A record of thoughts from Veenavee Prakaashana, Bangalore
October 2007
A PROBATIONER'S SERVICE CAN BE TERMINATED WITHOUT GIVING ANY REASON
The Calcutta High Court has stated in its judgment that a probationer's service can be terminated without giving any reason even before the expiry of the probation period.
The Court also has said that termination of a probationer without assigning any reasons would neither be stigmatic nor punitive.
Division Bench of Calcutta High Court in the case of Sudhin Kumar Ghosh Vs Damodar Valley Corporation and another
VALID DISCIPLINARY PROCEEDING COMMENCES FROM THE ISSUE OF CHARGE-SHEET
Disciplinary proceeding is not initiated merely by issuance of show cause notice. It is initiated only when a charge-sheet is issued. The Supreme Court of India has reiterated this after referring to its earlier decisions in the case of Union of India etc Vs K V Jankiraman etc and Coal India Limited and others Vs Saroj Kumar Mishra.
Supreme Court of India in the case of UCO Bank and another Vs Rajinder Lal Capoor
TERMINATION FOR CONTINUED ILL-HEALTH IS NOT RETRENCHMENT
In this case, an employee of M/s Oberoi met with a road accident, suffered injuries, and started absenting from work on account of it. The management waited for a period of 16 months hoping that the employee would recover from the injuries he sustained. Management sent letters, and in his reply, the employee requested management to wait for another six months, which was the period likely to take for his recovery.
Then, the management deputed a medical officer to personally see the employee and assess his medical fitness. The medical officer concluded that the employee would not be able to continue his work even after recovery. On that basis, the management terminated the services of the employee on the ground of his continued ill health and medical unfitness to perform duties.
The employee challenged his termination by stating that it was a case of victimization for his involvement in union activities.
On perusal of the facts, first the Labour Court and then the High Court came to the conclusion that medical unfitness of a person for the post and continued ill health are valid grounds for termination of services in view of Section 2 (oo) of the Industrial Disputes Act, 1947, and such termination does not amount to retrenchment.
Delhi High Court in the case of J B Kumar Vs Brijesh Sethi and another
STANDING ORDERS WOULD PREVAIL OVER AGREEMENT
In this case, the workman was appointed as an electrician on probation for 6 months from the date of joining and it was liable to be extended or reduced. The appointment order also stated that the workman was not liable to be treated as confirmed unless a letter of confirmation is issued. However, the workman continued for a period beyond 12 months on probation. Later, the management terminated the services of the workman treating him to be on probation.
While challenging the termination, the workman stated that he has worked satisfactorily and completed the probation period that was never extended. He also stated that under the Industrial Employment Standing Orders Act, the maximum period of probation provided is one year, and on completion of the said period of probation, the workman is deemed to be automatically confirmed, and the Standing Orders being statutory in nature supersedes the terms and conditions contained in the letter of appointment.
On hearing the matter, the High Court upheld the arguments of the workman.
Allahabad High Court in the case of R P Garg Vs Indian Oil Corporation Limited and another
A RETIRED PERSON IS NOT A WORKMAN
In this case, the retired employees raised a dispute regarding the revision of their pension.
The Court held that since the retired employees are not workmen, the dispute raised by them could not be termed as an 'industrial dispute.'
If the words 'any person' in the definition of 'workman' under the Industrial Disputes Act were intended to include a person who was employed at any point of time and subsequently retired, then the latter part of the definition, which contemplates a discharged, dismissed, or retrenched employee, would have become redundant and useless, and hence a retired person was not intended to be included in the definition of a workman - the Court said.
Calcutta High Court in the case Hindustan Lever Limited Vs Fourth Industrial Tribunal and others.
DEMAND FOR ESI CONTRIBUTIONS ON OUTSIDE JOB IS WITHHELD
Earlier during our April 2007 issue, we have brought to your notice a copy of the circular issued by the ESI corporation that enabled it to demand ESI contributions from Principle Employer on the job work given to the outside establishments.
