JULY 2002

A.P.S.E.B. Discipline and Appeal Regulations - Constitution of India- Art. 226 - A.P.S.E.B. Discipline and Appeal Regulations -Regulation 10(7)(a), 10(2)(6) and 7(3) - Dismissal from service after departmental enquiry - Examining all the points raised on behalf of the petitioner, held that no grounds for interference with the order passed by Chairman of the Board to dismiss petitioner and order of recovery of the amount defalcated.

N. Venkateswar Rao v. A.P. State Electricity Board, Hyderabad and Ors. 2002 II CLR 764 (A.P.H.C.)

Appointment - Petitioner was duly selected and appointed as Chowkidar in school run by respondent No. 2 - Education Officer granted approval to the same - Petitioner filed this petition apprehending that Education Officer was to revoke the approval - Respondent Education Officer put up a case that respondents Nos. 2 & 3 suppressed fact that respondent No. 4 was claiming appointment on compassionate ground on the said post - It is held that there was no question of suppression as claim of respondent No. 4 was not in the picture when the case of the petitioner was considered for appointment and as such direction is given to respondent No. 1 not to revoke the approval granted to the appointment of the petitioner.

Moreshwar Mahadeo Bidwaik v. Education Officer (Secondary), Zilla Parishad, Nagpur & Ors. 2002 II CLR 688 (Bom.H.C.)

Appointment on compassionate grounds - Constitution of India - Art. 226 - Appointment on compassionate grounds -Father of the petitioner in service of respondent-Bank, missing since July 1992 - Petitioner not given appointment for non-production of decree of competent court declaring `civil death' of employee - Held the respondent Bank by making payments of super-annuation benefits has presumed civil death of the father of the petitioner - Directed to consider case of the petitioner without insisting for copy of decree of competent Court declaring `civil death' of the employee.

Narayan Nayak v. State Bank of India & Ors. 2002 II CLR 639 (Cal.H.C.)

Award of General Demands - Settlements with individual workmen - Effect - The reference to Industrial Tribunal is relating to dispute as regards general demands between employees of Transport Companies and their employers - Award made therein was remanded by High Court on the ground that Tribunal awarded minimum wages and not fair wages - After remand, the impugned award was passed again granting wage rise and this award is challenged by this group of petitions - Submissions mainly are that settlements affected with individual workmen are not considered by the Tribunal, that wage rise given is more than demanded and that Tribunal has not considered financial capacity of Employers to bear additional burden - High Court rejected the submissions by observing in substance that individual settlements are not fair and just as what is granted therein is minimum wage and not fair wage. The wage increase granted is not in excess of demand if one considers consumer price index in 1981 when demand were made and when award is passed. As regards financial capacity to bear burden, Tribunal has considered balance sheets etc and adverse inference in drawn as regards those companies which have not produced. After all the burden on the point is of employer.

Rajya Mathadi Transport & General Kamgar Union & Ors. 2002 II CLR 794 (Bom.H.C.)

Birth date - Standing Order - Clause (LL) - On receipt of notice of retirement on completion of 60 years, respondent workman approached Dy. Commissioner of Labour, who in exercise of power under clause (LL) of Standing Order, directed the employer to correct date of birth - Hence this petition - Held: Right to claim correction of birth date was for one year from enforcement of clause (LL) that is from 1960 and thereafter he was not entitled to correction and as such order of Dy. Labour Commissioner deserves to be quashed and the writ petition is allowed.

U.P. State Sugar Corporation Ltd., Bijnor v. Deputy Labour Commissioner, Moradabad & Anr. 2002 II CLR 756 (All.H.C.)

Bombay Home Guards Act, 1947 - Sec.8 - Tripura Homeguards Rules, 1962, Rule 9 - Discharge simpliciter - Petitioner, a member of Tripura Homeguards Organization, discharged on attaining the age of 50 years, as provided under Rule 9 - held proper, - vires of said Rule not challenged - impugned order being in compliance with rules, no interference called for.

Ganesh Chandra Dey v. State of Tripura & Ors. 2002 II CLR 715 (Gau.H.C.)

Code of Criminal Procedure, 1973 - Sec. 482 - Exercise of inherent power - Employees State Insurance Act, 1948, Sections 85(a), 85(e), 85(g) as amended - ESI dues - Payment of it, to be made within statutory period - Company committed default - delayed payment due to acute financial stringency - ESI Act, a welfare legislation provides for compulsory imprisonment in case of the breach of its provisions - Directors vicariously liable - Held at this initial stage, criminal proceedings cannot be quashed.

R.L. Jaiswal & Anr. v. E.S.I. Corporation & Ors. 2002 II CLR 697 (Cal.H.C.)

Compulsory Retirement - New Bank of India Officers Employees (Discipline & Appeal) Regulations,1982 - Rules 6, 17 - Compulsory Retirement - Petitioner compulsorily retired by the Bank, as found guilty of the misconduct in a departmental enquiry - In this writ the petitioner, challenges impugned order - Held that the disciplinary authority failed to give the petitioner an opportunity of hearing in respect of remaining charges, impugned order of punishment is set aside - matter remanded to disciplinary authority to give opportunity of hearing to the petitioner in the light of decision in Punjab National Bank v. Kunj Behari Mishra 1998 (7) SCC 84, and decide afresh the question of penalty to be imposed.

