Back wages - Denial of - Petitioner, a dismissed constable in 1993 approaching High Court in 1999 - In view of this delay, though reinstatement is granted, back wages are denied

AUGUST 2002

Back wages - Denial of - Petitioner, a dismissed constable in 1993 approaching High Court in 1999 - In view of this delay, though reinstatement is granted, back wages are denied.

Nitin Janardhan Raut v. State of Maharashtra & Anr., 2002 II CLR 940 (Bom.H.C.)

Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970 - Constitution of India, 1950 - Art.226 - Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970 - United Bank of India (Officers) Service Regulation 1979 - As retirement was forced upon the Respondent by the Petitioner Bank he challenged the same on the ground that as he was recruited prior to 19-7-1969 can be superannuated only on completion of 60 years of age - His contention upheld by the Honourable Single Judge in a writ petition - Hence this writ appeal - Held that benevolent interpretation given to service regulation by the Single Judge, affirmed - No error in the judgment of Honourable Single Judge.

United Bank of India v. Nalini Kanta Ghosh & Ors., 2002 II CLR 1086 (Cal.H.C.)

Bombay Industrial Relations Act, 1946 - Ss.78 and 79 and 84 - Respondent no.2 was bus driver - He is punished after enquiry with dismissal for rash or negligent driving and causing death of 7 year old child - He filed application under Ss.78 and 79 of the Act - He held enquiry to be fair and just but finding to be perverse - He directed reinstatement with full back wages - Revision being not successful, Corporation filed this petition - Relying on two earlier Division Bench rulings laying down the law on the point, it is held that there was no perversity in the findings of Enquiry Officer and Labour Court and Industrial Court had no jurisdiction to interfere with said finding of the Enquiry Officer by condemning the same as perverse. Impugned orders of both Courts below are set aside and order of dismissal restored.

Brihan Mumbai Municipal Corporation v. General Secretary, Best Workers' Union & Ors., 2002 II CLR 835 (Bom.H.C.)

Bombay Police Act, 1951 - Constitution of India, 1950 - Art. 311(2)(b) - Bombay Police Act, 1951 - S.26 - Proviso - Petitioner, a Police constable is dismissed from service without enquiry for negligence as a result of which a prisoner escaped - Reason for dispensing with enquiry is that there can be no other evidence of negligence except that of prisoner - Petitioner challenges the dismissal - Held: An opportunity to show cause was not given as required by proviso to S.26 of Bombay Police Act; the recourse to Art. 311(2)(b) is a colourable exercise of power to avoid holding of departmental enquiry and that as such petition is allowed and direction to reinstatement is given.

Nitin Janardhan Raut v. State of Maharashtra & Anr., 2002 II CLR 940 (Bom.H.C.)

Central Reserve Police Force Act - S.10(m) and S.10(n) - Dismissal - Punishment - Petitioner, member of CRPF. remained absent without prior leave - Later on explained absence on flimsy grounds - Held, Order of dismissal is proper - Strict discipline is required to be maintained in police force.

Jivan Ganpati v. P.K. Menon or his Successor-in-Office, 2002 II CLR 874 (Guj.H.C.)

Civil Procedure Code, 1908 - S.9 - Suit for permanent injunction to restain the employer from stopping the family pension and to recover the pension amount - Employer stopped the family pension, alleging that widow had remarried - Held that factum of remarriage not proved- Only because a man and a woman are living together, status of they being husband and wife, cannot be inferred - It is illegal not to pay family pension in such a case - Suit is maintainable.

Commissioner, Office of the Regional Provident Fund, Chennai v. Ariyamala & Anr., 2002 II CLR 1033 (Mad.H.C.)

Civil Services (Classification, Control and Appeal) Rules, 1960 - Constitution of India, 1950 - Art.226 - Civil Services (Classification, Control and Appeal) Rules, 1960 (Kerala), Rules 16, 11 - Punishment - Minor penalty - Baring of increments with cumulative effect - Held that procedure prescribed under Rule 16 alone needs to be followed - It does not mean that minor penalty can be inflicted irrespective of nature of allegations and evidence required to prove those allegations - As per principles of natural justice, reasonable opportunity has to be given.

Kunhikannan Nambiar v. Government of Kerala, 2002 II CLR 1074 (Ker.H.C.)

