Judgments on Labour Laws

ADMINISTRATIVE TRIBUNALS ACT, 1985—

Section 19—Writ petition—Alternative remedy—Maintainability of petition —Petition before High Court directly without availing alternative remedy—Therefore, not maintainable—Dismissed., 2019 (163) FLR (Alld. H.C.) (Sum.) 7

ALLAHABAD HIGH COURT RULES, 1952—

Chapter VIII, Rule 5—Special appeal—Award passed by CGIT awarding appointment to kin of R. from date of his retirement with all consequential benefits—Proceedings before Single Judge arose out of Award by Tribunal—Special appeal—Issues can be raised before Single Judge—Preliminary objection accepted—Appeal dismissed., 2019 (163) FLR (Alld. H.C.) 783

APPOINTMENT AND SENIORITY—

Learned Single Judge allowed the writ petition—Division Bench remitted the matter to Single Judge for moulding the relief—Hence, the present appeal by petitioner—Held, the Division Bench should have consider the appeal(s) on merits by deciding on the correctness of the judgment of learned Single Judge, instead of remitting the matter—Appellant would be entitled to get appointment only w.e.f. 1.8.2018 without giving any benefit of seniority—However, it would not be treated as a precedent—Appeals disposed of., 2019 (163) FLR (S.C.) (Sum.) 4

APPOINTMENT—

Appellant sought a mandamus before High Court to treat his ad hoc appointment as an appointment on permanent basis and for direction to release his salary—Dismissal—Legality—Appellant appointed purely on ad hoc basis in a leave vacancy in institution—Therefore, on death of regularly appointed candidate—Leave vacancy ceased to exist—Thus, once a substantive vacancy arose it was required to be filled up in accordance with law—Appellant had no right or entitlement—To claim that his appointment on an ad hoc basis in leave vacancy should be converted into substantive appointment—Therefore, view taken by High Court cannot be faulted with—However, direction issued to fill up post on a regular basis expeditiously—Appellant, having regard to facts and circumstances of case allowed to continue purely on ad hoc basis until a regularly appointed candidate selected—Salary of appellant ordered to be paid for the period he works until appointment of a regular candidate—Appeal disposed of.

, 2019 (163) FLR (S.C.) 510

APPOINTMENT—

—Post in Rajasthan Prosecution Subordinate Service—272 posts advertised—Petitioner ranked at 68th position—Denied appointment on ground that he was convicted for committing offence punishable under section 307, I.P.C.—In a case where charges are not of trivial nature and the candidate has been convicted—Employer has discretion to cancel the candidature—Order granting stay of conviction of petitioner does not discuss merits of the appeal—High Court stayed conviction on sole fact that petitioner has cleared the selection and if stay was not granted, he would be deprived of appointment—Such an order of stay of conviction can hardly inure in favour of a candidate who is convicted of an offence and his appeal has not been decided—No discussion that appellant has a strong prima facie case in his appeal—Order of the State denying appointment to petitioner reasonable—Impugned order and directions of the single Judge set aside—Writ petition dismissed., 2019 (163) FLR (Raj. H.C.) 73

ARMED FORCES TRIBUNAL (PROCEDURE) RULES, 2008—

Rule 18—Constitution of India, 1950—Article 226—Petition—To declare Rule 18 as ultra vires—Sustainability of—Central Government had legislative competence to make said Rules—There was neither any violation of rights guaranteed under Constitution of India—Nor any provisions of Constitution of India violated— Further, neither Central Government failed to conform to statute under which rules made—Nor exceeded limit of authority—Rule 18 of Rules, 2008, thus, not repugnant to law of land—No manifest arbitrariness or unreasonableness in not giving any power to condone delay to Tribunal while reviewing its judgment—Thus, none of the grounds raised by petitioner seeking to challenge Rule 18 of Rules, 2008 within parameters of grounds laid down by Hon’ble Supreme Court to challenge vires of Rule—Petition dismissed.

, 2019 (163) FLR (Alld. H.C.–L.B.) (Sum.) 21

ARMED FORCES TRIBUNAL (PROCEDURE) RULES, 2008—

—Rule 18—Review—Application for—Delay condonation—Power of Tribunal—Specific bar to an application for review being entertained—Unless review filed within 30 days from date of receipt of copy of order sought to be reviewed—Thus, no power to condone delay in filing a review application given to Tribunal—Petition dismissed., 2019 (163) FLR (Alld. H.C.–L.B.) (Sum.) 21

AWARD—

Appellants/workmen were appointed on a contingent basis as “Nursing Orderlies”—For period of 89 days to Group-D posts on a daily wage basis on 29.11.2011—By Medical Superintendent MBH—Appellants filed application before CAT seeking regularization which was dismissed on 29.4.2003—More than two years thereafter their services terminated “on basis of last come first go policy”—By award, it was held that services of appellants had been terminated abruptly without following procedure and in violation of section 25-F of I.D. Act—Single Judge set aside the award—However, impugned orders of Single Judge are hereby set aside and award holding the termination to be bad in law is hereby restored with backwages., 2019 (163) FLR (Del. H.C.) 1065

AWARD—

—Challenged—Controversy is for regularisation of services of respondents—Respondents were engaged on temporary/work charge basis with the petitioner institution—As the respondent number 7, State Government impleaded herein was not impleaded as party before Labour Court—As such this Court cannot exercise jurisdiction of original authority—Therefore, respondent No. 7, be impleaded as party in the case and same shall be decided after affording opportunity to it—Impugned award is set aside—Matter is remitted back to Labour Court to decide afresh., 2019 (163) FLR (Utt. H.C.) 990

AWARD—

—Delay and laches in challenging it—Delay of 4-1/2 years in challenging it by Management—Writ Court condoned the delay, without recording any reasons—Condonation of delay—Set aside., 2019 (163) FLR (P&H H.C.) (Sum.) 17

AWARD—

—Ex parte award—Challenged by petitioner—Ex parte award passed by Tribunal against the petitioner-employer—Set aside in petition—And matter is remanded back to Tribunal to decide it afresh—After affording opportunity to petitioner-company and to workman., 2019 (163) FLR (H.P. H.C.) 1053

AWARD—

—Judicial review—Workman appointed as Beldar—Carried out work as Laboratory Assistant—But pay-scale of said post not given—Work of Laboratory Assistant at relevant time was not being taken from workman—Hence, award allowing claim of workman—Was illegal and contrary to evidence on record hence set aside., 2019 (163) FLR (Alld. H.C.) 204

AWARD—

—Modification of award passed by Labour Court/Tribunal—Sought by petitioner-Union—To the extent that workmen be granted full back wages—It could not be said that there was no evidence on record of unemployment of

AWARD—

workmen during period they were disengaged by management—This important aspect has been ignored by Tribunal—Hence, this petition is allowed and award is modified to the extent that workmen are held to be entitled to back wages—However, at the time of execution the management can bring the fact of settlement by some workmen to the notice of the Executing Court., 2019 (163) FLR (H.P. H.C.) 295

AWARD—

—Once the award interfered with by this Court and modified in a writ petition by way of a judgment/order—Award stands merged with order of this Court rendered in writ petition—It would apply on good and sensible analogy if not in stricto sensu., 2019 (163) FLR (Alld. H.C.) 812

AWARD—

—Order passed by Labour Court—High Court upheld the award passed directing reinstatement of workman in service—As the respondent has worked for more than 240 days and it is held that he was entitled for protection of labour laws—Being a finding of fact the Court is not inclined to interfere—State failed to produce any evidence before Labour Court—Labour Court had no option but to proceed ex parte against the State and to pass award on basis of evidence led by workman—Hence, appeal dismissed., 2019 (163) FLR (S.C.) 641

AWARD—

—Passed by C.G.I.T.—Holding that the workman is entitled to continue in service till the date of superannuation according to Matriculation certificate and to get all the benefits in the manner as he is continuing in service till that date—Challenged by writ petition—Matriculation certificate issued prior to the date of employment shall be treated to be correct—Employer has no other alternative but to accept the said certificate to be true and correct—Tribunal was justified in accepting the date of birth recorded in Matriculation certificate to be valid—Award also does not suffer from any perversity—Petition therefore, dismissed.

