CURRENT LABOUR REPORTS
May, 2002

Absorption - Tirupati Tirumala Devasthanam Service - Petitioners, NMR workers working in TTD Co-operative Stores, are seeking absorption in TTD Service - On the closure of the Co-operative Stores, its regular employees made representation and the State Govt. issued a G.O. for their absorption in TTD Service in the vacancies earmarked for direct recruitment in L.D.Cadre - The said order not implemented - Hence the writ petition seeking directions to TTD accordingly - In another writ petition, NMR Coolies working in TTD Co-op. Stores, sought directions against TTD to implement the said order - Therein the learned single Judge gave the directions accordingly - In writ appeal the TTD challenged the impugned order/direction given by the single Judge - In this common judgment it was held that (i) no mention made therein as regards absorption of NMR employees; (ii) Though the word `absorption' is loosely used in G.O., the intent and purport of the G.O. is to appoint those employees as fresh recruits in TTD Service on humanitarian grounds in clear regular vacancies available in TTD, meant for direct recruits; (iii) In fact no posts were categorised as NMRs meant for direct recruits; (iv) Mere mention of names of NMRs in consequential proceedings issued by TTD by inadventence, does not confer any enforceable right on them to be absorbed in TTD Service as regular employees - Hence no direction can be issued to TTD compelling it to absorb NMR employees in TTD Service - No relief.

R. Subbulu Naidu and Others v. Govt. of A.P., Revenue (Endt. III) Dept. and T.T.D., Tirupati 2002 II CLR 120 (A.P.H.C.)

Ad hoc appointment - Termination of service of petitioner as lecturer for not passing NET/ SET Examination within two years - Government Circulars dt. 22-12-1995 and 18-10- 2001 - Service of petitioner, who was duly selected by Selection Committee, was terminated as he failed to pass NET/SET examination - Challenge is to the said termination - While making the Rule absolute in terms of prayer clause (b), it is held that termination order is clearly contrary to Government Circulars referred above dated 22-12-1995 under which the petitioner would be entitled to hold the post on adhoc basis without increments till such time that he passes NET/ SET examination and by Circular dt. 19-9-1991, he would be entitled to continue upto December 2003.

Bajirao Namdeo Kamble v. The Principal Shri Vyannkatesh Mahavidyalaya & Ors. 2002 II CLR 146 (Bom.H.C.)

Appellate Authority - Appeal by dismissed employee for misconduct - In this case Board of Governors of the respondent Institute decided appeal of petitioner who is dismissed from service by Director - Submission is that the appeal is dismissed without application of mind - Held: There is much substance in the contention raised on behalf of the petitioner that the appellate authority has not applied its mind and has wrongly dismissed the appeal.

K.N. Chainani v. Indian Institute of Technology 2002 II CLR 29 (Bom.H.C.)

Appointment - Post of Extra Departmental Mail Carriers (for short EDMC) in branch post office - Respondent no. 4 sent a requisition to employment exchange to sponsor candidates for the said post having qualification of VIII standard pass - Appellant was selected and appointed - Respondent no. 5 challenged the appointment of appellant on the ground that he has passed S.S.C. and was entitled to be preferred and appointed - Administrative Tribunal accepted his case and High Court confirmed the same - Hence this appeal to Supreme Court - While setting aside impugned judgments, it is held that selection of appellant was on merits and not merely because of senior in age alone and that the basis of selection was in terms of requisition to the employment exchange which did not contain that preference would be given to SSC passed candidates, the selection authority has committed no illegality in not giving preference to SSC passed candidate- respondent no. 5 and that appointment of appellant was wrongly set aside.

Bibhudatta Mohanty v. Union of India & Ors. 2002 II CLR 11 (S.C.)

Appointment - Compassionate - Respondent's husband, who was working as "Work-charge-t- mate " died in harness in 1984 - In 1992, respondent claimed appointment in favour of her son on the basis of ex-gratia policy - The same having been denied, she filed writ petition which is allowed and hence this appeal to Supreme Court - While holding that impugned order of the High Court was not sustainable, it is observed that when the application for compassionate employment was made eight years after the death, it was not to meet the immediate financial need of the family.

Haryana State Electricity Board v. Krishna Devi 2002 II CLR 14 (S.C.)

Constitution of India, 1950 - On the representation by the petitioner he was granted notional promotion retrospectively - but no benefit of back wages/arrears - Hence this writ petition - Held that notional promotion to petitioner was given in terms of Clause 18.4.3 of the Circular by Dept. of Personnel and Training - No arrears is admissible - Principle of `no work no pay' also applicable - No fault could be found in the actions of respondents in not making payment of the arrears.

Amar Singh v. Union of India & Anr. 2002 II CLR 96 (Del.H.C.)

Arts. 215, Contempt of Courts Act, 1971 - Industrial Disputes Act, 1947 Secs. 29, 33C - Petitioners succeeded in securing awards for reinstatement and back wages, which were duly published, but awards were not implemented - No reinstatement and no back wages paid - Hence these petitions seeking contempt proceedings to be taken against the employers - Having heard both the sides and learned Advocate General, the Division Bench concluded: i) Powers to punish for the contempt are conferred upon the High Court by the Constitution; it is not a statutory or common law right - but a discretion with the High Court to take action to vindicate its authority and commit the alleged contemner for contempt; ii) The award once published and unless modified or reversed by any higher forum, remains binding to the parties to award until the same is altered by any fresh settlement or upon the dispute raised by either party; iii) As per the in-built mechanism of Industrial Disputes Act, after the passing of the Award by the Labour Court, there is (a) executing machinery u/s. 29 of the Act or (b) there is special mode of execution by taking independent proceedings u/s. 33C of the Act. iv) Merely because there is failure on the part of the competent officer to lodge prosecution, it cannot be said that the remedy becomes illusory ..... and therefore the only remedy is to invoke jurisdiction of High Court under Contempt of Courts Act; v) The Labour Courts are not deciding the recovery applications u/s. 33C of the I.D. Act, for a long time; vi) The execution proceedings of the award for the purpose of recovery of monetary benefits, are not only in built mechanism under the I.D. Act itself, but there are sufficient effective modes provided u/s. 33C of the Act;..... it cannot be said that the reinstatement cannot be taken care of in the proceedings u/s. 33C of the Act. vii) If the breach is brought to the notice of the competent officer, it is his own discretion as to whether prosecution u/s. 29 of the I.D.Act should be granted or not; viii) The power of the Contempt of Courts Act should not be considered as that of executing court, nor the court should normally not exercise the power when party to the award or decree has alternative remedy also for the purpose of implementing or executing the decree or award.

(H.C.Guj.)...246

Art. 226 -Industrial Disputes Act 1947, Sections 2(p), 9-A, 18(1) and (3), West Bengal Industrial Disputes Rules, - Rule 68 - Settlement for incentive scheme/Agreement dated 9th May 1988 - Termination of - Whether valid - Whether it amounts to change in service conditions, if not replaced by another agreement - By letter dated 14-11-2000 the respondent- Management terminated the agreement dt. 9-5-1988 - an incentive scheme for clerical graded staff - By a letter dated 30-10-2000 the Chief General Manager for respondent had intimated the President of Petitioner No. 1, to effect the said change in accordance with S.9-A of the Act - In this writ petition the petitioner Union challenges the said letters issued by the Management - On examination of facts and points of law, held that (i) the said agreement dated 9th May, 1988 is not a settlement within the meaning of S.2(p) of the I.D.Act; and neither the employer, nor the workmen are bound by it under S. 18(1) or (3) of the Act; (ii) Section 19 of the I.D.Act has no manner of application in respect of such an agreement; (iii) (a) there is other dispute between the parties regarding service conditions of the workmen; (b) there is considerable dispute in regard to the material facts in respect of other dispute involved in the matter, (c) the dispute is of a nature, which cannot be conveniently adjudicated in this writ proceedings.

Garden Reach Workshops Ltd. Clerks Union & Anr. v. Garden Reach Ship Builders & Engineers & Ors. 2002 II CLR 276 (Cal.H.C.)

