Case BriefsHigh Courts

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

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

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

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

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

Analysis, Law and Decision

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

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

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

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

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

Law

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

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

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

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

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

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

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


Advocates before the Court:

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

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

Saket Court
Case BriefsDistrict Court

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

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

Factual Background

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

Analysis, Law and Decision

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

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

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

Retrenchment 

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

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

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

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

How will the compensation of plaintiff be assessed?

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

Bombay High Court: Anil S. Kilor, J., reiterated that the strict rule of pleadings as applicable to civil suits is not applicable under the Industrial Disputes Act, 1947.

The petitioner’s application under Section 33-C(2) of the Industrial Disputes Act, 1947 was rejected by the Labour Court, Nagpur and the Judgments and Order passed has been assailed in the present petition.

Petitioner had worked as a skilled worker with respondent scheduled employment “Printing Press”, to which provisions and schedule prescribed under the Minimum Wages Act, 1948 are applicable.

Claimed Permanency

He filed a complaint before the Industrial Court under Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices, 1971 claiming permanency.

On filing the above complaint, the petitioner was treated as a permanent employee by the respondent and therefore he withdrew his complaint.

However, the non-payment of the wages of permanent employee drove him to approach this Court.

Respondent stated that the petitioner was working as a skilled worker since 1989 and was getting benefits of permanent employee.

Further, the petitioner, subsequent to this, tendered his resignation, citing a reason that despite a statement made by the respondent before the learned Industrial Court and this Court that, the petitioner was a permanent employee, minimum wages have not been paid to him as per the provisions of the Minimum Wages Act.

Petitioner again took resort to the legal remedy by preferring n application under Section 33-C (2) of the Act, 1947 before the Labour Court for grant of arrears of wages and bonus for the period 11-08-1989 to 31-12-2013, as a ‘fitter’.

Analysis and Decision

Questions for Consideration:

1. Whether the Labour Court, possesses jurisdiction under Section 33-C(2)of the Act, 1947, to grant arrears of wages due under the Minimum Wages Act, particularly where there is no dispute regarding the rates of wages and it is admitted by the parties that minimum rates of wages were fixed by the Government?

2. Whether the strict rule pleadings is applicable to the Industrial disputes?

The purpose of enacting the ID Act, 1947 was to make provisions for the Investigation and settlement of Industrial Dispute and for certain other purposes.

Court also referred to Section 33-C (2) of the Act, 1947, which read as follows:

33C. Recovery of money due from an employer

(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be diecided by such Labour Court as may be specified in this behalf by the Appropriate Government.”

Language of the said Section makes it clear that:

“…if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by Labour Court.”

Further to add to the above, if there is no dispute as to rates between the employer and the employee and the only question is whether a particular payment at the agreed rate is due or not, then Section 20(1) of the Minimum Wages Act would not be attracted at all, and the appropriate remedy would only be either under Section 15(1) of the Payment of Wages Act, 1936, or under Section 33-C(2) of the Industrial Disputes Act.

Court in view of Section 33-C(2) of the Act, 1947 and the facts laid, held that the Labour Court committed error in not exercising jurisdiction under Section 33-C (2) of the I.D. Act and further applicant also failed to prove that he was having the pre-existing right.

Bench referred to the decision of the Supreme Court in, Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, (1976) 3 SCC 832 and observed that 

I.D. Act, 1947 being beneficial legislation protects labour, promotes their contentment and regulates situations of crisis.

Mechanism of the Act is geared to conferment of regulated benefits to workmen and resolution, according to a sympathetic rule of law, of the conflicts, actual or potential, between managements and workmen.

Moreover an industrial dispute where the process of conflict resolution is informal, rough-and-ready and invites a liberal approach. Procedural prescriptions are hand-maids, not mistresses of justice and failure of fair play is the spirit in which courts must view processual deviances.

Hence, in light of the ID Act, 1947 being a beneficial legislation and strict rule of pleadings not made applicable, as applicable to the suits filed under the provisions of the Civil Procedure Code, Court stated that it is erroneous that the application was rejected under Section 33-C (2) on the ground of not sufficient pleadings being made.

Therefore, the impugned judgment and order passed by the Labour Court needs to be set aside and sent back to the Labour Court to decide the same afresh. [Tularam Manikrao Hadge v. Sudarshan Paper Converting, 2020 SCC OnLine Bom 965, decided on 21-09-2020]

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., while addressing the present petition observed the principle laid down by the Supreme Court of India with regard to Industrial Disputes.