, 2019 (163) FLR (Cal. H.C.) 448

AWARD—

—Passed by Labour Court, ordering reinstatement of respondent No. 2 with continuity of service and all benefits including the wages from the date of award—Respondent No. 2 was a watchman in corporation on 21.7.1983 and continued till 9.8.1985—Labour Court has rightly held that once respondent No. 2 was discharging his services regularly—Then his abandoning services on 10.8.1985 cannot be a reasonable cause of his services coming to an end—Hence, compensation granted to respondent No. 2 in lieu of relief given in impugned award—Upholding the relief given to respondent No. 2 vide award—Relief of reinstatement is substituted to compensation of ` 1,00,000/-., 2019 (163) FLR (Raj. H.C.–J.B.) 172

AWARD—

—Passed by Labour Court—By impugned order dated 28.8.2014—Holding that respondent-employees fall under category of permanent employees and they are entitled for all benefits for same—Labour Court has erred in accepting the version of respondent-employees and also erred in drawing adverse inference against the corporation—Impugned award is therefore, legally unsustainable on other grounds also—Findings returned by Labour Court are based upon no legal admissible evidence and are wholly perverse—Cannot be sustained., 2019 (163) FLR (Alld. H.C.) 207

AWARD—

—Passed by Labour Court—Challenged by petitioner daily wager—In the award respondent has referred to a copy of service book produced by petitioner, wherein period of working mentioned w.e.f. November, 1989 to August, 1991—He has also referred to documentary evidence filed by Department and oral statements—Petitioner was not retrenched or illegally terminated—Petitioner could not prove that he had worked for 240 days—Petitioner could not prove his allegations regarding his juniors having been retained—Hence, the award passed by Labour Court being well reasoned—Cannot be said to be illegal and arbitrary.

, 2019 (163) FLR (Alld. H.C.–L.B.) 535

AWARD—

—Passed by Labour Court-cum-Industrial Tribunal—Awarding a lumpsum compensation of ` 50,000/- in favour of workman in lieu of back wages, seniority, past service benefit as well other consequential service benefits—Challenged by petitioner workman—Respondent failed to prove abandonment of job by workman—He has actually worked for 416 days and after termination fresh hands were engaged, despite petitioner being available for job—However, workman issued notice after 14 years of alleged retrenchment—Labour Court can award compensation even if there is delay in raising the dispute—Labour Court rightly awarded compensation—No reason found to interfere with., 2019 (163) FLR (H.P. H.C.) 1056

AWARD—

—Passed by Labour Court—Dismissal from service was subject-matter of challenge before Labour Court—Which was dismissed by Labour Court—Labour Court has rightly rejected his claim of reinstatement without back wages, keeping in mind the dishonest nature of petitioner—Even though domestic enquiry not conducted properly—Labour Court has rightly rejected his application under section 10-4 (A) of Act—No interference required with.

, 2019 (163) FLR (Kar. H.C.–K.B.) (Sum.) 12

AWARD—

—Passed by Labour Court—Dismissing the industrial dispute and connected cases by a common award—With a finding that the petitioner joined and worked under the company through contractors—And the contractors paid wages and the employees contribution and there was no relationship of employer-employee between the company and petitioner—And petitioner cannot seek any relief against the company as he has worked only under contractors engaged by company—Award challenged by the petitioner—However, principal employer cannot be required to order absorption of contract labour working in concerned establishment—There is no existence of employer-employee relationship between petitioner and third respondent—There is no error in applying the law prevailing as of now—Labour Court has rightly relied upon the legal principle settled by the Supreme Court—Common award passed by Labour Court is confirmed and writ petition dismissed., 2019 (163) FLR (Mad. H.C.) 953

AWARD—

—Passed by Labour Court—Holding that the workman was not entitled for any relief—As there was no evidence on record to demonstrate that the workman was employee of management/respondent—However, as the petitioner failed to establish relationship of master and servant between him and the respondent-corporation—It cannot be said that the Court below has erred in not granting relief is his favour—Accordingly, this petition challenging the award in dismissed—Industrial Disputes Act, 1947—Section 25-F., 2019 (163) FLR (H.P. H.C.) 704

AWARD—

—Res judicata—Labour Court has fully misdirected itself by considering a non applicable decision of Apex Court in matter in respect of res-judicata.

, 2019 (163) FLR (Cal. H.C.) 387

AWARD—

—Resignation by workman—In view of settlement arrived at between parties—However, in view of evidence of workman and W.W. 2, the impugned award, so far it directs payment of ` 1,44,677 with interest—Has no basis and evidence—Cannot be sustained and set aside—Hence, the impugned award is modified accordingly., 2019 (163) FLR (Del. H.C.) (Sum.) 8

AWARD—

—Termination of petitioner, a casual worker, daily wager engaged for temporary work—No retrenchment compensation paid—Section 25-F of I.D. Act not complied with—He has worked for 240 days in a year preceding his termination—There is gap of 21 years since his termination—Hence, the award of lump-sum compensation in lieu of reinstatement—Enhanced to ` 10,000/- from ` 50,000/-., 2019 (163) FLR (Guj. H.C.) (Sum.) 10

AWARD—

—Workman was dismissed from service after conducting enquiry—No opportunity of cross-examination of witnesses of management given to workman—Enquiry Officer himself became prosecutor—No notice to workman of enquiry—Enquiry is therefore, vitiated—Dismissal order therefore set aside—Findings of Labour Court are perverse—New facts introduced not on record and considered by Labour Court—Hence, matter remanded back to Labour Court for disposal afresh—Award set aside., 2019 (163) FLR (P&H H.C.) 164

AWARD—

—Writ petitions filed by both the workman and the management—Challenging the award—Workman daily rated salesman with Management and had rendered 25 years of service—He was dismissed on misconduct and on charges of causing loss to assets of stores and failed to maintain integrity and devotion to duty—The management having slept over for decades, awakened from slumber and issued charges against workman—Charges are not established in domestic enquiry—Labour Court ought to have granted reinstatement with full back wages—Hence, the workman was not guilty at all—This Court cannot reappreciate the evidence and came to different conclusion., 2019 (163) FLR (Mad. H.C.) 307

BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976—

Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979—Central Sector Scheme for Rehabilitation of Bonded Labourers, 2016—Writ Petition (PIL) filed—By inviting attention of Court to violation of international law obligations—Commitment of Central Government is to fulfill the obligation under the Scheme—District Magistrates are required to submit the claims for release of funds under the Scheme—Even this has not been done—As such the Secretary is directed to ensure the Constitution of Committee and nominate the Inspector under the Scheme—Entire process for enforcing and providing benefits under Schemes and Act, be completed within one month.

, 2019 (163) FLR (Tri. H.C.) 361

CHILD AND ADOLESCENT LABOUR (PROHIBITION AND REGULATION) ACT, 1986—

Section 10—Writ petition—Against the order passed by Dy. Labour Commissioner, imposing penalty upon petitioner and recovery certificate issued for—Complaint filed alleging that petitioner was found employing one child labour—Who was medically examined and his age determined as 21 years but it was not considered by Dy. Labour Commissioner—Alleged child was not examined by Medical Board—Inspector has committed manifest error—Hence, the order imposing penalty would be vitiated and cannot be sustained—Set aside.

, 2019 (163) FLR (Alld. H.C.–L.B.) 224

CHILD AND ADOLESCENT LABOUR (PROHIBITION AND REGULATION) ACT, 1986—

—Sections 14 and 11—Child and Adolescent Labour (Prohibition and Regulation) Rules, 1988—Rule 17—Conviction—Revision—In the complaint case except photocopy of alleged inspection memo, no other document was filed by complainant before the Court below—Mandatory provisions of Rule 17 of Rules not complied with to ascertain the age of child labourers—Consequently there was no material to ascertain the age of child labourers—Prosecution could not prove the age of alleged child labourers employed by accused—The accused-revisionist cannot be held guilty of offence alleged against him— Place of commercial organization of revisionist could not be specifically established by complainant—Conviction and sentence awarded to revisionist is set aside., 2019 (163) FLR (Alld. H.C.) 214

CIVIL PROCEDURE CODE, 1908—

Section 24—Transfer of case—High Court cannot pass orders transferring case pending before Court subordinate to it—To another Court subordinate to different High Court., 2019 (163) FLR (Bom. H.C.–A.B.) (Sum.) 7

CIVIL SERVICE REGULATIONS—

Regulations 351, 351-A and 351-AAA—Two provisions for withholding or withdrawing pension in Regulation 351, 351-A and 351-AAA come into play where Government servant is convicted in a crime or found guilty of misconduct and not mere pendency of any departmental or judicial proceedings—Gratuity is ordinarily included in pension as one of its component otherwise separate from it—A Government employee not entitled to death-cum-retirement gratuity till conclusion of departmental proceedings—Law laid down in Jai Prakash is the correct law., 2019 (163) FLR (Alld. H.C.–F.B.) 272

COLLECTION AMIN—

Relaxation in age—Regularisation—U.P. Collection Amin Service Rules, 1974—Rule 31—Rule 31 confers power upon the Government to relax any Rule regarding “Conditions of Service” if it is causing any undue hardship in a particular case—Power of framing rules is in respect of “recruitment” and conditions of service—Recruitment rules are applicable upto the stage of appointment—Once the person is appointed the rules relating to continuance in service become applicable—In the present case since power has been conferred upon the Government only to relax rules relating to conditions of service, rules pertaining to age cannot be relaxed—When rules applicable to concerned service do not empower the Government to relax rules pertaining to recruitment any direction to Government to pass a speaking order on represention of employee seeking relaxation in rules pertaining to recruitment would not be justified—Impugned judgment of the Single Judge cannot be sustained—Appeal allowed.

