Important Points


November * Termination of continuous service, as defined under Section 25-B of the Industrial Disputes Act, 1947 of a workman without compliance of provisions of Section 25-F of the Act, is illegal retrenchment under Section 2(oo) of the Act, attracting reinstatement with full back-wages and continuity of services and other service benefits. Justifying lumpsum compensation in lieu of reinstatement with back-wages, the law is well settled by the Supreme Court through various judgements that where there are exceptional circumstances due to which reinstatement cannot be granted, paying lumpsum compensation in lieu of reinstatement and back-wages be permissible. Exceptional circumstances are numerous depending upon facts of each case, including financial crisis being faced by the employer, closing down of the establishment, the employee having attained the age superannuation, physical reinstatement being impossible due to any reason etc.
November * Dismissal of services of the workman on account of proved misconduct of creating unnecessary nuisance alongwith other workers, extending threat of dire consequences by beating one of the employees with stone and fist blows while he was going on scooter to his home after duty hours, is justified. Service of notice will be taken effectively materialised when the envelope containing address of petitioner and sender, having postal stamp and letter number with posting date is proved on record in addition to publication of notice in Dainik Tribune which is recognised by the Court for publication of notices and summons for substituted service and that the notice was pasted on the gate of the factory premises, whereas such evidence has not been controverted by the workman. Plea of ‘protected workman’ is not tenable when the Union had never confirmed to the Management that the workman was one of their office-bearers or for enlisting him as a ‘protected workman’ and the Management has never conveyed to the Union about the recognition of the ‘workman’ as ‘protected workman’. Punishment of dismissal from service is not disproportionate to misconduct of extending threat to officers or work culture in and out of the premises of the Management due which the workman has lost confidence of the Management.
November * Statutory bonus is the kind of bonus which has been fixed by the Statute as a minimum bonus which the employer has to pay @8.33% of the yearly earnings of the employees. Whereas the customary bonus relates to the amount of bonus which is paid by the Management to its employees over and above the amount of statutory bonus that means such a bonus will be more than 8.33% of the total yearly earnings of the employees. Customary bonus is subject to certain conditions including profits and surplus of the Company of the Management; being paid in the past since long either as decision of the Management on its own in the past or on the basis of any settlement between workman / union and the Management etc. and it has become a custom or precedent. A document not produced before the lower court / authority, is not acceptable in evidence before writ court.
October * If an order taking cognizance is illegal, subsequent proceeding is also illegal. When an order has been passed without hearing the parties directing one party to pay any amount to the other, the same is illegal being in violation of principles of natural justice. An order passed against a party without service of summons is not sustainable. The authority under the Minimum Wages Act would be a civil court while conducting proceedings under Section 20 of the Minimum Wages Act in respect of dispute regarding non-payment of wages for days of rest or for work done in such days or overtime to the employees, claims against payment of wages less than the minimum rate of wages etc.
October * An Industrial Adjudicator is bound to answer the reference only to the extent the reference was made and not beyond that. If the labour court had decided the reference beyond the reference made, the award so passed is liable to be set aside on the ground that the industrial adjudicator has definitely exceeded its jurisdiction. Merely because the delinquent employee had deposited the money misappropriated by him, he cannot be exonerated from the gravity of misconduct since such a conduct of dishonesty by a public employee cannot be tolerated. Awarding reinstatement with 50& back wages to a workman who is found guilty of misconduct of misappropriation of public money, would be a misplaced sympathy, not admissible in law. Scope of judicial review of the orders passed by the Tribunal after recording evidence of the parties is very limited.
October * Management is having discretion to terminate the service of a workman employed on contract basis for a fixed term for any period or on expiry of any extended period. Termination of services of an employee engaged on fixed term basis on expiry of contractual period as per terms of his employment contract is not illegal. A workman engaged on contract bass for a fixed term would not be having relationship of employer-employee, as a regular employee of the employer, irrespective of his length of service since his services are to be governed by the terms and conditions of his appointment letter/services contract. Not allowing the contractor (contractual employee) to work beyond contract period is not illegal since the workman is not entitled to seek protection under Section 25-F of the Industrial Disputes Act, 1947 for the purpose of retrenchment compensation or such other relief. Services of contractual employee would be covered under Section 2(oo)(bb) of the Industrial Disputes Act, 1947.
September * Letter of resignation containing charges of corruption against higher officials proves that resignation was obtained by use offeree. Non-compliance of procedures as indicated circulars, while accepting the resignation, without giving reasons thereto, prove that resignation is not valid in law. While accepting resignation, non-consideration about one month’s notice and non-giving reasons as to why resignation was accepted so hurriedly proves that such resignation of its acceptance is not proper. Fact that ‘no dues’ clearance has not been obtained from various departments as per guidelines given in circulars, proves malafide on the part of the management. Acceptance of resignation on a date after withdrawal of resignation on previous date is bad in law. When the resignation is not unconditional, its acceptance without disclosing reasons thereto is malafide. When petitioner has not mentioned any period of notice in the resignation, the employer has to wait for one month for acceptance of the same. Without any request by the employee to waive off the notice period, the employer has no power to accept the resignation immediately. Forcefully obtained resignation is not punishment only to the employee but to his entire family. Merely because the petitioner has maintained his family or he was gainfully employed or doing some work to maintain his family is not sufficient to avoid relief of back-wages to the petitioner. When the acceptance of resignation is illegal, the petitioner is entitled to reinstatement with back-wages and continuity of service.
