INDUSTRIAL DISPUTES ACT, 1947
2015 II LLJ 578 (Jharkhand)
Bihar Colliery Kamgar Union – Vs – Union of India
Refusal of reference of ID, Regularisation of service
Industrial Disputes Act, 1947
Sections 10(1) and 2(k)
Petitioner workmen working permanently as contract labour for many years, made
representation for regularisation of service with arrears of wages and consequential
benefits, same denied. Dispute raised and report send to Government for reference
on failure of conciliation. Government refused reference.
On perusal of reasons given by Ministry of Labour for not referring dispute discloses
that appropriate Government entered into merit of matter as to existence of
employer-employee relationship between workmen and management. It is a
question for adjudication. Cannot exercise administrative power under Section 10(1)
2015 II LLJ 590 (SC)
Bennet Coleman &Co Ltd. – Vs – State of Bihar and others
Industrial Disputes Act – Unfair Labour Practice – Sections 2(ra), 2(b), 2(p), 10A,
25U and 29
Working Journalists and Other Newspaper Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955
Allegations of unfair labour practice in not implementing properly the
recommendations of the wage board. DLC preferred complaint before Magistrate
seeking prosecution under Section 25U read with Section 29 of the Act.
Prosecution for unfair labour practice maintainable only under Section 25U.
Recommendations of Wage Board is neither award nor settlement in terms of ID Act.
Depends on order by Central Government. Central Government passed order by
issuing notification and if the same not complied with, remedies under Section 17 of
Act, 1955 for recovery or under Section 18 for penalty and not under provisions of
Act 1947. Union already taken recourse to remedy under Section 17(2) with regard
to amounts due in terms of notification of Central Government under Section 12 of
Act, 1955, which is pending. If the lower court passes award and if the same not
implemented and there arises question of prosecution under Section 25U read with
serial no.13 of the Fifth Schedule of Act, 1947
2015 II LLJ 606 (Panjab & Haryana)
Anitha Puri – Vs – IT & LC, UT of Chandigrah
Employed in Sri Guru Harkishan Model School as clerk from 01/01/1995. She was
terminated on 10/01/2005 in derogation of Section 25F of the ID Act. It has been
argued that all through her service tenure she worked diligently and to the
satisfaction of her superiors and token thereof had even earned appreciation letters.
The management was pressurising her to resign so as to accommodate some other
favourite and as such her services were terminated with a malafide intention by
setting up a false plea of abolition of post. She was also looking after work pertaining
to stationery, books and uniforms apart from collection of school charges. Collection
of school charges was outsourced by the management to a Bank. Plea of abolition
was a sham
By the decision of managing committee two posts of office clerks were abolished due
to outsourcing. No other person appointed in those posts. Labour Court accepted the
plea of management as regards abolition of post of clerk on account of outsourcing
to be bonafide based on valid and cogent reasoning and appreciation of evidence
adduced. The same would not call for any interference.
HC enhanced the compensation from Rs.90,000/- to 2 lacs.
2015 II LLJ 657 (Gujarat)
General Work and North Gujarat Bidi Kamdar Union – Vs – DCL
Industrial Disputes Act, 1947, Section 10
Union raised ID in respect of granting higher grade and pay arrears amount. Failure
report by conciliation officer to Government and rejected demand for reference for
reasons that workman has retired and demand made after two years five months
after retirement. Employer-employee relationship ended.
Demand raised after two years, but same by itself is not ground for rejection of
reference. Merely because the workman retired, his demand for making reference to
give him higher grade on the basis of length of service could not be rejected.
Grounds put forth by authority for rejecting reference not administrative grounds.
Authority transcended its powers and jurisdiction by entering into adjudicatory area.
In the light of the parameters relating to exercise of powers under section 10 for
making reference, impugned order cannot sustain.
2015 II LLJ 710 (Gujarat)
Executive Engineer – Vs – Jashuben Sumabhai Choudhary
Industrial Disputes Act, 1947,
Workman was employed and work of road repairing and incidental work was being
taken from her and she was paid daily wages. Her services were illegally terminated.
Grievance was that employer was not paying minimum wages and was treating her
arbitrarily. Pleaded for reinstatement with back wages. After the court notice in the
petition, workman was reinstated by the petitioner to avoid payment of idle wages
under Section 17B of the Act 1947. Workman reserved the right to approach the
Court in case of any difficulty in future as she continues in service on reinstatement.
Order of reinstatement. The judgment and award of the Labour Court did not contain
any reason for discussion, much less valid reason to award back wages. Relief of
reinstatement would not automatically lead to grant of back wages. Award of back
wages is entirely the realm of discretion of the Labour Court/Tribunal. Merely
because reinstatement is ordered, the workman could not claim that she ought to
have been awarded back wages.