Challenge in the Present petition

Trade Union of PTI Employees and Federation of four PTI Employees’ Unions have challenged the retrenchment of 297 employees by the Press Trust of India.

Permanent and regular workmen have been retrenched while contractual workers have been retained. The principle of ‘last come first go’  has not been followed.

Reasons why retrenchment is violative of certain provisions of the Industrial Disputes Act

Further, it has been stated that retrenchment is violative of Section 25-N of the Industrial Disputes Act as PTI employs more than 100 employees and has not taken the prior permission from the State Government before retrenchment;

retrenchment is violative of Section 25-N of Industrial Disputes Act as three months notice/three months wages in lieu of notice has not been given;

retrenchment is violative of Sections 25-F and 25-G of the Industrial Disputes Act as one month notice indicating the reasons for retrenchment and the retrenchment compensation has not been given;

retrenchment is violative of Section 9A of the Industrial Disputes Act read with Clauses 10 and 11 of the Fourth Schedule as the service conditions of the employees relating to rationalization/technique were altered without notice;

the retrenchment is violative of Section 16A of the Working Journalists Act, 1955 as the reason for retrenchment was the liability for payment of wages and mandating promotional grades as per Clause 18(f) of Majithia Award;

the retrenchment is violative of Section 25-G of the Industrial Disputes Act as there is the substantial short payment of retrenchment compensation to the employees;

closure of Attendees, Transmission and Engineering departments is violative of Section 25-O of the Industrial Disputes Act as the closure was without permission and the retrenchment is illegal and mala fide to sabotage the continued disbursement of Majithia Award benefits and to discourage the employees to pursue their remedies under the Wage Board.

retrenchment constitutes an unfair trade practice as set out in clauses 5(a), (b) and (d) of the Fifth Schedule of the Industrial Disputes Act;

large number of employees have not yet received individual notice of their retrenchment; and the plea of “No work” of PTI is false and contrary to PTI work registers.

Analysis and Decision

Whether the writ petitions should be entertained in view of the statutory remedy available to the retrenched employees under the Industrial Disputes Act?

Bench while deciding the present matter observed that,

The law is well settled by the Supreme Court that a writ petition should not be entertained in respect of industrial disputes for which a statutory remedy is available under the Industrial Disputes Act unless ‘Exceptional circumstances’ are made out.

Writ jurisdiction is a discretionary jurisdiction and the discretion should not ordinarily be exercised if there is an alternative remedy available to the petitioner.

Sum and Substance:

  • If the writ petition discloses ‘Exceptional circumstances’ and does not involve disputed questions of fact, the writ petition in respect of an industrial dispute may be entertained.
  • If the writ petition discloses ‘Exceptional circumstances’ but the facts are disputed, the writ petition should not be entertained and the petitioner has to invoke the statutory remedies available as per law.
  • If the writ petition does not disclose ‘Exceptional circumstances’, the writ petition should not be entertained irrespective of whether the facts are disputed or not.
  • Writ jurisdiction is a discretionary jurisdiction and the discretion is ordinarily not exercised, if an alternative remedy is available to the petitioner. The powers conferred under Article 226 of the Court are very wide but these are extraordinary remedies subject to self-imposed restrictions.

With regard to ‘exceptional circumstances’ Court referred to the decision of Delhi High Court, Hajara v. Govt. of India, 2017 SCC OnLine Del 7982.

In the present matter, there are no exceptional circumstances for the exercise of the writ jurisdiction under Article 226 of the Constitution.

Bench stated that the present matter is squarely covered by the principles laid down by the Supreme Court in U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam Karamchari Sangh,2004 (2) L.L.N. 93 wherein the Court held that,

“We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent Union at all. The dispute was an industrial dispute both within the meaning of the Industrial Disputes Act, 1947 as well as U.P. IDA, 1947. The rights and obligations sought to be enforced by the respondent Union in the writ petition are those created by the Industrial Disputes Act.”

High Court observed that,

“The principles of uniformity and predictability are very important principles of jurisprudence.”

Most of the retrenchment cases are simpler than the present case but the writ jurisdiction is not exercised as the law is clear and well settled that the rights under the Industrial Disputes Act have to be agitated before the Industrial Tribunal.

In the present matter, Court declines to exercise the writ jurisdiction in view of the statutory remedy available to the retrenched employees under the Industrial Disputes Act.

Court noted there is no averment in that in any of the retrenched employees authorized the petitioners to espouse their cause. There is no averment that shows the authority of the petitioners to file the petitions.