K.L. Chandana v. Union of India & Ors. 2002 II CLR 581 (Del.H.C.)

Constitution of India - Arts.226, 227 - Compulsory retirement of the petitioner being held guilty of misconduct in departmental enquiry - Principles of natural justice - On request of delinquent, venue of enquiry changed and taken nearer to Head Office to facilitate some top executives of Bank to tender evidence on his behalf - But no request made to issue summons to those witnesses - Role of those witnesses and relevancy of their evidence not indicated in request letter - Charge of releasing loans without adequate security and in excess of his authority, duly proved on the basis of documents available, copies of which were duly supplied to him - Held that non-examination of those witnesses, do not violate the principles of natural justice.

K.Y. Kamath v. Chairman & Managing Dir., Syndicate Bank, Manipal & Ors..

2002 II CLR 742 (Karn.H.C.)

Constitution of India - Arts.136, 226 - Special leave petition to Supreme Court dismissed - But party has a right to challenge the Award before the High Court under Art. 226 of the Constitution, on merits - Moreover in the instant case in the departmental enquiry principles of natural justice were not followed - Enquiry Officer overstepped the limits of natural justice - the proceedings are vitiated.

Workmen represented by Brooke Bond Employees (Sales Unit), Calcutta & Ors. v. Eighth Industrial Tribunal & Ors. 2002 II CLR 699 (Cal.H.C.)

Art. 226 - Initiating of departmental enquiry, pending criminal cases - Enquiry deferred - First respondent acquitted - As acquittal was not honourable, Government initiated departmental enquiries - Whether it is permissible - Held that whenever acquittal of the delinquent is not honourable, departmental enquiry can be initiated.

State of Tamil Nadu, represented by the Secy. to Government, Chennai & Ors. v. H.A. Munaff & Anr. 2002 II CLR 732 (Mad.H.C.)

Art.226 - Removal from service after departmental enquiry of a staff i.e. bailiff from Judicial Ministerial Service - Charge proved as per enquiry officer - Order of removal from service by disciplinary authority, affirmed by appellate authority - Held in writ, impugned order is sustainable - no interference called for.

K.G. Prakash Chary v. High Court of Andhra Pradesh, rep. by its Registrar (Management), Hyderabad and Ors. 2002 II CLR 768 (A.P.H.C.)

Art. 226 - Territorial Jurisdiction - Objection as to maintainability on ground of territorial jurisdiction - Held: Though the punishment was awarded by respondent No. 4 who is Commanding Officer of the ship in territorial waters, the implementation and execution of punishment has taken place within territorial limits of this Court and therefore this Court has jurisdiction.

R.K. Singh v. Union of India & Ors. 2002 II CLR 805 (Bom.H.C.)

Contempt of Court - Petitioner represent electrical and civil maintenance workers in E.S.I. Hospitals - According to them they are employees of E.S.I. Corporation and entire contract labour system is shown as a camouflage to hide true employer - employee relation - Petitioner claim breach of clause 7 of High Court's order where it is directed that all applicable statutes shall be implemented by concerned respondents - According to petitioner, workers have not been covered under relevant labour laws and thus breach is committed - Held: Clause 3 of the Minutes Order is not happily worded and it is somewhat ambiguous and that concerned respondents have not been specified. It is further held that respondents cannot be said to have committed breach of Court's order and hence petition is dismissed.

Contract Laghu Udyog Kamgar Union v. The Employees State Insurance Corporation and 17 Ors. 2002 II CLR 604 (Bom.H.C.)

Contract Labour (Regulation & Abolition) Act, 1970 - S.10(1) - Constitution of India, 1950 - Art.226 - Notification issued prohibiting certain categories of workers through contractors - Hearing on interim relief on a motion by respondent - Jurisdiction of High Court - Held High Court should not issue directions, when issues involved require adjudication by proper forum.

ONGC Labour Union & Ors. v. Group General Manager (Project) O.N.G.C. Ltd., 2002 II CLR 610 (Guj.H.C.)

Ss. 23, 10(1) - Notification No. 779 (E) dt. 9.12.1976 - Petitioner as a principal employer engaged contract labour for getting done the work of prohibited category i.e. cleaning and sweeping, under Notification No.779(E) dt. 9.12.1976 - Hence prosecuted - Said notification quashed by the Supreme Court - Thus held that no criminal liability can be fastened, to petitioner without violation of provisions or Rules framed under the Act - complaint quashed.

Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi, 2002 II CLR 576 (Del.H.C.)

Delhi Road Transport Act, 1950 - Sec.53 - Delhi Road Transport Authority (Conditions of Appointment & Service) Regulations 1952 - Reg. 14(10)(C) - Constitution of India, 1950, Art. 226 - Overstay of sanctioned leave by the employees of DTC - Whether the employer-petitioner has power to assume that the workman has resigned from service in such an eventuality - In the respective industrial disputes Labour Court did not find the action of the Management treating the workman as having resigned from service to be in consonance with the law and granted relief of reinstatement with portion of back wages - Hence these writ petitions by the Management - Held that (i) statutes must conform with the acid test of rules of natural justice - granting an opportunity to be heard, does not inexorably result in an enquiry calling for being held; (ii) the State and all other Authorities which come within the sweep of Art. 12 of the Constitution, must act as the model employers (which has not been observed in the instant case) - Principles of natural justice must be followed while taking recourse to regulation.