, 2019 (163) FLR (Alld. H.C.) (Sum.) 7

COMPASSIONATE APPOINTMENT—

Claimant petitioner was married but marriage was dissolved by decree of divorce—If on the date of claim for compassionate appointment, the daughter is not married, she could fulfil the eligibility criteria—State cannot reject application on ground that she was married and not unmarried., 2019 (163) FLR (Raj. H.C.) 758

COMPASSIONATE APPOINTMENT—

—Fundamental principle—There is no inherent right to obtain a compassionate appointment—However, compassionate appointment has to be in accordance with existing policy—In this case, application for compassionate appointment considered under new policy and options available offered to respondent—And offer of solatium could be only remedy available at this stage—Solatium of ` 5 lakhs be paid to respondent., 2019 (163) FLR (S.C.) 636

COMPASSIONATE APPOINTMENT—

—Hindu Adoptions and Maintenance Act, 1956—Section 16 (2)—Compassionate appointment claimed on the ground of adoption—Held, deed of adoption had not been appended alongwith writ petition or the special appeal—Learned Single Judge rightly dismissed the writ petition—No merits in the appeal—Dismissed., 2019 (163) FLR (Alld. H.C.) (Sum.) 5

COMPASSIONATE APPOINTMENT—

—Rajasthan State Road Transport Corporation Compassionate Appointment Regulation, 2010—Regulation 4(3)—Declared—Declared by the High Court as violative of Article 14 of Constitution of India—Appeal—Apex Court is not in agreement with judgment passed by High Court—Two categories of dependents cannot be treated as equals—Regulation 4(3) is not violative of Article 14 of Constitution—Respondent has received compensation under the Act—He is not entitled for compassionate appointment under Regulations., 2019 (163) FLR (S.C.) 824

COMPASSIONATE APPOINTMENT—

—University granted temporary appointment to the petitioner—Learned Single Judge allowed the petition—Hence the present special appeal by the University COMPASSIONATE APPOINTMENT—

—Held, learned Single Judge had recorded cogent reasons—Impugned judgment and order did not suffer from any infirmity or illegality—Special appeal lacked merit—Dismissed., 2019 (163) FLR (Alld. H.C.) (Sum.) 6

COMPENSATION—

Employee’s Compensation Act, 1923—Deceased was on duty as driver—And taking load of iron—He was in continuation of his job and taking rest under a tree—He suffered a heart attack and died—Death was due to strain in discharging duty of driver—Commissioner has rightly awarded compensation.

, 2019 (163) FLR (Kar. H.C.) (Sum.) 13

COMPENSATION—

—Order passed by Commissioner, and awarded compensation of ` 3,38,880/- with interest @ 12% to respondents—Respondents No. 1 to 10 are widow mother, four sons and four daughters of deceased—Who was working as a cleaner/helper with respondent No. 11 on his vehicle—And died due to work stress arising out of and during course of his employment—When he was unwell and compelled to go an out of station duty—Therefore, the legal representatives of deceased are entitled for compensation—There is no merit in appeal which is dismissed., 2019 (163) FLR (Del. H.C.) 268

COMPULSORY RETIREMENT—

As punishment—For misconduct—Order of Tribunal holding departmental inquiry as vitiated not challenged by petitioner—And inquiry once held vitiated, Tribunal has jurisdiction to determine guilt and punishment both—Tribunal found that charges not proved—Hence, Tribunal has directed reinstatement with full back wages and all consequential benefits—Award requires modification and modified to 50% of back wages., 2019 (163) FLR (Alld. H.C.) (Sum.) 5

CONFIDENTIAL REPORTS—

Challenged in the appeals—Is the order passed by Armed Forces Tribunal directing the appellants that facts should be correctly entered in reports and A.C.R. be expunged as a whole—However, direction of Tribunal to correct the After Action Report or other reports—Cannot be sustained—And therefore set aside—Reports prepared during action and after war are confidential—Tribunal or the Court is not the Authority to appreciate the historical facts., 2019 (163) FLR (S.C.) 634

CONSTITUTION OF INDIA, 1950—

Article 21—Speedy justice—Is one of the fundamental rights of a person—As guaranteed under Article 21 of Constitution of India—Deciding a preliminary issue will waste the valuable time of the Court., 2019 (163) FLR (Utt. H.C.) 342

CONSTITUTION OF INDIA, 1950—

—Article 226—Companies Act, 2013—Section 178—Quashing of charge-sheet—Petition for—Sustainability—Section 178 of Act, 2013 has no role to play with respect to initiation of disciplinary proceedings—It will come into picture only at time of imposition of penalty—Thus, M.D. and CEO clearly empowered and authorised under delegation of authority as well as standards of conducts and performance of H.R. Policy (P.L.L.)—To initiate disciplinary proceedings including issuance of charge-sheet and appointment of Inquiry Committee against petitioner, an Officer of President level and senior most permanent employee of company Petronet (LNG—However, CVC directed to initiate enquiry into allegations made by petitioner., 2019 (163) FLR (Del. H.C.) 604

CONSTITUTION OF INDIA, 1950—

—Article 226—Employees’ Provident Funds and Miscellaneous Provisions Act, 1952—Writ petition—Seeking early disposal of representation for payment EPF dues in instalments—No objection raised by Standing Counsel—EPF Authority is directed to consider such request—However, no coercive step shall be taken by EPF Authority., 2019 (163) FLR (Ker. H.C.) 509

CONSTITUTION OF INDIA, 1950—

—Article 226—Payment of Gratuity Act, 1972—Sections 2(s), 4 and 7—Claim of Gratuity—Withholding of—Petitioner is employee of respondent-company—Petitioner is entitled to gratuity amount—Which cannot be withheld under any circumstances—Financial hardship cannot be a ground to withhold emoluments

CONSTITUTION OF INDIA, 1950—

of an employee—Under the circumstances, respondents are directed to positively disburse the remaining amount of gratuity to petitioner—Petitioner shall be entitled to all statutory interest., 2019 (163) FLR (Tri. H.C.) 359

CONSTITUTION OF INDIA, 1950—

—Article 226—Quashing of ex parte report of Inquiry Committee and charge-sheet—Petition for—Maintainability of petition—Respondent company a ‘Public Limited Company’—Company formed as joint venture company by Government—Thus, is an instrumentality of Government coming under perview “other authorities” of “State”—Therefore, petition maintainable., 2019 (163) FLR (Del. H.C.) 604

CONSTITUTION OF INDIA, 1950—

—Article 226—Writ petition—Against order passed by Controlling Authority—No reason found to issue writ of certiorari—Writ Court having very limited jurisdiction., 2019 (163) FLR (Jhr. H.C.) 1040

CONSTITUTION OF INDIA, 1950—

—Article 226—Writ petition—Filed after the suit was dismissed in default—Hence, filing of writ petition, without mentioning anything about the suit—Amounts to suppression of material facts—Writ petition is liable to be dismissed on that ground alone., 2019 (163) FLR (Ker. H.C.) 253

CONSTITUTION OF INDIA, 1950—

—Article 226—Writ petition—Filed against impugned order passed by Chairman, U.P. Industrial Co-operative Association —Cancelling its earlier order—Appeal cannot be assumed, hence appellate order passed by Chairman on 28.8.1998 treating representation as an appeal was wholly without jurisdiction—It has rightly been cancelled by subsequent order—No illegality found in impugned order to justify interference—Having set legal position straight—Still this Court declines to interfere where equity justifies the same—Hence, the Court unable to interfere with impugned order—And petition dismissed., 2019 (163) FLR (Alld. H.C.) 178

CONSTITUTION OF INDIA, 1950—

—Articles 226 and 12—2nd respondent is a company under Companies Act—Government of Uttarakhand does not own any share in company—Employees of company are governed by Industrial Employment (Standing Orders) Act, 1946 and U.P. Industrial Employment Model Standing Orders, 1991—2nd respondent is rightly held as not an instrumentality of State under Article 12 of Constitution—It is a private Limited Company carrying on business.