2015 III LLJ 93 (Kerala)
K.L.Francis – Vs – Kerala State Road Transport Corporation
Industrial Disputes Act, 1947, Sections 18(1) and 19(2)
Petitioner was empanelled driver on daily wages. He continued as such till his
selection by KPSC and consequent appointment as reserve driver. He continued till
attained age of superannuation. Service from regular appointment was 7 years 5
months and 13 days. According to Kerala Service Pension Rules Part III, adopted by
KSRTC, minimum qualifying service for pension is 10 years. A settlement was
entered between MD and Union. Accordingly, for pension, daily wage period before
their regular appointment was to count. KSRTC rejected his claim for counting
previous period.
Clause XXIII(3) do not contain any such precondition that the said daily wage period
of drivers should be after they have been advised by PSC for appointment. Order of
KSRTC rejecting the claim set aside. Petitioners entitled to count their provisional/
daily wage service rendered prior to regular appointment for purpose of pensionary
benefits.
2015 III LLJ 187 (Gujarat)
Devubhai T Patel – Vs – Saurashtra Paints Ltd.
Industrial Disputes Act, 1947 Section 17B
Applicant was dismissed from service after departmental enquiry on unauthorised
absence and other acts of insubordination. Applicant filed for reinstatement with back
wages. Reference was allowed directing reinstatement with 75% back wages.
Petition was filed against award and interim stay granted. Applicant claimed benefits
under Sec.17B of Act, 1947.
Whether applicant is entitled to benefits under 17B and if the applicant is gainfully
employed within the meaning of Act.
Factory of employer has been shifted to some other place. Employer has not denied
reinstatement and called upon applicant to join duty at such place. Refusal to join
duty by the applicant disentitle him to get benefits under 17B. Applicant is doing
gainful work on his own. Clear that any earning by any means would certainly curtail
benefits under 17B. It can be treated as receiving adequate remuneration and
thereby proviso to section 17B is attracted for denying benefits.
2015 III LLJ 379 (Punjab & Haryana)
Gurnam Singh & another – Vs – Presiding Officer & another
Industrial Disputes Act, 1947 Section 2(oo)(bb)
Termination on non-renewal of contract of employment. Petitioners workmen filed
writ challenging award of Labour Court, whereby reference decided against
workmen. Petitioners alleged that they were employed on daily wages and their
services terminated without issuing notice, charge sheet/enquiry or retrenchment
compensation. They were entitled to reinstatement along with continuity of service
and back wages. Management resisted that workmen cannot be permitted to allege
violation of Sec 25F as termination of services of workmen was a result of nonrenewal of contract of employment. Whether Sec.2(oo)(bb) attracted on termination
of workmen on account of non-renewal of contract of employment?
Evidence on record shows that management used to pass resolution for employing
person on muster roll basis and sought approval of competent authority and such
kind of work done on basis of sanction and due to non-grant of sanction, services of
workmen terminated. On termination of workmen on account of non-renewal of
contract between employer and workmen on expiry of such contract, Sec 2(oo)(bb)
is attracted. Petitioner cannot be permitted to allege violation of sec. 25F.
2015 III LLJ 477 (Delhi)
Murari Lal – Vs – DCM Ltd
Industrial Disputes Act, 1947 Section 33C(2)
DCM Ltd reached settlement to pay retrenchment compensation to workmen.
Petitioner claimed entitlement and Labour Court held application under 33C(2) not
maintainable. Petitioner’s entitlement to this money had been objected by employer
and his entitlement has not been determined by Arbitration Panel. Whether Labour
Court was right in holding that it had no jurisdiction to determine entitlement of
petitioner for retrenchment compensation under settlement?
Jurisdiction of Labour Court under Sec.33C(2) is of nature of executing court.
Supreme Court has clearly held that Labour Court has no jurisdiction under Sec
33C(2) to adjudicate dispute of entitlement or basis of claim of workmen. Labour
Court can only interpret award or settlement of which claim is based. Disputed claim
of workman that he is entitled to compensation under settlement has not yet been
determined by any competent forum. Labour Court has rightly held that it had no
jurisdiction to determine entitlement of petitioner for retrenchment compensation
under settlement.
2015 III LLJ 488 (Patna)
Bihar SRTC – Vs – State of Bihar
Industrial Disputes Act, 1947
Writ application has been file by petitioner seeking quashing of order directing
reinstatement of respondent 2. Petitioner contends that industrial dispute was raised
by respondent 2 after inordinate delay.
Whether the respondent is entitled to reinstatement and other benefits in view of the
delay in filing industrial dispute?
