Case BriefsHigh Courts

Jammu & Kashmir High Court: Ali Mohammad Magrey, J. disposed of the writ petition on the grounds that a similar matter was already ruled in favor of the petitioners and thus the same orders were to be followed verbatim.

The petitioner by way of the instant application was seeking the release of his legitimately earned wages in his favor for the services rendered or to be rendered by him in the respondent Department since the petitioner was to be included in the final list of casual laborers on the basis of the report submitted by respondent 3, and also consider the claim of the petitioner for regularization as and when such policy is framed.

 The petitioner was working as a Casual Labor in the respondent Department since the year 2009. The respondents framed a list of Casual Labors, 645 in number, including the petitioner herein, in terms whereof the case of these Casual Labors was submitted to the higher authorities for regularization of their services in the respondent Department. The case of the petitioner was withheld on account of authentication/ verification and not included in the final list framed by the respondents. It was argued that the petitioner had approached the respondents for enlisting him in the final list but the respondent.3, while forwarding the list of left out need-based Casual Labors to the respondent 2, intimated to the said authority that the verification/ authentication has been done by the concerned Committee with regard to other left out Casual Labors, including the petitioner. The respondent 2, in turn, had advised the respondent 3 that the said recommendation needed to be verified by all the members of the Committee concerned. In response to the said communication, the respondent 3, submitted the list of left out need-based Casual Labors whose authentication/ verification was done by the members of the Committee.

The petitioner contended that despite the recommendations of the respondent 3 to the respondent 2 intimating therein that the verification/ authentication had been duly done by all the members of the Committee concerned with regard to the case of the left out need-based Casual Labors, including the petitioner, the respondent 2 did not include the petitioner in the final list and also did not release the legitimately earned wages in favor of the petitioner, constraining the petitioner to file the instant writ petition.

The respondents argued that the petitioner did not present himself and remained unavailable before the Empowered Committee at the time of screening of the Casual Labors undertaken by the Department, as such, could not be enlisted in the final list of Casual Labors.

The High Court took into consideration earlier litigation on similar lines where 15 out of the 21 Casual Labors who were left out from the final list of Casual Labors, were included in the final list of Casual Labors on the basis of the report submitted by the respondent 3. The only practical difficulty faced by the respondents was the factum that the petitioner failed to appear before the Screening Committee which was constituted for the said purpose. It was, thus, clear that the case of the petitioner herein was similarly situated to that of the other 15 Casual Labors, and thus the instant petition was disposed of by directing the respondent 2 to include the petitioner in the final list of Casual Labors on the basis of the report submitted by the respondent 3. The respondents were also ordered to release the legitimately earned wages in favor of the petitioner for the services rendered or to be rendered by him in the respondent Department, as are being paid to the other similarly situated enlisted Casual Labors. [Bilal Ahmad Shah v. State of J&K, 2019 SCC OnLine J&K 825, decided on 23-09-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Authority for Advance Ruling, Chhattisgarh: The Members comprising of Kalpana Tiwari, Joint Commissioner of State Tax and Rajesh Kumar Singh, Additional Commissioner of CGST and Central Excise, held that a supplier is required to charge GST upon service recipient on the total amount including cost of diesel provided by recipient company for transportation of its goods.

Applicant herein (supplier) had an agreement for transporting cement of a company named Shree Raipur Cement (service recipient). It was agreed that the diesel required for said transportation would be provided by the service recipient. The applicant sought clarification as to whether the supply of diesel by the service recipient would be included or excluded while charging GST on freight amount to be charged by the applicant.

The Authority noted that in the instant case, the service recipient, i.e., cement company was providing diesel to the vehicles used by the applicant for transporting cement/clinker in the course of business of cement by the service recipient. Diesel so provided by it to the applicant, was an important and integral component of this business process, without which the process of supply of cement could not be materialised.

It was opined that as per Sections 7(1) and 15(2)(b) of the Central Goods and Services Tax Act, 2017 which define ‘supply’ and ‘value of supply’ respectively, any amount that the supplier is liable to pay in respect of supply but which has been incurred by the recipient of supply and not included in the price actually paid or payable for the goods or services or both, is includible in value of supply of goods/ services.