, 2019 (163) FLR (Utt. H.C.) 768

CONSTITUTION OF INDIA, 1950—

—Article 227—Jurisdiction under—Is a limited jurisdiction—Power is akin to that of an ordinary Court of appeal—Yet the power under Article 227 is intended to be used sparingly—Unless the three ingredients established, Court should be loath to exercise such jurisdiction., 2019 (163) FLR (Utt. H.C.) 341

CONTRACT LABOUR (REGULATION AND ABOLITION) ACT, 1970—

Sections 7, 12 and 23—Award—Passed by Labour Court, Pondicherry—Held, that in absence of valid contract, the workers doing house keeping work will be treated as workers of petitioner—They are not regular workers of petitioners but Labour Court directed petitioner to continuously engage the said workers—However, if management or contractor has violated provisions of Act, the person who violates can be prosecuted—Labour Court erred in directing the petitioner to give continuous work to said workers—Impugned award is therefore, set aside—Petition Allowed., 2019 (163) FLR (Mad. H.C.) 154

CONSTITUTION OF INDIA, 1950—

—Section 10—Constitution of India, 1950—Articles 226 and 227—Order passed by Single Judge challenged in this Letters Patent Appeal by petitioner-workers’ Union representing the contract labourers engaged by respondent Essar Steel Ltd.—And had prayed the respondent Government to reconsider the question of prohibition of contract labour system in all 38 trade activities and refusing to prohibit the contract labour system in three activities and declaring the same to

CONTRACT LABOUR (REGULATION AND ABOLITION) ACT, 1970—

be contrary to law and in violation of principles of natural justice, arbitrary and capricious—However, it is held that the action under section 10 of Act is a quasi legislative action—There is no need of observing principles of natural justice—And principles of natural justice cannot be said to have been violated so as to vitiate the proceedings before the authority—Hence, appeal is liable to be dismissed., 2019 (163) FLR (Guj. H.C.) 551

CONSTITUTION OF INDIA, 1950—

—Sections 10 (1) and (2)—Notification dated 7.2.2011—Challenged by petitioner-management—By notification the State cancelled the contract labour system in KPCL/ESOM in shift engineers/operators division—In issuing notification, there is non-compliance of statutory provisions of section 10(1) and (2) of Act—In absence of any ingredients in criteria as mentioned in section 10 of Act—Hence, the notification dated 7.2.2011 is set aside., 2019 (163) FLR (Kar. H.C.) 706

CONTRACTUAL APPOINTMENT—

Appointment of Anganbari Karyakatri on contract basis—Since appointment of petitioner governed by executive order or Scheme launched by Government—Therefore, such an appointment does not confer any status upon appointee.

, 2019 (163) FLR (Alld. H.C.) (Sum.) 23

CRIMINAL PROCEDURE CODE, 1973—

Section 482—Employees’ Provident Funds and Miscellaneous Provisions Act, 1952—Indian Penal Code, 1860—Sections 406 and 409—Employees’ Provident Funds Scheme, 1952—Para 38—Petition under section 482 seeking quashing of FIR registered under section 406 and 409 IPC—If there is delay in registration of FIR—It makes out no ground for quashing FIR and registration of FIR is not a misuse of process of law., 2019 (163) FLR (P&H H.C.) 753

DAILY WAGER—

Claim of benefit of permanency—Award—Claimants have worked with appellants for more than 17 years—Have worked for more than 240 days—Hence, Tribunal and Single Judge rightly held that claimants are entitled to benefit of permanency—Law laid down by Apex Court relied upon., 2019 (163) FLR (Guj. H.C.) 134

DAILY WAGER—

—Daily rated watchman if reinstated and working—Competent Authority to decide claims of workmen for regularization in order to curb further litigation—He is not entitled for back-wages nor for gratuity—On principle of “no work no wages”., 2019 (163) FLR (Bom. H.C.) 19

DEARNESS ALLOWANCE—

Payment of—By judgment and order under appeal High Court has held that there was no justification for making a distinction between pre-November, 2002 retirees and post- November, 2002 retirees and the appellant must pay dearness relief to all petitioners at same rate—However, the Supreme Court held that both categories of retirees, namely Pre-November, 2002 and post-November, 2002, stand on different footing—Parameters which govern the computation of dearness relief are also on different level—Decision rendered by High Court failed to appreciate these aspects and the decisions are completely erroneous—Assessment made by Madras High Court was absolutely correct., 2019 (163) FLR (S.C.) (Sum.) 20

DISABILITY PENSION—

Army Act, 1950—Army Rules—Rule 13(3)—Discharge from military service under Rule 13(3) of Army Rules—On account of being placed in low medical category—Disability pension denied—Denial of disability pension to appellant was misconceived—Disability element already been rounded off—Hence, appellant shall be granted arrears of disability pension in applicable rates.

, 2019 (163) FLR (S.C.) 828

DISCHARGE—

Transfer of petition against discharge—Transfer application filed by appellant dismissed by Armed Forces Tribunal—Order challenged—Appellant was enrolled in Army on 26.4.1991—His matriculation certificate was found not genuine—He was discharged from service on 10.7.1993—Exoneration in a Summary Court Martial is not a bar for initiation of proceeding for discharge—Appellant does not possess the requisite educational qualifications—He cannot be confirmed in service—Therefore, he has been rightly discharged from service—Army Act, 1950—Sections 44 and 20(3)—Army Rules—Rule 13.

, 2019 (163) FLR (S.C.) 822

DISCIPLINARY INQUIRY—

Penalty of stoppage of one grade increment with cumulative effect—It is a case of discrimination—Co-employees have been exonerated—Appellant has been unduly penalised by award of penalty—Hence, impugned award cannot be said to be unjustified or illegal—Single Judge wrongly set aside the award passed by Labour Court—Hence, impugned order passed by Single Judge set aside—Appellant is entitled to all consequential benefits and interest @ 6%.

, 2019 (163) FLR (Raj. H.C.–J.B.) 1007

DISCIPLINARY PROCEEDINGS—

Services of petitioner terminated—For misconduct based on report of Enquiry Officer—Procedure in enquiry—Department has to establish charges against employee by adducing evidence oral and documentary—After receiving reply from petitioner—No date time or place for oral enquiry fixed—Two persons without any examination in chief, were allowed to be cross-examined by petitioner—Procedure applied for disciplinary enquiry was illegal—Hence, disciplinary enquiry declared as illegal—Impugned order is set aside—Petitioner shall be entitled to all consequential benefits., 2019 (163) FLR (Alld. H.C.) 771

DISMISSAL—

As punishment—2nd respondent was dismissed from service by petitioner-Management—Reference—Labour Court interfered with punishment impose on workman by Award—Directed reinstatement of 2nd respondent as interim measure and payment of salary—Award passed by Labour Court vitiated so far as it directs reinstatement with consequential benefits and for payment of 50% backwages—Permitted recovery of loss from dues of employee—If such recovery has been made, same shall not be returned by the Mill—Choice and quantum of punishment is within jurisdiction of employer—Petition partly allowed.

, 2019 (163) FLR (Alld. H.C.–L.B.) 421

DISMISSAL—

—From service—After holding ex parte enquiry—On ground of unauthorised leave, absence—Implicated in criminal case—Reported for duties after granting bail—Convicted by Trial Court but acquitted in appeal—Appellant was gainfully employed and superannuated—Hence, Labour Court has rightly held that it is a fit case for compensation—No error apparent on face of record of infirmity or any jurisdictional error found—Hence, appeal dismissed—Order passed in writ petition is confirmed., 2019 (163) FLR (Mad. H.C.) (Sum.) 14

DISMISSAL—

—From service—By disciplinary authority—Of petitioner/ temporary worker from service—On ground of submitting false, forged document of educational qualification—In alleged transfer certificate name of school not printed and there was overwriting and name of school spelt wrongly—Address of school not mentioned in certificate—Certificate rightly concluded as not genuine certificate—All due procedures and steps adopted by disciplinary proceedings—Charges stood proved against petitioner—Hence, dismissal from service not bad—Petition dismissed., 2019 (163) FLR (Cal. H.C.) 226

DISMISSAL—

—From service—For committing offence by producing false certificate to get job—Transfer certificate not in name of respondent—But stand in name of another lady—However, person committing fraud by producing false certificate not deserve any compensation—Hence, award passed by Labour Court is set aside., 2019 (163) FLR (Kar. H.C.) (Sum.) 13