September * A workman does not automatically bestow the status of a ‘protected workman’ as defined under Section 33(3) of the Industrial Disputes Act and has to go through certain procedure thereby getting declaration to the effect from the appropriate government. Mere submission of letter to appropriate authority in labour dept. is not sufficient for seeking status of a ‘protected workman’. By issue of show cause notice an enquiry is merely contemplated and not initiated, hence, challenge to show cause notice in writ petition is pre-mature and not maintainable. Utilising false documents or electronic record with intent to cause damage or injury to any person or property by playing fraud is not only a grave and serious misconduct under the Act but a criminal offence under Section 463 of IPC, attracting conviction and fine. Forgery is a grave and serious misconduct, justifying punishment of removal from service, if proved in departmental enquiry. The object of labour laws is very wide for the welfare of the workers as well as to maintain, project and promote industrial peace and harmony. A person disturbing peace and tranquillity, adversely affecting efficiency and output of the establishment is liable to be removed from service. Suspending the services of a workman who is deemed to have involved in activities likely to disturb peace and tranquillity, adversely affecting efficiency and output of the establishment is justified. Office bearer of a Union is duty bound to be a symbol of integrity, honesty, hard work and a person who respects the law since he is role model for other workers. Contemplation of enquiry begins with the very first step of seeking an explanation from the delinquent employee and not when the employer decides to initiate the enquiry. Contemplation of enquiry would end with a decision to initiate the departmental enquiry. Filing or writ petition challenging the show cause notice and suspension order is not maintainable since no civil or fundamental right of the delinquent has been cause any injury by the show cause notice or suspension order. Show cause notice, rather, gives an opportunity to the delinquent to put forth his defence.
September * When the workman after oral termination of his service never offered himself for service to the employer, directly or through union or any mediator, it stands proved that he was not interested in the employment of the Management i.e. he has abandoned the job on his own accord since the burden is upon the workman to prove that his service was terminated. When it is not on record that employer ever denied the workman from resuming his duty, it stands proved that the workman left the employer on his own accord. When award is passed by the Industrial Adjudicator on the basis of facts duly analysed, writ court is not having jurisdiction to re-appreciate the evidence on record to reach any different opinion. There is no law generally that in each and every case of voluntary abandonment of service, a domestic enquiry prior to termination of services is a legal necessity. When there is no case of consideration of any non-germane or irrelevant material or circumstance or disregard of any irrelevant material or circumstance, interference under Article 226 & 227 of the Constitution of India is not called for.
August * A Chairman/Managing Director, having a large number of mines for supervision and control, does not come within the purview of definition of ‘Principal Employer”. He cannot be said that he was directly responsible for engaging contract labour in a prohibited place of work. A person cannot be criminally prosecuted on vague and unspecific allegations. A person responsible of the overall superintendence and control, he cannot be prosecuted as principal employer if there is no direct allegation making out a case of contravention of any provision of the Contract Labour Act/Rule or condition of licence in a capacity of owner, agent or manager named for the particular mine.
August * When the demand for regularisation and absorption was made admittedly during subsistence of contract of employment whereas services of the workmen were terminated during conciliation proceedings, reference of industrial dispute is maintainable since subsequent termination forms part of dispute connected with absorption or regularisation. Nothing is in Section 2(k) of the Industrial Disputes Act suggesting that disputes or differences between employer and workmen, engaged through contractor, requires any sponsorship, espousal or support of permanent workmen. When the Union want to industrial adjudicator with an express plea that there was an employer-employee relationship between workmen whose cause is espoused by it, the same is sufficient espousal for raising an industrial dispute. Industrial Adjudicator is empowered to adjudicate as to whether the contract between principal employer and contractor supplying manpower is sham or bogus or genuine. Workman of contractor can raises an industrial dispute concerning contract to be sham and bogus but not for abolition of contract labour system. If the contract is found to be genuine, the only course left to industrial adjudicator is to refer the workmen to appropriate government for abolition of contract labour and keep dispute pending in the meanwhile. When the contract is held to be sham or not genuine, the employees are to be treated as employees of the principal employer. When it is held by the industrial adjudicator that the workmen were direct employee of principal employer and not of the contractor, in fact, he effectively holds that the contract was sham and bogus. Agreement between principal employer and contractor for supply of contract labour would prove that the work is of regular and perennial nature of the manpower supplied is (i) for the purpose of providing services in fabrication from time to time at their factory, (ii) for the purpose of providing services in assembly work (iii) for the purpose of providing services in material handling (iv) work was to be performed with the help of machinery of petitioner with permanent employees (v) under the supervision and control of principal employer and not of contractor(s) (vi) no production card or work card were issued by the contractor to workmen (viii) the principal employer was habitually engaging contractors or casual workers for regular work. Written documents, wages registers, bills of contractors have no significance since these documents are to be in support of agreement whereas workmen ware not working only for the work indicated in the agreement but for all purposes with permanent employees. For establishing control and supervision of the principal employer, the rejection of work of any of the workman is one of the major decisive factors. If the Management witness was unable to prove contrary facts besides only wage register and bills which do not meet the tests laid down by the Supreme Court, the evidence of the workmen will stand established.