Delhi Transport Corporation v. Om Kumar & Ors. 2002 II CLR 588 (Del.H.C.)

Disciplinary Enquiry - Constitution of India - Arts. 16, 226 - Disciplinary Enquiry Also criminal proceedings against the employee - Writ petition, seeking stay of departmental enquiry - Identical witnesses to give evidence in the enquiry and criminal case - Grave charges against the employee - Held - enquiry need not be stayed - No final decision may be taken in the domestic enquiry.

M. Vincent Paul, Salem v. Chief Educational Officer, Salem & Ors. 2002 II CLR 672 (Mad.H.C.)

Disciplinary Proceeding - Oriental Bank of Commerce Officer Employees (Discipline and Appeal) Regulations, 1982 - Regulation 6 - Case of gross violations of principles of natural justice and Regulations - Petitioner, Chief Manager, was charged on 14.8.1997 with mis- appropriation of Rs.1.01 lac by withdrawing money from savings account of one Rakesh Kumar Malhotra on 27.5.1986 - Enquiry Officer held charge proved which ended in dismissal and departmental appeal was also dismissed and hence this petition - Several submissions on various aspects have been made on behalf of petitioner - High Court held that there is no hesitation in holding that each of the aspects dealt with on behalf of petitioner, taken together certainly does, viewed as a whole, starting from unexplained delay (11 years) in commencing enquiry, patently unsustainable approach adopted by respondent no.2 in disallowing the petitioner to cross-examine the respondent's handwriting expert as well as equally unsustainable reliance on the opinion of the respondent's handwriting expert and rejection of petitioner's handwriting expert's opinion on specious grounds, the unfair obstruction by respondent no.2 (E.O.) to the cross-examination on crucial matters by the petitioner, the complete avoidance of dealing with important issues in the findings and the absence of reasons on important aspects leave the High Court with no option but to quash and set aside the impugned orders.

Gope Laxmichand Badlani v. Oriental Bank of Commerce, New Delhi & Ors. 2002 II CLR 777 (Bom.H.C.)

Fundamental Rules - Rule 56(j) - Constitution of India, 1950 - Art.226 - Retirement (premature) - Petitioner employed as Joint-Registrar in Supreme Court of India - Review of his services on attaining age of 56 years - Notice to improve his performance, given - Another review at the age of 57 years - Recommended to be discontinued from service - challenged in this writ - held impugned action not arbitrary.

K.C. Sethi v. Registrar General, Supreme Court of India 2002 II CLR 571 (Del.H.C.)

Gujarat Universities Services Tribunal Act, 1993 - Constitution of India - Arts.14, 16, 226 - Gujarat Universities Services Tribunal Act, 1993 - S.13(2) - Termination - Probationer - Respondent a lecturer, terminated during period of probation - Universities Services Tribunal held it to be unjustified and unlawful - Hence this writ petition - Held that a probationer has no right to continue in service - Employer on finding that probationer's work is unsatisfactory, can terminate the services of the employee - Error in the communication is not decisive of the matter if in fact the termination is based on unsuitability.

Maharaja Sayajirao University v. Ram Mangaram Mirchandani, 2002 II CLR 626 (Guj.H.C.)

Industrial Disputes - Writ Petition for direction to State Government to make reference - Preliminary objection is that prior to the present writ petition, the union has filed writ petition but it was withdrawn and hence this petition is not maintainable on self-same contentions - Held: Division Bench in earlier proceeding observed that filing and withdrawal of such petition by Union cannot bar the petitioners from independently filing a writ petition and agitating their claims and hence preliminary objection is overruled.

Ramruch Pande & Ors. v. State of Maharashtra & Ors. 2002 II CLR 803 (Bom.H.C.)

Industrial Disputes Act, 1947 - Constitution of India, 1950, Art. 226 - Jurisdiction Respondent No. 2 appointed by Madras Office, but worked at Jamshedpur all throughout and terminated at Jamshedpur - In a dispute raised by him, Labour Court, Madras awarded relief of reinstatement - In the writ, High Court held substantial part of cause of action arose where order of termination is made i.e. Jamshedpur - Labour Court at Madras has no jurisdiction - Interference under Art. 226 warranted.

Management of Best & Crompton Engineering Limited, Automotive Products Division, Madras represented by its Deputy General Manager v. Presiding Officer, I Additional Labour Court, Madras and Anr. 2002 II CLR 682 (Mad.H.C.)

S.10 - At the proper stage in the proceedings, it is the employer who has to make a request to lead evidence -No such request made in the present case - No question of finding fault with Labour Court not giving opportunity to the petitioner can arise.

Faridabad Central Co-op. Bank Ltd. v. Presiding Officer, Labour Court-II Faridabad & Anr., 2002 II CLR 663 (P. & H.H.C.)

S.10 - Constitution of India, 1950, Art.226 - Workman of a Co-operative Society/Bank - Remedies available under the Industrial Disputes Act, cannot be denied to the workman of a Co- operative Bank - Hence the order passed by the Registrar under the provisions of Co-operative Societies Act cannot be treated as a final decision to operate as res judicata in a Reference u/s.10 of the I.D. Act in the Labour Court.

