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 BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sangeet Lodha and Mahendar Kumar Goyal JJ., ordered for seizure of building and issued show-cause notices to respondents for deliberate disobedience of the order of the Court.

The present Civil Contempt petition has been filled by the petitioners alleging disobedience of the previous interim of the present High Court. Previously the Court had directed that no building shall be allowed to be constructed/raised in the vicinity of the area in question except on issuance of a No Objection Certification in accordance with the guidelines issued by the Government of India.

The Learned Additional Solicitor General representing the petitioner, R.D. Rastogi submitted photographs of the construction of the building demonstrating that the respondent had defied the orders of the Court and continued construction of the building. It was also submitted that in pursuance of the Court’s directions the respondents were under obligation to ensure that no further construction is raised. However, the respondents deliberately allowed the constructions due to extent undue favour to the fourth respondents.

The Court upon perusal of the facts and records placed before the bench directed to seize the building constructed and it shall not be released from the seizure without permission from the Court. The Court also ordered to issue show-cause notices to the respondents asking them to provide reasons for wilful disobedience of Court orders. [Union of India v. State of Rajasthan, 2020 SCC OnLine Raj 241, decided on 11-02-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of L. Narayana Swamy, CJ and Jyotsna Rewal Dua, J., allowed the application to fill up vacant seats pertaining to State quota in their institutes for 2019-20 academic session of Bachelor of Ayurvedic Medicine & Surgery (BAMS) course, from candidates who had appeared in NEET-UG 2019 and also from students who though had not appeared in NEET, but possess minimum eligibility qualifications for BAMS course i.e. Physics, Chemistry and Biology (XII) with 50% marks.

Petitioner institute was granted no-objection certificate by the respondent-State for establishing the college with 60 seats of the undergraduate course, the grievance of the petitioner in this petition pertains to 2019-20 academic sessions of BAMS course. The eligibility criteria prescribed in the prospectus for admission in the BAMS course was NEET qualified with 50 percentile i.e. 134 marks out of the total of 720 marks. The minimum eligibility condition for admission in BAMS course was 50% marks in Class (XII) with Physics, Chemistry and Biology. Petitioner institute could not fill up all available seats especially under the All India Quota even after the first and second round of centralized counseling so respondent-State permitted conversion of All India Quota seats into State Quota seats and accordingly permitted the first mop-up round of counseling after which the petitioner college had 16 vacant seats.

The Counsels for the petitioner, K.D. Shreedhar and Shreya Chauhan, contended that the merit-list of NEET qualified candidates had already been exhausted thus the respondent state should amend the admission criteria by allowing the admission of even NEET appeared candidates instead of NEET qualified candidates; in case the institute will have to carry on the academic session without filling the 16 vacant seats then it would have an adverse impact on its functioning as it is a self-financed institute and does not receive any grant-in-aid from the Government; the survival of the institute was on the fee collected from the students; going ahead with the academic session without sanctioned intake would be detrimental to the petitioner as it would not be possible for it to maintain the quality of teaching and the huge infrastructure created for the sanctioned strength.

The Counsels for the respondents submitted that allowing the prayer of the petitioners would be against the eligibility criteria.

The Court relying on the Karnataka High Court order against the Writ Petition No. 41486 of 2018 issued similar directions which were as follows:

“(i) In the on-going counselling for the academic year 2019-20, after all NEET qualified students have made their choices and if seats remain unfilled, any other candidate who has not appeared for NEET examination, but has the minimum qualification to undergo the AYUSH courses (BAMS, BHMS and BUMS) as provided, shall be permitted to take part in the counselling.

(ii) Such of those candidates would also be intimated that their admission are being made in view of the absence of NEET qualified candidates and would ultimately remain subject to the result of these writ petitions.

(iii) It is further made clear that the process as indicated above would be applicable only to such of those institutions who are
otherwise qualified to make admissions by possessing requisite infrastructure and if the competent authorities have taken any action against any of the colleges and restrained them from making admissions for the present academic year, such of those institutions shall not make admissions by taking benefit of this order.