Held

Bench held that the petitions are being dismissed on the ground that the retrenched employees have a statutory remedy under the Industrial Disputes Act and no ‘Exceptional circumstances’ have been made out by the petitioners.

Post Script

In view of the well-settled law by the Supreme Court that the writ petition relating to an industrial dispute can be entertained only if there are ‘Exceptional circumstances’, it is mandatory for the writ petitioner to disclose the ‘Exceptional circumstances’ in the Synopsis as well as in the opening paras of the writ petition.

Hence, if the writ petitioner does not disclose the “Exceptional circumstances” in the writ petition, the Registry shall return the writ petition under objections to enable the writ petitioner to disclose the “Exceptional circumstances” in the Synopsis as well as in the opening paras of the writ petition.[PTI Employees Union v. Press Trust of India Ltd., 2020 SCC OnLine Del 1216, decided on 18-09-2020]

Case BriefsSupreme Court

Supreme Court: A Division Bench of A.M. Khanwilkar and Dinesh Maheshwari, JJ., while addressing a contempt petition held that,

“…to constitute civil contempt, it must be established that disobedience of the order is wilful, deliberate and with full knowledge of consequences.”

Grievance

Non compliance of direction to Food Corporation of India to regularise and departmentalise workers concerned who had initiated industrial disputes before Industrial Tribunal, Chennai under Section 10(1)(d) of Industrial Disputes Act.

The employees concerned were employed as daily-rated labour or casual labour and had been working for some time with some cases of 15 to 20 years.

Contempt Petition against FCI

FCI contended that it had already regularised the eligible employees who were under Direct Payment System (DPS) and nothing further was required to be done.

Further the Corporation stated that claim was restricted to regularisation of the employees concerned after abolition of the contract labour system. There was no prayer for absorbing the concerned employees under any specific system of regular labour prevailing in the Corporation. The Corporation has four systems of labour engagement, namely, (i) Departmental Labour System, (ii) Direct Payment System, (iii) No­-Work-­No-­Pay System and (iv) Mate System.

Corporation’s Stand

In the decision of SAIL v. National Union Waterfront Workers, (2001) 7 SCC 1 (Constitution Bench), it was held that, contract labour need not be absorbed after abolition of contract labour system.

Taking reference from the above, Corporation stated that the provision of FCI and its primary duty is to undertake purchase, storage, movement, transport, distribution and sale of food grains and other food stuff.

Continuing its’ contention, Corporation stated that, If all the regular workers in the Corporation are brought under the Departmental Labour System, there will be recurring liability on public exchequer to the tune of Rs 3,000 crore per annum and if arrears are also given with effect from 2003, there will be additional financial burden of more than Rs 40,000 crore.

As per the extant policy, the respondent could have regularised the workers concerned only under theDirect Payment System and therefore, it is certainly not a case of disobedience, much less wilful or deliberate disobedience of the order passed by this Court.

Decision of the Court

Bench adverted to the exposition of Supreme Court’s decision in Ram Kishan v. Tarun Bajaj, (2014) 16 SCC 204, wherein the Court had delineated the contours for initiating civil contempt action.

Excerpts from the referred SC decision:

“…in order to punish a contemnor, it has to be established that disobedience of the order is “wilful”. The word “wilful” introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one’s state of mind.”

“Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished.”

Court in the present case observed that, neither the relief in the References was specific for regularisation in Departmental Labour System only nor the Tribunal, the Madras High Court/Kerala High Court or this Court was called upon to deal with that issue specifically.

Subject References, as well as, the direction issued by the Tribunal, which has been upheld upto this Court is silent about the system in which the concerned workers have to be regularised and departmentalised, therefore, it is incomprehensible as to how it would be a case of disobedience.

Therefore, Court held that, no specific direction had been given to the Corporation to regularise the workmen concerned only in the Departmental Labour System.

Furthermore, the Departmental Labour System is now a dying cadre and the policy of the Corporation at the relevant time entailed regularisation of such workmen only under the Direct Payment System (DPS).

Hence, no contempt action can be initiated on the basis of general direction to the respondents to regularise and departmentalise the concerned workmen.

Petition stands dismissed in the above view. [Workmen v. Ravuthar Dawood Naseem, 2020 SCC OnLine SC 461 , decided on 19-05-2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Sisira J. de Abrew, Murdu N.B. Fernando and S. Thurairaja, JJ., allowed an appeal filed in terms of Article 154(P) of the Constitution read with Section 31-DD of the Industrial Disputes Act (as amended) and Section 9 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990.