Constitution of India, 1950 - Arts. 12, 226 - Labour Laws - In the Original Petition, the Honourable Single Judge directed the second respondent Labour Commissioner to depute an Officer to hold a Referendum to assess the representative nature of the contesting Unions - Hence the Writ Appeal - Held that in the absence of any statutory provision to conduct the said Referendum, the original petitioner registered trade union, is not entitled to get any relief from this Court.

Chackola Spinning & Weaving Mill v. Chackola T.M.T. Union, 2002 II CLR 1049 (Ker.H.C.)

Art. 14 - State Government Resolution dated 23-1-1998 - Petitioners are employees of Shivaji University Printing Press - They claim direction to respondents to extend pension-cum- gratuity scheme to employees working in Printing Press of Shivaji University as is being done in case of Printing Press employees of Pune University - The said scheme was extended to Pune University Printing Press in pursuance of direction of the Division Bench of this High Court - Following the Division Bench judgment in that writ petition, High Court allowed this writ petition and directed to extend the said scheme to Shivaji University Printing Press employees also.

Anil Anandrao Patil & Ors. v. State of Maharashtra and Ors., 2002 II CLR 896 (Bom.H.C.)

Art. 141 - Law laid down by Supreme Court is binding on all Courts in India - Unless the Supreme Court declared that the law laid down by it would have only prospective operation, High Court does not have the power to declare that any decision (of Supreme Court) would operate only prospectively.

Regional Director, Employees' State Insurance Corporation v. P.B. Gupta, 2002 II CLR 999 (Ori.H.C.)

Art. 226 - Delay in approaching High Court - Petitioner Police Constable dismissed from service on 11.3.1993 - Petitioner approached High Court in 1999 - Petitioner has given reasons for delay to be poverty and non-availability of fund and proper legal advice - Held: Looking to the fact that petitioner is dismissed and is facing starvation, there is no reason to reject submission and dismiss the petition on ground of laches.

Nitin Janardhan Raut v. State of Maharashtra & Anr., 2002 II CLR 940 (Bom.H.C.)

Art. 226 - Kandla Port Trust Employees (Retirement) Regulations, 1978 - Regulation 4(e)(i) - Fundamental Rules - Rule 56(b)(i) - Premature retirement - Age of superannuation for employees, as per Rules, is 55 years with permissible extensions - Regulation permits retirement of a servant on completion of 30 years of service - Petitioner made to retire at the age of 52 years - Held in this case, there is sufficient material to pass the impugned order of premature retirement.

K.N. Matwani v. Kandla Port Trust & Anr., 2002 II CLR 870 (Guj.H.C.)

Art. 226 - National Co-operative Union of India (NCUI) Employees Service Rules, 1994, Rule 11 - Fixation of age of superannuation Retirement age - Enhancement of, from 58 to 60 years, sought by the petitioners - Rule 11 of the Service Rules, which governs the case of petitioners, indicates approval of government necessary for amending service rules on the matter and also for advancement of service age - No amendment effected to service rules in accordance with law - Held: In this petition that recommendations of 5th Pay Commission for raising retirement age from 58 to 60 years, not applicable.

K.S. Anandram (Dr.) & Ors. v. Union of India & Ors., 2002 II CLR 922 (Del.H.C.)

Art. 226 - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - S.47 - Petitioner a Conductor with the respondent-Corporation prematurely retired, as he met with accident, resulting into disability - He was declared fit for a desk job - Held that persons not to be dispensed with upon acquiring disability - Mandate of S.47 of the Act is clear and unambiguous.

Virender Kumar Gupta v. Delhi Transport Corporation, 2002 II CLR 1012 (Del.H.C.)

Art. 226 - Petitioner, a Khalasi with respondent No.1, superannuated w.e.f. 31.3.1997 - Challenges the said Order, on the ground that his actual birth date is 16.3.1941 and not 16.3.1939 - Held that in its writ jurisdiction High Court examines only the decision-making process of Industrial Tribunal - Herein the findings recorded by enquiry officer cannot be faulted with.

Suhrid Ranjan Dasgupta v. Steel Authority of India & Anr., 2002 II CLR 996 (Ori.H.C.)

Art. 226 - Petitioner filing this writ petition challenging impugned order of his premature retirement on account of disability arising out of an accident which he met - Held in this writ petition that existence of alternate remedy not an absolute bar to exercise writ jurisdiction.

Virender Kumar Gupta v. Delhi Transport Corporation, 2002 II CLR 1012 (Del.H.C.)