August * Industrial Adjudicator is not functus officio after the Award has become enforceable as far as setting aside of an ex-parte award is concerned. He is empowered to entertain an application as per Scheme of Industrial Disputes Act by following the Rules of Natural Justice. Industrial Disputes Act is a welfare legislation intended to maintain industrial peace. On an application by Management for setting aside ex-parte award, he has to balance equities between the rival parties. He has to consider as to whether there was sufficient cause for non-appearance of Management / Applicant. In case a party is able to show sufficient cause within a reasonable time for its non-appearance before him, when it was ex-parte, he is bound to consider the application for setting aside ex-parte award and it cannot be rejected on the ground that the award had become enforceable. Certain powers to do justice have to be conceded to him, i.e. ancillary, incidental or inherent and that power cannot be circumscribed by limitation. Merely because an award has become enforceable, does not necessarily mean that it has become binding because for an award to become binding, it should be passed in compliance with principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance, can be challenged on ground of it being nullify and an award, which is a nullify, cannot be and shall not be a binding award. What is sufficient cause and whether the jurisdiction is invoked within a reasonable time should be left to the judicious discretion of him. Any party to the judicial proceedings should get an opportunity of being heard and if such an opportunity has been denied for want of sufficient reason which he denied such an opportunity, being satisfied of the sufficient cause and within reasonable time, should be in a position to set right its own procedure.
July * When the transfers of executive officers, including the appellant, were effected in the course of administrative exigency, plea of malafide and vindictiveness, as taken by the appellant, is not sustainable. Since the transfer was effected to meet the exigencies of work, plea of two years prior to superannuation is having no force. If the appellant would have reported at the place of transfer and pleaded that the employer refused to give him duty, then he would have been entitled to claim wages and other benefits. Since the petitioner did not report for duty at the place of transfer by remaining unauthorisedly absent, the principle of no-work, no-pay would prevail.
July * While terminating the services of a workman on account of misconduct committed by him, conducting of domestic enquiry is not necessary, if the workman has admitted the misconduct on his own free will. Non-conducting of enquiry while terminating the services of a workman on account of misconduct committed by his, is not fatal if the workman has admitted the charges before the labour court. Non-reporting for duty at the place of transfer in compliance of a legal order is a misconduct justifying punishment of termination of services of the workman.
July * Appointment of external member, not associated with a non-governmental organisation, not having qualifications as required under Sexual Harassment of Women At Workplace (Prevention, Prohibition & Redressal) Act, 2013 Rule 4 of the Rules, is invalid & proceedings so conducted and liable to be quashed. The basic object of the Act includes that a woman who is alleging sexual harassment feels safe during the course of proceedings of ICC, maintaining her faith that nothing is biased and unfair to her interests. For conducting proceedings by ICC, compliance of principle of natural justice as well as service rules as applicable is to be ensured creating confidence in the complainant. The complainant is not merely an object of pity or sympathy but the duty lies upon all including employer, courts and society to root out wholly unwholesome behaviour with any woman. Mere fact that FIR was registered in a place does not imply that no cause of action has arisen even partly with the territory of registered office. The facts that registered office of the respondents was in Delhi, ICC was constituted for both Delhi & Gurgoan, appointment letter was issued to the appellant in Delhi, letter of resignation was coerced from her in Delhi, are sufficient to constitute direct nexus to the cause of action arisen in Delhi though partly. The High Court at Delhi would be having territorial jurisdiction to entertain and try the complaint/petition of sexual harassment when the part of the cause of action has arisen in Delhi. Not only the Parliament, Administration and Courts but the Employer is to be ever vigilant ensuring that effective policies are swiftly and impartially enforced while dealing with the complaints of sexual harassment. It is ensured by all concerned including Employer that no one is subjected to unwelcome and unacceptable behaviour and/or no perversity or obstinacy taken place in conducing the proceedings by ICC, particularly where the delinquent employee is a senior level officer.
June * A writ petition is not maintainable while challenge is only to show cause notice for initiation of proceedings u/s 7A of the EPF Act. A writ petition may be maintainable against a show cause notice if the same is issued by an incompetent authority having no jurisdiction or competency or an allegation of mala fide is raised or if the same is violation of any statutory rules in force. The Constitutional Courts cannot usurp the powers of the competent authorities in the absence of any legally acceptable reason. Similar type of matters are sub-judice before the Supreme Court, wherein initiation of proceedings is not stayed by the Supreme Court since the stay is only that the EPF Authority shall not raise demand of EPF contributions upon Allowances. Once the enquiry is initiated, intermittent interventions are to be avoided. In such circumstances, the petitioner is at liberty to appear before the EPF Authority by placing its records in its defence. Decision of EPF Authority is respect of Allowances shall be kept in abeyance till such time and order, if any, passed by the EPF Authority shall not be implemented till final disposal of the cases pending before the Supreme Court.