Supreme Court held that though there was no limitation prescribed for reference of
disputes under Act, 1947, it was only reasonable that such disputes be referred as
soon as possible after they have arisen. No explanation for delay of nearly 14 years
in raising ID by respondent 2. No explanation for such delay in counter affidavit filed
on behalf of respondent 2. Order of labour court quashed.
2015 III LLJ 536 (SC)
Talukdar Singh – Vs – TELCO
Retrench Compensation enhancement
Charge sheet issued to appellant for committing misconduct of slapping colleague.
Enquiry conducted and services terminated. Same challenged. Labour Court held
that enquiry was fair and proper. Misconduct was proved. But punishment of
dismissal from service was shockingly disproportionate. Awarded retrenchment
compensation. Appellant filed writ alleging that punishment of dismissal was harsh
and compensation awarded was no compensation. High Court while upholding
punishment of dismissal, enhanced compensation. Still aggrieved, appellant
preferred present appeal. Whether retrenchment compensation awarded by HC is to
be enhanced?
Both Labour Court and High Court recorded concurrent findings of fact that
misconduct of appellant proved on the basis of evidence and punishment of
dismissal was shockingly disproportionate. When Labour Court passed award the
appellant was at the verge of attaining superannuation. Considering number of years
which appellant worked with respondent and facts and circumstances on record
compensation was enhanced to specific sum, inclusive of compensation awarded by
High Court.
2015 IV LLJ 93 (Kerala)
MD, Kerala State Coir Marketing Federation – Vs – P.K.Subran
Industrial Disputes Act, 1947 and Article 226 of Constitution of India, 1950
Closure compensation and notice pay. When employment denied to 1 st respondent
worker, dispute raised and referred to Tribunal, who directed management to
compute closure compensation and notice pay to worker since requirements with
regard to alleged closure of unit not complied with. Writ petition by management
dismissed, hence appeal. Whether worker entitled closure compensation and notice
pay?
After passing of award appellant filed petition belatedly and same never explained.
Jurisdiction under Article 226 of constitution is not to be extended in favour of
persons resting on arm chair without regard to their rights. Worker put forth his case
that he had continuous service, same never rebutted by management as evident
from pleadings raised. No case for management that notice as envisaged under
relevant provisions of the Act, 1947 with regard to alleged closure served to worker.
No evidence also adduced. No representation when matter listed for hearing.
Tribunal compelled to proceed with matter on the basis of materials on record
leading to award. No illegality, irregularity or impropriety found with regard to course
perused by Tribunal to have interference.
2015 IV LLJ 47 (Madras)
Regency Ceramics Ltd – Vs – Government of Puduchery
Industrial Disputes Act, 1947 Lock out Prohibition Section 10(3)
Allegation of violence by workmen led to declaration of lockout. State made
reference. Pending dispute before industrial court, State issued order prohibiting
lockout with immediate effect with allegation that petitioner failed to comply with
order of Labour Commissioner and State. Also alleged that it has powers under
Section 10(3) to pass order prohibiting strike or lockout either while referring or after
making reference of dispute. Whether there was cause of action for 1st respondent to
invoke section 10(3) when violent situation created by workmen, which led to
declaration of lockout and said situation having not changed?
Detailed report from State shows that factory in question is not suitable for operating
same as per conditions prevailing. Earlier order passed by 1st respondent cannot be
executed based on joint report by officers who are subordinates to 1st respondent
stating that machineries, plant, structural stability for repair/replacement. Report of
State accepted. Impugned order of State is not fit to be operated. Since case is
pending before Industrial Tribunal, relevant issues may be decided before it. Order of
1st respondent quashed.
2015 IV LLJ 624 (Delhi)
Associated Trading Co – Vs – Ram Vishal
Industrial Disputes Act, 1947 Retrenchment compensation. Validity of Constitution of
India, 1950, Article 226
Dispute as to termination of workman raised and management alleged that there
was not relationship of employer and employee between them. Labour Court held
that the onus was on workman to prove relationship of employer and employee
which he discharged from documents on record. Management could not lead
evidence to discredit documents filed by workman. Service of workman retrenched
by management held to be in contravention of provisions of law. Workman did not
plead or prove his subsequent unemployment, back wages not granted.
Retrenchment compensation awarded. Writ petition, whether retrenchment
compensation awarded to workman justified?
While exercising jurisdiction under Article 226 of the Constitution, High Court not to
exercise its powers to convert itself into Court of Appeal sitting in judgment over
Tribunal. Such writs intended to enable High Court to issue them in grave cases
where subordinate tribunal or bodies or officers act without jurisdiction or in excess
of it or in violation of principles of natural justice or refuse to exercise jurisdiction
vested in it or error apparent on face of record.