Faridabad Central Co-op. Bank Ltd. v. Presiding Officer, Labour Court-II Faridabad & Anr., 2002 II CLR 663 (P. & H.H.C.)

S.10 - Reference - Appropriate Government's refusal to refer dispute to the Tribunal on the ground of delay - held it is improper when delay is properly explained.

Wadson Masiha v. Union of India & Ors., 2002 II CLR 722 (M.P.H.C.)

Ss. 10(1) & 12(5) - State Government refused to make reference of Industrial Dispute raised by the Union on behalf of the petitioners on the ground that Union has not substantiated its demand - Hence this writ for direction to State Government - Held: It is not open to the appropriate Government to go into the merits of the demand while considering the question whether industrial dispute between employer and employee needs to be referred for adjudication or not and it is here that the State Government erred. Hence direction to State Government to make reference.

Ramruch Pande & Others v. State of Maharashtra & Ors. 2002 II CLR 803 (Bom.H.C.)

S.10(1)(c) - Constitution of India, 1950 - Art.226 - Petitioner's services terminated during the period of probation of one year - Labour Court held it to be termination for the workman indulging in misconduct, granted reinstatement - Single Judge set aside the said Order - In L.P. Appeal held that services of a workman in this case cannot be terminated without giving him an opportunity of hearing in a properly held departmental enquiry pertaining to the misconduct.

Munshi Ram v. Presiding Officer, Labour Court & Anr. 2002 II CLR 660 (P. & H.H.C.)

Ss.10, 11(A) - Reference to the Tribunal - Power of Tribunal to examine dismissal or discharge - Necessary to examine all aspects.

Principal, Dr. Punjabrao Deshmukh Polytechnic, Amravati & Anr. v. Ramkrishna s/o. Motiram Kakad & Ors. 2002 II CLR 689 (Bom.H.C.)

Secs. 11-A, 33, 23, 26 - Bombay Industrial Standing Orders Act, 1959 - Rule 32 - Model Standing Orders - S.O. Nos. 24, 25 - Constitution of India, 1950 - Arts. 226, 21 - Respondent workman dismissed for proved misconduct i.e., participating in and instigating other workers for illegal strike - Labour Court exercising its powers u/s. 11-A of I.D. Act, granted relief of reinstatement with continuity of service but no back wages in view of earlier proceedings (Special C.A. No. 4496 of 1981) - Hence this writ - Held that workman committed serious misconduct which was duly proved - Labour Court travelled beyond its jurisdiction - Award quashed and set aside.

Deepak Nitrite Ltd. v. N.H. Rana, 2002 II CLR 818 (Guj.H.C.)

S.11-A - Voluntary retirement - Voluntary resignation of the employee from service, accepted by employer and the employee relieved from job - Held that it does not amount to discharge or dismissal of employee - No jurisdiction with Labour Court, to direct reinstatement with all service benefits, except emoluments from date of his leaving service till the date of his reinstatement - Award of Labour Court set aside.

Life Insurance Corporation of India, Dharwad v. I.F. Kulkarni & Ors., 2002 II CLR 751 (Karn.H.C.)

Ss. 15(2)(b), 39, 10(4) - Constitution of India 1950, Art. 226 - Delegation u/s. 39 - Which Rules to apply, Central Rules or State Rules - In a reference made by State Government pursuant to a delegation u/s. 39 of the Act - or - whether S.15(2)(b) can be attracted in a dispute referred to the State Industrial Tribunal by the State Government, pursuant to a delegation u/s.39 of the Act - Held in this case State Rules will apply.

National Textile Corporation (WBABO) Ltd. Unit Arati Cotton Mill v. Learned Judge, 2nd Industrial Tribunal & Ors. 2002 II CLR 642 (Cal.H.C.)

S.17-B - Sick Industrial Companies (Special Provisions) Act, 1985 - S.22 - Back wages, payment of - Petitioner-Company made a reference under SICA for its declaration as `sick company'- Whether S.22 of SICA would apply in case where back wages already granted - Held (i) S.22 not a bar to payment of dues of workmen, following the adjudication of an industrial dispute, or determination of dues under Industrial Disputes Act; (ii) S.17-B of I.D. Act covers such cases.

Mideast India Ltd. v. K.M. Unni & Ors. 2002 II CLR 578 (Del.H.C.)

Sec. 25-C - Industrial Company declared `Sick' with workmen's claim for lay- off compensation, against it - Held that claim of workers has priority over claim of the Bank, though Bank is secured creditor - Also held that balance, remaining after satisfying workmen's claim, cannot be ordered to be deposited in the Bank as the claim of workmen for lay-off compensation, is a recurring claim in case of sugar factory.

Siruguppa Sugars & Chemicals Ltd. Gauribidanur v. Commissioner of Labour, Government of Karnataka & Ors., 2002 II CLR 668 (Karn.H.C.)

Ss. 25-C, 25-D & 33(C)(2) - Indian Evidence Act, 1872 - S.114 - Illustration (G) and S.103 - Computation of lay-off compensation - Denial of liability by employer, on the ground of accuracy in terms of money, which pertains to badli or casual workmen, who are not entitled to claim lay-off compensation - Held that it was open to employer to produce muster-rolls of workmen to substantiate its case - Court may draw adverse inference against employer for withholding best evidence in his possession.