DISMISSAL—

—Oral inquiry—Major penalty of dismissal cannot be imposed in summary inquiry without holding any departmental inquiry and oral inquiry—Single Judge held as such—Appeal by Nagar Panchayat—Appellant failed to show any error in order of Single Judge—Appeal dismissed., 2019 (163) FLR (Alld. H.C.) (Sum.) 6

DISMISSAL—

—Unfair Labour Practice—Complaint—Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971—Misconduct—Dismissal from service—Challenged—Respondent a Conductor was found having collected ticket fare and had not issued any ticket to passengers—Labour Court partly allowed the complaint and granted relief of reappointment as a fresh appointee—Judgment of Labour Court is apparently perverse and erroneous—Since it cannot deliver the verdict that findings of Inquiry Officer are perverse—Entire inquiry stands vitiated—Hence, judgment delivered by Labour Court and Industrial Court stands quashed and set aside., 2019 (163) FLR (Bom. H.C.) 249

DISMISSAL FROM SERVICE—

Punishment of dismissal sanctioning leave without pay for period of absence—Voluntary retirement—Prayer for—Non-consideration of—Nobody can be forced to work against his wishes—If as per statute, prayer of an employee can be considered in accordance with law—Then it should not be dealt with in a harsh manner—Attitude of authority in considering prayer of petitioner—Not reasonable—Tribunal miserably failed to deal with this aspect—Impugned order of Tribunal set aside—Matter remitted to disciplinary authority for considering voluntary retirement of petitioner in accordance with law—Petition allowed., 2019 (163) FLR (Alld. H.C.–L.B.) 16

DOMESTIC ENQUIRY—

Violation of principles of natural justice—Industrial Tribunal—If Industrial Tribunal had reached a conclusion good or bad—That there was a violation of principles of natural justice in the domestic inquiry—It was incumbent upon the Tribunal to take evidence itself and decide on merits, the worth of charges against the workman—Merely by holding as such, the Tribunal could not have granted final relief—Tribunal would do well to decide all issues together.

, 2019 (163) FLR (Alld. H.C.) 801

EMPLOYEE’S COMPENSATION ACT, 1923—

Sections 2(dd) and 2(e)—Petitioners-husband was employer as Safai Karmachari in bank—During service period he was electrocuted and died while using the generator set used for the bank—Her claim of compensation rejected holding that he was not an employee of bank—He was in self-employment—And his death had occurred not during the course of employment with Bank but during the course of self-employment—There is no legal or factual infirmity in the Order, hence her claim is dismissed., 2019 (163) FLR (Alld. H.C.–L.B.) 217

EMPLOYEE’S COMPENSATION ACT, 1923—

—Section 3—Accident occurred in the course of employment—Compensation—Commissioner for Workmen’s Compensation determined the amount of compensation and directed the authorities of Central Water Commission to pay an amount of ` 7,02,180/- as compensation within a period of two months from the date of the order—Execution petition before Commissioner—Parties directed to approach the Civil Court for execution of award—Execution of award before

EMPLOYEE’S COMPENSATION ACT, 1923—

the District Judge—Authorities submitted that necessary approval for the release of the compensation along with interest had been accorded by the Ministry of Water Resources—Assured that payment would be made within December, 2017—No payment made in December, 2017 but only on 19.1.2018—Claim for interest @ 12% made—Authorities directed the petitioner to approach the Competent Authority—Payment of interest could be made only after the Court order or approval of the Competent Authority—Application made before the Commissioner—Returned—Invoking of writ jurisdiction for direction upon the authorities to make payment of interest @ of 12% p.a. from the date of the accidental death till the date of final payment and penalty amounting to 50% of the principal amount of death as per section 4-A (3)(a)(b) of the 1923 Act—Authorities were in default in paying the compensation due under the Act within one month from the date it fell due—No justification for the delay in payment—Evidently provisions of section 4-A (3)(a)(b) of the 1923 Act attracted—Direction issued to make payment as per section 4-A (3)(a) and (b) of the 1923 Act of both the simple interest @ 12% p.a. on the amount due from the date of the accident till date of final payment as well as penalty of 50% of the amount of compensation payable to the petitioner within a period of three months—Petition allowed., 2019 (163) FLR (Sik. H.C.) 86

EMPLOYEE’S COMPENSATION ACT, 1923—

—Section 3—Claim petition—Filed before Commissioner for workmen’s compensation under the Act—Where a Construction worker was attacked by some strangers in a construction site—Worker succumbed to his injuries—However, this Court is of the considered opinion that the incident which occurred on 1.9.2010, where the deceased worker was attacked, cannot be termed as an ‘accident’ within meaning of section 3 of Act—The ‘incident’ did not occur in the course of employment—Therefore, the Tribunal had no jurisdiction to entertain the claim petition—Consequently the judgment and award passed by Tribunal is quashed., 2019 (163) FLR (Kar. H.C.) 140

EMPLOYEE’S COMPENSATION ACT, 1923—

—Section 3—Compensation—Accident—Claimant in order to prove her employment with 1st respondent did not produced any document before Tribunal but only oral evidence—Employee mandatorily has to prove by evidence that she was working under respondent—In absence of any oral and documentary evidence only oral assertion cannot be a ground to claim compensation—No substantial question of law made out to admit the appeal.

, 2019 (163) FLR (Kar. H.C.) 710

EMPLOYEE’S COMPENSATION ACT, 1923—

—Sections 3, 4, 4-A and 4-A (3)—Order passed by E.C. Commissioner/A.L.C. rejecting to recall the orders passed in proceedings ex parte awarding compensation on its merits to employees—Petitioner found to be deliberately wanting to linger the proceedings and in fact position where claimant had suffered 100% disability and was not in a position to contest the proceedings further—And taking into account the larger interest of justice, the recall application has been rejected—No error found in the order—Hence, the petition dismissed—However, the petitioner can take recourse to other remedies available under law., 2019 (163) FLR (Alld. H.C.) 881

EMPLOYEE’S COMPENSATION ACT, 1923—

—Sections 3, 4, 4-A and 10—Appeal—Since deceased was serving as driver and driving of vehicle was as per instruction of employer—At the time of accident, he was working under the control of employer—Therefore, even if no notice was given of accident to the employer as per section 10(1)—Lack of notice cannot be bar to entertainment of claim—As per 5th proviso of section 10(1)—And as plea regarding lack of notice, not taken in W.S.—Such plea cannot be raised for first time in appeal., 2019 (163) FLR (Utt. H.C.) 983

EMPLOYEE’S COMPENSATION ACT, 1923—

—Section 4-A—Scheme of—Explained., 2019 (163) FLR (Sik. H.C.) 87

EMPLOYEE’S COMPENSATION ACT, 1923—

—Sections 4-A (1), (2), 3(a) and (b)—Claim of compensation—Penalty—Death during course of employment—Present appellant himself did not challenge the proceedings before Commissioner—He himself is liable to face consequences—Section provides that if Commissioner holds that if there is no justification for delay he may direct employer to pay by way of penalty 50% of the amount, in addition to amount of arrears and interest—It is discretion of Commissioner to impose penalty of 50% of amount of compensation—Commissioner has committed no error in imposing penalty of 50%., 2019 (163) FLR (Guj. H.C.) 563

EMPLOYEE’S COMPENSATION ACT, 1923—

—Sections 30, 3 and 4—Appeal—Basic question required to be decided is as to whether ‘murder’ of deceased amounted to accident during course of employment—Dismissal of claim petition—Challenged—Trial Court has held that murder of deceased cannot be considered as “death during course of employment”—As the law laid down by Apex Court—When Abdul and respondent No. 1 were not lastly in company of deceased—Deceased was with truck when murdered—Then the peril suffered by deceased cannot be incidental to his employment—Hence, ultimate decision does not appear to be erroneous—No interference made with., 2019 (163) FLR (Bom. H.C.–A.B.) 912

EMPLOYEES’ PENSION SCHEME, 1995—

Relief—Sought against EPF Authority—For release of their pension—Employees would be entitled to pension from date, when he opts for pension—Gap can be filled up by executive instructions—And reduced pension shall be payable from date of receipt of Form 10-D, if employee not mentioned his option—Petitioner has been rightly granted pension—Hence, petition fails.