2015 III LLJ 263 (Madras) DB
Citibank – Vs – T,R.Ramesh & ors
Shop Appeal
Respondent was terminated from service. Respondent alleged harassment while
terminating service. Filed appeal before appropriate authority, DCL to set aside
termination and separate suit for damages before Civil Court.
Single judge passed order directing disposing of appeal first and then matter before
Civil Court. Whether appeal against termination and suit claiming damages for
harassment are based on same set of issues and facts and ought not to be allowed
to proceed separately.
A parallel enquiry by a statutory authority in a matter pending before a Civil Court
does not necessarily ipso facto amount to contempt of court. To prevent aberration
of justice and to promote substantial cause of justice, proceeding before Appellate
Authority to proceed with matter further and appellant and first respondent to
simultaneously proceed with commencement of trial of Civil Suit. Open to respective
parties to reap benefit of Order/Judgment. Decision of Civil Court binding on
Appellate Authority, however, findings rendered by appellate authority may not be
binding on Civil Court/High Court, even though the matter involved may be identical.
2015 II LLJ 609 (SC)
Nicholas Piramal India Ltd – Vs – Hari Singh
Dismissal from service on charge of misconduct of “Go Slow Work”
Employee at drug manufacturing unit of the management. Company issued 2 charge
sheets against him alleging that he has violated and disregarded order of his senior
officers and intentionally slowed down the work under process and made less
production by adopting go slow work tactics. Grave misconduct under standing
orders. Denied the charges and gave reply. Enquiry Officer found him guilty after
domestic enquiry. Findings were accepted by the disciplinary authority and second
show cause notice issued with copy of enquiry report. The same did not refer to any
of his past service record. Workman replied denying the findings of enquiry officer.
Order of dismissal passed. Raised dispute before Labour Court, where it was held
that the enquiry is valid and found penalty of dismissal awarded legal and valid in
law. Labour Court after reconsideration set aside the order of dismissal and directed
management to reinstate workman with 50% back wages. Balance 50% treated as
penalty imposed in place of dismissal.
SC held that the appeal is devoid of any merit and dismissed. Since the case was
pending for 14 years, directed the company to reinstate the workman within 4 weeks
and to compute 50% of back wages payable to him from the date of his dismissal till
the date of passing of the award as per periodical revision and pay full salary from
the date of award till the date of reinstatement.
2015 II LLJ 756 (Calcutta) FB
SVS Marwari Hospital – Vs – State of West Bengal & ors
Dismissal from service
Presenting officer participated in domestic enquiry. Natural justice. Central Civil
Service (Classification, Control and Appeal) Rules. Employee was dismissed from
service after domestic enquiry held by management. On reference, Tribunal held that
participation of Presenting Officer as witness in domestic enquiry rendered enquiry
as well as entire proceedings inoperative and without jurisdiction. Writ petition
challenging order of Tribunal. Single judge held that by appearance of Presenting
Officer as witness there is violation of natural justice. Appeal whether mere
participation of Presenting Officer as witness in domestic enquiry is contrary to
principles of natural justice and renders enquiry and entire proceedings ineffective
and without jurisdiction.
If delinquent employee has suffered any prejudice by reason of Presenting Officer
acting as witness on behalf of management, enquiry proceedings will possibly be
held vitiated. Prejudice must be real prejudice as opposed to formal prejudice,
affecting some substantial legal right of the employee. Mere participation is not
contrary to principles of natural justice and does not render enquiry or entire
proceedings inoperative or without jurisdiction
2015 III LLJ 40 (Kerala)
Mohammed Fathahudeen – Vs – Union of India
Petitioners employed on contract basis. Juniors appointed on contract basis with less
service regularised. Even after repeated requests petitioners not regularised. After
four years workers and staff related to Fishing Division shifted under Control Tower
Operation Division. Petitioners represented for regularisation pointing out that two
Cable TV Technician management trainees with less service were regularised.
Management stated that they were not engaged against any sanctioned vacancy but
engaged to clear out urgent works of non permanent nature.
Supreme Court held that High Courts in exercising powers under Article 226 of the
Constitution will not issue direction for regularisation, absorption or permanent
continuance unless employees had been appointed in pursuance of regular
recruitment in accordance with the relevant rules in an open competitive process
against sanctioned vacant post. Mere continuation of service by a temporary or
adhoc or daily wage employee under cover of some interim orders from Court would
not confer upon him any right to absorb into service. Sympathy and sentiments
cannot be grounds for passing any order of regularisation in the absence of legal
right.
2015 III LLJ 322 (Bombay)
Vivekananda Rugnalaya – Vs – Ganga
Disciplinary procedure
Respondent sweeper inflicted with punishment of suspension for 3 days without pay.