Art. 226 - Respondent No. 1 a Clerk with the appellant-company was terminated from service by an order dated 31st August, 1985/ September 5, 1986, as he was found guilty of the charges of misappropriation and fraud, in the departmental enquiry held against him - In the writ petition the respondent challenged the impugned order of his termination - The learned Single Judge held that it was biased enquiry and the charges of misappropriation and fraud against the respondent No. 1, were not established in the enquiry and hence granted reinstatement with 50% of back wages - Hence this writ appeal by the Management - The Division Bench, on examining the facts established and the law points settled by the Apex Court and High Court held that (i) the respondent was not interested to defend his case, but only interested to drag the proceedings; (ii) the findings of the learned Single Judge that natural justice was violated and the enquiry officer erroneously proceeded ex parte cannot be sustained; (iii) on the facts and in peculiar circumstances, it was not open to interfere with the order of termination within the limited scope of judicial review available to the court; (iv) the learned Single Judge committed jurisdictional error while interfering with the order of punishment.

National Iron & Steel Co. (1984) Limited v. Ajit Kumar Mukherjee and Another 2002 II CLR 270 (Cal.H.C.)

Art. 226 - CCS (Pension) Rules 1972, Rules 13 - 49(2), 26 - In this writ petition, the petitioner Constable Driver challenges the legality of the order dt. 21-8-1999, accepting his resignation, with immediate effect and without pensionary benefits - He also seeks reinstatement in service w.e.f. 21-8- 1999 with consequential benefits and/or alternatively to grant pro rata pension and other retiral benefits - Held that it is his pure and simple resignation from service, in view of his domestic problems - He has not approached this Court with clean hands and tried to over-reach the Court by relying on a forged and fabricated letter- Resignation accepted by competent authority - under Rule 26 of CCS(Pension) Rules, he is not entitled to payment of any pro rata pension- No merit in the writ petition.

Suresh Chand v. Union of India & Ors. 2002 II CLR 184 (Del.H.C.)

Art. 226 - Having successfully challenged his dismissal order dt. 10-5-1993, in earlier writ petition, the petitioner, herein challenges the denial of back wages and other perks to him for the period from 1-6-1984 to 10-5-1993, on the ground that during this period he had alternative sources of income - Held that (i) High Court while exercising powers under Art. 226 of the Constitution, in respect of departmental proceedings, does not act as a Court of Appeal and should not interfere with the orders of disciplinary authority unless the order is found to be perverse or vitiated by illegality such as absence of natural justice; (ii) impugned order suffers from these infirmities; the approach of the disciplinary authority is fallacious; complete inquiry proceeded on the basis of interview of the petitioner with the Presenting Officer and documents produced by the petitioner; (iii) the finding that the petitioner had an alternate sources of income, is contrary to legal position and approach of the disciplinary authority is contrary to law; (iv) in view of the fallacious approach of the disciplinary authority, its findings are perverse; (v) Respondents failed to discharge the burden of establishing that the petitioner had alternate sources of income. A finding on this issue cannot be based on surmises and conjectures as is sought to be done by the disciplinary authority.

Bishamber Lal Kapur v. Allahabad Bank & Ors. 2002 II CLR 229 (Del.H.C.)

Art. 226 - State Bank of India - Service Rules - Principles of natural justice Petitioner, an officer with the respondent- Bank, served with a charge-sheet consisting of 14 charges - Enquiry Officer held that some of the charges were not proved - The disciplinary authority disagreed with the findings of enquiry officer in respect of charges 7, 8, 10 and concluded that those acts of petitioner, demonstrated his lack of integrity - Petitioner dismissed from service without giving notice of adverse findings of disciplinary authority - Hence this writ petition, challenging impugned order of his dismissal - Held that the disciplinary authority was within its domain of jurisdiction to give contrary findings, but not without affording an opportunity to the delinquent officer - No such opportunity given in the instant case - Findings of disciplinary authority, being in violation of principle of natural justice, are set aside - as petition is pending, the petitioner superannuated, matter remanded to disciplinary authority to record its findings de novo, after giving a proper hearing to petitioner, as laid down by Apex Court in the case of Punjab National Bank v. S.S. Koshal. Ashok Kumar Aggarwal v. State Bank of India & Ors. 2002 II CLR 99 (Del.H.C.)

Arts. 226, 227 - Order of disciplinary authority to dismiss the delinquent workman - The revisional authority as empowered by the regulations, remands the matter to the appellate authority in view of its conclusion that dismissal is too harsh a penalty - But the appellate authority reaffirms its earlier order of dismissal of delinquent employee, inspite of the conclusion of the revisional authority - The Division Bench held that such a decision by appellate authority is without jurisdiction - Award of Labour Court, directing reinstatement but without back wages has to be upheld.

Divisional Controller, Karnataka State Road Transport Corporation, Bangalore Central Division, Bangalore v. G.M.D. Murthy 2002 II CLR

162 (Karn.H.C.)

Arts. 226, 227 - Regularisation - `Equal pay for equal work' - The petitioner Union having succeeded in getting most of the demands, resolved by the Tribunal in favour of the workmen employed in Urban Malaria Scheme, filed this petition seeking limited additional relief of higher pay scales at par with the employees in the comparable categories - Petitioner Union relies on the principle `equal pay for equal work' - On examination of facts established on record and law settled on the relevant points, held that workmen concerned being admittedly employed on a scheme with prescribed pay scales, parity with the pay scales prevailing in the main establishment of the respondent, could not have been awarded because of important distinguishing features, viz., qualifications, source of recruitment, nature of duties, etc. - also held that it would have been unfair and unjust to practically order regularisation from the date of initial appointment.

Bhavnagar Municipal Nokariyat Sabha v. Bhavnagar Municipal Corporation 2002 II CLR 260 (Guj.H.C.)

Arts. 226, 227 - Termination - Petitioner a forest guard appointed in 1974, was removed from service by the respondent by an order dated 1-2-1986, as petitioner was found guilty of misconduct in the Depart- mental Enquiry held against him - His appeal to Gujarat Civil Services Tribunal was also dismissed - In this Special Civil Application the petitioner challenges the order of his removal and the order of dismissal of his appeal by the Gujarat C.S. Tribunal - While examining as to whether the said punishment is disproportionate to the charges levelled against the petitioner, it was held that the charges were not trivial in nature - The findings of the enquiry officer are clear findings - That there is no error apparent on the face of the record - No violation of the principle of natural justice - Charges levelled against petitioners are serious - No interference called for in the concurrent findings of fact arrived at by the appellate authority as well as the Tribunal.

Alisha Dullasha Saiyad v. Conservator of Forests 2002 II CLR 35 (Guj.H.C.)

Art. 227 - Industrial Disputes Act, 1947 - Sections 2-A and 10(4-A), Industrial Dispute - Labour Court's jurisdiction to examine validity of the order of termination of services of the workman - In the backgrounds of the facts stated herein, D.B. held that it is only final order, i.e. order of appellate authority or of Revisional Authority that can be examined since the order of disciplinary authority stands merged in the final order - Direction issued to Labour Courts and Industrial Tribunals to require both the sides to the dispute to state whether remedies available under the regulations have been exhausted - In case it is found that the workman has failed to avail internal remedies, it should relegate the workman to respective appellate or revisional authority.

Divisional Controller, Karnataka State Road Transport Corporation, Bangalore Central Division, Bangalore v. G.M.D. Murthy 2002 II CLR

162 (Karn.H.C.)

Art. 311 - Bombay Civil Service Rules - Gujarat Police Manual, Regulation 116(1) - Termination - Petitioner selected as Police Sub-Inspector joined training as such on 4-12-1995, was discharged from service by an order dt. 13-1-1999 during his extended probation, as he did not appear to be a fit person to be continued as a P.S.I. - During the probation, he was a co-accused in one murder case, in which he was acquitted on 25-8-1999 - Petitioner challenged the impugned order in SCA No. 897/1999, but withdrew the same - Petitioner made fresh representation, which was rejected by the respondent - Hence the present petition, challenging the impugned action of the authority - Held that (i) overall assessment of the performance of the petitioner was found to be weak and unsatisfactory to discharge duties as a P.S.I., (ii) pendency of the Criminal case was not the foundation of the order of discharge; (iii) valuation of the work of a probationer is to be done by the concerned authority and the court may not sit in appeal over the said evaluation; (iv) probationer has no right to hold the post in question; (v) impugned order is simple termination with no motive or foundation and no stigma attached - Impugned order is legal and valid.