Thus, the applicant was required to charge GST upon Shree Raipur Cement on the total amount including the cost of diesel, i.e., on the total freight amount inclusive of the cost of diesel so provided by the service recipient.[Advance Ruling No. STC/AAR/10 A/2018, In an application filed by M/s Shri Navodit Agarwal, Order dated 26-03-2019]

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

Uttaranchal High Court: The Bench of Ramesh Ranganathan, CJ and Ramesh Chandra Khulbe, J. dismissed a petition for it being raised for the first time in an intra-court appeal.

The appellant has filed the said writ petition questioning the “Science & Technology Entrepreneurship Park” (STEP) in terminating their services. The counsel has contended that STEP was initially established and funded by the respondent and consequently “STEP” would fall within the ambit of Article 12 of the Constitution of India. On the other hand, the respondent pressed upon the fact that STEP is a self-financing body whose funds were initially granted by the Government of India to establish the above plus there was no allocation of funds towards the same for more than 15 years now. Also, STEP was a society registered under the Societies Registration Act which further corroborates their submission. The case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 was referred to wherein it was stated that to prove instrumentality it has to be proved that financially, functionally and administratively there existed governmental control but if the control was found to be regulatory then body was not a “State” within the meaning of Article 12 of the Constitution of India.

Now the question that arose before the Court was whether termination of the services of the petitioners under the Indian Contract Act necessitates examination in writ proceedings under Article 226 of the Constitution of India. Here the Court said that the scope of interference in an intra-court appeal was extremely limited so accordingly the question cannot be decided here that too after permitting the parties to amend their respective pleadings.

Hence appeal was disposed of with a liberty to file a fresh appeal. [Hasibur Rahmaan v. Union of India, 2019 SCC OnLine Utt 28, Order dated 03-01-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Single Judge Bench of V.K. Jain, J., allowed a revision petition filed against the order of the State Commission, whereby the petitioner was directed to reconstruct the tomb in the cemetery of the Cathedral at their own expenses and also pay a sum of Rs.25,000/- as compensation to the complainant.

The complainant/respondent had paid Rs. 1001/- to the opposite party/petitioner for granting permission to construct a family tomb in the cemetery of the said Cathedral. The permission was granted and the family tomb was constructed but later on, it was demolished by the petitioner and hence the respondent approached the appropriate fora claiming deficiency in services on the part of petitioner.

The main issue that arose before the Commission was whether the respondent would fall under the definition of consumer and whether the respondent can be said to have hired or availed the services of the Cathedral or its Trustees.

The Commission observed that as per the definition of the consumer under Section 2(1) (d) of the Consumer Protection Act (COPRA), a consumer is a person who either purchases goods or avails service for a consideration. The Commission then referred to the definition of service as given under Section 2(1)(o) of the COPRA.

The Commission held that from a perusal of Section 2(1)(o) of the COPRA, it becomes clear that granting permission in for construction of a family tomb in lieu of a certain sum of money does not amount to rendering services under the COPRA. At best it can be seen as permission granted to one of the devotees by a religious organization. Further, the Commission also held that a person who is granted such a permission would not fall under the ambit of consumer for the purpose of Section 2(1)(d) of the COPRA. Resultantly, the review petition was allowed and the order of State Commission was set aside. [Jacobite Syrian Cathedral v. Jippu Varkey, Revision Petition No. 2695-2696 of 2018, order dated 25-10-2018]

Case BriefsHigh Courts

Bombay High Court: The Single Judge Bench of S.C. Gupta, J. has held that a co­operative housing society cannot be termed as an industry within the meaning of Section 2 (j) of the Industrial Disputes Act if it carries on some commercial activity, not as its predominant activity, but as an adjunct to its main activity.

The petitioner was a Cooperative Housing Society which had engaged Respondent 1 as a watchman. Upon the latter’s completion of 60 years of age, his services were terminated with effect from 1 November 2000. Petitioner’s case was that the termination was with mutual consent and with payment of retirement benefit. This was a matter of dispute as Respondent 1 thereafter raised a demand for reinstatement. The Labour Court held against petitioner and rejected its claim of non-maintainability of reference.