June * Provisions of Section 2(oo)(b) of the Industrial Disputes Act are attracted in case of termination of a workman, appointed in fixed term employment. An industrial dispute may be dismissed on account of abnormal delay in raising the same without cogent explanation. A workman, appointed on contract basis, has no legal right to hold the post after the fixed period of employment is over. In the case of termination of a workman appointed on fixed term basis, after the contractual period is over, issuance of charge-sheet or holding of enquiry is not required.
June * Causing sexual harassment and brutal assault to a lady officer is a grave and serious misconduct justifying punishment of dismissal from services of the charged employee. Acquittal in criminal case due to failure on the part of the prosecution to produce witnesses or becoming hostile by the prosecution witnesses, the accused may be acquitted on account of lack of evidence. Charged employee is not entitled to reinstatement or getting waived off the quantum of punishment imposed upon him on the basis of departmental enquiry simply on the ground of his acquittal from criminal case on account of lack of evidence. Departmental enquiry and criminal proceedings both are held on different footings.
June * Termination, at the end of the probation period even when stigmatic cannot be said punitive. Termination is not stigmatic if no allegations of misconduct are made in the order. Termination of services of a probationer on the basis of an assessment that his work is not satisfactory will not be punitive. Even if the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the inquiry officer has not recorded evidence nor given any findings on the charges. Remarks in the assessment are merely the motive and not the foundation since the assessment is not done with the object of finding out any misconduct on the part of the employee/officer.
May * Once the manufacturing process starts in an establishment, thereafter the provisions of BOCW Act cannot be made applicable and the provisions of BOCW Act would stand excluded. Provisions of Section 2(1)(d) of the BOCW Act does not include any “Building & Other Construction Work’ to which the provisions of Factories Act apply. Construction of Building activity in an old running factory cannot be covered under the BOCW Act.
May * Inquiry finding cannot be interfered by the Court when it has been held strictly in accordance with law by following principles of natural justice in which appellant duly participated, appellant has admitted the charges, charges have also been proved independently with the aid of evidence, appellant has not produced any cogent defence evidence, inquiry officer has given findings that misconduct on the part of appellant was wilful with mala fide intention to perpetrate the fraud which has been confirmed by the Division Bench and it is held by the DB that dismissal order is to commensurate with the gravity of charges. An appellate court cannot sit over findings of inquiry officer and find fault in it not can it re-appreciate evidence. Acting beyond one’s authority by itself is a breach of discipline, a serious and gross negligence to justify punishment of dismissal from service. Any dereliction in discharge of duties while dealing with finance whether by way of negligence or with deliberate intention or with casualness constitutes grave and serious misconduct attracting major punishment. Compliance of principles of natural justice would stand proved when the appellant throughout participated in the inquiry, no prejudice has been pointed out by the appellant to have suffered during the inquiry proceedings, he has admitted the charges without any condition and the employer has proved the charges independently with the aid of documents.
May * An employee is eligible to claim gratuity if he has rendered qualified service i.e., continuous service as specified in Sections 2(e) read with Section 2A of the Payment of Gratuity Act. Once the employer-State has regularised services of the daily wager, the daily wager-employee would be eligible to claim gratuity for the total period of his service including service as daily-wager as well as a regular employee. In the absence of any provision in the Act, disentitling the employee from gratuity for the period of service when he worked as daily wager or prohibiting him from claiming gratuity for his long service as daily-wager, the employer-State has to pay the gratuity to the employee subject to proving continuous service of 5 years as per Section 2A of the Act. In just case, the State must act as an honest person instead of taking legal defences since the Act is a beneficial in favour of weaker section of the society. Since just case of an individual employee has been opposed by the State, on legal technical grounds, the costs is imposed upon the State. 22 years of service as a daily wager and thereafter 3 years as regular employee satisfies the rigor of expression continuous service, thereby entitling the employee to claim gratuity under the Act.
April * Admission of signature on a letters whereas the Commissioner’s office has denied the signature of recipient and seal of the office contained in these letters, establishes that these documents are forged one. Suspension of an employee who has been charged with the misconduct of forgery is justified since non-suspension of that employee may derail the departmental enquiry. A union office bearer or leader is expected to have leadership qualities since he is to play a crucial role model for workers as a symbol of integrity, honesty, hard work and a person who respects the law. Forging documents is playing fraud with company’s business, an act which is ‘subversive of the discipline in the establishment’. Whoever makes any false document of false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title or to cause any person to part with property, or to enter into any express or implied contract, or with an intent to commit fraud or that fraud may committed, commits forgery as per Section 463 of IPC. Essential is intent to cause damage or injury by the act of forgery and it is not essential that actual loss have been caused or suffered by the injured. In service jurisprudence the word ‘Any Law’ have to be necessarily given a liberal interpretation as the laws applicable to the Management and Workers of an establishment and not merely the labour/service laws but all laws including IPC. If a show cause notice has been issued by an authority not competent to do so or beyond the jurisdiction of the authority, it can be challenged under writ jurisdiction. Challenge to a show cause notice under writ jurisdiction is not maintainable since it does not infringe a civil or a fundamental right of a person.