, 2019 (163) FLR (M.P. H.C.) 43

EMPLOYEES’ PENSION SCHEME, 1995—

—Road Transport Corporation Act, 1950—Employees Provident Funds and Miscellaneous Provisions Act, 1952—Departmental pension—Writ petitions—Order denying regular departmental pension assailed—Departmental pension denied on ground that he is drawing pension under EPF Scheme and not entitled to get regular departmental pension—However, petitioners were holding pensionable post and are entitled to get regular departmental pension—Hence, writ petitions are allowed—Orders impugned are quashed., 2019 (163) FLR (Alld. H.C.) 662

EMPLOYEES’ PROVIDENT FUND—

Calculation—Representation made for correction of error of calculation—EPF Authority is directed to first finalize the representation at the earliest—Bank Account of petitioner attached without disposing of representation., 2019 (163) FLR (Ker. H.C.) 38

EMPLOYEES’ PROVIDENT FUND—

—Nominee—Can receive any amount lying to the credit of deceased’s account—But that amount can be claimed by other heirs of deceased—Respondent No. 5 nominee not participated in Court proceedings even after notice properly served upon him—Hence, payment of all amounts lying to credit of deceased shall be paid by EPF Authority to the petitioner., 2019 (163) FLR (Cal. H.C.) 446

EMPLOYEES’ PROVIDENT FUND SCHEME, 1952—

Para 76—Non-filing of statutory return—Employer went into liquidation—Most employees adjusted in other departments—Amount deposited is lying with EPF Authority—EPF Authority under Para 76 of Scheme, has enough power to secure presence of employer—Members of petitioner’s association are not getting salary—Commissioner to complete exercise by securing the presence of Officer of State for release of amount., 2019 (163) FLR (M.P. H.C.) 948

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

Employees’ Pension Scheme, 1995—Para 2(xv), 9 and 10—Pensionable service and pensionable salary—Pensionable service be reckoned in terms of years as per Para 10 of Scheme—Para 10 of Scheme is nothing but reiteration of Para 2(xv) and Paras 12(1) and 9—Months not used anywhere in Scheme, 1995.

, 2019 (163) FLR (Bom. H.C.) 464

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 2 (e)—Employer—Does not include the Director of Company—Director of Company is not principal employer or owner—Petitioners have deposited the alleged EPF dues subsequently—Hence, offence as alleged against petitioner is quashed—However, delayed deposit of EPF dues is a criminal offence., 2019 (163) FLR (Cal. H.C.) 453

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 2 (f)—Driver and conductor—Even if employed by contractor of school bus—Covered by the definition under section 2(f) of Act., 2019 (163) FLR (Del. H.C.) 546

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 5-A (1) and 5-C—Order of EPF Appellate Tribunal—Can be challenged in writ by only Board of Trustee—Not by Regional P.F. Commissioner—R.P.F.C. has no delegated power to file writ petition—He cannot be allowed to question the decision of his Appellate Authority., 2019 (163) FLR (Pat. H.C.) (Sum.) 17

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 7-A—E.P.F. Appellate Tribunal (Procedure) Rules, 1997—Rule 7(2)—Determination of money due from employer—Appeal before Tribunal filed after a lapse of more than 300 days—There is no provision for entertaining appeal beyond 120 days—However, amounts determined already deposited by respondent which can be adjusted—The impugned order of the Tribunal is set aside—Petition allowed., 2019 (163) FLR (P&H H.C.) 325

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 7-A—Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997—Rule 7—Appeal—Maintainability of beyond period of limitation —Tribunal cannot condone period of 120 days prescribed—Therefore the appeal filed beyond 120 days rightly rejected by Tribunal—However, in the interest of justice, petitioner is allowed to pay dues in six instalments., 2019 (163) FLR (Ker. H.C.) 440

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 7-A—EPF dues—A contract between the writ petitioner and 2nd respondent—Cannot have any binding effect—As far as the statutory authorities are concerned—If at all any such arrangement is in existence, the writ petitioner at the first instance has to pay the Competent Authority—As the same is statutory liability and recover it from the 2nd respondent-Air Port Authority.

, 2019 (163) FLR (Mad. H.C.) 725

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 7-A—Money due from employer—Determination of—Order under section 7-A of Act, the petitioner was liable for an amount w.e.f. August, 1982 to April, 2017—Appeal—Writ petition is disposed of by directing that till such time the appeal of petitioner is not processed and put up for hearing—No coercive steps be taken by respondent against petitioner., 2019 (163) FLR (P&H H.C.) 162

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 7-A—Order under and also an order of attachment of amount in petitioner’s account passed by A.P.F. Commissioner—Challenged by petitioner, a partner of partnership firm in writ petition—In view of fact, that decision making process in the case was contrary to settled principles of law—And was vitiated by failure on part of authority to act in terms of statute—Authority under section 7-A was required to collect more evidence for proper adjudication of dispute which would not be possible before the Appellate Tribunal—Hence, the order under section 7-A and order of attachment is hereby quashed and set aside—Matter is remanded back to A.P.F. Commissioner., 2019 (163) FLR (Cal. H.C.) 232

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 7-A and 2(f)—Appeal filed by Commissioner against the judgment passed by High Court—Definition of employee under I.D. Act and one defined

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

under E.P.F. Act in question are not similar—Even their objects are also not identical—Since the High Court had not noticed the definition of employee as defined under section 2(f) of Act and proceeded to pass impugned order only in light of finding recorded in proceedings arising under I.D. Act, order is bad in law and cause for interference in this appeal—Impugned order is set aside—Case remanded to the High Court for deciding afresh., 2019 (163) FLR (S.C.) 106

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 7-A and 7-B—Constitution of India, 1950—Article 226—Writ petition—Filed against the order passed under sections 7-A and 7-B—Without exhausting the appellate remedy provided under the Act—Hence, the writ petition is liable to be rejected., 2019 (163) FLR (Mad. H.C.) 724

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 7-A and 19-A—Constitution of India, 1950—Article 226—Writ petition—Filed challenging order passed under section 7-A of Act—Petitioner had not challenged order passed under section 7-A by filing appeal—And petitioner had not approached EPF Authority as per direction given in writ petition—EPF Authority is not ast fault—Petitioner is defaulter—Writ petition is dismissed—Recovery can be made in accordance with law., 2019 (163) FLR (Mad. H.C.) 55

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 7-I—Writ petition—Challenging order of EPF Authority—Since alternative remedy of appeal is available—Writ petition is disposed of with direction that appeal can be filed and considered., 2019 (163) FLR (Ker. H.C.) 39

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 7-I, 7-Q and 14-B—Appeal—Condonation of delay—In filing appeal beyond 120 days—Not permissible—Settled law—Delay beyond the prescribed period of 60 plus 60 days subject to sufficient cause not to be condoned—Hence, writ petition dismissed., 2019 (163) FLR (Alld. H.C.) 892

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 7-O—Appellate Tribunal—By order granted a complete waiver of condition of predeposit—Tribunal has exercised its discretion to grant waiver—And no sufficient ground found made out by petitioner for interfering in the said decision—No illegality or perversity found in exercise of discretion by Tribunal—As once the Tribunal has arrived at a prima facie conclusion that an attempt to recover the amount was being made without identifying the beneficiaries workmen., 2019 (163) FLR (Del. H.C.) 111

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 7-Q and 14-B—Recovery—Of assessed amount—Determined under section 14-B—Stayed for two months—Tribunal is directed to dispose of stay application within two months., 2019 (163) FLR (Ker. H.C.) 439

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 7-Q, 14-B and 7-O—Pre-deposit—Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997—Rule 21—Appeal was already entertained—While deciding application for granting stay, CGIT directed to deposit 40% of assessed amount—CGIT empowered under Rule 21 of Rules to do so—There is no illegality—Hence, writ petition dismissed., 2019 (163) FLR (M.P. H.C.) 716

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 8-F (3) (i)—Recovery Order—Recovery of dues of respondent No. 2 and show-cause notices issued by E.P.F.O. respondent No. 1—Challenged by petitioner—Writ petition—Question relates to the question of inter se liability of petitioner—Being disputed question of fact it can be decided only by way of appropriate proceeding—It will be open to parties to agitate them before appropriate forum—These questions being primarily legal issues, do not require me to venture into the disputed questions of fact—However, the respondent cannot even otherwise claim any amount from petitioner—Once the assessment order forming the very basis of its actions has been stayed in judicial proceedings—Order and subsequent show-cause notices are wholly unsustainable and quashed., 2019 (163) FLR (Del. H.C.) 684

