What Can We Learn from the May 2014 Labour Law Judgments in India?

Below are the judgments reported in the May 2014 issue of the Labour Law Reporter, one of the most popular and informative journals on Labour Law and Human Resources Management in India.

* Termination of an employee for loss of confidence would be justified. P&H HC 477
* Back-wages are not automatic even when termination is held illegal. Raj. HC 511
* Labour Court will have limited power to reduce punishment when the enquiry is fair and proper. P&H HC 477
* Abandonment of a job is presumed when an employee did not respond to reminders for resuming duties. Del. HC 461
* Allegations, when levied, must be substantiated. Supreme Court 449
* Reinstatement would not be justified when the workman did not respond to repeated letters calling upon them to report for duty. Del. HC 453
* No relief can be granted to a temporary workman, and their termination is excluded by section 2(oo)(bb) of the ID Act. Del. HC 457
* Transfer of an employee cannot be stayed merely because of a medical problem. Jhar. HC 538
* The principal employer is not liable for ESI contributions in the absence of control and supervision over the employees of a contractor. Mad. HC 536
* Pension will be calculated on Rs. 6,500 per month in the absence of any joint request for a higher contribution towards pension. Pat. HC 520
* Non-production of a postal receipt would not justify the receipt of the document. Del. HC 461
* Abandonment of a job by an employee is not proved when the employer fails to reply to the demand letter by the workman and the notice by ALC. P&H HC 484
* Tiffin allowance does not attract EPF contribution when it varies based on attendance. Bom. HC 470
* The principal employer is not liable to pay ESI contribution for the employees of a contractor working outside the premises. Mad. HC 531
* Tea allowance paid to employees on duty would not attract ESI contributions. Mad. HC 531
* Workers alleging the contract labour system as a sham can approach labour authorities to refer the dispute for adjudication. Cal. HC 492
* Compensation, in lieu of reinstatement, is appropriate for a terminated daily wager. Raj. HC 511
* Begging forgiveness by a delinquent employee in the enquiry would be construed as charges proved. P&H HC 477
* Compliance with 25F of the ID Act is imperative even for a daily wager who has completed 240 days of service. P&H HC 480
* ESI Corporation is liable to pay compensation to an employee whose name is registered even when the premium is not paid. Del. HC 465
* Unless the services of a workman are expressly terminated, the employee-employer relationship would persist. Del. HC 461
* Reinstatement with back-wages is justified when a workman is kept out of employment on the basis of a defective enquiry. P&H HC 487
* Bonus can be claimed under the ID Act if the employee is eligible under the Payment of Bonus Act. HP HC 474
* Reinstatement is justified on failure to comply with mandatory provisions for termination. P&H HC 484
* The onus to prove 240 days of working is upon the workman. P&H HC 482
* A dismissed workman can approach the Labour Court within 3 years after 45 days of raising the dispute before the conciliation officer. Cal. HC 498
* Sections 33 and 33A of the ID Act aim to protect workmen against victimisation. Cal. HC 503
* The Payment of Gratuity Act does not apply to working journalists. All. HC 507
* High Court is not to interfere in reference for adjudication pertaining to transfer. P&H HC 490
* An employee, unauthorisedly holding possession of official accommodation for 10 years, is not entitled to any relief. All. HC 509
* Each day of delay for raising a dispute needs explanation. HP HC 473
* An employer is not obliged to provide a canteen facility while employing less than 250 workers in the factory. Bom. HC 470
* Reinstatement is appropriate when the termination of a workman is violative of section 25F of the ID Act. Del. HC 458
* Dismissal for unauthorized absence is liable to be set aside when the workman was vomiting blood and admitted to the hospital. Karn. HC 546
* The statutory limit for contribution for pension cannot be stretched out by Courts. Pat. HC 520
* The Labour Court would interfere in punishment only when it shocks the conscience and is disproportionate to misconduct. P&H HC 524
* Reinstatement with back-wages is appropriate on termination without enquiry. Del. HC 518
* Punishing one out of two employees jointly accountable would not be justified. MP HC 528
* Punishment is not justified when the enquiry is prolonged for 19 years. MP HC 528
* An opportunity for hearing should be given by the Labour Court when the enquiry is held to be defective. Karn. HC 541
* Termination, one month's notice pay, and filing of an application for approval are not necessarily to be simultaneous. Karn. HC 543
* Reinstatement is rightly denied on the closure of a unit. Del. HC 547
* Alleging denial of cross-examination of witnesses as the evidence not recorded in the presence of the workman is untenable. Supreme Court 449
* "No work, no wages" will not be applicable when a workman is wrongly kept away from work. P&H HC 487
* To prove 240 days of working, a workman can call for records from the employer. P&H HC 482
* Reference of a dispute for adjudication will be presumed on an application under section 33A(b) of the ID Act. Cal. HC 503
* Unless reference is made to particular documents, the production of it would not vitiate the enquiry. Supreme Court 449
* Contractual employees will not be covered by the Rules and Regulations of the Haryana Government. P&H HC 477
* 240 days of working will stand proved when the workman was paid through cheque. P&H HC 480
* High Court, in writ jurisdiction, interferes only when the Award of the Labour Court is prima facie erroneous. P&H HC 487
* Even casuals/daily wagers, having worked for 30 days, are entitled to get a bonus. HP HC 474
* Last drawn wages during the pendency of a dispute are payable to a workman entitled to reinstatement under section 33A of the ID Act. Cal. HC 503
* Taking full fare but issuing a ticket for a lesser amount would justify the conductor's dismissal. Supreme Court 449
* The enquiry will be fair and proper when the workman is furnished with required documents to cross-examine the witnesses. P&H HC 477
* The Industrial Tribunal, not the Labour Court, decides matters pertaining to bonus. HP HC 474
* Allegation of victimization, when levied, must be proved. Del. HC 547

