Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: C Hari Shankar, J. opined that Section 5 of the Limitation Act, 1963 will apply in respect of appeals preferred under Section 18 Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal), Act 2013 (‘POSH Act') because if a Court were to refuse to condone a delay of as little as 36 days in an alleged victim of sexual harassment preferring an appeal under Section 18 against the report of the inquiry committee the objective behind the legislation fails.

Respondent 1 accused Respondent 2 of having harassed her, sexually, at the workplace. The complaint was referred to an internal complaints committee which exonerated Respondent 2. Respondent 1 preferred appeal under Section 18 POSH Act before Central Government Industrial Tribunal wherein the impugned order was passed condoning the delay application by Shailja Naqvi for a delay of only 36 days. Aggrieved by the condonation grant, the petitioner invoked Article 227 of the Constitution of India.

Counsel for petitioner contended that no provision for condonation of delay is to be found in Section 18 of the POSH Act, and as Section 18(2) uses the word “shall”, CGIT could not have condoned the delay in filing of appeal by the respondent.

Reliance was placed on Commissioner of Customs and Central Excise v. Hongo India Pvt Ltd., (2009) 5 SCC 791 wherein it was observed that where the Central Excise Act envisaged condonation of delay in preferring appeals or application, it specifically so provided. As no such provision for condonation of delay, appropriate applications under Section 35-H of the Central Excise Act, 1944 found place therein, the Supreme Court held that it was not permissible to seek recourse to Section 5 of the Limitation Act for condonation of delay in filing such an application.

The Court relied on Hongo India case (supra) and New India Assurance Company Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757 to note that in light of the facts of the present case, the approach of CGIT is completely in accordance with the scheme of the POSH Act. The POSH Act is an ameliorative statute, intended to redress a serious social evil and victims of sexual harassment at the workplace suffer untold trauma, mental, physical and spiritual.

The Court further affirmed the view of CGIT that a victim of sexual harassment remains in a state of trauma and it cannot be expected that she would immediately rush to a Court seeking appellate remedies. It would be completely antithetical and inimical to the very scope and purpose of POSH Act, if a Court were to refuse to condone a delay of as little as 36 days in an alleged victim of sexual harassment preferring an appeal under Section 18 against the report of the inquiry committee.

Thus, the Court held that Section 5 of the Limitation Act would apply in respect of appeals which may be sought to be preferred under Section 18 of the POSH Act.

[DB Corp Ltd. v. Shailja Naqvi, CM (M) No. 705 of 2022, decided on 21-07-2022]


Advocates who appeared in this case :

Mr. Rajat Manchana, Ms. Tanya Singh and Ms. Radhika Jain, Advocates, for the Petitioner;

Mr. Manu Mishra, and Ms. Shreya Dutt, Adv. for R-2.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: While hearing the appeal filed by Maharashtra SRTC, the Division Bench comprising of M. R. Shah* and B. V. Nagarathna, JJ., held that punishment of dismissal from service per se cannot be said to be an unfair labour practice for being disproportionate to the misconduct proved.

Background

On 23-10-1992 when the respondent, a bus driver employed by the MSRTC, was driving a bus, he met with an accident with a jeep coming from the opposite direction. The allegation against the respondent-driver was that instead of taking the bus to the left side, he took the bus to the extreme right and as a result, the jeep and the bus collided. The accident resulted in death of four passengers on the spot and six passengers were seriously injured. The impact of the collision was so high that the jeep was pushed back by about 25 feet. The driver of the jeep also sustained injuries. The respondent was subjected to disciplinary enquiry, and was consequently dismissed from service. A criminal case was also lodged against the driver under Section 279 of IPC for negligent and rash driving. However, he came to be acquitted.

Findings of the Labour Court and Industrial Tribunal

The Labour Court upheld the order of dismissal. In a revision application the Industrial Tribunal considering the acquittal of the respondent in criminal proceedings and observing that the drivers of both the vehicles were negligent (contributory negligence), the Industrial Tribunal exercised powers under item 1(g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971; and held that the order of dismissal was disproportionate to the misconduct proved. Hence, the Tribunal ordered reinstatement of the respondent without back wages but with continuity of service.

Dismissal by the High Court

The order of the Tribunal was challenged before the High Court by the appellant-MSRTC. The High Court, by the impugned order and judgment had only dismissed the appeal but also directed the appellant to pay to the respondent back wages with effect from 01-11-2003 to 31-05-2018 i.e. which was the date of his superannuation. The High Court also directed that the respondent should also be entitled to retiral benefits on the basis of continuity of service.