Art.226 - Removal from service on account of unauthorised absence Veracity of the Medical Certificate submitted by petitioner found interpolated - Certificate issued by Doctor ADMO DSA was for 66 days, which figure was interpolated to 117 days - Removed from service after being found guilty of misconduct in disciplinary proceedings - Central Administrative Tribunal declined to interfere - Hence this writ - Held that Tribunal did not commit any jurisdictional error in passing impugned order.

Ramesh Kumar v. Union of India & Ors., 2002 II CLR 925 (Del.H.C.)

Art. 226 - Punishment of removal from service for absence from duties allotted - Petitioner had failed to submit explanation for chargesheet served - Departmental enquiry conducted - both the charges of unauthorised absence and habitual irregular attendance to allotted duties, held proved - In this writ proportionality of punishment challenged - Held punishment is disproportionate to proved misconduct - Matter remitted for reconsideration of punishment imposed and to explore possibility of imposing lesser punishment as contemplated by Conduct Regulations. K. Balanagi Reddy v. APSRTC, Hyderabad & Ors., 2002 II CLR 927 (A.P.H.C.)

Art. 226 - Wrongful dismissal of temporary employee - Teacher appointed after going through prescribed procedure of process of selection, substantially to permanent post, against regular vacancy by private management of educational institute - Terminated after 10 years of service, without assigning any reason and without holding enquiry on charge of misconduct - Held that where employee has a right to hold post termination of his service is by itself punishment - Employee entitled to maintain action for wrongful dismissal - Order of termination liable to be quashed with direction for reinstatement of employee with all consequential benefits.

S.K. Joshi & Anr. v. Vidyavardhaka Sangh, Bijapur & Ors., 2002 II CLR 1093 (Karn.H.C.)

Arts. 226, 14, 19, 21 - A.P. Industrial Disputes Amendment Act Sec.2-A - Standing Orders of Hindustan Aeronautics Ltd., Regulation 28 - Punishment for misconduct - Petitioner-employee dismissed after being found guilty of misconducts of serious nature - In Reference, the Industrial Tribunal upheld the termination order - Hence this writ petition - Held that extreme penalty of dismissal from service, not proportionate to the misconduct proved in departmental enquiry - Matter remitted to Tribunal.

Cyril Emanueal v. Chairman-cum-Presiding Officer, Additional Industrial Tribunal-cum-Additional Labour Court & Anr., 2002 II CLR 1037 (A.P.H.C.)

Arts. 226, 227 - Punjab Agricultural Produce Markets Act, 1961 - S.20(2) - Petitioner who joined as peon, was lateron, promoted as a clerk on probation for 1 year - Not found fit for the post of clerk since he did not qualify the typing test in English - discontinued, as clerk as the Secretary declined to give approval to the resolution of his appointment - Held - Secretary was justified in declining the approval.

Gurdip Singh, Clerk v. Secretary, State Agricultural Marketing Board, Union Territory, Chandigarh & Anr., 2002 II CLR 913 (P.&H. H.C.)

Contract Labour (Regulation and Abolition) Act, 1970 - Constitution of India, 1950 - Art.226 - Contract Labour (Regulation and Abolition) Act, 1970 - S.10 - One thousand workers employed by Respondent No.1 Corporation for a period of almost two decades - Employment not direct one, but through a labour contractor - Workers denied rights and benefits of regular employees - These workers had applied to refer their case to State Advisory Board for abolition of contract system - Number of reminders sent - but no decision taken - Hence this writ petition - Held that Respondent has no explanation as to why matter has not been referred to under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 - Directions given for issuance of Notification within 60 days.

All India Food & Allied Workers Union v. Delhi State Civil Supplies Corporation Ltd. & Ors., 2002 II CLR 919 (Del.H.C.)

Departmental Enquiry - Constitution of India, 1950 - Art. 311(2)(b) - Departmental enquiry - Whether can be dispensed with - Delinquent, a school teacher charged with seducing girl student and writing love letters to her - Removed from service without giving charge-sheet and without holding a regular enquiry, as the charge involved moral turpitude - Other reason was, it might cause `serious embarrassment to the girl and her parents' - Held, termination was illegal, as the said charge causes serious stigma - In this backdrop, order of removal, cannot be passed without holding enquiry.

Babban Prasad Yadav v. Union of India & Ors., 2002 II CLR 1083 (Jhar.H.C.)

The findings of the enquiry officer are purely findings of fact based on appreciation of evidence - In writ petition, the High Court will examine only the decision-making process, and cannot find fault with findings recorded by enquiry officer.