Siruguppa Sugars & Chemicals Ltd. Gauribidanur v. Commissioner of Labour, Government of Karnataka & Ors., 2002 II CLR 668 (Karn.H.C.)

Secs. 25-C and 33-C - Sick Industrial Companies (Special Provisions) Act, 1985, Sec. 22(1) - Lay-off compensation - Recovery Certificate issued against Company declared "sick" - Held that recovery certificate is enforceable - Provisions of I.D. Act will prevail over the provisions of SICA, as the said Act is special enactment.

Siruguppa Sugars & Chemicals Ltd. Gauribidanur v. Commissioner of Labour, Government of Karnataka & Ors., 2002 II CLR 668 (Karn.H.C.)

Ss. 25-F, 25-G, 25- H, Constitution of India, 1950, Art. 226 - Termination of daily wage worker - employed on 1-5-1986 and continued to work till 1- 11-1988 i.e. date of his removal - He discharged his duties for more than 240 days in the preceding year - Held that Labour Court did examine all the issues involved and documentary evidence on record and passed detailed, well- reasoned order, which is not open to challenge.

State of Rajasthan v. Mahamantri Tonk Zila Van Sangh, 2002 II CLR 636 (Raj.H.C.)

Secs. 25(g), 25(f) - Constitution of India, 1950, Art.226 - Dispute over termination of service, while under suspension, without issuing the charge- sheet - State Government declined to refer the dispute to the appropriate Labour Court on the grounds of (i) delay of seven years in raising dispute; (ii) worker not completing 240 days service; and (iii) employer has not violated provisions of Ss.25(f) and (g) - Held that while declining to refer the dispute to the Labour Court, State Government cannot enter upon the merits of the dispute, as it violates set principles of law - Directed to reconsider the issue.

Hari Singh Hada v. State of Rajasthan & Ors., 2002 II CLR 792 (Raj.H.C.)

Sec. 25-H - Constitution of India, 1950, Art. 226 - Regularisation in bank service - Part- time Sweeper - Seeking regularisation in regular service, in preference to outsiders - After 10 years of part time job, petitioner disengaged from service - Held, under Section 25-H of the I.D. Act, the petitioner is entitled to be considered to the post of sweeper in preference to outsiders.

M. Ganga v. Zonal Manager, Indian Bank, Hyderabad and Ors. 2002 II CLR 713 (A.P.H.C.)

Secs. 25-K(2), 25-C and 25-M - Constitution of India, 1950 - Art.226 - Sugar Factory - Appropriate Government i.e. State Government has taken a decision that sugar factory is not an `industrial establishment of a seasonal character' - Decision notified - High Court and Apex Court, rejected the challenge given to the said decision of State Government held that it operates as `res judicata' and holds good for all time - Petitioner sugar factory cannot raise the same issue again only because State Government did not issue fresh notification, declaring it otherwise and deny compensation to workmen, illegally laid off.

Siruguppa Sugars & Chemicals Ltd. Gauribidanur v. Commissioner of Labour, Government of Karnataka & Ors., 2002 II CLR 668 (Karn.H.C.)

Ss.33(2)(b) - Constitution of India, 1950, Art. 226 - Approval Application filed by petitioner to dismiss the respondent - Art-A mechanic from service, rejected by the Tribunal - Petition challenging the said order of Tribunal held that the Tribunal rightly decided issues raised before it and committed no error in drawing those conclusions.

Divisional Controller, Gujarat State Road Transport Corporation v. V.K. Chaher, 2002 II CLR 707 (Guj.H.C.)

Secs. 33(C) and 25-C - Lay-of compensation - Issue of Recovery Certificate against employer - Where laid-off workers, lawfully entitled to compensation, pendency of dispute before Tribunal, is no bar to appropriate government to issue recovery certificate.

Siruguppa Sugars & Chemicals Ltd. Gauribidanur v. Commissioner of Labour, Government of Karnataka & Ors., 2002 II CLR 668 (Karn.H.C.)

S.33-C(2) - Appellant association representing retired employees, by an application to Labour Court, claimed certain benefits under settlement to VRS employees which took place after their retirement - Labour Court granted the petition, but learned single Judge dismissed the same and hence this writ appeal - Held: The company has denied their liability under settlement to VRS Employees, that settlement is applicable to employees in service on the date of settlement, that as such the VRS employees have no exis-ting right under the settlement and learned single Judge has right in dismissing the petition filed under S.33-C(2) of I.D. Act.

PAL VRS Employees Welfare Association v. Premier Automobiles Ltd. & Anr. 2002 II CLR 645 (Bom.H.C.)

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - S.30 and Items 5 & 10 of Sch. IV - Framing of issues - Respondents No.2 & 3 who are employees of petitioner filed complaint of unfair labour practice challenging validity of agreement between petitioner and representative union respondent No. 4 - In that complaint, petitioner gave an application for framing certain issues and to hear them as preliminary issues. That application came to be dismissed and as such this petition - While giving direction to the Industrial Court to frame issues within two weeks, it is held that all the issues be heard together and decided within the time limit fixed by the High Court in earlier proceedings.

Universal Ferro and Allied Chemicals Limited v. Member, Industrial Court & Ors. 2002 II CLR 692 (Bom.H.C.)