Respondent filed complaint alleging suspension and deduction of specific sum from
her monthly wages illegal. Industrial Court set aside order of punishment and
directed to return amount deducted and pay 3 days wages. Writ. Whether order of
industrial court justified?
Punishment of suspension for period not exceeding 4 days can be imposed by
manager upon workman held guilty of misconduct under standing order 25(1)(c) and
no enquiry required while awarding said punishment. Facts show that respondent
issued with notice calling for her explanation and she was not placed under
suspension under standing order 25(5) and said notice is self-explanatory and
respondent replied to said notice. Explanation II below Section 7 of the Payment of
Wages Act, 1936 indicates that punishment of suspension, which result in loss of
pay shall not be deemed to be deduction from wages. Impugned order of industrial
court perverse, erroneous, same quashed and set aside.
2015 III LLJ 691 (Kerala) DB
M.Krishnan & another – Vs – State of Kerala
Disciplinary procedure - Termination
Petitioners’ service with employer was ended after failure of petitioners to appear for
duty. Petitioners challenged removal from service on ground of no opportunity of
being heard given. Appeal was dismissed after which they filed present petition.
Whether termination of petitioners was right and proper procedure followed?
Course and conduct of 1st petitioner displays that he was acting contrary to duty cast
upon him to rise to situation as representative of people. Equally or more was
conduct displayed by 2nd petitioner as driver of ambulance. No further adjudication
was necessary to have taken decision by concerned authorities with regard to
desirability of engagement of petitioners as daily rated employees. There is no
violation of principles of natural justice, nor is there any infringement of rule of
binding precedent. Daily rated engagement itself is contract for day and it does not
envisage any right for regularisation or continuity in service. If, competent authority is
dissatisfied with the work of daily rated employees, said authority can decide not to
engage them in future.
2015 IV LLJ 400 (Delhi)
Delhi Transport Corporation – Vs – Industrial Tribunal
Disciplinary procedure - Termination
Enquiry against workman on charges of forging tickets conducted. Workman before
Tribunal contented that enquiry conducted without following principles of natural
justice and tribunal held that management has not been able to establish misconduct
for which he was punished. Petitioner seeks to impugn order by tribunal and
respondent filed writ for reinstatement. Whether Tribunal was right in holding that
petitioner has not proved misconduct against respondent?
Conclusion of tribunal that solitary evidence of ticket inspector is not enough to prove
allegation against workman is an incorrect conclusion. Ticket inspector was member
of checking team. Contemporaneous action taken by the checking staff itself fortifies
stand of the management about incident. Sequence of events and prompt follow up
steps taken by inspection team as elaborated by ticket inspector is his evidence
inspire confidence and prove case of management. Merely because workman was
acquitted in criminal trial would not be ground for this court to take different view.
Tribunal has wrongly disallowed application of management. There was enough
evidence to show that workman conducted misconduct stated in petition, which is
allowed.
2015 II LLJ 636 (Allahabad)
Bankey Bihari Chauhan – Vs – State of UP & ors
Gratuity forfeiture
UPSRTC Employees (other than officers) Service Regulation, 1981, Reg 39 & 63,
Payment of Gratuity Act, 1972 Section 4(6)
Disciplinary proceedings initiated against conductor finding him negligent in
performance of duty causing financial loss. Order passed for recovery of amount by
deducting from his salary until retirement. After many proceedings order passed by
Regional Manager of corporation sanctioning gratuity and adjusting same towards
balance amount to be recovered. Moved writ proceedings but was dismissed.
Appeal, whether order sanctioning gratuity amount and adjusting the same towards
balance amount to be recovered justified?
Appellant never terminated but continued to be in service and retired on
superannuation. Basic precondition for forfeiture of gratuity under Section 4(6) of Act,
1972 not fullfilled. Regulation 63 contains no such provision of recovery from
gratuity. Contrary to law. Even if order of penalty attained finality, recovery or
adjustment of amount of gratuity to be made following statutory provisions.
2015 III LLJ 708 (Madras) DB
T N Cooperative Milk Producers Federation Ltd – Vs – JCL
Payment of Gratuity Act, 1972 Section 7 & ID Act Sec 18(1)
Settlement entered between appellant and 2nd respondent after award passed in
industrial dispute. Dispute arose with regard to payment of gratuity. 1st respondent
competent authority held that 2nd respondent gave up only back wages and
attendant benefits, but not their past service for claiming gratuity. Same challenged.
Single judge directed appellant Federation to pay gratuity with interest from the date
of retirement. Appeal, whether 2nd respondent entitled to payment of gratuity?
After award passed, Sec.18(1) settlement entered. Nowhere in the settlement it was
mentioned that 2nd respondent would forgo their gratuity and continuity of service.