Kishorbhai Dahyabhai Solanki v. Nagjibhai Muljibhai Patel 2002 II CLR 246 (Guj.H.C.)

V.D. Barot v. State of Gujarat 2002 II CLR 42 (Guj.H.C.)

Arts.311(2) proviso, 309 - Central Civil Services (Classification Control & Appeal) Rules, 1965, R.19(ii) - Disciplinary Proceedings - Petitioner a store-keeper in Government godown, served with memorandum of charges, with intent to dismiss him from service, - Eventually dismissed from service under Rule 19 of CCS (CCA) Rules - Disciplinary enquiry dispensed with - No reasons spelt out for dispensing with enquiry by the disciplinary authority, but arrived at the decision that since matter was proved by record itself, no enquiry was `reasonably practicable' - In this writ, filed by petitioner, challenging the dismissal order, held that implication `reasonable impracticability' cannot be equated with `reasonably not necessary' - Impugned order of dismissal from service passed by misconstruing the provisions of R.19 (ii) and Art. 311(2) - Hence impugned order of dismissal set aside.

Bisweswar Debnath v. State of Tripura & Ors. 2002 II CLR 20 (Gau.H.C.)

Contempt of Court - Petitioner, Union of workers of respondent no. 1 company, obtained order from High Court dt. 18- 4-2000 for payment of wages etc. - Respondent No.1 committed breach of the same - Hence this petition for Contempt of Court of said order dated 18-4-2000 - Respondent no. 1 put up a case of financial constraints and also the conduct of the union in putting obstacles - High Court considered the entire matter and held that it is wilful disobedience which amounts to contempt, but in this case it cannot be said that respondents have wilfully disobeyed the Court's order and there is absence of any malafide or contaminous behaviour on the part of the respondents and as such there is no merit in this petition and it is dismissed.

General Labour Union and Anr. v. Arjandas Metal Industries Pvt. Ltd. & Ors. 2002 II CLR 213 (Bom.H.C.)

Disciplinary Proceeding - Issue of second show cause notice to respondent conductor - Reply submitted beyond time prescribed - Order of dismissal before reply received - Labour Court held the action of dismissal, being in violation of principles of natural justice, to be unfair labour practice, and directed reinstatement with back wages of respondent conductor - Order is confirmed by Industrial Court and hence this petition - Relying very heavily on the decision of the Supreme Court in case of ECIL, Hyderabad v. B. Karunakar1993 II CLR 1129 (S. C.), it is held that proper order that should be passed is to direct disciplinary authority to pass fresh order after taking into consideration the reply that has been submitted by the respondent including the order as to back wages.

Maharashtra State Road Transport Corporation v. Rajendra Bhagwan Gandhi 2002 II CLR 209 (Bom.H.C.)

Termination of service for misconduct of absentism - On reference, Labour Court held that issuance of chargesheet and conducting of enquiry were contrary to principles of natural justice and therefore directed reinstatement of workman - In this writ petition against said award, it is held that employer failed to substantiate that findings recorded by Labour Court are perverse and as such no interference with the award under Art.226 of the Constitution.

Swadeshi Cotton Mills Ltd. v. Labour Court-IV, Kanpur & Ors. 2002 II CLR 201 (All.H.C.)

Petitioner dismissed from service for misconduct of writing, threatening letters to superiors etc. - While challenging his dismissal, contention is that evidence of hand writing expert Mr. Wagh should not have been relied upon as in some other proceeding, High Court has observed that as an experts, he moulds his opinion to suit his clients - High Court held that in this writ petition, it will not be proper to scrutinise the evidence of Mr.Wagh when nothing is pointed out on merits why his evidence should be rejected.

K.N. Chainani v. Indian Institute of Technology 2002 II CLR 29 (Bom.H.C.)

Employees Provident Fund & Miscellaneous Provisions Act 1952 -

S.15 - Employees Pension Scheme, 1995, Paras 2 (XVI) 15 and 17-A - Disablement Pension - What is permanent and total disablement - While on the way to his house after duty respondent - employee sustained injury, being hit by a vehicle - Thereby became permanently disabled - On examination Doctors on Medical Board, Certified that respondent cannot discharge his functions effectively due to total permanent disablement - Percentage of disability as per the Doctors was 75% to 80% - His claim for disability pension, on the ground that it was total disability, was refused by the appellant - Writ petition filed by the respondent was allowed by the Learned Single Judge - Hence this Writ Appeal - Division Bench held that the respondent due to the said accident, suffered permanent disability as he had become physically and permanently disabled, being unable to perform his duties as a Supervisor - Question of fact, which cannot be challenged by the appellants in writ proceedings - Since the Medical Board showed that the respondent cannot perform the duties as he was doing on the date of the accident, the disability has to be taken as 100% irrespective of percentage of 75 to 80% as mentioned by the Medical Board.

Regional Provident Fund Commissioner, Hyderabad and Another v. Deepak Kulkarni 2002 II CLR 80 (A.P.H.C.)

Employees State Insurance Act, 1948 - S.2 (22) - `Wages', what it signifies - To promote cordial employer- employee relationship, the respondent formulated `Quality Incentive Scheme', under which incentive amount is calculated and paid once in three months - Appellant Corpn. wanted to include such payments as `wages' given to workmen - As the ESI Court decided it against the Corpn. this Appeal by the Corpn. challenging the said finding of ESI Court - Held that incentives paid voluntarily by employer to workmen at the intervals exceeding two months, under `Quality Incentive Scheme' are not `wages' and therefore employer is not liable to pay contribution on such payments.

Employees' State Insurance Corporation, Bangalore v. Lucktex III, Bangalore 2002 II CLR 169 (Karn.H.C.)

Sections 39, 40, 44, 45-A, 45-E, 75, Clause A - Respondent Corporation issued notice to the petitioner, intimating that Rs.9,606/- is due on account of its contribution, to it for October, November & December 2000. - Petitioner submitted its calculation showing its liability at Rs.6,786/- only. - Corporation issued another notice to recover said amount with interest and started recovery proceedings which was challenged by the applicant in ESI Court. ESI Court did not agree with the appellant that opportunity of hearing is sine qua non, before making final order for recovery as being passed by the authorities - Hence this Appeal - Held that (i) S.45A is attracted where no return as contemplated u/s. 44 is submitted or in a case when particulars, Register or Records required to be maintained or where Inspector is prevented from making inspection - On infraction of any one of the conditions, Sec.45A is attracted; (ii) Non-submission of return is a non-compliance of the provisions of the Act. If on making inspection u/s. 45(2) amount is determined, in the absence of a return by the employer, it would be a case covered u/s. 45-A; (iii) S.45 does not postulate determination. It postulates appointment of inspectors and inspection by them. Sec.45-E would be attracted as soon as calculation or determination is made on the basis of materials available to the authority; (iv) the embargo provided in S.75(2) that 50% amount has to be deposited, is not a bar for treating the alternative remedy as an efficacious remedy; (v) When statute provides a particular right, the same cannot be denied simply because alternative remedy even very efficacious, is available to a person to whom such right is available by reason of statute.

Rajrani Exports Ltd. & Anr. v. Employees State Insurance Corporation & Ors. 2002 II CLR 205 (Cal.H.C.)

Ss. 45-A, 75 and 77(1-A)- Dispute regarding contributions - ESI authorities passed order u/s. 45-A on 29-8-1984 - Appellant challenged the impugned order u/s. 75 of the Act in ESI Court on 17-8-1990 - ESI Court rejected it being time-barred - In this Appeal - held that Application u/s. 75 of the Act, is on the face of the record, barred by limitation as provided u/s.77(1-A) of the Act.

Dharak Limited, Bangalore v. The Regional Director, Employees State Insurance Corporation, Bangalore and Anr. 2002 II CLR 225 (Karn.H.C.)

S.77(1-A) - On determination of contribution, Application made by Employer, disputing his liability to pay the same - ESI Court, while dismissing Application as barred by limitation, further held that `mining operation' carried on by applicant is excluded from the purview of the Act and that the Corporation has no power to recover contributions - In this Appeal High Court held that once ESI Court decided to dismiss application as one barred by limitation, recording of such finding on merits of application, is uncalled for and liable to be set aside.