The Court referred to Supreme Court’s judgment in Bangalore Water Supply and Sewerage Board v. A. Rajappa, (1978) 2 SCC 213 where the Apex Court held that when there are multiple activities carried on by an establishment, what is to be considered is the dominant function. The Court held that merely because the society charged some extra charges from a few of its members for display of neon signs, the society cannot be treated as an industry carrying on business of hiring out of neon signs or allowing display of advertisements. The Court set aside the order of the Labour Court. [Arihant Siddhi Co.Op. Hg. Soc. Ltd. v. Pushpa Vishnu More, Writ Petition No. 787 OF 2007, order dated 22-06-2018]

Case BriefsSupreme Court

Supreme Court: Reviewing its judgment dated 9-1-2015, the Division Bench of Chelameswar and Dr. A.K. Sikri, JJ has held that there is no provision for reservation in public sector banks for  SC/ST categories in promotion of  officers  from one grade/scale to the next, when such promotions are to be made on selection basis i.e. on merits.

The Court however, observed that it is open to the State and the banks to consider whether it is feasible to provide such reservation in the officers’ category and if so up to what level.

 The Court had to decide upon the validity of the Madras High Court’s judgment in the batch of appeals, which had decided that in the matter of promotions in the officer grades, a reservation in favour of SC/ST officers was provided for in the Office Memorandum dated August 13, 1997. The Banks contended that there was no rule of reservation for promotion in Class A (Class I) to the post/scales having a basic salary of more than Rs 5700 per month and the OM at best only provided a concession. The Supreme Court had upheld the Banks’ contention observing that  there was no reservation in respect of promotion by selection within only those Group A  posts carrying ultimate salary of  Rs 5700. However, based on other memoranda, it observed  that reservation existed only in respect of those posts carrying basic pay of up to Rs 5700 per month and with the implementation of the Fifth Pay Commission  Report, It would follow that such reservation was applicable to the post carrying pay scale of Rs 18,300. On that basis, it was held that since pay scale of the posts up to Scale VI was Rs 18,300 reservation is to be provided.  This aspect of the judgment was under review.

The Attorney General Mr Mukul Rohatgi submitted that a fundamental error, apparent on the face of the record had crept in para 34 of the judgment wherein the Court had observed that “reservation is provided in promotion by selection qua those posts which carry an ultimate salary of less than Rs 5700 (pre-revised)” while observing in the earlier portion of the same paragraph that “there is no reservation in promotion by selection in Group A posts which carry an ultimate salary of Rs 5700 per month. In such cases it is only the concession that applies”. In spite of deciding the main issue against the respondents, because of the aforesaid error in the judgment, the said benefit was still bestowed by giving reservations to officers belonging to SC/ST category from Scale I to Scale VI. The Court agreed that it was in conflict not only with the earlier portion of para 34 but the  entire conclusion discussed in the judgment. It is clearly an error on the face of record as no such consequence follows. Consequently, the Court allowed the review petitions  by deleting paras 33 to 36 of the judgment, the directions contained therein as well as the directions contained in para 37 . It was to be replaced with

“33. Result of the aforesaid discussion would be to allow these appeals and set aside the judgment of the High Court. While doing so, we reiterate that it is for the State to take stock of the ground realities and take a decision as to whether it is necessary to make a provision for reservation in promotions from Scale I to Scale II and upward, and if so, up to which post. The contempt petition also stands disposed of.”

Guided by the principle of ex debito justitae as discussed in A.R. Antulay v. R.S. Nayak,(1988) 2 SCC 602 and S.Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, the Court observed “when an error is pointed out and the Court also finds that there is an error apparent on the face of the record, it would not shy away from correcting that error”. [Chairman  & Managing Director, Central  Bank of India v. Central  Bank of  India SC/ST Employees Welfare Association2016 SCC OnLine SC 19 , decided on  8-1-2016]