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 14-B—Constitution of India, 1950—Article 226—Order—Passed by Regional P.F. Commissioner, imposing the penalty under section 14-B of Act confirmed by E.P.F. Appellate Tribunal—Challenged by establishment by writ petition—Question of levy of damages under section 14-B arises only when the employer fails to pay the contribution intentionally or without sufficient cause—However, in this case the delay in remittance of contributions was on account of financial reasons and there was no deliberate or wilful intention—Financial difficulty is not a common problem—Respondent levied penalty on a wrong premise—View of decisions of Apex Court and Division Bench of this Court have not been followed—Impugned order is liable to be quashed—Writ petition is allowed—Deposit by petitioner of sum of ` 30,00,000/- towards damages under section 14-B of Act shall be refunded to petitioner., 2019 (163) FLR (Mad. H.C.–M.B.) 950

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 14-B—Levy of damages—As the delay in remittance by employer was on account of financial problems and that there was no deliberate or wilful intention—Hence, this Court is of view that the levy of damages under section 14-B is not automatic in every case—It is admitted that all dues were settled however, with a delay—Writ petition is dismissed., 2019 (163) FLR (Mad. H.C.) 1023

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 14-B—Recovery of dues—Freezing the bank accounts of petitioners—Petitioner claiming to have already paid amount to the contractors—P.F. Authority in proceedings under section 14-B has choosen to freeze the bank accounts of petitioner—Court considered the request of adducing on record the additional proof of having paid the amount—This being the dues of labour class—It is desirable that the acceptable/admissible proof is adduced before this Court., 2019 (163) FLR (Guj. H.C.) 1062

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 14-B—Recovery—Petitioner has limited prayer for granting monthly instalments to clear total outstanding dues—However petitioner is given six monthly instalments to clear entire arrear with interest., 2019 (163) FLR (Ker. H.C.) 442

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 14-B and 7-Q—Proceedings—Against petitioner—Due to delay by notified bank, amount reached late to EPFO—Though amount deposited in time—However, EPFO may take action against the bank—Hence, impugned orders under sections 14-B and 7-Q are quashed—Matter is remanded back to EPF Authority for fresh order., 2019 (163) FLR (Pat. H.C.) 1017

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 14-B and 7-Q—Show-cause notice—For imposing damages and interest for delayed remittance—Issued by EPF Authority—By impugned order under section 7-Q he was directed to pay penal interest and attachment order passed—Impugned order is wholly unreasonable and violates principles of natural justice—Therefore, impugned order is liable to be set aside—Impugned order and attachment are quashed—Matter is remanded back to respondent EPF-Commissioner., 2019 (163) FLR (Del. H.C.) 916

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 14-B and 7-Q—Writ petition filed assailing the order passed under sections 14-B and 7-Q of EPF Act and consequential recovery certificate—Petitioner is not assailing the merits of assessment but petition filed only for permission to file an appeal despite expiry of time provided for—It is respondent itself who is at fault in not communicating the impugned order to the petitioner at his correct address—Hence, the petitioner was unable to file an appeal within prescribed period—Hence, the petition allowed and petitioner is granted one week time to file an appeal before Tribunal., 2019 (163) FLR (Del. H.C.) 118

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 14-B, 7-Q, 7-A and 1(3), (4), 2(i), 4 Sch. 1—Order—Directing the appellant to deposit penal charges and interest—Issued by the Commissioner—Writ petition—As the principal amount paid, the Single Judge had opined that

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

some time may be granted to appellant to pay the entire penal damages and interest and directed to deposit 60% of penal charges and interest—Appeal—Establishment is covered under the Act—Hence, the order passed by Commissioner had attained finality and cannot be reopened., 2019 (163) FLR (Gau. H.C.) 475

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 16—Clubbing of establishments—They may be separate legal entities, having different Directors and share-holders—But nature of control and integrality of functionality quite apparent from the facts—Findings for all three appellants satisfy functional integrality and general unity purpose test—Appeals dismissed with costs., 2019 (163) FLR (S.C.) 516

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Section 16 (1) (d)—Infancy benefits—For an establishment/factory—Exemption claimed under as a new establishment—Assessing Authority and the Commissioner has, by order denied the benefit of infancy under section 16(1)(d) to appellant-petitioner establishment—Which was upheld by High Court—There are concurrent findings of fact by Court below holding that appellant-establishment is a running establishment and cannot be said to be a new establishment—High Court committed no error in holding as such—Has rightly observed that appellant shall not be entitled to benefit of exemption under section 16(1)(d) of Act—Hence, appeal dismissed., 2019 (163) FLR (S.C.) 638

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 16 (c) and 7-A—Contributory Provident Fund Scheme—Applicability of Act to respondent-society—Since the respondent-society came in existence under a statute and is having its own pension and contributory provident fund scheme—Hence, it was rightly held by Appellate Authority that pursuant to section 16(c) of Act—Act will not apply to respondent-society., 2019 (163) FLR (Bom. H.C.) 670

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952—

—Sections 16, 16 (1) (d), 7-A and 7-Q—Industrial Disputes Act, 1947—Section 2-A—Exemption—As BCCL, Jaipur was not a separate legal entity—But part of parent company directly—Case would, thus, be fully covered by provisions of section 2-A of Act—And mere location of departments and branches in other cities—Would not have extended the benefit of exemption to this company.

, 2019 (163) FLR (S.C.) 516

EMPLOYEES’ STATE INSURANCE ACT, 1948—

Sick Industrial Companies Act, 1985—Section 32—Impugned demand—Proceeding initiated by ESI Corporation and in terms of impugned demand called upon the petitioner to discharge liabilities towards dues payable under the ESI Act together with penalty and damages—Proceedings challenged by petition—However, the liability of petitioner in so far as ESI dues are concerned would be governed exclusively by and under Sanctioned Scheme—Provision of Scheme as sanctioned in terms of section 32 of SICA—Clearly bind and override all other statutes—Scheme admittedly absolves the petitioner from liability towards interest and penalties under the Act—In the light of legal position, the impugned demand insofar as it places a burden of interest and damages on petitioners, cannot be sustained., 2019 (163) FLR (Alld. H.C.) 525

EMPLOYEES’ STATE INSURANCE ACT, 1948—

—Section 2 (9)—Employee—Demand Notice—Challenged—Workers of contractor would also fall under definition—Workers ones found more than ten or so working in premises of employer—Is irrespective of fact that workers were of contractors or not., 2019 (163) FLR (Chhat. H.C.) (Sum.) 8

EMPLOYEES’ STATE INSURANCE ACT, 1948—

—Sections 2 (8), 51-A and 52-A—Employment injury—Occupational disease—Employment injury includes occupational disease—Claimant of benefit under ESI Act—While discharging duties, cotton waste fell on his left eye and he lost his sight of left eye—And subsequently his right eye also affected—Fall of cotton

EMPLOYEES’ STATE INSURANCE ACT, 1948—

waste has casual relationship between accident and employment—Injury caused to claimant is employment injury—Insurance Court fixed 100% disability and held that claimant entitled to 100% disability under the Act—Findings of Insurance Court need no interference—Appeal dismissed., 2019 (163) FLR (Mad. H.C.) 16

EMPLOYEES’ STATE INSURANCE ACT, 1948—

—Sections 2 (9) and 2 (13)—Employee—While applying the definition under section 2(9) of Act as well as precedent law cited, the Court has held that for coming to a conclusion—Precedent law is the guiding factor and the Court has to see whether the functions being discharged by concerned employee were correlating with the role of immediate employer and has direct nexus with the establishment., 2019 (163) FLR (Raj. H.C.) 972

EMPLOYEES’ STATE INSURANCE ACT, 1948—

—Sections 2 (12), 45-A(1), 45-AA and 77(1-A)—Order—Passed by ESI authority, covering the establishment under the ESI Act—Challenged by petitioner-establishment—Order was passed after taking spot inspection of establishment—Writ petition filed—However, the petitioner could have challenged the impugned order by appeal under section 45-AA of Act—Hence, writ petition dismissed—With a direction not to take any coercive steps for recovery of its dues from petitioner—Petitioner to move appeal under section 45-AA of Act., 2019 (163) FLR (Bom. H.C.) 674

EMPLOYEES’ STATE INSURANCE ACT, 1948—

—Sections 2 (22) and 45-A—Wages—Travelling and conveyance allowance are not wages—ESI authority directed management to pay ESI contributions on travelling and conveyance allowances paid—Conveyance allowance would be covered under wages under section 2(22) of Act—However, facility of free transport, monetary value would not be part of wages., 2019 (163) FLR (Mad. H.C.) (Sum.) 15

EMPLOYEES’ STATE INSURANCE ACT, 1948—

—Sections 45-A and 2 (22)—Determination of contributions—Calculation made by Inspector—Respondent was not given reasonable opportunity to prove that amounts shown by Inspector are not amounts of only wages—Hence, impugned judgment is set aside—Matter is remanded back to Competent Authority under the E.S.I. Act., 2019 (163) FLR (Bom. H.C.) 540