Dharak Limited, Bangalore v. The Regional Director, Employees State Insurance Corporation, Bangalore and Anr. 2002 II CLR 225 (Karn.H.C.)

S.85-B - Determination of Damages - Petitioner Corporation after issuing notices and following coercive methods, recovered from the respondent, contributions and interest for delayed payment, after 1995-96, for the period from 30-6-1984 to 26-1-1995 - Late in March 1997 petitioner issued notice u/s. 85-B of the Act, to respondent to recover damages at 100% on delayed payments - ESI Court decided the issues against the petitioner i.e. petitioner not entitled to recover damages - Hence this Appeal by the ESI Corpn. - Held that in view of the mitigating circumstances, though damages can be recovered, it should be reduced, as there is enormous delay on the part of the Corporation to initiate proceedings to recover the same, although there is no statutory limitation fixed therefore - In the instant case in view of delay of 9 years in issuing notice, ends of justice would be adequately met if amount of damages claimed is reduced to Rs.40,000/-.

Employees State Insurance Corporation, Bangalore v. Tungabhadra Steel Products Limited, Tungabhadra Dam, Hospet 2002 II CLR 220 (Karn.H.C.)

Gujarat Subordinate Service Rules -

Rule 29 (a) - Petitioners were Head Constables of Gujarat Police and in 1991 they were drifted in organization called Intelligence Bureau - They worked in Bureau upto 1999 when they were repatriated to their parent organization - Their writ petition claiming permanent absorption in the Bureau is dismissed by High Court - In this appeal, Supreme Court, while disposing of Special Leave Petitions, held that there is no enforceable right with the petitioners for being permanently absorbed, yet the Government is advised to consider retention of these petitioners permanently in the Bureau, having regard to the case that they have already rendered service from 1991 to 1999 and that the Rules itself contemplate to man the post on transfer.

Mahesh Kumar K. Parmar & Ors. v. S.I.G. of Police & Ors. 2002 II CLR 27 (S.C.)

Industrial Disputes Act, 1947 -

Constitution of India 1950, Art. 227 - Settlement - Dispute between petitioner management and respondents unions referred to Industrial Tribunal - Pending the dispute, a settlement arrived at by the petitioners and some of the Unions - Settlement filed before the Tribunal by the management - Writ and SLP filed by the respondent-union dismissed with observation that the tribunal should give its finding on settlement - Tribunal found the said settlement just and fair and passed an award in terms of the settlement, on the basis of which most of the workers were taken back - Respondent - union filed belated review application, claiming that the said award is vitiated for lack of evidence - Management in this writ challenges impugned order dt.19-2-1990 recalling/ reviewing the award and for declaration that award dated 12-6-1986 has effectively terminated the reference pending before the Tribunal - After examining the facts and law settled on the point, held that impugned order dated 19-2-1990 is wholly unwarranted and unjustified on the facts and circumstances of the case.

Management of M/s. Birla Cotton Spinning and Weaving Mills Ltd. and Anr. v. Kapra Mazdoor Ekta Union & Anr. 2002 II CLR 88 (Del.H.C.)

Ss.2-A, 10 - Reference - Petitioner's services terminated by Respondent No. 5 Tamralipta Co-op. Spinning Mills Ltd. - raised industrial dispute - On getting the failure report from Conciliation Officer respondent No. 1 declined to refer the dispute on the ground that the differences can be sorted out under the model standing order - In this writ filed by the workman, - held that such refusal to refer the dispute on the part of the State Govt. amounts to refusal to exercise its jurisdiction - Impugned order liable to be set aside.

Pradip Dey v. State of W.B. & Ors. 2002 II CLR 17 (Cal.H.C.)

Ss.2(a), 2(k) and 10(1) - Industrial Dispute - Reference to be made by the Appropriate Government - Termination of services of contract employees and refusal for their absorption - Dispute referred by the State Government to the Labour Court - Rejected by the Labour Court on the ground that State Government is not the appropriate government in case of disputes relating to Central Government undertakings - Hence these writ petitions - Held that the disputed questions of facts namely whether there is abolition of contract labour or refusal of employment to the workmen concerned or otherwise, are to be resolved by Central Industrial Tribunal or Labour Court on the reference being made by Government of India u/s. 10(1)(d) of the Act, it being the appropriate government - Direction issued.

Visveswaraya Iron and Steel Limited Contract Employees' Union (Regd.), Bhadravati & Ors. v. The Management of Steel Authority of India Limited, Visveswaraya Iron and Steel Plant, Bhadravati and Ors. 2002 II CLR 223 (Karn.H.C.)

Sections 2-A and 10(4-A), - Road Transport Corporation Act, 1950, Sec.45 - Karnataka S.R.T. Corpn. Servants (Conduct & Discipline) Regulations 1971, Reg. 30 and 35 - Termination of Service - Respondent - Conductor dismissed from service as in the departmental enquiry, found guilty of misconduct i.e. non-issuing of tickets to 12 passengers, though collected fare from them - His appeal under Reg. 30 was rejected - But a Revision filed by him under Reg. 35 was allowed, punishment of dismissal set aside as found too harsh by the said authority - Appellate authority was directed to dispose of the appeal afresh and to pass appropriate orders - Appellate Authority again rejected the appeal and confirmed the order of dismissal of the respondent - In the dispute u/s.10 (4-A) of I.D. Act, Labour Court set aside the order of dismissal and directed reinstatement with other consequential reliefs but without back wages - In the writ petition learned Single Judge directed for payment of 50% of back wages from the date of dismissal till the date of reinstatement of the respondent - Hence, this writ appeal by the Management of the KSRT Corpn. being aggrieved by the grant of 50% of back wages to the workman - The Division Bench held that such Industrial Dispute arises only when order of dismissal or termination of services of workman attains finality and in case of a workman governed by statutory regulations, which provide for remedy of appeal and further remedy of revision against the order of disciplinary authority, the order does not attain finality unless aggrieved workman has exhausted remedies available to him under regulations - Industrial dispute cannot be raised before Court during pendency of appeal or revision under regulations.

Divisional Controller, Karnataka State Road Transport Corporation, Bangalore Central Division, Bangalore v. G.M.D. Murthy 2002 II CLR 162 (Karn.H.C.)

S.2(oo) and S.25-F - Petitioner was employed on temporary daily wage basis for 76 days - His service was terminated accordingly - According to him juniors to him were retained in service and further no re- employment was given though fresh hands were appointed - Industrial Tribunal rejected the reference and hence this petition - Held: Tribunal has recorded findings that termination was not retrenchment under S.2(oo) as amended in 1984, that workman has not put in 240 days service and S.25-F was not attracted and that these findings cannot be interfered under Art.226 of the Constitution.

Rajesh Kumar Sharma v. Presiding Officer, Central Government IndustrialTribunal-cum-Labour Court, Pandu Nagar, Kanpur & Anr. 2002 II CLR 204 (All.H.C.)

S.10 - Reference of dispute as to validity of termination of Appellant - In a proceeding under S.33-C(2), appellant is held to be not a `workman' - Relying on that Labour Court held that the said finding was resjudicata and rejected the reference - Writ Petition against the said order is dismissed by learned Single Judge and hence this appeal - Relying on the decisions of the Supreme Court in the cases of Bombay Gas Co. v. Jagannath Pandurang<D> (1975) 4 SCC 690 and Punjab Co-operative Bank Ltd. v. Bhatia AIR 1975 SC 1898, it is observed that the technical doctrine of resjudicata, as reflected in S.11 of Code of Civil Procedure, 1908, would not stricto sensu apply to industrial adjudication but at the same time rule analogous would apply to all adjudications, including industrial adjudication, that finding recorded by Labour Court and confirmed by learned Single Judge, is in consonance with law and does not deserve interference and that the appeal is therefore dismissed.