Items 6 & 9 of Sch. IV - Order of Industrial Court directing that respondents Nos. 1 & 2 be regularised and wages be paid as if they are permanent employees - In this writ petition submission is that petitioners had denied respondents Nos. 1 & 2 to be their employees - It is held that denial by petitioners was neither properly worded nor specific and this is not a fit case for exercise of discretion under Art. 227 of the Constitution.

Principal, Dr. Punjabrao Deshmukh Polytechnic, Amravati & Anr. v. Ramkrishna s/o. Motiram Kakad & Ors. 2002 II CLR 689 (Bom.H.C.)

Payment of Gratuity Act, 1972 - Secs.1, 4 - Whether Act applies to the Municipal Council - Held yes it is applicable to Municipal Council - Persons on daily wages or monthly wages - not excluded from the purview of the Act.

Municipal Council, Panna v. The Controlling Authority and Anr., 2002 II CLR 726 (M.P.H.C.)

Payment of Wages Act, 1936 - S.17(1-A) and S.19 - Common question arises in these two petitions - These petitions are filed against order of appellate authority dismissing appeals against orders of Prescribed Authority under Payment of Wages Act on the ground that the appeals were not accompanied by certificates about the amounts having been deposited - Submission is that since the amounts have been deposited afterwards the order that appeals are not maintainable be quashed - It is held that if statute prescribes that a particular thing has to be done in a particular manner, then it shall be done in that manner alone and not otherwise and in these cases S.17(1-A) of the Act has not been complied with, the appeals were not maintainable and writ petitions are dismissed. Executive Engineer, U.P.S.E.B. v. Prescribed Authority & Ors. 2002 II CLR 759 (All.H.C.)

Pay Parity - Petitioners, employees of Respondent No.1 claim pay parity with their counterparts in Government Colleges - Held: Question of equal pay for equal work arises when the qualifications as also the nature of duties performed are identical, but the petitioners have not placed before Court the duties of the corresponding posts on the basis of which parity is claimed and in the absence of the same the petition is rejected.

A. Mitra (Smt.) & Ors. v. Vishweshwaraya Regional College of Engineering, Nagpur & Anr. 2002 II CLR 650 (Bom.H.C.)

Pay Scales and Conditions of Service - Of Judges in subordinate judicial service - National Judicial Pay Commission under Chairmanship of Mr. Justice K.J. Shetty was appointed -the Commission has given report - The question is about acceptance of recommendation - It is held that subject to various modifications stated in the judgment all other recommendation of Shetty Commission are accepted.

All India Judges Association & Ors. v. Union of India & Ors. 2002 II CLR 612 (S.C.)

Pensionary Benefits - Pension Regulations 1990 - Regulation 18 - Reserve Bank of India Staff Regulations - Reg. 26(3-A) - Petitioners in both petitions resigned after putting on more than 20 years service - Their representation for pensionary benefits were rejected on the grounds that on resignation their services were forfeited under Reg. 18 and in view of Reg.26(3-A) they are not entitled to pension in view of cut-off-date - Petitioners filed these petitions claiming pensionary benefits - Held: Resignation is more akin to voluntary resignation, that Reg. 18 regarding forfeiture of service on resignation which came into force on 1- 11-1990 was not attracted as petitioners had resigned prior to that date and that as such request for pensionary benefits was liable to be granted. Respondents are directed to consider the cases of the petitioners for grant of pensionary benefits for computation of which they may take recourse to 1990 Regulations.

Cecil Dennis Solomon v. Reserve Bank of India, Mumbai & Anr. 2002 II CLR 690 (Bom.H.C.)

Punishment - Of removal from service - Whether it is disproportionate to the charge alleged and proved - Service record shows that petitioner not suffered any other punishment earlier - Nor faced any other departmental enquiry - Balance service of 12 years to go - Held reinstatement with continuity of service but no salary for intervening period.

K.G. Prakash Chary v. High Court of Andhra Pradesh, rep. by its Registrar (Management), Hyderabad and Ors. 2002 II CLR 768 (A.P.H.C.)

Petitioner was enrolled in Indian Navy and was posted on INS Rana of which respondent No. 4 was Commanding Officer - Petitioner filed writ petition challenging constitutional validity of S.11(2) of Navy Act 1957 and Regulation 269(1A) of Navy Service Regulations 1965 - On direction of Respondent No. 3 Chief Staff Officer, Eastern Naval Command, Respondent No. 4 initiated summary trial against petitioner and imposed punishment for having filed writ petition in High Court without exhausting remedies under S.23 of Navy Act and Regulations 235 to 239 - This order is challenged in this petition - Upholding the challenge it is held that action of respondents is per se arbitrary and illegal for the reason that none of the provisions of Navy Act and Regulations empower Naval Authorities, as indeed they cannot, to sit in judgment over the provisions of law and decide whether the same are constitutionally valid or not.

R.K. Singh v. Union of India & Ors. 2002 II CLR 805 (Bom.H.C.)

Constitution of India - Art.226 - Punishment, whether just and proper - Petitioner, Manager with respondent No. 1 Bank on being found guilty of the charges of wilful insubordination and disobedience, was awarded the punishment of reduction to a lower grade i.e. Junior Management Grade Scale I - Appellate Authority reduced the same - Petitioner challenged the punishment reduced by the Appellate Authority - held that on examination of record, no interference is called for.