Similarly, we have informed you about the Court decisions In the case of Employees' State Insurance Corporation Vs JMD Fashions, settled by the High Court of Karnataka, The Supreme Court of India's dismissal of a petition of ESIC challenging the decision of Karnataka High Court and the case of National India Rubber Works Limited Vs Employees' State Insurance Corporation, settled by Madhya Pradesh High Court wherein it has been held under Section 2(13) of the ESI Act the employees of the contractors would not come under the ambit and sweep of 'employee' as defined under Section 2(9) of the ESI Act.
Now, on receipt of a large number of representations from the employers and their associations, the ESI Corporation has decided to refer the questions regarding the claims for ESI contributions on outsourced jobs to a group of Senior Officers to make a thorough study of all aspects concerned and submit its report.
The ESI corporation has decided to withhold further actions in this regard till 30 September 2007.
All the employers are requested to take care while seeking dates for personal hearings or while forwarding their arguments or while taking any decision in this regard.
The ESI Corporation also has felt that Insurance Inspectors are not giving full particulars in their reports, and Branch offices are issuing C-18, 45-A order, and C-19 for claiming a substantial amount.
ENGLISH CONTINUES TO BE THE LANGUAGE OF PROCEEDINGS IN THE SUPREME COURT
Article 348(1) of the Constitution of India provides that all proceedings in the Supreme Court and in every High Court shall be in the English language until Parliament by law otherwise provides.
No law has since been made in this regard by the Parliament. Therefore, English continues to be the language for all the proceedings of the Supreme Court.
The Department of Official Language in consultation with the Registry of the Supreme Court has examined the matter of the use of Hindi in the proceedings of the Supreme Court. With respect to a reference made by the Department of Official Language, the Registrar, Supreme Court of India intimated that the point of introduction of optional use of Hindi in the hearing and proceedings in the Supreme Court has been considered by the full court twice i.e. on 10.4.1990 and 26.9.1996. However, after ascertaining the views of the Bar Council of India, Supreme Court Bar Association, and the Supreme Court Advocates-on-Records Association, it was unanimously resolved that it was not practically feasible to introduce Hindi in the proceedings of the Supreme Court on the ground that matters in this court are filed from all parts of the country and Hindi Language is used only in Northern India. If introduced, it will cause great difficulties to the litigants, Judges as well as bar members, particularly to those who hail from the Southern region of the country.
Under Article 348(2), the Governor of the State may with the previous consent of the President, authorize the use of the Hindi language or any other language used for any official purpose of the State, in the proceedings of the High Court having its principal seat in that state.
In four states namely Bihar, Uttar Pradesh, Madhya Pradesh, and Rajasthan, the use of the Hindi language has been authorized for the proceedings of the High Courts.
INCREASING STRENGTH OF JUDGES IN HIGH COURTS
As a result of a triennial review in the year 2006, 106 posts of Judges, subject to concurrence of the respective State Governments, had been approved in various High Courts as per details given below:
Allahabad-65, Andhra Pradesh-27, Calcutta-08, Delhi-01, Karnataka-01, Kerala-01, Punjab & Haryana-02, Madhya Pradesh-02
On the acceptance of the recommendation from the State Governments, 65 posts of Judges in the Allahabad High Court, 1 post in Karnataka, and 1 post in Madhya Pradesh have already been created.
MEASURES TO CHECK PENDENCY OF CASES
With a view to check the increasing number of pending cases, the Government has taken the following measures, inter-alia, to facilitate the speedy disposal of cases in the courts:
Review of the Judge strength in High Courts from time to time and prompt action for filling the vacancies.
The term of 1562 Fast Track Courts, which were functional in the States as of March 31, 2005, has been extended for another five years i.e. up to March 31, 2010.
With a view to ensuring the expeditious disposal of civil cases, the Civil Procedure Code has been amended which, inter-alia, limits the number of adjournments that can be granted to a party to three.
With a view to ensuring the speedy disposal of criminal cases, appropriate changes have been made in the Code of Criminal Procedure through the Code of Criminal Procedure (Amendment) Act, 2005, inter-alia, introducing the concept of plea-bargaining.
Modernization of the judicial infrastructure through the computerization of courts.