G. Thiagarajan alias Rajan Gopal, S/o Gopalasamy Vanniar v. J.B. Engineering Works & Anr. 2002 II CLR 194 (Bom.H.C.)

Ss. 10 and 15 - Constitution of India, 1950 - Arts. 226, 227 Interlocutory Order in the industrial adjudication - Labour Court for reasons recorded in the impugned order, rejected the belated request of employer to lead evidence on merits - In this writ the management challenges the said order of the Labour Court - Held that having regard to the pendency of the matter for 17 years, and possibility of the matter being further postponed, the impugned order passed by Labour Court, cannot be termed as arbitrary exercise of power by Labour Court - No good reasons to interfere with the impugned order.

Management of Adikehole Estate and Malleshanagudda Estate, Hirebyle Post, Mudigere Taluk, Chickmagalur District v. Narayana Shetty & Ors. 2002 II CLR 171 (Karn.H.C.)

S.10(1)- Reference of demands made by respondent union - Petitioner sought that two issues reproduced in this judgment and which related to jurisdiction to adjudicate, be decided as preliminary issues - Industrial Court rejected the said prayer and hence this petition - High Court, while dismissing this petition, observed that the finding of Industrial Tribunal that the preliminary issues can be dealt with after recording of evidence and that would delay and may lead to misery and jeopardy, requires no interference in writ jurisdiction.

Kolhapur Zillah Sahakari Dudh Utpadak Sangh Limited, Kolhapur v. Kolhapur Zillah Sahakari Dudh Utpadak Karmachari Sanghatana & Anr. 2002 II CLR 62 (Bom.H.C.)

S.10(1), S.2(s) & S.2(k) - Workman - Forum to decide - Such a question should be decided by Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties and not by the State Government.

Sharad Kumar v. Govt. of NCT of Delhi & Ors. 2002 II CLR 235 (S.C.)

S.10(1), 12 and 2(s) - Appellant-Area Sales Executive- Service terminated - He raised dispute - Government refused to make reference - Ground being he is not workman based on designation of post held by him - High Court confirmed the said order - In this appeal, Supreme Court held that decision to refuse to refer the dispute to Industrial Tribunal or Labour Court, based on designation of post of employee, is erroneous and determination of the question depends on the types of duties discharged by the employee and not merely on the designation of the post held by him. Sharad Kumar v. Govt. of NCT of Delhi & Ors. 2002 II CLR 235 (S.C.)

S.11-A - Constitution of India, 1950 - Arts. 226, 311(2) and 323(A) Respondent No. 3 a working journalist with the petitioner company, dismissed from service as found guilty of misconduct in the departmental enquiry and also on account of loss of confidence in him by the employer - Company - In the industrial dispute, the Tribunal differed from the conclusions drawn by the enquiry officer and passed an award, granting the relief of reinstatement and back wages - Hence this writ petition by the Company, challenging the award passed by the Tribunal - Held that (i) in the facts and circumstances of the instant case, non-furnishing of the enquiry officer's report to the delinquent by the disciplinary authority can have no bearing upon the validity of the order passed by the disciplinary authority; (ii) By virtue of S.11-A of the I.D. Act the Tribunal is empowered to reappraise the evidence in the domestic enquiry and to satisfy itself as to whether alleged misconduct by the workman is established; (iii) A writ court would be justified in interfering with, only if it comes to the conclusion that the impugned order is contrary to law or is based on no evidence, or is based upon certain inadmissible evidence to be led in; or the conclusion of the Tribunal is such which no reasonable man would arrive at; (iv) judged in this background, the impugned order suffers from no such infirmity, nor there is any error apparent on the face of the record, warranting interference from this court.

Bennet Coleman & Co. Ltd. v. The Third Industrial Tribunal & Ors. 2002 II CLR 173 (Cal.H.C.)

S.11-A- Non- implementation of award - Responsibility for shortage of goods - First petition is by employee challenging payment of restricted back wages to him and second petition is by employer holding him guilty of unfair labour practice and directing payment of some amount to employee - High Court dismissed both the petitions - In so far as first petition is concerned it is observed that Labour Court has rightly moulded the relief in exercise of discretion under S.11-A of the Act in view of conduct of employee - So far as second petition is concerned it is observed that there is nothing illegal in Industrial Court directing employer to reinstate employee and to pay him restricted wages till actual reinstatement.

Abdul Karim v. Cimcoff Distributors & Anr. 2002 II CLR 125 (Bom.H.C.)

Sec.11-A- Scope - Constitution of India, 1950 - Art.226 - Respondent No. 2 a Conductor, with the petitioner Corporation, being found guilty of committing misconduct in a departmental enquiry, was dismissed from service - In the industrial dispute the Labour Court held the impugned termination to be illegal and granted relief of reinstatement with continuity of service and partial back wages - Hence this writ petition by the Management - Held, on examination of facts on record and law settled by the Apex Court that (i) in case of proved misappropriation, it is immaterial to consider past records; (ii) Labour Court is expected to exercise its discretion under Sec. 11-A of the I. D. Act judicially and its order modifying the punishment of dismissal into reinstatement with partial backwages, merely on the ground of non-consideration of past records, cannot be sustained; (iii) since they (conductors) act in a fiduciary capacity, it would be a case of gross misconduct, if knowingly they do not collect any fare or correct amount of fare - impugned order of the Labour Court set aside.

Pattukottai Azhagiri Transport Corporation Limited, Vellore v. The Presiding Officer, IInd Additional Labour Court, Madras and Anr. 2002 II CLR 64 (Mad.H.C.)

Ss.12(3) & 18(3) - There is a settlement dated 2-9-1999 between petitioner, a recognised union and respondent no.1 for effecting certain deductions for death benefit scheme and respondent no.1 was effecting such deductions each month, but at the instance of Commissioner of Labour stopped doing so in the absence of authority from each workman - Hence this petition - Held: Settlement dated 2-9-1999, is binding on all workmen in the absence of any allegation of malafides, fraud or corruption and as such respondent no. 1 was not justified in stopping deductions as per settlement.

All India Employees Guild v. M/s. Air India Ltd. & Ors. 2002 II CLR 244 (Bom.H.C.)

S.25-B(2) read with S.25(1) -Continuous service - According to petitioner-employer workman actually worked for 207 days while according to workman he worked for 275 days - Labour Court held that workman worked for more than 240 days - Hence this petition - Relying on the decision of the Supreme Court in the case of H.P. Singh v. Reserve Bank of India 1985 (51) FLR 494, it is held that Sundays and other holidays are to be included within the meaning of S.25-B(2) read with S.25(1) of the Act and thus calculated the workman has put in more than 240 days continuous service and as such the finding of Labour Court that workman worked for more than 240 days and the termination of workman without notice and without payment of compensation was illegal cannot be interfered with.

Prathma Bank v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Pandu Nagar, Kanpur 2002 II CLR 197 (All.H.C.)

S.25-F - Constitution of India 1950, Art. 226 - Respondent-workman, a driver employed on daily wages from February 1987, allegedly terminated with effect from 27th May 1989, challenged it by raising a dispute - Tribunal held the impugned termination as illegal and unjustifiable as it contravened provisions of S.25-F of I.D.Act - Hence this writ petition by the Management, challenging the award under which respondent was granted reinstatement with full back wages - Held that as held by the Apex Court when temporary employees working on daily wages, are disengaged from service, it is not construed as retrenchment under the I.D.Act - Findings of the Industrial Tribunal are erroneous and contrary to law laid down by Apex Court - However the Award is modified in view of the offer given by the management to pay a sum of Rs.75,000/- over and above the amount of Rs.27,000/- already paid to the respondent, pursuant to the order of the Tribunal. Management of M/s. The Hindu, Ins Building, Rafi Marg v. The Presiding Officer, Industrial Tribunal No. II, Delhi & Anr. 2002 II CLR 227 (Del.H.C.)

S.25-F- Petitioner was a casual mazdoor from 1-12-1985- His service was terminated on 1-1- 1987 -He had completed 240 working days - Termination was in contravention of S.25-F- Inspite of finding of illegal termination petitioner was not granted normal relief of reinstatement with continuity of service and back wages by the Tribunal and hence petitioner moved this application - Held: Respondent has not made out case for not granting normal relief of reinstatement with continuity of service and as such the said relief is granted. High Court however disallowed back wages for two reasons one of which is long delay in raising dispute and second is that petitioner is in employment on salary of Rs. 800/- per month from 1988 onwards at Parel.