Factual Analysis

Noticing that while acquitting the accused–respondent the Criminal Court observed that the prosecution failed to prove that the incident occurred due to rash and negligent driving of the accused-respondent only and none else, and acquitted the respondent by classifying the case as one of a contributory negligence, the Bench stated that even if it was assumed that even driver of the jeep was also negligent, that did not that the respondent was not negligent at all. Hence, it could not absolve him of the misconduct.

Further, the Criminal Court acquitted the respondent on the hostility of the witnesses; the evidence led by the interested witnesses; lacuna in examination of the investigating officer; panch for the spot panchnama of the incident, etc. On the contrary in the departmental proceedings the misconduct of driving the vehicle rashly and negligently which caused accident and due to which four persons died has been established and proved. Therefore, the Bench said,

“An acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives.”

Therefore, the Bench concluded that the Industrial Court had erred in giving much stress on the acquittal of the respondent by the criminal court.

Whether punishment of dismissal can be said to be an unfair labour practice for being disproportionate to the misconduct proved?

The Bench observed that the Labour Court did not interfere with the order of dismissal by giving cogent reasons and after re-appreciating the entire evidence on record including the order of acquittal passed by the criminal court. However, the Industrial Tribunal interfered with the order of dismissal solely on the ground that punishment of dismissal was disproportionate to the misconduct proved and the same can be said to be to be unfair labour practice as per item 1(g) of Schedule IV of the MRTU & PULP Act, 1971. The Bench stated,

Clause No. 1(g) can only be invoked in a case where it is found that dismissal of an employee is for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment.

However, as per the appellant, the respondent was in service for three years and during three years’ service tenure he was punished four times, therefore, the Bench opined that it could not be said that the order of dismissal was without having any regard to the past record of the service of the respondent. Consequently, the Industrial Court wrongly invoked clause 1(g) of Schedule IV of the MRTU & PULP Act, 1971 as it could not be said that the dismissal of the respondent was for misconduct of a minor or technical character, without having any regard to the nature of the misconduct.

Conclusion

In the backdrop of above, the Bench concluded that the Industrial Court committed a grave error and had exceeded in its jurisdiction while interfering with the order of dismissal passed by the disciplinary authority. Similarly, the impugned judgment of the High Court directing the appellant to pay wages to the respondent also could not have been passed in a petition filed by the appellant. The Bench explained, it was not a petition filed by the workman and the relief granted was beyond the scope and ambit of the controversy before the High Court.

Accordingly, the impugned order and judgment was quashed and set aside and the judgment and Award of the Labour Court was restored. The order of dismissal passed by the disciplinary authority was upheld.

[Maharashtra SRTC v. Dilip Uttam Jayabhay, 2022 SCC OnLine SC 1, decided on 03-01-2022]


*Judgment by: Justice M. R. Shah


Appearance by:

For Maharashtra SRTC: Mayuri Raghuvanshi, Advocate

For the Respondent: Nishanth Patil, Advocate


Kamini Sharma, Editorial Assistant has put this report together


 

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua JJ., while deciding the present matter challenging order of the State Government, referred several precedents to opine that the issue requires adjudication by a larger bench.

 Background

In the present bunch of writ petitions, the Appropriate Government declined to refer the dispute to the Labour Court/Industrial Tribunal for adjudication on ground of delay (claim brought after twenty-six years of illegal termination). The order declining to refer the dispute has been assailed in the petitions.

 Issue

Whether the State Government, before referring a matter to the Labour and Industrial Tribunal, can evaluate the validity/righteousness of the claims raised, that is to say, can the State Government apply its own mind while exercising powers under Section 10(1) of the Industrial Disputes Act, 1947 or it is under a statutory obligation of directing the same to the Tribunal without any say?

 Observations

While reflecting upon the aforementioned issue, Court reproduced Section 10 of the Industrial Dispute Act, 1947 and referred the following cases;

Laiq Ram v. State of Himachal Pradesh, 2011 SCC OnLine HP 149, where a Division Bench of the present High Court referred a similar question to a larger bench for adjudication. R.B. Misra J., answered the question in reference stating that, “The words are plain, unambiguous and are clear in Section 10(1) of the Act so far as formation of the opinion by the appropriate Government regarding existence or apprehension of the industrial dispute. The intention of the legislature is to be gathered from the words used, therefore, liberty is not open to the appropriate Government to travel beyond the intention of legislature and it could not be presumed that the legislature has committed mistake in not providing limitation and while interpreting the statutory provision like Section 10(1) of the Act. It is not permissible to add words in the statute or in Section and read words into it which are not specifically provided therein when literal reading produces an intelligible result. It is also not permissible for the appropriate Government or the Court to add or subtract any word in the name of ‘stalement’ in any Section or statute while interpreting the same, as, such aspect would amount legislation which is not permissible even for the Court. Therefore, in view of the observations made above, it would not be open to the State Government, while exercising powers under Section 10(1) of the Act, to decide the question whether the claim by the workmen is stale or not, as such, the question, referred by the Division Bench of this Court, is dealt with accordingly.”