Suhrid Ranjan Dasgupta v. Steel Authority of India & Anr., 2002 II CLR 996 (Ori.H.C.)

Disciplinary Proceeding - Certified Standing Orders - S.O.25(4) - "Officer holding enquiry" - In disciplinary enquiry held by petitioner against respondent, an outsider advocate was appointed enquiry officer - In complaint of unfair labour practice by respondent, Industrial Court held that outsider is not permitted under Standing Orders as enquiry officer and as such appointment of outsider advocate by petitioner amounts to unfair labour practice - Hence this petition - After examining the authorities cited by the parties and the existing practice, it is held that there is no reason to restrict the interpretation of "Officer holding enquiry" in S.O. 25(4)to mean only officer of petitioner company and not outsider and therefore finding of Industrial Court is set aside.

Sandvik Asia Ltd. v. Maruti Mahipati Jagadale & Anr., 2002 II CLR 1018 (Bom.H.C.)

Deceased petitioner by this writ petition challenges his dismissal from service after disciplinary enquiry wherein submissions are that normal procedure was not followed during enquiry, that findings are perverse and the order of termination being retrospective is illegal. Held: Though there are certain inadequacies in the conduct of disciplinary enquiry, it cannot be said that petitioner was prejudiced by those infirmities in the conduct of enquiry and as such legality of enquiry cannot be faulted, that charges are properly held proved and that the order to the extent of retrospectivity would be bad but would take effect from the date of order. Writ petition is accordingly dismissed.

Padmini R. Bijoor & Ors. v. Corporation of India Ltd. & Ors., 2002 II CLR 878 (Bom.H.C.)

Management representative - Whether can be outsider - In this enquiry an advocate is appointed as Presenting Officer - Industrial Court, in complaint of unfair labour practice, held that outsider can be appointed as management representative and this finding is assailed by respondent in cross petition - Held: Considering the object of conducting a domestic enquiry, it is held that no interference with the finding of Industrial Court is necessary particularly because of Certified Standing Order do not exclude outsider as Management representative.

Sandvik Asia Ltd. v. Maruti Mahipati Jagadale & Anr., 2002 II CLR 1018 (Bom.H.C.)

Order passed by appellate authority instead of disciplinary authority - Submission is that thereby respondent was denied right of appeal - Rejecting the submission it is observed that relevant service Regulations prescribe an ascending hierarchy of competent authorities and appellate authorities and thus higher authority becomes appellate authority with the result it cannot be said that respondent was denied right of appeal.

Air India Limited v. Anil R. Joshi, 2002 II CLR 943 (Bom.H.C.)

Petitioner is dismissed from service after enquiry by order dated 23.1.1984 and his departmental appeal is dismissed - Hence this petition wherein submission is that he was not given fair opportunity to cross examine witnesses - Rejecting the submission and while dismissing the petition, it is observed that the petitioner had informed the Enquiry Officer that he did not need any representative to defend him and he had himself cross examined the witnesses. It is further held that there is no error of law to call for interference in writ jurisdiction.

Bhagwan s/o. Ganuji Gadekar v. Maharashtra State Road Transport Corporation & Ors., 2002 II CLR 955 (Bom.H.C.)

Petitioner company has its office at Pune - Alleged misconduct took place at Pune establishment where respondent workman was working at the relevant time - He was then transferred to Chiplun in Ratnagiri District - Enquiry is fixed at Chiplun that is at the place of present employment of respondent workman - Question is whether it is contrary to Standing Orders - Held that right of the employer to conduct the enquiry is not restricted by the Standing Orders to the Industrial Establishment, there is no reason why the petitioner should not be allowed to hold enquiry at Chiplun particularly when the petitioner undertakes to transport witnesses from Pune to Chiplun.

Sandvik Asia Ltd. v. Maruti Mahipati Jagadale & Anr., 2002 II CLR 1018 (Bom.H.C.)

Union Bank of India Officer Employees (Conduct) Regulations, 1976 - Reg. 13 - Petitioner, an adhoc promotee to Middle Management Grade was transferred from Mumbai to Chennai - He did not carry out transfer and remained absent - He was given chargesheet for misconduct under Regulation 13 and after enquiry he was dismissed from service - His departmental appeal was also dismissed - Hence this writ petition - Held: The petitioner was rightly charged under Regulation 13, and on consideration of facts proved, there is no hesitation in holding that misconduct under Regulation 13 was committed by petitioner.

Y.P. Sarabhai v. Union Bank of India & A