Parshuram Yallapa Kotekar v. Telecom Dist. Engineer, Ratnagiri & Ors. 2002 II CLR 78 (Bom.H.C.)

S.25-O - Permission for closure - Constitution of India - Art. 226 - On 20-12-2001 Commissioner of Labour, who is specified authority, passed an order, allowing respondent's application to close Cooling Appliances Business Division (`CABD' for short) on conditions of enhanced rate of closure compensation etc. - In pursuance thereof Respondent issued notice of suspension of operations of `CABD' from 21-12-2001 to 23-1-2002 on which day closure is to come into effect - In the mean time on an application by petitioner union, Commissioner of Labour made reference to Industrial Tribunal under S. 25-O(5) of the Act - Petitioner filed this writ petition challenging order of permission of closure and also prayed for a stay of notice of closure till reference is decided by Industrial Tribunal under S.25-O(5) - Respondent's objection is that such a petition is not maintainable as reference is already made under S. 25-O(5) of the Act- Rejecting the objection, it is held that as there has been suspension of operation of work since 21-12- 2001, no great prejudice would be caused to the respondent if this suspension is continued till the award of the Tribunal under S.25-O(5) that is upto 1-3-2002 on conditions set out in the order.

Voltas Employees Union v. Voltas Ltd. & Anr. 2002 II CLR 140 (Bom.H.C.)

Item 3 Sch. II - Misconduct - Respondent-workman chargesheeted for assaulting his superior officer - Dismissed on being found guilty of the said misconduct - Criminal proceedings were also initiated, in which he was acquitted - In the dispute u/s.10(4-A) of the I.D. Act, the Labour Court set aside the dismissal and directed reinstatement with 50% back wages and litigation costs of Rs.3000/- - In the writ petition filed by the Management, learned Single Judge confirmed setting aside the order of dismissal by the Labour Court, but awarded full wages for the period from the date of award till the date of reinstatement and enhanced the litigation costs from Rs. 3000/- to Rs.10,000/- - In the writ appeal by the Management, the Division Bench observed that departmental proceedings and criminal proceedings can be initiated and can go simultaneously and an order of acquittal in criminal case cannot ipso facto conclude the departmental proceedings - D.B. confirmed the finding that the order of dismissal was not legal, as the Labour Court, on appreciation of material on record, independently came to the conclusion that the misconduct has not been proved - But reduced the litigation costs to Rs.3000/- only as ordered by the Labour Court.

Mysore Paper Mills Limited, Bhadravathi v. G. Shekar alias Gyana Shekharan 2002 II CLR 160 (Karn.H.C.)

Institute of Technology Act, 1961 - S.25 - Appointing Authority Petitioner was in the scale of Rs. 550-Rs. 900 for Post of Junior Superintendent - Director of the Institute not being Appointing Authority under S.25 could not have dismissed the petitioner - Pay Scale of Junior Superintendent was Rs. 350 - 575 in 1961 when the Act was introduced - Considering this and Director being principal Academic and Executive Officer of the Institute, it is necessary to read down said Section 25 and confine it to the pay scale in 1961 when the Act was introduced and therefore order of dismissal passed by Director is legal.

K.N. Chainani v. Indian Institute of Technology 2002 II CLR 29 (Bom.H.C.)

Life Insurance Corporation of India Class III & IV Employees (Promotion) Rules, 1987 - Life Insurance Corporation of India (Promotion) Regulations, 1976 - Eligibility for promotion as Assistant from Record Clerk - Petitioner was record clerk - He passed S.S.C. examination (new course) in April 1979 - By order dated 23-9- 1989, he was promoted as Assistant but by order dated 28-3-1990, he was reverted as record clerk on the ground that he had not passed S.S.C. examination prior to 1979 under old course- Hence this petition - While setting aside the order of reversion, it is observed that, on proper interpretation of the Rules and the Regulations on the point of eligibility of promotion as Assistant, a Record Clerk with five years' experience till 1979 passing S.S.C. examination (irrespective of old or new course) before 1979 is eligible, and as such there was no ground to revert him.

J.T. Chindalia v. Life Insurance Corporation of India & Ors. 2002 II CLR 148 (Bom.H.C.)

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Complaint by recognized union claiming that workmen on whose behalf complaint was filed be made permanent from the date of their first appointment - In the course of proceeding several of the said workmen were made permanent - Said workmen who were made permanent moved the Industrial Court that their names be deleted or they be permitted not to pursue the complaint - That application was dismissed on ground that such an application was not maintainable - It is against the said order that this writ petition is filed - After setting out the issues involved in the complaint, nature of industrial dispute and unfair labour practice alleged on the date of complaint and the controversy involved, it is held that this is not a fit case where extraordinary jurisdiction of High Court can be invoked and hence the petition is dismissed.

Rajendra Zumber Jagtap & Ors. v. Baramati Taluka Sakhar Kamgar Sabha, Someshwarnagar & Ors. 2002 II CLR

137 (Bom.H.C.)

S.44- Industrial Court exceeding its jurisdiction - Respondent No. 1 dismissed from service for overwriting birth date recorded in his service book from 8-12-1931 to 8-12-1934 after domestic enquiry - In complaint of unfair labour practice, Labour Court upheld the dismissal - In revision, Industrial Court held in favour of Respondent No. 1- Hence this petition - While quashing the impugned order of Industrial Court, it is held that Industrial Court, by reappreciating and reassessing entire evidence, has exceeded its limited supervisory jurisdiction under S. 44 of the Act.

Chief Executive Officer, Sangli Zilla Parishad, Sangli v. Shri Rajaram Rau Gavali and Anr. 2002 II CLR 111 (Bom.H.C.)

Item 1 of Sch. IV- Industrial Disputes Act, 1947 - Ss.25-F and 25-G- Petitioner challenged order of his retrenchment on ground of violation of Ss.25-F and 25-G of I.D. Act and therefore unfair labour practice - Labour Court dismissed his claim as also revision petition by Industrial Court - Hence this petition - Held: In the absence of specific pleading and evidence, the plea now raised about short payment of retrenchment compensation cannot be considered in this petition, that there are categoric findings of Labour Court as also of Industrial Court as regards due compliance of Ss.25-F and 25-G and that as such this petition is dismissed.

Prakash Namdeo Patil v. Lonavala Engineering and Casting Pvt. Ltd & Ors. 2002 II CLR 76 (Bom.H.C.)

Item 3 of Sch. IV - Respondent transferred from Vithalwadi to Nashik - He filed complaint of unfair labour practice - After some interim orders which were taken to High Court, order came to be passed that respondent be allowed to join at Bhiwandi and he be paid unpaid wages for the period from 16-6-1993 to 8-8-1994 - In this petition, High Court did not disturb order to allow respondent to join at Bhiwandi but the order of payment of unpaid wages is modified as stated in para 6. High Court further observed that at interim stages, courts should avoid passing vague orders such as "status quo".

Maharashtra State Road Transport Corporation, Bombay & others v. Sanjeev Sadashiv Potnis 2002 II CLR 117 (Bom.H.C.)

Item 9 of Sch. IV - Industrial Disputes Act, 1947 - S.25-F and S.33(1) (a) This group of petitions challenge orders of Industrial Court holding retrenchment of respondents to be illegal and therefore petitioner has engaged in unfair labour practice as alleged - While upholding the orders of the Industrial Court, it is held, following the decision in an earlier similar case reported in 1991 II CLR 736, that there is clear violation of S. 33 (1)(a) of the Act in retrenching respondents in these petitions who are P.W.D. Workers without permission of Conciliation Officer, in spite of the fact that demands of permanency of P.W.D. workers are pending in conciliation and that violation of law amounts to unfair labour practice under Item 9 of Sch IV of the Act.

Executive Engineer, Public Works Department & Anr. v. Parashram Mukunda Malode 2002 II CLR 113 (Bom.H.C.)