April * Dismissal of a workman (daily wager) from his services, who had worked for more than 240 days in preceding one calendar year, without conducting regular departmental enquiry by issuing a charge sheet, is illegal. Industrial Adjudicator has to frame a ‘preliminary issue’ on the validity of inquiry conducted by the Management where termination of the services of the workman was by way of punishment. If the preliminary issue on validity of inquiry is decided in favour of the workman, the Management is entitled to lead evidence afresh before the labour court to prove the misconduct against the workman. If the preliminary issue of validity of inquiry is upheld on the basis of inquiry report, the industrial adjudicator is empowered u/s 11-A of the Industrial Disputes Act to interfere in the quantum of punishment, if the same is disproportionate to the gravity of misconducts, by reducing the same appropriately. Termination of services by way of punishment could never be regarded as ‘retrenchment’ as per provisions of Section 2(oo) of the Industrial Disputes Act. Framing of preliminary issue on ‘fair and proper inquiry’ is very important in the case of termination by way of punishment as per settled law for.


March * Going on strike immediately after settlement proves that Union has failed to implement it side of the settlement. If Union went on strike instead of implementing the terms and conditions of the settlement makes the strike illegal. The Industrial Disputes Act provides sufficient procedures to redress the grievance of the workers. No person can be permitted to take benefit of its own wrong.
March * Aggrieved insured from partly reimbursement of medical bill by the ESIC is entitled to seek remedy u/s 75 of the ESI Act. As per Section 57 of the ESI Act, the state government or ESIC is to fix a scale for reimbursement of any medical benefit. No provision is there in Section 57, the Act to adopt CGHS rates. Only a letter issued among the officers of the ESIC does not satisfy the requirement of Sections 96 & 97 of the Act since these Sections mandates previous publication. As per Sections 56 & 58 of the Act, the ESIC or state government is liable to provide medical facility to the insured and his family members. Insured is not liable to pay any amount to tie-up hospital. When there is no facility either in ESI run hospital or in tie-up hospital, treatment taken from another hospital having required facility cannot be rejected. ESIC is liable to reimburse the entire medical expenses incurred by the insured in a private hospital if it has failed to prove on record that the facility for the treatment taken by the wife of the insured was available in its own run hospital or in any tie-up hospital.
March * Setting aside of termination order may not always result in reinstatement. Reinstatement with back-wages when termination is held illegal is not being applied mechanically in all cases. When the termination is illegal and/or mala fide, by way of victimisation, unfair labour practice etc. in the case of a daily wager, keeping in view long time spent in litigation, granting lump sum monetary compensation in lieu of reinstatement and back-wages, is justified. When it is proved in evidence that the workman worked for 240 days continuously in one previous calendar year, termination of his services without payment of retrenchment compensation is illegal retrenchment, justifying reinstatement with back-wages or lump sum compensation. Finding of illegal retrenchment by the Labour Court, on the basis of documents on record, does not deserve any interference by the Writ Court.
February * Using foul language coupled with casing assault upon co-workers as well as filing false complaints with the police against the Management, is a grave and serious misconduct justifying punishment of dismissal. Industrial peace and harmony are sine qua non for efficient functioning of the industries. A workman, who disturbs the peace and tranquillity, needs to be dealt with firmly. Exerting external pressures upon the Management is also a grave and serious misconduct. Punishment of dismissal from service is justified for the grave and serious misconduct of using foul language, causing assault upon co-workers as well as filing of false complaints with the police against the Management claiming his victimization being belonging to SC community.
February * Forming of a Trade Union by a group of citizens is fundamental right under the Constitution of India. If there are more than one union in an establishment, it is for the authority competent to take decision as to all Unions be invited for negotiations or settlement in accordance with law of not. Constitution of India insists equal opportunity to the citizens for effective participation in decision making process at all levels. No Union can claim that it must be declared as sole union for the purpose of bargaining with the Management. Monopoly, in democratic country, can never be considered as a best policy. Every citizen is important and no one should be treated less than any other citizen. Class of equality under the Constitution of India, must be progressively developed so as to eradicate a minor level of inequality even now prevailing in India society. Fundamental duties require every citizen to abide by the Constitution and respect its philosophies, ideologies and the institutions constituted thereon, including the National Flag and National Anthem.
February * Obtaining employment by producing fabricated documents is a grave and serious misconduct justifying punishment of dismissal. For imposing punishment of dismissal upon a workman who is involved in an industrial dispute, pending adjudication, taking prior approval u/s 33-C(2)(b) of the Industrial Disputes Act, of that Industrial Tribunal is mandatory. Non-taking of prior approval u/s 33(2)(b) of the Act, by the Management, for dismissal of the workman, found guilty of grave and serious misconduct, itself would not authorise the High Court to interfere with the punishment without adjudication of the validity of dismissal. When the industrial dispute has already been decided, in such a situation, interference of the High Court with the punishment without considering the findings of the Labour Court on the correctness of the charges against the workman is bad in law.