(iv) If any of the institutions against who action had been initiated has secured an interim order permitting admissions and have already participated in the counselling, such institutions are eligible for making admissions in terms of this order.”

Hence, the petition was disposed of in view of the above terms. [Abhilashi Ayurvedic College and Research Institute v. Union of India, 2019 SCC OnLine HP 2024, decided on 27-11-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Ashok Kumar Gupta (Chairperson) and U.C. Nahta and Sangeeta Verma (Members) heard the information filed by MPCDF under Section 19(1)(a) of the Competition Act, 2002 and disposed of the same.

The Informant herein, was involved in pharmaceutical trade whereas, Opposite Party 1 (OP-1), was a registered state-level association of wholesalers and retailers of pharmaceutical companies. One of the Informant’s member, dealt in pharmaceutical products. The Informant had alleged that its aforesaid member, had approached clearing and forwarding agents of various pharmaceutical companies, seeking supply of their products, for which he made an advance payment to them in the form of cheques/Demand Drafts (DD). However, these cheques/DDs were returned and he was denied the supply of pharmaceutical products by said companies without assigning any reason.

It was alleged that OP-1 used to issue No Objection Certificate (NOC)/Letter of Consent (LOC) on the basis of which appointment of the stockist was made by pharmaceutical  companies and, the practice of mandating NOC/LOC was stifling competition in the market by limiting access of consumers to various pharmaceutical products and controlling supply of drugs in the market by ensuring that only those distributors which were favored by OP-1 were eventually selected by the pharmaceutical companies to do business with them. The Commission prima facie found merit in the allegations of the Informant. Accordingly, the Commission directed the Director General (DG) to cause an investigation.

Findings of the DG in the Main Investigation Report

The DG investigated the conduct of OP-1 to determine whether it was mandating the requirement of NOC/LOC to be taken from it prior to the appointment of stockist by the pharmaceutical companies. He observed that Clause 28(a) of the Drugs (Price Control) Order, 2013 created an obligation on a pharmaceutical company to sell drugs/medicines unless there was a “good and sufficient reason” to refuse. He also observed that member of the Informant, used to send indent along with a draft/cheque, without having been appointed as a stockist, despite being aware of the procedure for appointment of stockist. Instead of following the due procedure, the member of the Informant indulged in threatening the pharmaceutical companies, issuing reminders within a very short gap and sending letters at wrong addresses. The DG concluded that OP-1 was consistently using anti-competitive activities which included grant of approval before appointment of stockist, imposing restrictions on the rates of the products and regulating the supply of the goods and despite there being a circular in place against the practice of seeking and providing NOC/LOC, OP-1 was constantly violating it. According to the DG, the act of indulging in the said practices by OP-1, amounted to limiting and controlling supplies of pharma products, thereby contravening provisions of Section 3 of the Act.

Oral Submission by OP-1

OP-1 denied all the allegations made against it. OP-1 had no role to play between the distributors/stockist and the pharmaceutical companies. OP-1 further stated that the DG had cherry-picked the statements of witnesses to suit its findings and had not provided complete detailed versions of replies and submissions of the Informant or him.

Order

The Commission relied on DG’s Report and directed OP-1, to cease and desist from indulging in the practice of mandating clearance/NOC/LOC which had been held to be anti-competitive in terms of the provisions of Section 3 of the Act. It also directed OP-1 to organize, in letter and spirit, at least five competition awareness and compliance programs for its members. The Commission imposed a penalty on OP-1 at the rate of 10% of the average of its income.[Madhya Pradesh Chemists and Distributors Federation (MPCDF) V. Madhya Pradesh Chemists Druggist Association (MPCDA), 2019 SCC OnLine CCI 7, decided on 03-06-2019 ]

Case BriefsHigh Courts

Kerala High Court: P.V Asha, J. allowed a petition directing the respondent college to issue NOC to the students applying for transfer to another college as per the rules of the concerned university.