Item 9 of Sch IV- Industrial Disputes Act, 1947 -S.9-A- By notice dt. 5-1-1994, petitioner company shifted weekly off Thursday on 27-1-1994 to Wednesday on 26-1-1994- Union did not agree to the same workmen remained absent on 27-1-1994- Company deducted wages for that day- Respondent union filed complaint of unfair labour practice which was allowed and as per that order, petitioner company paid wages which were earlier deducted - Petitioner company filed this petition mainly contending that there was no change in service condition - While allowing the writ petition and setting aside impugned order, it is held following the decision in the case of Mistry Lallubhoy & Co. v. Engineering & Metal Workers Union 1978 Mah.L.J. 480 that an isolated change in weekly off-day did not amount to change in service condition and thus there was no unfair labour practice as alleged.

Bajaj Tempo Ltd. v. Bhartiya Kamgar Sena & Anr. 2002 II CLR 129 (Bom.H.C.)

Payment of Bonus Act, 1965 - S.32(v)(c) - Exemption- Christian Religious Society runs a Medical College and a Hospital - Medicines manufactured and sold to patients by the Hospital, which earns some profit from such sale - In the reference, the Tribunal held that Bonus Act is applicable to the Hospital - Hence this writ petition - Whether the demand for payment of bonus to the workers at 8.33% for the years 1986-87 is justified, if not, to what relief they are entitled to? - Held that Hospital being a separate department of the Society, it exists independent of the College, which is a minority institution and hence exempted - Thus held that provisions of the Bonus Act are applicable to the Hospital - But Act is not applicable to the Medical College.

Christian Medical College and Hospital, Vellore v. The Presiding Officer, Industrial Tribunal, Madras and Anr. 2002 II CLR 69 (Mad.H.C.)

Probationer

Termination - Model Standing Order, Order 2(3)(a) & (b) - Industrial Employment (Standing Orders) Act 1946, S.12-A - Bengal Industrial Employment (Standing Orders) Rules, Rule 10 - Petitioner employed as Assistant on probation by a letter dated 21-12-1982, terminated with effect from 11-12-1983, challenged his termination as illegal, as he had completed more than 240 days of work during the year and he claimed to have been `deemed confirmed' in service - Tribunal held the impugned termination of petitioner to be unjustified - Hence, this writ petition by the employer - management, challenging the validity of the order of the Tribunal - Held that i) the learned Tribunal wrongly came to the conclusion that under the Bengal Model Standing Orders the maximum period of probation may be nine months on the expiry of which the concerned workman is deemed to be confirmed by implication; it is not good law - be set aside. ii) In view of S.12-A of Industrial Employment (S.O.) Act 1946, Model Standing Order cannot have any manner of application after the Certified Standing Order came into operation; Tribunal wrongly relied on Model Standing Orders.

Kusum Products v. State of West Bengal & Ors. 2002 II CLR 264 (Cal.H.C.)

Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 Rule 17 - State Govt. imposed penalty merely on the basis of charge of not fulfilling the target for registering cases under the Excise Act, against the respondent - His promotion was held up - His appeal and review petition to the Govt. were rejected - He filed writ petition challenging the impugned order of penalty - Learned Single Judge in view of the judgment of Division Bench in C.Spl. Appeal No.53/99 directed the respondent department to consider the case of the petitioner for promotion on the persons junior to them by ignoring the penalty of censuring imposed on the petitioner - Hence this writ appeal by the State Government - Division Bench held that subjecting a person for disciplinary proceedings to punish him for mere non- fulfilment of projected target without anything more, does not warrant imposing of any penalty - It only warrants issuing of note of advice - Such imposition of penalty leads to registering increasingly false and non-existent cases to make up statistics - Before an incumbent is held negligent in discharging of his duties, such nexus has to be established - No reason to defer with the order passed by the Learned Single Judge.

State of Rajasthan & Ors. v. Lala Ram 2002 II CLR 186 (Raj.H.C.)

Rajasthan (Recruitment of Dependants of Govt. Servants, dying while in service) Rules, 1975, Secs. 5 and 10 - Appointment on compassionate ground - While in service as a teacher, the father of the petitioner, died - Petitioner a qualified B.E. (Computer), who applied for suitable job, was offered the post of Lower Division Clerk/Assistant Teacher, which he refused to accept- In this writ petition, held that in view of the instructions issued (vide Circular No. F.3 (6)/DOP/ A-II/75 dated 1-4-1989) the petitioner, under Rule 5 of the Rules of 1975, is entitled to get appointment on compassionate ground on suitable post in accordance with his specialised qualification.

Dharmendra Parth v. State of Rajasthan 2002 II CLR 134 (Raj.H.C.)

Rajasthan Service Rules, 1951 - R.244 - Withdrawal of Notice seeking voluntary retirement before it becomes effective - Whether permissible - Appellant in service of respondent government gave notice on 4-11-1996 seeking voluntary retirement with effect from 30-4-1997, but withdrew it on 23-4-1997- Petitioner not allowed to resume his duties on the ground that once the offer of voluntary retirement given under Rule 244 is accepted, the option to retire from service becomes final - Petitioner's writ petition challenging the impugned order was dismissed by the learned Single Judge - Hence this writ appeal - Held that under Sub-Rule 6 of Rule 244 any person who has given notice of retirement, can withdraw it before the expiry of three months or in case any date has been given in the notice before expiry of such date- As per settled law, resignation inspite of its acceptance, can be withdrawn before the effective date.

Madan Lal v. State of Rajasthan & Ors. 2002 II CLR 191 (Raj.H.C.)

Regional Rural Banks Act, 1976 - Service conditions of Employees of Regional Rural Banks vis-a-vis employees of sponsor banks - Government issued notification in compliance with directions of the Supreme Court in an earlier matter - According to employees of RRBs this notification, though purports to be in compliance with directions of the Supreme Court, in effect, it is contrary to and in deliberate violation of the directions of the Supreme Court - As such these interlocutory applications and contempt petitions- Held: The issuance of impugned notification cannot be said to be in compliance with judgment and directions of the Court in earlier matter, but it is not a case of deliberate violation and hence no action against alleged contemnors but fresh directions are issued in the matter.

A.I. Regional Rural Bank Officers Federation & Others v. Govt. of India & Ors. 2002 II CLR 7 (S.C.)

Retirement - Compulsory - U.P.Fundamental Rules - Rule 56 Respondent, an Executive Engineer, is compulsorily retired from service - High Court held compulsory retirement to be not proper as adverse entries or orders are for the period beyond ten years before retirement - In this appeal, Supreme Court set aside High Court's Order by observing that the Government is entitled under F.R. 56 to take into account the entire service record, character roll or confidential report with emphasis on later entries.

State of U.P. & Ors. v. Vijay Kumar Jain 2002 II CLR 1 (S.C.)

Road Transport Corporation Act, 1950 -Sec.45 - Karnataka S.R. Corpn. Servants (Conduct & Discipline) Regulation 1971, Regulations 30 and 35 - Order passed by Disciplinary Authority of dismissal of respondent - Appeal and revision - Held that whenever the employee, who is dismissed from service, prefers the appeal and/or revision as provided in regulations, order of dismissal passed by disciplinary authority merges with that of the revisional authority - Only final order is operative.

Divisional Controller, Karnataka State Road Transport Corporation, Bangalore Central Division, Bangalore v. G.M.D. Murthy 2002 II CLR 162 (Karn.H.C.)

Stipend - Entitlement to - Petitioner completed Diploma in Anesthesia on 20-5-2000 - But remained on leave from 23-10- 1997 to 1-6-1998 - His claim for benefit of stipend for full term was declined by the authorities - Hence this Writ Petition - Held that object of the scheme is to complete it within prescribed term of course and to make available doctors to serve people. Those who complete diploma in 2 years and those who complete it beyond 2 years, cannot be equated and kept at par - If a candidate fails to complete the course within the prescribed period, he is not entitled for the stipend, though he may be permitted to complete the course, but without the benefit of stipend - In the absence of any grounds for his long absence, his claim for stipend is wholly unjustified, unfair, and unreasonable and hence not tenable.

Vijay Goyal, (Dr.) v. State & Ors. 2002 II CLR 190 (Raj.H.C.)

Termination of Service - Assurance that petitioner would be considered when vacancy arises - Post was advertised - Defence is that petitioner had turned down offer - Held that except the bald statement in writ petition, there is nothing on record which may satisfy the Court that the petitioner had in fact made an application for appointment in 1989 when the post was advertised.