The Applicant-Respondent, in this case, was the Manager attached to Thanamalwila Branch of Uva Development Bank.  His services were terminated by the Bank and there were several charges levelled against him at the domestic inquiry, the President of the Labour Tribunal had decided that the Applicant-Respondent of the said Bank had not acted with 100% honesty in dealing with affairs of the bank, subsequently an appeal was filed in the High Court where they had affirmed the order of the Labour Tribunal who had held that the termination of services of the Applicant-Respondent was unjustified and had ordered reinstatement and  ½ back wages. Being aggrieved by which the Employer-Appellant had filed the instant petition.

The Court while allowing the appeal relied on the judicial decisions of National Savings Bank v. Ceylon Bank Employees Union, 1982 (2) SLR 629 and Bank of Ceylon v. Manivasagasivam, 1995(2) SLR 79, held that the President of Labour Tribunal who stated that the Manager had not acted with 100% honesty when he was dealing with his duties cannot be ordered to be reinstated in the same bank with back wages. Thus, the decision of both the President of the Labour Tribunal and the High Court Judge were held to be wrong and were set aside making the termination of the Applicant-Respondent justified. [Uwa Development Bank v. Ceylon Bank Employees Union, SC Appeal No. 39 of 2016, decided on 02-07-2019]

Legislation UpdatesNotifications

S.O. 1614(E) — Whereas the Central Government is satisfied that public interest so requires that the services engaged in the Banking industry, which is covered under item 2 of the First Schedule to the Industrial Disputes Act, 1947 (14 of 1947), to be a public utility service for the purposes of the said Act;

And whereas the Central Government has lastly declared the said industry to be public utility service for the purposes of the said Act for a period of six months from the 21-10-2018 vide notification of the Government of India in the Ministry of Labour and Employment number S.O.5326(E), dated 18-10-2018 published in the Gazette of India, Extraordinary, Part II, section 3, sub-section (ii), dated the 18-10-2018;

And whereas the Central Government is of the opinion that public interest requires the extension of the public utility service status to the said industry for a further period of six months;

Now, therefore, in exercise of the powers conferred by the proviso to sub-clause (vi) of clause (n) of Section 2 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby declares the services engaged in the Banking industry to be a public utility service for the purposes of the said Act for a period of six months with effect from the 21-04-2019.


[Notification dt. : 18-04-2019]

Ministry of Labour and Employment

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Surya Kant, C.J. and Sandeep Sharma, J. dismissed a letters patent appeal finding no merit in the case as the issue stood settled between the parties in the earlier round of litigation.

In the pertinent matter, the respondent was a workman engaged on daily wage basis as a Beldar, who continuously worked for more than 240 days in each year. On 30-3-1996 he was allegedly retrenched. The respondent-workman, after 14 years, raised a Demand Charter, to give rise to conciliation of proceedings under the Industrial Disputes Act. However, the Labour Commissioner, vide order dated 30-6-2011, eventually declined to refer the matter to Industrial Tribunal-cum-Labour Court, as according to him, there was no justification to raise the dispute after a period of more than 14 years. The Reference was thus declined. The respondent-workman then approached the Court where the matter was ordered to be referred to Labour Court-cum-Industrial Tribunal and the question of limitation of appeal was directed to be kept in view “while moulding the relief”. The appellants did not challenge the order and instead, the matter was referred to the Industrial Tribunal-cum-Labour Court, which further ordered the reinstatement of the respondent with seniority from the date of the demand notice was served and no back wages were granted. The Tribunal found that some juniors to the respondent were allegedly retained in the employment and this Principle of Last Come First Go was violated.

The impugned judgment was then challenged by the appellants-State before the learned Single Judge where the Court held that the State authorities, “cannot be permitted time and again to raise the plea of inordinate delay in raising the dispute”. Industrial Tribunal-cum-Labour Court, in deference to those observations, denied the reinstatement or seniority to the respondent-workman from the date of alleged retrenchment and restricted those benefits from the date when the Demand Notice was served. Therefore, no unjust enrichment has been allowed by denying the back wages to the workman.

The Court opined that “True it is that unexplained and inordinate delay in raising the Industrial Dispute can be effectively fatal to the claim itself but this issue stands already settled between the parties in the earlier round of litigation”. Further, it held that any view contrary to the Judgment already given will nullify the mandate of the same.[Chief Secretary (PW) v. Ram Gopal, 2019 SCC OnLine HP 403, Order dated 03-04-2019]

Case BriefsSupreme Court

Supreme Court: In the matter where an illegally terminated workman had sought reinstatement claiming preference over other persons being a “retrenched workman” as per Section 25(H) of the Industrial Disputes Act, 1947 (ID Act), the bench of Abhay Manohar Sapre and Indu Malhotra, JJ held that it was not a case of a retrenchment of the respondent from service as contemplated under Section 25(H) of the ID Act as the workman had already accepted the compensation awarded to him in lieu of his illegal termination.