Further, with a view to make quick and less expensive justice accessible to the
From India, Coimbatore
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746October 2007
A PROBATIONER'S SERVICE CAN BE TERMINATED WITHOUT GIVING ANY REASON
The Calcutta High Court has stated in its judgment that a probationer's service can be terminated without giving any reason even before the expiry of the probation period.
The Court also has said that termination of a probationer without assigning any reasons would neither be stigmatic nor punitive.
Division Bench of Calcutta High Court in the case of Sudhin Kumar Ghosh Vs Damodar Valley Corporation and another
VALID DISCIPLINARY PROCEEDING COMMENCES FROM THE ISSUE OF CHARGE-SHEET
Disciplinary proceeding is not initiated merely by issuance of show cause notice. It is initiated only when a charge-sheet is issued. The Supreme Court of India has reiterated this after referring to its earlier decisions in the case of Union of India etc Vs K V Jankiraman etc and Coal India Limited and others Vs Saroj Kumar Mishra.
Supreme Court of India in the case of UCO Bank and another Vs Rajinder Lal Capoor
TERMINATION FOR CONTINUED ILL-HEALTH IS NOT RETRENCHMENT
In this case, an employee of M/s Oberoi met with a road accident, suffered injuries, and started absenting from work on account of it. The management waited for a period of 16 months hoping that the employee would recover from the injuries he sustained. Management sent letters, and in his reply, the employee requested management to wait for another six months, which was the period likely to take for his recovery.
Then, the management deputed a medical officer to personally see the employee and assess his medical fitness. The medical officer concluded that the employee would not be able to continue his work even after recovery. On that basis, the management terminated the services of the employee on the ground of his continued ill health and medical unfitness to perform duties.
The employee challenged his termination by stating that it was a case of victimization for his involvement in union activities.
On perusal of the facts, first the Labour Court and then the High Court came to the conclusion that medical unfitness of a person for the post and continued ill health are valid grounds for termination of services in view of Section 2 (oo) of the Industrial Disputes Act, 1947, and such termination does not amount to retrenchment.
Delhi High Court in the case of J B Kumar Vs Brijesh Sethi and another
STANDING ORDERS WOULD PREVAIL OVER AGREEMENT
In this case, the workman was appointed as an electrician on probation for 6 months from the date of joining and it was liable to be extended or reduced. The appointment order also stated that the workman was not liable to be treated as confirmed unless a letter of confirmation is issued. However, the workman continued for a period beyond 12 months on probation. Later, the management terminated the services of the workman treating him to be on probation.
While challenging the termination, the workman stated that he has worked satisfactorily and completed the probation period that was never extended. He also stated that under the Industrial Employment Standing Orders Act, the maximum period of probation provided is one year, and on completion of the said period of probation, the workman is deemed to be automatically confirmed, and the Standing Orders being statutory in nature supersedes the terms and conditions contained in the letter of appointment.
On hearing the matter, the High Court upheld the arguments of the workman.
Allahabad High Court in the case of R P Garg Vs Indian Oil Corporation Limited and another
A RETIRED PERSON IS NOT A WORKMAN
In this case, the retired employees raised a dispute regarding the revision of their pension.
The Court held that since the retired employees are not workmen, the dispute raised by them could not be termed as an 'industrial dispute.'
If the words 'any person' in the definition of 'workman' under the Industrial Disputes Act were intended to include a person who was employed at any point of time and subsequently retired, then the latter part of the definition, which contemplates a discharged, dismissed, or retrenched employee, would have become redundant and useless, and hence a retired person was not intended to be included in the definition of a workman - the Court said.
Calcutta High Court in the case Hindustan Lever Limited Vs Fourth Industrial Tribunal and others.
DEMAND FOR ESI CONTRIBUTIONS ON OUTSIDE JOB IS WITHHELD
Earlier during our April 2007 issue, we have brought to your notice a copy of the circular issued by the ESI corporation that enabled it to demand ESI contributions from Principle Employer on the job work given to the outside establishments.