Regards

Thank you, Mr. Keshav, for sharing the LLR May 2014.

Today's new learning from this thread: The Payment of Bonus Act is not under the purview of the Labour Court, and it will be dealt with by the Industrial Tribunal. Please correct me if I am wrong.

Thank you very much for your participation in this discussion. I have been posting the judgments as reported in LLR every month since last year or two with the expectation that the members of this forum will read them, apply their minds, and discuss various judgments or seek some details on them so that there will be a sharing of knowledge amongst us. However, these postings have very limited views with no discussion up till now.

Matters Under the Jurisdiction of Industrial Tribunals

The matters listed in the third schedule under the ID Act fall under the jurisdiction of Industrial Tribunals, and the following matters are listed in the third schedule:

1. Wages, including the period and mode of payment;
2. Compensatory and other allowances;
3. Hours of work and rest intervals;
4. Leave with wages and holidays;
5. Bonus, profit sharing, PF & Gratuity;
6. Shift working otherwise than in accordance with Standing Orders;
7. Classification by grades;
8. Rules of discipline;
9. Rationalization;
10. Retrenchment and closure; and
11. Any other matter that may be prescribed.

According to the above, the bonus matter is under the jurisdiction of the Industrial Tribunal and not under the Labour Court.

Regards,

Thanks for posting a summary of judgments reported in the issue of May 2014 of Labour Law Reporter, which we find quite informative and useful. Nowadays, very few people have the time and patience to go through a bulky book consisting of judgments. One can choose the judgment from your summary and go through the relevant full judgment, if need be.

I always read your mail very thoroughly and with much interest. I appreciate your way or manner of explanation to the queries, which is up-to-date and understandable.

Regards,
BS Kalsi
Member since August 2011

Respected Keshavji,

I cordially appreciate your serious efforts towards educating HR professionals. In practice, I find that many of these facts remain unnoticed at both the employee and employer levels. Your genuine contribution is truly a great help to HR professionals in spreading knowledge and raising awareness. Thanks for sharing.

Regards,
Bijay

I appreciate your efforts to apprise the readers about the latest decisions being reported in LLR much before the same reaches the subscribers. I request you to keep it up.

Request for Gist of Important Decisions

I would also like to request you to post the gist of the most important decisions if not otherwise prohibited by LLR from publishing such matters.

Regards,
Chandok AK
RPFC (Retd.)
www.akchandok.com

Judgments Reported In LLR May 2014 - Under Labour Laws

Dear Korgaonkarji, thank you for sharing a summary of judgments reported in the May 2014 issue of the Labour Law Reporter. This is undoubtedly very useful and helpful for all HR professionals. Understanding and applying these judgments in practical situations poses a significant challenge for HR personnel.

Keeping updated with LLR will not only enhance knowledge but also facilitate its application in the workplace whenever necessary, thereby improving the quality of services provided by HR personnel.

I truly appreciate your efforts in providing high-quality services to those in the HR field. Please keep up the good work. Thank you once again.

Regards,
Sibabrata Majumdar
Management Consultant Legal & HR
Kolkata, Mb: [Phone Number Removed For Privacy Reasons]

Seeking Clarification on Tribunal Orders

Please let me know if an employer or employee is not satisfied with the orders of Industrial Tribunals (such as those related to Bonus, Profit Sharing, PF, and Gratuity). Can they appeal to labor courts and other high courts?

Regards,
Keshav Korgaonkar

Understanding Jurisdiction Under the ID Act

Sh. Keshav Korgaonkar Sir has very well explained in his email dated April 30, 2014, that the matters listed in the third schedule under the ID Act fall under the jurisdiction of Industrial Tribunals. He has provided a complete list of the matters that fall within the ambit of the third schedule. Similarly, in the second schedule, the matters that fall under the jurisdiction of the Labour Court have been listed. Therefore, one should not be confused with Industrial Tribunals and Labour Courts as enumerated under the ID Act. Both are parallel courts dealing with different matters mentioned in the respective schedules. If either of the parties is not satisfied with the orders of the Industrial Tribunal or Labour Court, the appeal lies in the High Court of the respective State.