February * Provisions of Section 25-K, Chapter VB of the Industrial Disputes Act are applicable only when the strength of workers in the establishment is more than 100 at the relevant time of closure of the unit. For deciding the strength of total workers, the status of each and every disputed employee has to be examined by way of recording elaborated cogent evidence. If the strength of workers is/was below 100 at the relevant time of closure of the unit, it is/was not necessary for the Management to comply with the provisions of Section 25-K of the Act. It depends upon fact of each case as to what criteria is to be taken into consideration to determined quantum of amount of compensation, including length of service, last drawn wages, financial position of the Management, previous payment of compensation, if paid to any employee etc. While hearing appeal under Article 136 of the Constitution of India, the finding of lower court, be that of concurrence or reversal, is binding on the Supreme Court. Only when a finding given by the lower court is wholly perverse to the extent that no average judicial person could ever record such finding, would not be binding upon the superior court. Status of an employee as to whether he is a ‘workman’ or not involves not only the facts but certain legal tests, making it, necessarily a mixed question of fact and law. Even the Supreme Court would not readily interfere with the conclusion of the Tribunal in respect of a mixed question of fact and law unless it is satisfied that the said conclusion is manifestly or obviously erroneous. Under Article 227, it is duty of High Court, while exercising its supervisory jurisdiction to see that subordinate court has exercised it powers in accordance with law and did not commit any illegality or perversity in reaching to its conclusion.
February * For composition of the Committee u/s 9 of the Minimum Wages Act, the appropriate government is to nominate representatives of employers and employees in equal number and independent persons not exceeding one third of its total number of members, one of such independent persons shall be appointed the chairman by the appropriate government. The Minimum Wages (Central) Rules nowhere provide as to who should be nominated as representative of employer in the Committee. There is no flaw in composition of the Committee as the Section 9 of the Act wherein an employee has been nominated to represent his employer. There is no need that the employer himself should represent himself as member of the Committee.
January *Once the departmental enquiry was held legal and proper, interference in punishment by the Labour Court by setting aside the order passed by the disciplinary authority is not justified. Interference in punishment by the Labour Court was only to be exercised with regard to quantum of punishment only instead of setting aside the complete order passed by the disciplinary authority. When the enquiry held by the enquiry officer is confirmed to be legal and proper of the Labour Court, the power of the Labour Court remains limited only to decide the disproportionality of quantum of punishment and not the complete factual merits of the case. In enquiry proceedings compliance of strict rules of evidence is not required as in criminal proceedings. Enquiry proceedings/finding is based on the principle of preponderance of probabilities and not to prove the misconduct or charge beyond reasonable doubt as required under criminal proceedings. The enquiry proceedings as well as criminal proceedings can continue simultaneously subject to the condition that the enquiry is held independently from that of the criminal proceedings. Even after acquittal by the criminal court, the enquiry can still be held. Staying the enquiry proceedings awaiting decision of criminal proceedings is not justified when the enquiry is being held independently. When departmental enquiry is held to be legal and proper by the Labour Court and confirmed by the writ court, remanding the entire case to the Labour Court for a fresh decision, is not justified since in such circumstances, a short issue remains only to decide the quantum of punishment which the writ court itself can consider on the basis of evidence on record. Commission of theft on duty is a serious charge justifying punishment of dismissal.
January *Mode of piece rate payment is ‘wages’ u/s 2(22) of the ESI Act. Since the employees have worked for more than 10 years on contract basis, receiving wages on piece rate basis, they would be covered under the definition of ‘employees’ as given u/s 2(9) of the Act. Since the payment of wages, though at piece rate basis, was made by the Principal Employer, making it liable to remit ESI contributions in respect of such employees.
December * Labour Court/Industrial Tribunal is only bound to answer the term(s) of reference under Section 10 of the Industrial Disputes Act and not to decide any other issue including delay in raising the industrial dispute by the workman. They have no authority to adjudicate the matter which was not within the purview of dispute actually referred to it by order of reference. Objection with regard to delay in raising the demand by the workman could be taken by the employer before framing of terms of reference. Writ Court has very limited jurisdiction to re-appreciate findings of fact returned by the learned Tribunal below.
December * Petitions are not maintainable for non-joiner of necessary parties. Without impleading concerned contractors with whom workmen actually worked, it is difficult to ascertain the identification of the workmen. Writ petition, without exhausting efficacious alternate remedy, is not maintainable. Writ petition, involving highly disputed questions of facts including details of wagers paid, concerned workmen, contractors, is not maintainable.
November * Writ Court is competent to lift the order of attachment of bank account of the employer as passed by the EPF Authorities subject to conditions as deems justified. In case the employer submits sufficient proof of depositing the ordered amount and regularity in paying current EPF dues, attachment of bank account shall not be re-imposed by the EPF Authorities till disposal of the writ petition.
November * By obtaining exemption from the EPF Authorities, an employer may jump to any other scheme on its own in respect of PF of its employees if the same is more beneficial than that under the EPF Act. Exemption provided by the EPF Authorities may be revoked by these Authorities, giving reason(s) thereto. As per provisions of the Act, the employer is statutory bound to contribute EPF contributions to the extent of prescribed limits only. An employer contributing more than the prescribed limits under any agreement with the workmen or union, may reduce its share to the extent of prescribed limits under the Act. If the EPF Authorities do not refund the excess amount deposited by the employer, they shall be liable to pay interest thereon.