Similarly, we have informed you about the Court decisions In the case of Employees' State Insurance Corporation Vs JMD Fashions, settled by the High Court of Karnataka, The Supreme Court of India's dismissal of a petition of ESIC challenging the decision of Karnataka High Court and the case of National India Rubber Works Limited Vs Employees' State Insurance Corporation, settled by Madhya Pradesh High Court wherein it has been held under Section 2(13) of the ESI Act the employees of the contractors would not come under the ambit and sweep of 'employee' as defined under Section 2(9) of the ESI Act.
Now, on receipt of a large number of representations from the employers and their associations, the ESI Corporation has decided to refer the questions regarding the claims for ESI contributions on outsourced jobs to a group of Senior Officers to make a thorough study of all aspects concerned and submit its report.
The ESI corporation has decided to withhold further actions in this regard till 30 September 2007.
All the employers are requested to take care while seeking dates for personal hearings or while forwarding their arguments or while taking any decision in this regard.
The ESI Corporation also has felt that Insurance Inspectors are not giving full particulars in their reports, and Branch offices are issuing C-18, 45-A order, and C-19 for claiming a substantial amount.
ENGLISH CONTINUES TO BE THE LANGUAGE OF PROCEEDINGS IN THE SUPREME COURT
Article 348(1) of the Constitution of India provides that all proceedings in the Supreme Court and in every High Court shall be in the English language until Parliament by law otherwise provides.
No law has since been made in this regard by the Parliament. Therefore, English continues to be the language for all the proceedings of the Supreme Court.
The Department of Official Language in consultation with the Registry of the Supreme Court has examined the matter of the use of Hindi in the proceedings of the Supreme Court. With respect to a reference made by the Department of Official Language, the Registrar, Supreme Court of India intimated that the point of introduction of optional use of Hindi in the hearing and proceedings in the Supreme Court has been considered by the full court twice i.e. on 10.4.1990 and 26.9.1996. However, after ascertaining the views of the Bar Council of India, Supreme Court Bar Association, and the Supreme Court Advocates-on-Records Association, it was unanimously resolved that it was not practically feasible to introduce Hindi in the proceedings of the Supreme Court on the ground that matters in this court are filed from all parts of the country and Hindi Language is used only in Northern India. If introduced, it will cause great difficulties to the litigants, Judges as well as bar members, particularly to those who hail from the Southern region of the country.
Under Article 348(2), the Governor of the State may with the previous consent of the President, authorize the use of the Hindi language or any other language used for any official purpose of the State, in the proceedings of the High Court having its principal seat in that state.
In four states namely Bihar, Uttar Pradesh, Madhya Pradesh, and Rajasthan, the use of the Hindi language has been authorized for the proceedings of the High Courts.
INCREASING STRENGTH OF JUDGES IN HIGH COURTS
As a result of a triennial review in the year 2006, 106 posts of Judges, subject to concurrence of the respective State Governments, had been approved in various High Courts as per details given below:
Allahabad-65, Andhra Pradesh-27, Calcutta-08, Delhi-01, Karnataka-01, Kerala-01, Punjab & Haryana-02, Madhya Pradesh-02
On the acceptance of the recommendation from the State Governments, 65 posts of Judges in the Allahabad High Court, 1 post in Karnataka, and 1 post in Madhya Pradesh have already been created.
MEASURES TO CHECK PENDENCY OF CASES
With a view to check the increasing number of pending cases, the Government has taken the following measures, inter-alia, to facilitate the speedy disposal of cases in the courts:
Review of the Judge strength in High Courts from time to time and prompt action for filling the vacancies.
The term of 1562 Fast Track Courts, which were functional in the States as of March 31, 2005, has been extended for another five years i.e. up to March 31, 2010.
With a view to ensuring the expeditious disposal of civil cases, the Civil Procedure Code has been amended which, inter-alia, limits the number of adjournments that can be granted to a party to three.
With a view to ensuring the speedy disposal of criminal cases, appropriate changes have been made in the Code of Criminal Procedure through the Code of Criminal Procedure (Amendment) Act, 2005, inter-alia, introducing the concept of plea-bargaining.
Modernization of the judicial infrastructure through the computerization of courts.
Further, with a view to make quick and less expensive justice accessible to the
From India, Coimbatore
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