Regards,
BS Kalsi
Member since August 2011

Dear BS Kalsi Ji, I just want to add to your reply to our Anonymous friend that before going to the High Court, as you said, you need to file an appeal in the Appellate Tribunal.

I am grateful for your subsequent mail, which has truly enriched my knowledge. I have reviewed the Industrial Disputes (Appellate Tribunal) Act, 1950, where the provisions relating to the Appellate Tribunal are laid down. A doubt has arisen in my mind as to whether the Appellate Tribunal has jurisdiction only over the matters dealt with by Industrial Tribunals listed in the third schedule under the ID Act, or if it is empowered to deal with the matters handled by the Labour Court as well. Secondly, I am curious whether the matters dealt with by the National Tribunal constituted under Section 7B of the ID Act are also appealable before the Appellate Tribunal, or if the appeal lies directly in the High Court of the respective state.

Regards,
BS Kalsi
Member since August 2011

Thank you very much for providing such useful information. Could you please clarify the point mentioned below:

Contractual Employees and Haryana Government Rules

"Contractual employees will not be covered by Rules and Regulations of Haryana Government."

Which specific rules and regulations are being referred to here? Kindly provide further details.

Regards,
Dinesh Kumar

I am delighted by the kind words of appreciation from you and other members. Subsection 1 of Section 7 of the ID (AT) Act 1950 states that an appeal shall lie to the Appellate Tribunal from any award or decision of the Industrial Tribunal if: (i) the appeal involves any substantial question of law; or (ii) the award or decision is in respect of matters stated in Schedule III, as you mentioned.

I am not a practicing advocate, but upon reading the provision, I formed the view that an appeal may lie directly to the High Court or Supreme Court from any award or decision of the National Tribunal. I may also be mistaken. Experts are invited to participate in this discussion.

Regards

Dear Mr. Keshav,

Today, I had a discussion with one of my friends regarding the subject mentioned below: "Industrial Tribunal, not Labour Court, to decide matters pertaining to bonus - HP HC 474."

During that time, he explained that if the strength of the employees is less than 100, then the Labour Court can decide on matters pertaining to the Payment of Bonus Act. If the strength is more than 100, then only the Industrial Tribunal will come into the picture.

This is for your information, please.

Regards.

Dear Dinesh Kumar ji, This is a matter before the Punjab and Haryana High Court between Madhu Sudan vs. Presiding Officer, LC & other, in which the workman is a special conductor appointed on a contractual basis by Haryana Government Transport. The workman committed fraud and misappropriation of money by tampering with official records, waybills, etc. He also misbehaved with one passenger.

In the domestic inquiry, he was found guilty of the charges. During the inquiry, he even begged forgiveness before the EO for his wrongdoing. His services were terminated. On the failure of the appeal against the termination order, he raised an industrial dispute. In this dispute, the labor court said that the inquiry conducted was fair and proper and dismissed the matter.

The workman then filed a writ petition challenging the order of the labor court on the ground that the rules prescribed under Haryana Civil Services (Punishment and Appeal) Rules, 1987 were not followed while conducting the inquiry.

In this case, it is held that the rules and regulations of the Haryana Government are not applicable to contractual employees.

Dear Boss,

Roles of Industrial Tribunals and Labour Courts

Industrial tribunals mainly decide collective disputes relating to matters specified in the second or third schedule, while labour courts handle individual disputes related to matters specified in the second schedule.

Typically, a dispute concerning a matter specified in the third schedule should be referred to the industrial tribunal. However, as per the provisions under section 10(1), such disputes can be referred to a labour court if the affected workmen are not more than 100.

Industrial Tribunals are established under section 7(a) of the ID Act for adjudicating industrial disputes on matters specified in the second or third schedule. Given the specific provision under the third schedule concerning bonuses, it is evident that only industrial tribunals have jurisdiction to decide disputes related to bonuses unless such functions are explicitly assigned to labour courts.

I hope this clarifies the distinction between the roles of Industrial Tribunals and Labour Courts in deciding bonus-related disputes.

In reference to your trailing mail, I wish to submit that, though in practice, we generally see that matters relating to individual disputes are dealt with by the Labour Court. Notwithstanding, all the matters specified in the Second Schedule are disputes of a collective nature. The matters relating to standing orders, withdrawal of customary concession/privilege, strike, or lock-out, etc., cannot be individual disputes. It is true that the Industrial Tribunal has jurisdiction over the matters specified in either the Second or Third Schedule, whereas the Labour Court's jurisdiction is confined to the matters specified in the Second Schedule.

Regards,
BS Kalsi
Member since August 2011