Period of five years of service is minimum condition for entitlement of gratuity under
Act, 1972. Also in absence of specific order against employee, his gratuity cannot be
forfeited. Gratuity being valuable right is not bounty and its disbursement to be made
without delay. Act 1972 would prevail over service regulations. Gratuity of employee
can be withheld only in case of his dismissal and not otherwise. Gratuity cannot be
denied merely on understanding that employee will not claim for service already
rendered.
2015 IV LLJ 192 (Delhi)
North Delhi Municipal Corporation – Vs – Devi Dutt Sharma
Recovery from retirel benefits
Even after 4 months of his retirement respondent driver did not vacate official
accommodation. He did not vacate even after notice. Corporation filed petition for
eviction and Estate Officer ordered eviction. He did not vacate in defiance of order
but was forcefully evicted. Petitioner deducted specific sum from retiral benefit for
unauthorised occupation. Same challenged. Tribunal held that action of the petitioner
in making deduction from pension of workman illegal and he is entitled to get back
entire amount deducted. Whether petitioner entitled to recover damages of employee
remaining in unauthorised occupation of accommodation after retirement from his
retiral benefits?
Respondent continued to hold accommodation unauthorisedly for seven years till
forcibly vacated from premises. Petitioner alleged that specific sum remains to be
recovered towards damages. Respondent enquired as to whether he would pay that
amount to petitioner, but he stated that he has no means. If petitioner is not allowed
to recover amount from dearness allowance payable to respondent, no other means
to recover the amount. Petitioner allowed to recover amount in question from
dearness allowance due.
2015 II LLJ 640 (Bombay)
Damodar – Vs – Maharashtra State Electricity Distribution Co
Workmen’s Compensation Act, 1923, Sections 4, 4A(1), 4A(3)(a), (b)
Appellant employee was engaged in maintenance work and was paid wages through
contractor. He met with accident and sustained injuries. Suffered permanent
disability of 55%. Filed claim. Employer paid compensation amount. Employee
sought for balance amount to be paid. Employer opposed. CWC concluded that
employee has suffered injuries in an accident during course and arising out of
employment and suffered 100% loss of earning capacity. Employer directed to pay
balance amount. Employee filed appeal against rejection of interest and penalty.
Employer filed appeal against order of CWC.
In chief examination of employee it was recorded that employee cannot stabd and
walk properly after accident. Also employee was not able to do work which he was
doing previously. Evidence led by employee not challenged by employer in cross
examination. CWC appreciated evidence and recorded that employee has suffered
100% loss of earning capacity. Same is not perverse. Employer directed to pay
simple interest. Amount not paid within one month and hence interest on amount
attracted.
2015 II LLJ 660 (Gauhati)
New India Assurance Co Ltd – Vs – Ajijul Haque & another
Employee Compensation. Section 4(1)(c)(ii)
Claimant was driver of vehicle insured by appellant. Met with accident resulting
injuries to the claimant. CWC assessed compensation presuming claimant has
suffered permanent partial disablement to tune of 20% and consequently he had loss
of earning capacity to tune of 40%.
Pre-condition for granting compensation under Section 4(1)(c)(ii) is that workman
has to suffer permanent partial disablement. Disability should be certified by qualified
medical practitioner. Discharge certificate does not reveal as to whether after
treatment when patient was discharged, he was cured or not. Doctor did not say in
any specific terms that chronic osteo arthritis could have arisen as on date of
examination because of accident or not. Accident resulted in fracture in elbow joint.
Medical certificate and/or deposition of doctor silent as to whether complication
resulting from the accident was permanent or not. Neither medical certificate make
any indication as to whether fracture injury at head of right ulna can result in
permanent physical disability of patient. Presumed opinion of CWC struck down.
2015 III LLJ 125 (Madras)
Alagar Blue Metal Crusher – Vs – Palanivel
Workmen’s Compensation Act, 1923.
Working as crusher operator on daily wages. At 2 AM belt broke down during his
employment and hand got struck up in the wheels and he was seriously injured.
Extensive treatment given. Doctor certified that he suffered 60% partial permanent
disability. Claim was raised. Appellant resisted on the ground that he was not
employed by him. Admitted that accident took place within his factory premises.
Respondent was employed as menial by the workers who are employed by him.
CWC passed order directing appellant to pay compensation.
Appellant insured 98 workmen employed by him. Since his name is not included in
the insurance policy, the Tribunal should have inferred that he was not a workman.
HC of the considered view that as to whether the respondent was a workman
employed by the appellalnt is concerned, it is purely the findings of the
Commissioner on facts and no question of law, much less a substantial question of
law is involved in this appeal.
2015 III LLJ 350 (Gauhati)
National Insurance Co Ltd – Vs – Kanai Das
Employee Compensation.