V.S. Shah v. Assistant General Manager & Disciplinary Authority, 2002 II CLR 809 (Guj.H.C.)

Punishment of dismissal - Unauthorised absence in 1992 of Constable in Police Department - Respondent Tribunal set aside dismissal and directed his reinstatement with liberty to grant fresh order in accordance with law - In this writ petition against the said order, High Court held that having regard to the nature of misconduct reinstatement without back wages will meet the ends of justice. Denial of back wages would be just punishment.

State of Uttaranchal & Anr. v. State Public Service Tribunal & Anr. 2002 II CLR 763 (Uttaranchal H.C.)

Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 - Rule 19(ii) - Constitution of India 1950, Art. 226 - Petitioner removed from service after 24 years of service, on the charge of wilful absence - Enquiry dispensed with under Rule 19(ii) though chargesheet was issued - Subsequently enquiry held ex-parte - Held that enquiry can only be dispensed with in the circumstances mentioned in Rule 19 - No reasons assigned to dispense with enquiry - Punishment should be reasonable and proportionate to charge framed against delinquent - Thus ordered reinstatement with all consequential benefits, but only 50% back wages.

Behari Lal Gupta (Dr.) v. State of Rajasthan & Ors., 2002 II CLR 788 (Raj.H.C.)

Regularisation - Constitution of India - Art.226 - Regularisation - Petitioners appointed on contract basis - Contract period expired - Vacancy in said posts - Held claim for regularisation not sustainable as persons appointed de hors the Recruitment Rules cannot be ordered to be regularised straight- way, without following rigours of recruitment - But directions issued to respondent to consider cases of petitioners while filling up vacancies.

Chattar Singh v. Indira Gandhi National Open University 2002 II CLR 654 (Del.H.C.)

Reversion - Maharashtra Municipalities Act - S. 308 - Exercise of power by Additional Collector - Petitioners were employees of respondent No.2 Municipal Council - They are challenging order of their reversion passed in pursuance to the order of Additional Collector under S.308 of the Act - Following the decision of this High Court in the case of Chandrashekhar Shankarrao Zade, 1984 M.L.J. 821 it is held that Additional Collector is not entitled to exercise power of Collector under S. 308 unless and until State Government authorises the Additional Collector in that behalf by a Notification published in Government Gazette. Impugned order of reversion is therefore set aside.

Bhalchandra Vinayak Mandlik, Octroi Inspector & Anr. v. Additional Collector, Nagpur & Ors. 2002 II CLR 647 (Bom.H.C.)

Road Transport Corporations Act, 1950 - S.45(c) - Karnataka S.R.T.C. (Cadre & Recruitment) Regulations, 1982 - Regulation 11(3) - Termination of services of a probationer - Under Regulation 11(3), discretionary power conferred on Appointing Authority to terminate the services of a probationer at any time during the period of probation, solely on the ground of unsuitability for the post to which he is appointed on probation - Held that in such cases, termination of services of a probationer, not bad merely because no domestic enquiry was held before termination - Regulations do not contemplate domestic enquiry in such a background.

Divisional Controller, Karnataka State Road Transport Corporation, Belgaum v. C.R. Kupalli & Anr., 2002 II CLR 748 (Karn.H.C.)

Secondary Schools Code - Rule 61.2(a) - Appointment to posts of Head Masters-Respondent runs several schools - Management appointed respondents nos.3 and 4 as Head Masters overlooking claim of petitioner who is senior to them - In appeal Joint Director set aside the said order and directed to appoint petitioner - Director by review set aside the said order and hence this petition - Held: Respondent no.1 (Management) was not justified in appointing respondents nos.3 and 4 to the post of Head Master totally disregarding the procedure laid down under Rule 61.2 of the Code.

Sukhdeo Ragho Deore v. Chairman, Gram Shikshan Samiti, Umrane, Dist. Nasik & Ors. 2002 II CLR 599 (Bom.H.C.)

Rule 61.2(d) and (e) - Joint Director's order setting aside appointment of respondents nos.3 and 4 and directing appointment of petitioner is set aside by Director by way of review - It is held that in view of provisions of Rule 61.2(d) and (e), order of Joint Director was by way of appeal against which appeal lies to State Government and Director had no power to set aside the said order by way of review.

Sukhdeo Ragho Deore v. Chairman, Gram Shikshan Samiti, Umrane, Dist. Nasik & Ors. 2002 II CLR 599 (Bom.H.C.)

Termination - Constitution of India - Art. 226, Termination - Petitioner-Driver with respondent Corporation being found medically unfit, after about 9 1/2 years of service, was terminated by impugned order - Held that termination in this case is totally illegal, arbitrary and has to be quashed and set aside.

State Bank of India v. State, through Labour Enforcement Officer, Amarsing Abhesing Waghela v. G.S.R.T. Corporation 2002 II CLR 812 (Guj.H.C.)

Constitution of India - Art.226 - Termination - Petitioner appointed as Medical Representative on probation of 12 months - Stipulation in appointment letter that his services may be terminated without assigning reasons on finding his services unsatisfactory - Terminated from service, without holding enquiry or without making any allegations - Held termination not ex facie stigmatic - No interference warranted.