November * Proceedings under Section 7A of the EPF Act are judicial proceeding by fiction since the same can well be equated for the purpose with a court under Section 195(1)(b)(i) of CrPC. Section 193, IPC refers to a judicial proceeding whereas Section 195, CrPC refers to a proceedings in any court. International insult or interruption to public servant sitting in judicial proceeding is an offence punishable under Section 228 of IPC. The officer conducting the enquiry under Section 7A(1) of the EPF Act, shall, for the purpose of such enquiry, have the same powers as are vested in a court under the CPC 1908, for trying a suit and any such enquiry shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purpose of Section 196 of the IPC, 1860.
November * Law is well settled that gratuity, leave salary, family benefit fund (provident fund & pension) are all immunes from attachment, against any liability. Wife and children are legal heirs of the deceased employee, entitled to all such monetary benefits. Gratuity & PF cannot be attached for recovery of balance outstanding amount against loan obtained from Bank.
November * When an employee was appointed in Supervisory and designated as Junior Executive in Grade A, became Member of Supervisory Staff Association, performing duty to supervise one shift of duty, receiving salary and allowances as an Executive, cannot be a workman under the Industrial Disputes Act. The technical rule of evidence is that ‘wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all’. A piecemail selection of a part of evidence is not the right approach as the effect of totality of the evidence is likely to be lost sight of the in the process. Salary exceeding Rs.1600 per month is an important factor which excludes the employee from the category of workman.
November * An amount paid as interim relief on amount of increase in wages on the basis of recommendations of the wage board, is to be covered under the term ‘wages’ as defined under Section 2(22) of the ESI Act. Where there may be two or more ways to interpret a statutory provision, the spirit of ESI Act, being welfare legislation, warrants a construction that benefits the working class. Departmental memorandum, applicable in respect of central public sector enterprises, would not be effective upon private limited company. Interim relief is not a gift or inam but part of wages as defined under Section 2(22) of the ESI Act.
October * Ex-parte enquiry finding due to non-responding to the charge-sheet, non-attending enquiry proceedings without any sufficient cause and non-responding to second show-cause notice, would not be liable to the vitiated if there is no procedural fault. Non-interference in the order of punishment by the labour court by exercising its power under Section 11-A of the Industrial Disputes Act, would not having any fault if the workman himself has not place any supporting material to the effect that the punishment is shockingly disproportionate, on the case file.
September * The Tribunal while answering the reference has to confine its inquiry to the question(s) referred to and has no jurisdiction to travel beyond the question(s) or/and terms of reference. It is settled legal proposition that judicial review is not taken to adjudication on merits by re-appreciating the evidence as an appellate authority.
September * The standard of proof required in a disciplinary proceeding and in the criminal court is intrinsically different, as in the disciplinary inquiry charges are proved on the scale of preponderance of probabilities, while in the criminal case the charges framed are required to be proved beyond all reasonable doubt.
September * Termination of services of an employee, appointed on a fixed term, at the time of expiry of duration of the fixed term, is not illegal. Termination of services of an employee not appointed in pursuant to any selection procedure or by following the constitutional scheme, is not illegal.
September * Where the workman has assaulted the production manager, showing any leniency by the Labour Court / Industrial Tribunal, by exercising power under Section 11-A of the Industrial Dispute Act, 1947 is not proper since it would amount to misplaced sympathy which would adversely affect discipline in the organisation.
September * For proving employer-employee relationship, the required documents are like appointment letter, written contract, joining report, attendance register, leave record, p.p. records, ESI records and evidence of co-workers. In the absence of any documentary evidence, the existence of employer-employee relationship would not exist between claimant-workman and the alleged employer. As per Sections 101 to 104A of the Evidence Act, the party who asserts must prove through evidence to the satisfaction of the Court, the existence of the fact contended by it. Burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof. When a party is bound to prove the existence of any fact, the burden of proof lies on that party. Burden to prove employer-employee relationship lies on the workman. Mere self-serving affidavit would not tantamount to prove the relationship of employer-employees.
August * Any person employed for wages in connection with work of the establishment, either directly or through contractor but not apprentice engaged under the Apprentices Act or under the Standing Orders of the establishment is an employee under Section 2(f) of the EPF Act. On the basis of payment of attendance bonus, retention bonus or efficiency payment, any person, as engaged, would not be coverable under the definition of employee under the Act. A trainee, not covered under the Apprentices Act or Standing Orders, if not performing regular job i.e. if regular production of the establishment is not dependent upon his performance, the provision of the Act are not applicable to such a trainee. Without recording statement of any such trainee, as employed, to the effect that they are performing regular job or the production is fully dependent upon their performance, they are not to be covered under the Act by the EPF Authority under the proceedings under Section 7-A of the Act. The EPF Authority is empowered to enforce the attendance of any person, to issue order for discovery and production of any document, as is enjoyed by the Court under Civil Procedure Code, in receding the judicial proceedings. The EPF Authority is to decide not abstract question of law but to determine actual concrete difference in payment of contributions and only granting of opportunity to the employer is not sufficient. Without identification of beneficiaries, liability of payment of EPF dues to be saddled upon an employer is not sustainable. The EPF Authority is not empowered to direct an employer to make compliance of any other Act including Apprentices, Bonus, Minimum Wages Acts etc. for application of principles of natural justice, the EPF Authority is to grant proper opportunity of being heard to a person against whom enquiry is being conducted, to exercise fair and transparent procedure and it must apply its mind while passing a speaking or reasoned order.