EMPLOYEES’ STATE INSURANCE ACT, 1948—

—Section 45-G—Impugned garnishee notice dated 22.7.2019—Issued by 4th respondent to the banker of petitioner—For recovery of ` 9,60,796/- whereby the 6th respondent bank was directed to pay the said amount from account of petitioner maintained with 6th respondent to credit of 4th respondent failing which 6th respondent-bank is also put on notice—Impugned garnishee notice issued by 4th respondent is contrary to the orders of this Court—Impugned garnishee notice cannot be sustained and is liable to be set aside., 2019 (163) FLR (Hyd. H.C.) 1049

EMPLOYEES’ STATE INSURANCE ACT, 1948—

—Section 75—Constitution of India, 1950—Article 226—Levy of damages by ESI Corporation—Covering two periods of contribution payable—Although there is an effective remedy available under section 75 of Act—In view of certain difficulty in payment of such contribution, the authorities are directed to consider and dispose of representation—After giving one more opportunity to petitioner of personal hearing., 2019 (163) FLR (Mad. H.C.) 157

EMPLOYEES’ STATE INSURANCE ACT, 1948—

—Section 75 (2)—Demand notice challenged—A legal objection raised—EIC Court has waived of the condition of deposit of 50% of assessed amount—Court refrain from examining the issue as to whether waiver was justified in law.

, 2019 (163) FLR (Chhat. H.C.) (Sum.) 8

EMPLOYEES’ STATE INSURANCE ACT, 1948—

—Section 82—Limitation Act, 1963—Sections 5 and 12—Appeal—Appeal was admitted, but no substantial question of law was framed at time of admission—Finding of fact is not a substantial question of law unless such finding is perverse or based on no evidence—Evidence on record is insufficient to establish that respondent unit had ever employed 10 or more than 10 employees, hence the respondent is rightly held not covered under the Act—No substantial question of

EMPLOYEES’ STATE INSURANCE ACT, 1948—

law found involved in this appeal—Appeal being without any merit is dismissed., 2019 (163) FLR (Jhr. H.C.) 1047

EMPLOYEES’ STATE INSURANCE ACT, 1948—

—Sections 82, 75 and 75(1)(g)—Employees State Insurance Scheme—Appeal—Exemption—Jurisdiction of ESI Court—Issue in appeal is whether the employees drawing wages of ` 6,500/- and below are to be covered under the Act or were to be governed by private insurance scheme of the company—Appeal filed to set aside the order and decree of ESI Court (Labour Court)—Ultimately by impugned order it was held that power to grant exemption is with appropriate Central Government—Issue is no longer is res integra—Apex Court has held that the ESI Courts have no jurisdiction or power to decide the question of grant of exemption and to grant exemption—Only Writ Courts have the power to review the decision of appropriate Government to grant or reject exemption—Question of exemption under section 87, cannot be raised under section 75 of Act—Hence, order passed by ESI Court deserves to be interfered in this appeal—Appeal allowed., 2019 (163) FLR (Mad. H.C.) 739

EQUITIES—

Award of Labour Court passed directing respondent No. 2 a contract labour to be reinstated in service with continuity in service without back wages—In compliance of interim order, the workman has joined and working with employer—He was 42 years in 2001—And is now on verge of retirement—Hence, in equity too, this Court ought not to interfere with impugned order in exercise of jurisdiction under Article 226 of Constitution—Petition dismissed.

, 2019 (163) FLR (Alld. H.C.) 808

EX PARTE AWARD—

Setting aside of—It is incumbent upon Labour Court to consider for setting aside ex parte award—It cannot be rejected on ground that the application was filed after the award had become enforceable—Writ petition therefore, allowed—And impugned order is set aside—Matter remanded to Labour Court to consider and decide afresh., 2019 (163) FLR (P&H H.C.) 57

EX PARTE ORDER—

Imposition of conditions—Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971—Section 31(2) —Proceedings—For grant of recovery certificate allowed ex parte—Application under section 31(2) for setting aside ex parte order—Section 31(2) does not empower Court to impose any condition for setting aside ex parte order—Requirement to deposit 50% of adjudicated amount not to be read into the provision—Direction to deposit 50% of amount not statutory and set aside., 2019 (163) FLR (Bom. H.C.) 26

EX PARTE ORDER—

—Passed by Labour Court—Challenged in writ petition by petitioner company engaged in business of pharmaceuticals—Termination of services of respondent Marketing Executive inter alia on ground that he did not report at transferred place—Reference of dispute raised referred to Labour Court—After appreciating the ex parte evidence, the Labour Court vide award answered the reference in favour of respondent, directing the petitioners to reinstate him in service with all benefits of fast service—Labour Court refused to set aside its ex parte award—Hence, writ petition—Petition is liable to be disposed of with direction to petitioners to accept joining of respondent—Petitioner is directed to reinstate the respondent without backwages., 2019 (163) FLR (M.P. H.C.–I.B.) 588

FACTORIES ACT, 1948—

Sections 41 and 87 read with section 61-E and F and section 21(2)—Tamil Nadu Factories Rules, 1950—Rules 53 and 95—Proceedings initiated for an offence

FACTORIES ACT, 1948—

under—Petitioners, occupier and manager of Rane Brake Linings Ltd.—Seeking to quash the proceedings—As the reply of show-cause not considered either by sanctioning authority or at time of filing of complaint—Hence, the complaint itself becomes unsustainable., 2019 (163) FLR (Mad. H.C.) 159

FACTORIES ACT, 1948—

—Section 92—Criminal Procedure Code, 1973—Section 482—Complaint—Against applicant-Manager—Applicant sought for quashing of proceedings of complaint—Wife of late Vijay lodged an FIR and complaint—Her husband an Engineer died on felling of cement roof, when deceased went to repair the roof—Application is also liable to be dismissed—There is no illegality in summoning order—Defence if any cannot be considered at this stage as it falls under disputed questions of facts., 2019 (163) FLR (Alld. H.C.) 220

FAMILY PENSION—

Entitlement for—Invoking of writ jurisdiction—Dismissal of—Writ appeal—Serious dispute on the issue of being legally wedded first wife of the deceased—Essentially such fact would determine the right of appellant—Serious dispute on facts arises in the matter—Such claim could not be adjudicated in the writ proceedings—Writ Court rightly rejected the writ petition—Appeal dismissed.

, 2019 (163) FLR (Megh. H.C.) 82

GRATUITY—

Employer-employee relationship—Order passed in gratuity appeal, confirming the order of Controlling Authority allowing claim of gratuity—Challenged by petitioner FCI by writ petition—Nature of work and due control and supervision of employer are to be taken into consideration—As the respondent-workman had served about three years with FCI as direct payment employees—And earlier they were employed with a separate legal entity in Labour Co-operative Society—Not under direct control and supervision of FCI—There was no employer-employee relationship existing between FCI and respondent-workman prior to their observation as direct paymenting—Hence, respondents have committed an error in considering workmen’s employees case for payment of gratuity under the Act., 2019 (163) FLR (Mad. H.C.) 1020

GRATUITY—

—Petitioner company has paid amount of gratuity as ordered by competent Controlling Authority—But could not pay interest @ 10% as ordered—However, petitioner company is required to be given some more time to make payment of interest—As such 3 months time is granted to petitioner company to pay interest.

, 2019 (163) FLR (Raj. H.C.–J.B.) 330

GRATUITY—

—Petitioner No. 1 is a retired employee and petitioner No. 2 is a registered Trade Union—Controlling Authority has issued the recovery certificate with 10% interest—Controlling Authority had issued recovery certificate in favour of employee, since the respondents had not complied with order—Recovery certificate is yet to be executed by respondent No. 3 till date—Same has not been recovered by respondent No. 3—Assistant Government Pleader makes a request to grant two days’ time to ensure that entire amount as directed in recovery certificate is deposited with concerned authority or before this Court—Further, order is to be passed on 25.10.2019., 2019 (163) FLR (Guj. H.C.) 1060

INDUSTRIAL ADJUDICATION—

Onus to prove—Workman claimed that he was removed from service by way of resignation by force—Onus was upon management—Award being perverse is set aside., 2019 (163) FLR (Del. H.C.) 266

INDUSTRIAL DISPUTE—

Raised by workman—With delay of 13 long years—As against the punishment of stoppage of increment for two years with cumulative effect—Labour Court ought not to have entertained industrial dispute as raised by workman—Hence, award is set aside and petition is allowed., 2019 (163) FLR (Mad. H.C.) 957