Davender Arora v. Management of Albert & David Ltd. & Anr. 2002 II CLR 651 (Del.H.C.)

Termination of Service - Petitioner challenges the order of termination of his service on the ground that he does not belong to Scheduled Tribe and his appointment was made subject to his caste verification - Petitioner had filed documents on the basis of which he claimed to be Scheduled Tribe - While admitting petition, interim stay of termination was given by virtue of which petitioner continues in service for all these 15 years - Held: No opportunity was given to the petitioner to prove that he belongs to scheduled tribe category and the principles of natural justice have been violated on each count. Ter- mination order is set aside.

Bhanudas Mahadeo Gawande v. State of Maharashtra & Ors. 2002 II CLR 648 (Bom.H.C.)

Trade Unions Act, 1926 - Ss 3, 8 - Scope of power of Registrar - Registrar is only to hold enquiry for the purposes of maintaining and updating registers - In the instant case Registrar wrote a letter to Management that office bearers of particular Union were validly elected - Held it is not mere enquiry, but amounts to adjudication of issue as to whether election of office bearers is valid or not, and is thus, without jurisdiction - In this case on examining the records it was held that it is an intimation given by the Registrar of trade unions to the management those were validly elected office bearers of the Union, which amounts to adjudicating the issue as to which group of office Bearers was validly elected which has been held to be not permissible.

Ram Chandra Singh and Others v. State of Bihar and Ors. 2002 II CLR 719 (Jhar.H.C.)

Travelling Allowance - Rule 1630 of the Code - Entitlement to Daily Allowance - On reference Central Government Industrial Tribunal held that Motor Lorry Drivers (MLD) who travel by road from Lower Parel Workshop for duty to Budhwar Park, a distance exceeding 8 kms are entitled to Travelling Allowance - In writ petition Learned Single Judge set aside the award on the ground that under relevant rules MLDs are not entitled to T.A. except when they are on tour or journey - Learned Single Judge however confirmed the finding that duty points of MLD's were from Parel Workshop to Budhwar Park, a distance of about 10.5 kms. This appeal is filed against the said judgment of Learned Single Judge - While setting aside judgment of Learned Single Judge it is held that it was not permissible for the learned Single Judge to allow a new ground to be raised which was never canvassed before the Tribunal - Award of the Tribunal is upheld.

Divisional Secretary, Paschim Railway Karmachari Parishad, Mumbai v. Union of India through the General Manager, Western Railway, Mumbai & Anr. 2002 II CLR 773 (Bom.H.C.)

U.P. Industrial Disputes Act, 1947 - S.2-N and 2(a) and Apprenticeship Act, 1961 - The case of petitioner is that the concerned workmen were initially engaged as apprentices after complying with provision of the Apprentices Act and therefore they cannot be covered by the definition of workman under I.D. Act - Labour Court has given cogent reasons for holding against employer as it cannot be said that workmen were engaged only for training - No interference is called for with the conclusion of Labour Court that the concerned workmen are entitled to reinstatement - It is further held that the workmen are entitled to back wages from the date of award till reinstatement.

U.P. Electricity Board v. P.O., Labour Court 1st, Kanpur & Ors. 2002 II CLR 761 (All.H.C.)

Workmen's Compensation Act, 1923 - Sections 4(1)(d)(2), 67 - Claim for Compensation - Jurisdiction of Commissioner to grant the relief less than claimed - Compensation claim for permanent partial disablement and consequential loss of earning capacity - On the basis of evidence, Commissioner concluded that claimant had in fact suffered temporary disablement - Held Commissioner can award compensation for temporary disablement causing temporary loss of earning capacity.

National Insurance Co. Ltd. v. Bijay Kumar Sahu and Anr., 2002 II CLR 728 (Ori.H.C.)

S.20 - Appointment of Commissioner - Under S.20, State Government can appoint any person as Commissioner of Workmen's Compensation - In this proceeding, High Court has taken view that S.20 must be read in the light of Art.50 of the Constitution and since Commissioner has to decide judicial disputes, State Government can appoint a Commissioner who has a legal background - Hence notices are directed to be issued to respondent no.3 and all others functioning as Commissioner and not having legal background to show why their appointment be not cancelled Surendra Kumar Sharma v. State of U.P. & Ors. 2002 II CLR 758 (All.H.C.)

Section 30 - Appeal - Substantial questions of law, alone can be considered - Findings of fact, based on evidence, cannot be interfered in appeal.

National Insurance Co. Ltd. v. Bijay Kumar Sahu and Anr., 2002 II CLR 728 (Ori.H.C.)

S. 30 - Motor Vehicles Act, 1988 - Secs. 167, 170, 173 and 149(2) - Quantum of compensation - Action for recovery of compensation initiated under Workmen's Compensation Act, instead of under Motor Vehicles Act, in exercise of option - Appeal by Insurer Company - Held that even if insured has not preferred appeal against quantum of compensation awarded by Commissioner, Insurer Company saddled with liability to pay compensation, is entitled to prefer appeal, subject to condition that it involves question of law - Just because such question touches upon quantum of compensation, would not debar insurer from filing appeal.

Oriental Insurance Co. Ltd., Bangalore v. B. Singari Gowda & Anr., 2002 II CLR 753 (Karn.H.C.)