In the present case, the respondent had claimed that since the appellant company had regularised the services of 2 peons, he become entitled to claim re­employment in terms of Section 25 (H) of ID Act.  The Court, however, rejected the claim and held that the respondent was not entitled to invoke the provisions of   Section   25(H) of   the ID Act and seek reemployment by citing the case of another employee (Peon) who was already in employment and whose services were only regularized by the appellant on the basis of his service record in terms of the Rules.

The Bench said:

“the regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25(H) of the ID Act for claiming reemployment in the services. The reason is that by such act the employers do not offer any fresh employment to any person to fill any vacancy in their set up but they simply regularize the services of an employee already in service.  Such act does not amount to filling any vacancy.”

It was explained that in order to attract the provisions of Section 25(H) of the ID Act, the workman needs to prove that:

  • he was the “retrenched employee”
  • his ex­employer has decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking re­employment in the services.

Explaining the difference between the terms ‘employment’ and ‘regularization of the service”, the Bench said:

“the   expression ‘employment’   signifies   a fresh employment to fill the vacancies whereas the expression ‘regularization of the service’ signifies that the employee, who is already in service, his services are regularized as per service regulations.”

[Management of the Barara Cooperative Marketing­cum Processing Society Ltd v. Workman Pratap Singh, 2019 SCC OnLine SC 1, decided on 02.01.2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of S.C. Gupte, J. allowed a writ petition filed by ‘IDBI Bank Ltd.’ and dismissed the order of the Central Government Industrial Tribunal (Mumbai) passed in an application preferred by the respondent- workers union under Section 33 of Industrial Disputes Act, 1947.

The petitioner-Bank outsourced its non-core activities like house-keeping to a couple of contractors. The contractors further engaged the services of respondent workers. The services of three of the workers were terminated by the contractors in the year 2005. An industrial dispute was raised against the petitioner Bank. The matter which travelled to the High Court was dismissed on the ground that no employer-employee relationship existed between the parties. In 2012, the demand of the respondent workers for regularisation of service met with the same fate. Subsequently, in 2017, the respondent workers filed another application demanding status quo of their service conditions. The Tribunal, vide the impugned order, granted the application. Aggrieved by the same, the Bank filed the instant petition.

The High Court perused the record and noted that the factum of the workers’ employed by the contractor, was established. The Court rejected the submission made on behalf of the respondent workers that they were entitled to the relief of status quo as the Industrial Court has powers to pass an interim order pending the adjudication of a reference under Section 33. The High Court observed, before any industrial adjudicator makes any order under Section 33 for maintenance of service conditions, it must be found that at least prima facie the person alleged to be an employer and against whom an order under Section 33 is sought, is really the employer of the applicant-workmen. Since the employer-employee relationship was not established between the parties, the High Court held that order of the Tribunal was preposterous. Holding that the impugned order suffered from jurisdictional error, the High Court held that the same could not be sustained. Accordingly, the petition was allowed and the impugned order was set aside. [IDBI Bank Ltd. v. Bhartiya Kamgar Sena,2018 SCC OnLine Bom 1285, decided on 15-06-2018]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a criminal petition filed under Section 482 of CrPC, a Single Judge Bench of Aravind Kumar, J. held that in light of the parties having entered into settlement, the Court was of considered view that continuation of proceedings would not sub-serve the ends of justice and it would be an abuse of process of law.

The petitioner was seeking to quash the proceedings pending before the Metropolitan Magistrate, in a criminal case for the offence punishable under Section 29 of the Industrial Disputes Act, 1947. He contended that the Management and the Employees Union have entered into a settlement and as such the proceedings may be quashed.

Learned advocates appearing for the parties filed a joint memorandum of settlement entered into between the parties. The parties were present before the court and the complainant submitted that he had no objection to the proceedings being quashed. The parties submitted that they had entered into the settlement out of their own free will and volition.

In light of the parties having entered into settlement and the submissions made by the complainant, the Court allowed the petition and quashed the proceedings pending before the MM. Accordingly, the Court acquitted the accused of the offence punishable under Section 29 of IDA, 1947. [Ashok Mathur v. Sri P.I. Antoo, Criminal Petition No. 4868/2014, dated August 14, 2017]