Wages. Workman approached WCC with claim. WCC considering daily allowance/
food allowance as part of monthly wages of workman awarded compensation.
Appellant challenges said award and judgment.
Whether WCC committed error in considering daily allowance/food allowance as part
of monthly wages.
If it is proved on basis of preponderance of probability that daily allowance was
regularly paid to workman as condition of service, then it is to be considered as part
of monthly salary.
2015 III LLJ 360 (Gauhati)
Oriental Insurance Co Ltd – Vs – Md. Rafiqul Islam
Employee Compensation. Section 4(1)(c)(ii)
Claimant sustained injuries while in employment. Claim filed before Commissioner
who awarded amount taking into consideration medical advice rendered by doctor.
Appellant insurance company challenged award. Whether, assessment of
compensation under Section 4(1)(c)(ii) of the Act considering nature of disability
sustained by claimant is justified?
Under Section 11 of Act, appellant could have opted for getting workman examined
by different authority as per its own choice if appellant was of the view that doctor
was not competent to or impartial. Appellant insurance company not having taken
course to provision of Section 11 for purpose of medical examination of workman,
finding of fact arrived at by Commissioner cannot be interfered with. Commissioner
arrived at finding that claimant lost earning capacity to extend of 20% and this view
was taken on deposition of doctor who is a qualified medical practitioner. Opinion of
doctor being based on medical records and he having considered attending facts
and circumstances like his occupation and nature of injury, such finding of
Commissioner cannot be said to be perverse.
2015 III LLJ 371 (Manipur)
National Insurance Co Ltd – Vs – Achoubi Begam
Employee Compensation. Section 30
Appeal by insurance company challenging award of CWC. Claimant widow of
deceased workman employed by respondent 2 for loading and unloading timber.
While travelling in a vehicle belonging to respondent, the vehicle met with an
accident and fell down from a bridge and he died. Respondent, owner of the vehicle
admitted the claim. Vehicle insured with respondent 1 who admitted insurance policy
but workmen not covered since no premium was paid to cover such employee. It
was submitted that under Section 147(i)(b) of the MV Act, 1988, the insurance
company is liable to pay compensation.
2003 AIR SCW 3601 confirms the liability of insurance company to indemnify owner
arises out of insurance policy under Sec.147 of the MV Act. Insurance company is
statutorily liable to cover the risk of an employee carried in the goods vehicle.
Admittedly, at the relevant point of time the deceased was engaged by the truck
owner and when he met with an accident, he was carried in the vehicle. Therefore,
there is no force in the contention of the appellant insurance company
2015 III LLJ 627 (Jharkhand)
National Insurance Co Ltd – Vs – Janki Devi
Employee Compensation.
Accident in the course of employment. Motor Vehicles Act Sections 146 and 147. In
the course of duty deceased employee sustained injuries in accident resulting in his
death. Trial court held that deceased died in course of employment and since
alleged vehicle was insured with appellant insurance company, it was directed to pay
compensation. This is challenged. Whether impugned order passed by lower court
justified?
Deceased was employee of employer in question and de died in course of
employment while performing duty assigned by employer. Motor Cycle of employer
insured with appellant. In terms of provisions of Act, lower court rightly held that
employer to be liable to pay compensation to deceased. Since, insurer was liable to
indemnify owner, liability to pay compensation fastened on insurance company.
Impugned order does not merit interference. Section 147 of MV Act does not define
the type and nature of the vehicle, rather the word vehicle is used in a broader sense
and this includes two wheeler vehicle. The insurance policy is a contract whereby the
insurer is liable to indemnify the owner for any liability in terms of policy.
No.11534/Leg. C2/2014/Law Date: 1.1.2015
An Act further to amend the Kerala Shops and Commercial Establishments Act, 1960.
Preamble.- WHEREAS, it is expedient further to amend the Kerala Shops and Commercial
Establishments Act, 1960, for the purpose hereinafter appearing; BE it enacted in the Sixty-fifth
Year of the Republic of India as follows:
1. Short title and commencement . - (1) This Act may be cal1ed the Kerala Shops and Commercial
Establishments (Amendment) Act, 2014.
(2) Sections 2 to 4, Clauses (1) to (3) of Section 5 and Clause (1) of Section 6 of this Act shal1 be
deemed to have come into force on the 29th day of August, 2014 and Clause (4) of Section 5 and
Clause (2) of Section 6 shal1 come into force at once.
2. Amendment of Section 2 . - In Section 2 of the Kerala Shops and Commercial Establishments
Act, 1960 (34 of 1960) (hereinafter referred to as the principal Act),(1) after Clause (1), the fol1owing clause shal1 be inserted, namely:“(1A) “big establishment” means a shop or commercial establishment, which employs twenty or
more employees.”