The Court further referred the opinion of Deepak Gupta J., in the words, “Government is authorized to form the opinion whether a dispute exists or not. Government is not powerless and in case an industrial dispute is raised after a great delay without any explanation, then the Government can refuse to make a reference on ground of claim being stale and the industrial dispute ceased to exist having faded with efflux of time.”

With respect to the practice and procedure to be followed once a reference is made to the Tribunal, the Court said, “If the employer makes a grievance that the workman has made a stale claim then the employer should challenge an order of reference by way of writ petition and here he can contend that since the claim is stale and highly belated no industrial dispute is existed or apprehended. The Labour Court may mould the relief but it cannot invalidate or strike down the reference.”

In another case, Megh Nath v. State of Himachal Pradesh, CWP No. 6687 of 2014, the present Court referring Raghubir Singh v. GM, Haryana Roadways, 2014 (10) SCC 301, quashed the order of the State Government declining to refer the matter to the Industrial Tribunal.

In Prabhakar v. JD, Sericulture Department, (2015) 15 SCC 1, the Supreme Court held, “To summarise, although there is no limitation prescribed under the Act for making a reference Under Section 10(1) of the Act, yet it is for the ‘appropriate Government’ to consider whether it is expedient or not to make the reference. The words ‘at any time’ used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers’ financial arrangement and to avoid dislocation of an industry.”

In Nek Ram v. Executive Engineer, HPPWD, CWP No. 581 of 2019, the Court relying on the case of Prabhakar, reiterated; vigilantibus non domientibus jura subveniunt

Further, in Bhupinder Singh v. State of Himachal Pradesh, CWP No. 610 of 2019, the bench held, “(…) delay and laches by itself cannot be a ground for refusing to make a reference. In case a person is guilty of delay and laches, it may be a ground for the Labour Court either to refuse to grant relief or refuse to grant relief of back wages but the Government cannot take up the role of adjudicating authority while deciding the question as to whether a reference should be made or not. The Court directed the Government to make a reference of the dispute to the Labour Court, which it had declined on ground of delay and laches.”

 Decision

While making the said observations, Court directed the registry to place the matter before Chief Justice for constituting a larger bench.[Jai Singh v. State of Himachal Pradesh, 2020 SCC OnLine HP 2613, decided on 19-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Rajesh Kumar, J., modified the order passed by the tribunal to the extent that relief granted by the Tribunal is unauthorized and out of jurisdiction as Tribunal went beyond the terms of reference to pass the Award.

The present writ petition had been filed against the Award dated 18-11-2013 passed in Reference No. 13 of 1991 by the Central Government Industrial Tribunal No. 2, Dhanbad whereby reference was in favour of the workmen. The factual matrix of the present case is that all three concerned workmen were an employee of the company. They were charged for misappropriation and after conducting a departmental enquiry, they were dismissed from service. Against the said order of dismissal, an Industrial Dispute was raised, referred to as Ref. No. 13/91. Since the management failed to justify the dismissal of the workmen, the Tribunal passed an order of reinstatement in favour of the employees, Suresh Ram and Sarda Shovel. As Sukhdeo Bhuian had died during the pendency of the reference case, he had been substituted by his son namely Santosh Kumar. The issue herein is with respect to the appointment of the dependant of the deceased employee.

The Court stated that “It is trite that Tribunal gets jurisdiction to pass the Award in terms of reference. Tribunal cannot go beyond the terms of reference to pass an Award.” Further, the Court observed that reference is only with regard to justification with the order of dismissal of three workmen and issue of appointment was not the subject matter of the reference. Hence, in the absence of such reference, relief granted by the concerned Tribunal is wholly unauthorized and beyond the jurisdiction. Hence, the Court modified the award to the extent that the appointment to the dependent of the deceased employee is quashed.[Employers In re, Management of Sendra Bansjora Colliery v. Workmen, WP (L) No. 4632 of 2014, decided on 22-07-2019]

Punjab and Haryana High Court
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]