service was aggrieved from cancellation of his selection for appointment due to the character verification report.

The contention of the appellant by his learned counsel was that he had honestly and truthfully disclosed his prosecution and acquittal. It has been stated that appellant was being subjected to arbitrary and hostile discrimination by placing reliance of Joginder Singh v. State (UT of Chandigarh), 2015 (2) SCC 377. Counsel for the respondents stated that acquittal because prosecutrix turned hostile cannot come to the aid of the appellant and fact that he had disclosed the same earlier does not exempts his conduct involving moral turpitude.

Therefore, the Supreme Court on the observance and analysis of the facts and circumstances of the case stated that “Employment opportunities are a scarce commodity in our country.” In furtherance to the stated analysis, the Court added that “every individual deserves an opportunity to improve.” Also, the Apex Court concluded by stating that no reasonable person on the basis of materials placed before us can come to the conclusion that the antecedents and character of the appellant are such that he is unfit to be appointed as a judicial officer.

Hence, the respondents were directed to reconsider the candidature of the appellant and an appropriate decision shall be taken in light of the present discussion. The appeal was allowed. [Mohammed Imran v. State of Maharashtra,2018 SCC OnLine SC 1943, decided on 12-10-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Shekher Dhawan, J., dealt with a petition filed under Article 226 and 227 of the Constitution of India in nature of certiorari for modification of award passed by Industrial Tribunal where petitioner was denied continuity of services though reinstated.

Facts of the case are that petitioner’s services were terminated orally and no show cause notice was provided to petitioner or was paid any retrenchment compensation thereby violating Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947. An industrial dispute was referred to Tribunal.

Petitioner contended that he was accepted to be employed under respondent and was a workman under Section 2(s) of the Act who has duly completed 240 days of service. Whereas respondent argued that petitioner was not entitled to reinstatement as he was not a workman under the relevant provision and that 240 days in service was not completed.

The High Court was of the view that Tribunal was right in reinstating petitioner and not continuing the service as petitioner himself failed to show his employment for a continuous period of 240 days. Tribunal has rightly exercised its discretion, therefore, no merit in writ petition was found and the same was dismissed. [Jaibir v. Industrial Tribunal,2018 SCC OnLine P&H 1359, decided on 21-09-2018]

Case BriefsHigh Courts

Hyderabad High Court: A Division Bench comprising of Sanjay Kumar and M. Ganga Rao, JJ., dismissed a writ petition against denying candidature on the ground of developing medical conditions in the future.

The appointment of the respondent for Work Assistant at Nuclear Fuel Complex (NFC) was rejected by the petitioner on the grounds that he was medically unfit in view of his morbid obesity, uncontrolled hypertension and sleep disorder as opined by the Medical Committee.

The matter went up to the Central Administrative Tribunal where the order of cancellation was rejected by stating that that a candidate could not be declared unfit for a particular post merely on the ground that he suffered from a disease or disorder without a clear finding that he could not perform the duties and responsibilities attached to that particular post and also the mere apprehension that he may develop complications in future cannot be accepted.

The order was challenged, following which the Court stated that the nature of the work was not so onerous or strenuous that only a person in the pink of health could do it plus no specific standard of physical fitness other than visual acuity was required for appointment of a non-technical staff. Consequently, the fundamental level of the respondent was not impaired by his hypertension or being overweight.

The Court concluded by saying that the authorities seem to have gone on a witch-hunt to come up with new diseases/disorders so as to show the respondent the door and hence being utterly devoid of merit the writ petition was dismissed and the employment of the respondent was allowed as per the orders of the tribunal. [Union of India v. Nenavath Suresh,2018 SCC OnLine Hyd 294, order dated 31-08-2018]

Case BriefsInternational Courts

General Court of European Union : The General Court confirmed the decision of the European Parliament to recover from Marine Le Pen almost €300,000 for the employment of a parliamentary assistant, on the ground that she did not prove the effectiveness of that assistant’s work.

Ms Marion ‘Marine’ Le Pen was a Member of the European Parliament (MEP) from 2009 to 2017. By decision of 5 December 2016,  Parliament decided that, for the period between December 2010 and February 2016, an amount of €298,497.87 had been unduly paid to Ms Le Pen in respect of parliamentary assistance and had to be recovered from her. That amount corresponds to the payments made by Parliament for a staff member engaged by her as a local parliamentary assistant from 2010 to 2016. Parliament complained that she did not provide evidence of the existence of an activity of the local assistant linked actually, directly and exclusively to her mandate.

Ms Le Pen requested the General Court to annul the decision taken by Parliament. General Court took the following view while confirming Parliament’s recovery decision and rejecting in entirety Ms Le Pen’s arguments:

1. That the Secretary-General of Parliament is competent to adopt decisions to recover sums unduly paid pursuant to the Implementing Measures for the Statute of the MEPs and such decision by Parliament does not undermine the independence of MEPs;

2. That she was given due opportunity to argue her point of view, such that her rights of defence were not breached;

3. That it is for MEPs and not for Parliament to prove that amounts received have been used to cover expenses actually incurred and arising wholly and exclusively from the employment of their assistants;

4. That Ms Le Pen has not been able to prove that her assistant performed actual work for her; and

5. That she was not the subject of discriminatory treatment in view of the fact that she provided no evidence establishing that only MEPs of the Front National have, in the past or at present, been the subject of similar proceedings initiated by Parliament. [Marion Le Pen v. European Parliament, Case T-86/17, order dated 19-06-2018]

Case BriefsHigh Courts

High Court of Jharkhand: The Single Judge Bench comprising of S.N.Pathak, J., recently addressed a petition wherein the petitioner prayed for the payment of her deceased husband’s retiral benefits including gratuity and leave encashment, arising out of 23 years of service. The petitioner also prayed to the Court for directing the respondents to provide appointment to her son on compassionate grounds, owing to her husband’s death.

The petitioner had initially filed a petition for addressing her grievances which was disposed of by directing the initial respondents to make necessary payments to the petitioner. Despite the order, in the absence of the respondents complying with it, the petitioner filed another petition which was rejected by the respondents consequent to which the petitioner filed the present petition. Counsel for the petitioner argued that the respondents had not adhered to the Full Bench judgment of this Court in Ram Prasad Singh v. State of Jharkhand, 2005 SCC OnLine Jhar 553 despite the deceased being a work-charge employee and so being entitled to retiral benefits. The opposite party contended that since the deceased was not a regularized employee, he wouldn’t be given the retiral benefits, the wife contends she should be entitled to.

The Court held that the issue had been addressed in the case mentioned by the petitioner wherein it was held, “the work-charged employees, who have completed more than five years of continuous service against one post in the work-charged establishment and otherwise eligible, have a right of consideration of their cases for taking over their services in the permanent (regular) establishment” and “The dependents of work charged employees are not entitled to claim appointment on compassionate ground”.

Hence, the Court directed the respondents to pay the entire retiral benefits and quashed the plea for employment of the petitioner’s son on compassionate grounds. [Meera Devi v. State of Jharkhand, 2017 SCC OnLine Jhar 2690, order dated 18.8.2017]