(2) for Clause (8), the following clause shall be substituted, namely:“(8) “establishment” means a shop or commercial establishment which may be a smal1
establishment, a medium establishment or a big establishment”.
(3) after Clause (10), the fol1owing clause shal1 be inserted, namely:“(l0A) “medium establishment” means a shop or commercial establishment which employs six or
more, but less than twenty employees.”.
(4) after Clause (15), the fol1owing clause shal1 be inserted, namely:“(15A) “small establishment” means a shop or commercial establishment which employs no
employee or not more than five employees.”.
3. Insertion of Chapter IB .- After Chapter 1 A of the principal Act, the following Chapter shall be
inserted, namely:CHAPTER IB
CONDITIONS FOR ENGAGING EMPLOYEES
5D. Issue of appointment letter .- Every employer of a medium or a big establishment shall issue an
appointment letter, in such manner as may be prescribed, to his employees the time of
appointment.
5E. Prohibition of retaining education certificate or experience certificate .- No educational
certificate or experience certificate in original received from an employee shall be retained by the
employer of any establishment at the time of appointment or during the course of employment.
5F. Issue of service certificate. - Every employer shall provide service certificate to the employee
engaged by him, in such manner as may be prescribed, at the time of resignation or retrenchment
or superannuation of the employee or while applying for another job.”.
4. Insertion of Section 21A. - In Chapter VI of the principal Act, after Section 21, the following
section shall be inserted, namely:“21A. Hostel facilities .- Every employer of a big establishment employing more than fifty
employees shall provide hostel facilities to such employees, in such manner as may be
prescribed.”.
5. Amendment of Section 29 . - In Chapter VIII of the principal Act, in Section 29,(1) in sub-section (1),(i) in Clause (a),(a)
for the word “two hundred and fifty rupees” the words “five thousand rupees” shall be
substituted;
(b)
for the words “ten rupees” the words “two hundred and fifty rupees” shall be
substituted.
(ii) in Clause (b) for the words “ten rupees” the words “two hundred and fifty rupees” shall be
substituted,
(2) in sub-section (1A),(a) before the figure “6” the figures and letters, “5D, 5E, 5F' shall be inserted;
(b) after the figure “21” the figure and letter “21A” shall be inserted;
(c) for the words “two hundred and fifty rupees” the words “five thousand rupees” shall be substituted;
(d) for the words “five hundred rupees” the words “ten thousand rupees” shall be substituted.
(3) in sub-section (2), for the words “fifty rupees” the words “two thousand and five hundred rupees”
shall be substituted.
(4) in sub-section (4), for the words “Magistrate of a Second class” the words “Magistrate of the First
class” shall be substituted.
6. Amendment of Section 34 .— In Section 34,(1) in sub-section (2) after the word “health”, the words “hygiene and sanitation”, shall be inserted;
(2) in sub-section (3), for the words “fifty rupees” the words “five thousand rupees” shall be
substituted.
7. Repeal and Saving. - (1) The Kerala Shops and Commercial Establishments
(Amendment) Ordinance, 20 14 (20 of 10 14) is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the principal Act as
amended by the said Ordinance shall be deemed to have been done or taken under the principal
Act, as amended by this Act.
THE PAYMENT OF BONUS (AMENDMENT) ACT, 2015
NO. 6 OF 2016
[31st December, 2015.]
An Act further to amend the Payment of Bonus Act, 1965.
BE it enacted by Parliament in the Sixty-sixth Year of the Republic of India as follows:—
1.
(1) This Act may be called the Payment of Bonus (Amendment) Act, 2015.
(2) It shall be deemed to have come into force on the 1st day of April, 2014. 2. In section 2 of the
Payment of Bonus Act, 1965 (hereinafter referred to as the principal Act), in clause (13), for the
words ‘‘ten thousand rupees’’, the words ‘‘twenty-one thousand rupees’’ shall be substituted.
3.
In section 12 of the principal Act,— (i) for the words ‘‘three thousand and five hundred
rupees’’ at both the places where they occur, the words ‘‘seven thousand rupees or the minimum
wage for the scheduled employment, as fixed by the appropriate Government, whichever is
higher’’ shall respectively be substituted;
(ii) the following Explanation shall be inserted at the end, namely:—
‘Explanation.—For the purposes of this section, the expression ‘‘scheduled employment’’ shall
have the same meaning as assigned to it in clause (g) of section 2 of the Minimum Wages Act,
1948.’.
4.
In section 38 of the principal Act, for sub-section (1), the following sub-section shall be
substituted, namely:—
‘‘(1) The Central Government may, subject to the condition of previous publication, by notification
in the Official Gazette, make rules to carry out the provisions of this Act.’’.