The petitioners, in this case, were students pursuing their engineering course from Cochin Institute of Science and Technology which was a self-funded college. All the petitioners were either in their 2nd or 4th semester and wanted to get themselves transferred to another self-funded college, as their institution had a provision of transferring students before the starting of their 3rd and 5th semester as per the wish of the students and after the issuance of  “No Objection Certificate (NOC)” by the principal. The deplorable condition of the college forced 106 students to file an application for their transfer which the college arbitrarily rejected. Principal of the college was even requested by the parents to issue the NOC but there was no revert. Feeling aggrieved by the act of college, students filed this petition requesting the Court to direct the college to issue the NOC.

Learned counsels for the petitioner D. Kishore and A.C Devasia argued that when the petitioners did not want to continue in the College and the University permitted inter-college transfer, denial of NOC recommendation on their applications was derogatory to their fundamental right to education under Article 21 of the Constitution. They also informed the Court that they apprehend vindictive measures against the students on their continuance in the college as such open declarations were made by the College and that such measures could adversely affect the very future and the career of all these petitioners. Furthermore, they placed their reliance on Kottayam Institute of Technology and Science v. Admission Supervisory Committee for Professional Colleges in Kerala, 2016(4) KHC 620 and argued that the transfer could be allowed even without the recommendation of the Principal of the College, as it was only a matter of procedure and not a necessity. Thus, it was submitted that the petitioners were entitled to get their certificates released for admission in another College.

Learned counsel for the respondent P. Ravindran argued that the petitioners did not have any right for transfer and the College was not under any obligation to grant NOC or to recommend their applications, as the applications were made based on the norms issued by the university which did not have any statutory force. It was argued that the petition itself was not maintainable for enforcement of guidelines. It was also argued that even as per the norms, it was open to the Principal to recommend or not and only if the application is recommended, the petitioners could further process the applications.

The Court observed that the petitioners did not come under any prohibited category and were entitled to get the NOC. It was further observed that “compelling the students, who did not want to continue in a college, could only affect the future and career of the students. An atmosphere without room for apprehensions and conducive to carry on the studies peacefully, was essential and hence it required paramount consideration.” Therefore, the Court ordered the principal of the college to recommend the applications of the petitioners for inter-college transfer within three days of passing of this judgment. It was also made clear that in the event of any delay on the part of the respondent, the opted Colleges was free to act upon and process the applications submitted by the petitioners as if the applications were recommended. Thus, the petition was allowed.[Jisin Jijo v. APJ Abdul Kalam Technical University of Kerala, 2019 SCC OnLine Ker 1691, decided on 31-05-2019]

Case BriefsHigh Courts

Rajasthan High Court: Shri Vinayak Mahavidhlaya, the petitioner-college has enrolled students in the academic session 2016-17 for B.Sc. First year without having a valid NOC from the State Government, or an affiliation for the course from the respondent-University. Retrospective affiliation to a college was refused to be granted as per clause 3.4.1 of the University Grants Commission (Affiliation of Colleges by Universities) Regulations, 2009 which provides that colleges can impart instruction only in subjects and for courses/programmes in the faculties, for which affiliation has been granted by the University concerned and retrospective affiliation will not be granted.

The University of Rajasthan affiliation rules apply to affiliations by the respondent-University by virtue of Section 49 of the Shekhawati University Act, 2012 under which it has been established. Rule 2.4.5 of the affiliation rules of the University of Rajasthan provides that an application to start a new college or to run fresh course(s) should be accompanied by an appropriate order from the Government permitting the Society/Trust to start the college with details of the courses/programmes intended to be offered. NOC of the State Government permitting the commencement of 3 year B.Sc. degree course was held to be a sine-qua-non for the respondent-University allowing affiliation to the petitioner college for its B.Sc. 3 year degree in the academic session 2016-17.

The respondent-University had informed the petitioner-college that it had violated the UGC Affiliation Regulations of 2009 as also the instructions of the State Government by admitting students in B.Sc. First Year in the academic session 2016-17 without having the requisite affiliation.

It was held that the petitioner-college was operating beyond the realm of law as it could not in any circumstance seek retrospective affiliation for its three year B.Sc. Degree course in the absence of a valid NOC issued by the State Government. [Shri Vinayak Mahavidhlaya v. Pandit Deendayal Upadhyaya Shekhawati University,  2017 SCC OnLine Raj 2205, decided on 10.08.2017]