Rita T. Verghese v. Headmistress Vidya Mandir English Primary School & Ors. 2002 II CLR 154 (Bom.H.C.)

Illegality of Termination - Reinstatement and Back Wages - Once Labour Court comes to the conclusion that the workman had worked for more than 240 days and termination of service of such workman is without complying with S.25-F or S.6-N of U.P. Industrial Disputes Act the termination is per se illegal and the workman is entitled to reinstatement with back wages.

Prathma Bank v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Pandu Nagar, Kanpur 2002 II CLR 197 (All.H.C.)

Of primary school teacher in primary school receiving grant-in-aid from Municipal Corporation - Petitioner was appointed as Primary Teacher in respondent no. 1 school purely on temporary basis and her service was terminated as per Rule 23 of Grant in Aid Code by giving a month's notice - According to respondent no. 1, the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1978 and Rules of 1986 made thereunder are not applicable and termination is proper - Upholding the defence, it is held that respondent no. 1 school which is primary school recognized by Bombay Municipal Corporation under grant-in-aid code is not covered by the said Act and the Rules.

Rita T. Verghese v. Headmistress Vidya Mandir English Primary School & Ors. 2002 II CLR 154 (Bom.H.C.)

For long absence from 1983 to 1987 - After domestic enquiry High Court held termination of respondent to be grossly disproportionate and directed reinstatement with 50% back wages - In this appeal to the Supreme Court against said order, it is held that High Court should not have interfered with punishment in absence of any lacuna in departmental proceeding, but respondent having been reinstated in pursuance of High Court's order, that part of the order is not interfered with but the order directing 50% back wages is set aside.

State of Rajasthan & Ors. v. Sujata Malhotra 2002 II CLR 16 (S.C.)

U.P. Industrial Disputes Act, 1947 - S.4-K - Industrial dispute Termination of service in the year 1975 and reference made on 14.3.1995 - Argument is that reference made was barred by time - The argument is rejected by following observations made by Supreme Court in the case of Sapan Kumar Pandit v. U.P. Electricity Board 2001 III CLR 16 (S.C.) and further it is observed that once a reference is made it is presumed that the State Government is satisfied that the industrial dispute still subsists and court cannot go behind reference.

U.P. State Electricity Board & Anr. v. Presiding Officer, Labour Court, Varanasi & Anr. 2002 II CLR 198 (All.H.C.)

S.6-N - Case of workman is that his service was terminated without notice and without payment of compensation - Stand of the petitioner employer is that the workman was never appointed and never worked with employer - Labour Court held against the employer and directed reinstatement with continuity of service - Hence this writ petition - Held: Labour Court has recorded a finding that workman has in fact worked for more than 240 days in preceding 12 months and that employer failed to produce relevant documents which would demonstrate if the workman has worked as alleged and in the teeth of these findings, which have not been assailed except the stand taken as above, no interference with the award is not called for under Art.226 of the Constitution.

U.P. State Electricity Board & Anr. v. Presiding Officer, Labour Court, Varanasi & Anr. 2002 II CLR 198 (All.H.C.)

Union Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976 -Regulations 7, 17 and 18 - Powers of appellate authority and reviewing authority in respect of orders of disciplinary authority - Petitioner, an officer of Respondent Bank, is punished, after enquiry, for misconduct - Her Appeal and Review Application came to be dismissed - She challenged by this writ petition original order of disciplinary authority as also of appellate authority - Her application seeking amendment of writ petition to challenge order of reviewing authority came to be dismissed - It is held in this case that the orders of disciplinary authority and appellate authority merged in the order of reviewing authority and that order is only operative order which is not under challenge, the merits of the matter cannot be gone into and the writ petition has to be dismissed on that ground alone.

Radha D. Agarwal v. Union Bank of India and Ors. 2002 II CLR 102 (Bom.H.C.)

Vijaya Bank Officers Employees' (Conduct) Regulations, 1981 Regulation 3(1) read with 24 - "Do nothing which is unbecoming of Bank Officer." - Petitioner is imposed punishment of stopping of one increment permanently after disciplinary enquiry for refusing to accept transfer order and the relieving order - Disciplinary Authority held that the said conduct fell within regulation 3(1) read with Reg. 24- Order is confirmed in departmental appeal - While dismissing the petition it is held that it is not permissible to reappreciate the evidence led in disciplinary proceeding, that action of declining to accept transfer and relieving orders issued by higher authorities is clearly unbecoming of a Bank Officer and clearly falls under 3(1) of the Regulations and that the punishment imposed is not totally disproportionate or harsh.

S. Baburaya Naik v. Vijaya Bank & Ors. 2002 II CLR 151 (Bom.H.C.)

Workmen's Compensation Act, 1923 - S.3 - Compensation - Claim for - Denied by the Commissioner on the ground that it is not proved that at the time of the accident, deceased Khalasi/Gangman was on duty - In this appeal by his heirs/claimants held that admittedly the deceased was on leave, but on fateful day he was to resume his duty to work as Khalasi to lay earth at Railway Track - Accident took place at Railway Track of Railway Station where he was cut in Railway yard by passenger train - Railway authorities have not made out a case that before joining duty, deceased was to report to same officer, after which he was to be assigned work - Thus held that deceased was on duty at the time of accident and his heirs i.e. claimants are entitled to compensation.

Dilip Singh v. General Manager, Central Railway, Mumbai & Ors. 2002 II CLR 25 (M.P.H.C.)

S.4 - Compensation - Respondent the conductor in dumper truck, sustained injuries during the course of employment - The Medical Certificate mentioned that he is unfit for the job of conductor - The Commissioner for Workmen's Compensation awarded the Compensation of Rs. 1,83,708/- - In this appeal filed by the Insurance Co. challenging the said award, - Held that due to the said accident earning capacity of the respondent-claimant has been affected to the extent of 100% - Considering the fact that he was 50 years of age at the relevant time and earning Rs.2000/- P.M. the compensation was rightly awarded by the Commissioner.

Oriental Insurance Company v. Mani Ram & Anr. 2002 II CLR 24 (M.P.H.C.)

S.4 - Determination of Compensation Deceased Khalasi employed with Railway drawing monthly salary of Rs. 1006/- met with accident and died - Claim for compensation denied on the ground that it is not established that he was on duty - In this appeal held that he was on duty - Also held that taking his monthly income of Rs. 1006/-, 40% of which comes to Rs. 400/- multiplied by relevant factor of 203.85 i.e. Rs.81,540.20 awarded as Compensation to claimants alongwith 50% penalty and interest at the rate of 6% P.A.

Dilip Singh v. General Manager, Central Railway, Mumbai & Ors. 2002 II CLR 25 (M.P.H.C.)

Sec.4 - Employment injury - Award of compensation for - Employer and Insurance Co. challenge herein the order passed by the Commissioner for Workmen's Compensation, granting compensation, holding that there is total permanent disablement of 100%, though the doctor had assessed the loss of earning capacity at 55%- Held that compensation is to be awarded not with reference to the loss of physical capacity but with reference to the earning capacity, which is to be examined with reference to nature of job workman was doing and on the basis of medical evidence - Affected party can prove that conclusion reached by the medical practitioner is vitiated and ask the Commissioner to depart from medical certificate for valid reasons - In the instant case due to the injury sustained by the workman employed as lorry loader, he is permanently disabled from performing his work, as he cannot stand or walk without support, nor bend his knees- as such loss of earning capacity, has been rightly arrived at 100% by the Commissioner, though it is only 55% as per the medical certificate.

G.V. Venkatesh Babu and another v. Krishna Kumar 2002 II CLR 55 (Karn.H.C.)

S.30(1) 1st Proviso 2(1), 4(1) - Respondent workman - A khalasi, claimed compensation of Rs.1,11,355/- on account of the injuries sustained by him due to accident which occurred during the course of his employment - The Commissioner for Workmen's Compensation, on recording the evidence, awarded the claim for compensation - Hence this Appeal u/s.30 (1) of the Act by the Insurance Co., challenging the said award of compensation - Held that (i) by the Amendment Act 22 of 1984, a special provision is introduced for assessment of loss of earning capacity of the workman by a