August * The labour leaders issued statutory notice for one day strike to pressurise the Management for implementing the labour laws. On very next day the Management issued transfer order, transferring them at another unit at distance of about 86 kms. The Management also obtained an order of status quo from the Court in this respect, the Union challenged the transfer order as well as the order of status quo passed by the Court. The writ court held that the petitioners may be labour leaders but no prejudice would be caused to them since they have been transferred at a distance of 86 kms, they can commute by free of cost between the place of transfer and transferee and even alongwith them other labour leaders including Presidents & Secretaries of the Union who were also signatories of the notice, have also been transferred which proves that petitioners have not been victimised.
August * Workman was contractual employee appointed for short fixed term of 3 months which was extended from time-to-time with stop gap arrangement by giving breaks for one or 2 days. He had completed 240 days service during the 12 calendar months prior to termination. When the regular appointee was appointed, the services of the contractual employees were terminated by giving one month’s notice. Workman raised an industrial dispute. Industrial Tribunal considering the breaks for 2-3 days as artificial breaks, held the termination without holding departmental enquiry or giving show-cause notice, as illegal being in violation of Section 25F of the Act, directing the management for his reinstatement without back-wages. Both the Management and the workman challenged the award in separate writ petitions. It has been held that the appointment was on short term vacancy for fixed period of 3 months, clearly indicating that appointment does not confer any right for continuance on regular appointment, hence in such cases compliance of Section 25F of the Industrial Disputes Act is not required. Termination of service of the workman after appointment of regular employee is not retrenchment as per Section 2(oo)(bb) of the Industrial Disputes Act, if the contract of employment is having stipulation that it does not confer any right for continuance on regular appointment.
August * Rule 25(2)(v)(a) of Contract Labour (Regulation & Abolition) Rules, 1971 confers protection to employees engaged through contractor since the permanent employees has to be inducted by the employer by a different set of procedure whereas for workers employed by contractor, the procedure is bound to be different. There has to be difference between the sources for recruitment. Prima facie Rule 25(2)(v)(a) of the Rules provide protection with regard to similar wages to the employees, engaged by a contractor as envisaged constitutionally. Slight variations in nature of work cannot brush aside the similarity. There has to be a substantial difference between the nature of work to justify the difference in wages of permanent employee and contractor’s employee.
July * As daily batta paid to a driver or an employee does not fall under any of those exceptions in Section 2(1)(m) of the Employees’ Compensation Act, 1923, it will necessarily be a part of ‘monthly wages’ for the purposed of the 1923 Act.
July * Appropriate Government, in relation to an establishment belonging to, or under the control of the Central Government, is the Central Government. Appropriate Government, in relation to an establishment not belonging to, or not under the control of the Central Government and not having its branches in more than one state, is the State Government. Appropriate Government, in relation to an establishment having branches in more than one state, is the Central Government. Appropriate Government, in relation to a factory belonging to, or under the control of the Central Government is the Central Government. Appropriate Government, in relation to a factory not belonging to, or not under the control of the Central Government, even having its units in more than one state, is the State Government since it would be covered under Section 2(a)(ii) of the Act.
July * An officer dealing with cash transactions of the company is expected to maintain utmost integrity, devotion and diligence, thereby demonstrating the highest degree of integrity and trustworthiness. Law is settled that mere repayment of misappropriated money would not absolve a person of such a serious charge. When an employer has lost confidence upon an officer, it is not for the court, by excising power of judicial review, to interfere with the decision of the disciplinary authority of the employer, modifying the quantum of punishment. Illegal possession of public money is a serious charge of misappropriation, justifying dismissal from service.
July * In every case of illegal termination, reinstatement is not automatic or as a strait jacket formula. Instead of reinstatement a lump sum compensation is to be granted keeping in view, the duration of service, the workman had put with the Management, circumstances of the Management, organisational structure etc.
June * Possession of employee or his family members after his death over the quarter allotted by the company, from the date of cessation of employment, is illegal. The employer is competent to file civil suit for eviction against the employee or his family members on his expiry, for vacating the quarter allotted to the employee by virtue of his employment since contractual relationship between employer and employee had come into existence on the basis of tenancy agreement between both of them. Employer-Company is having legal right to file complaint against the employee and/or his legal heirs/family members, in competent court seeking employee or his family members prosecution, eviction of the quarter and for imposition of fine since the Civil Procedure Code does not bar the applicability of the Companies Act. Eviction suit is of civil nature. The Civil Court is competent to take cognizance of an eviction suit filed by the company against its employee(s) or his heirs/family members for eviction of quarter allotted to the employee by virtue of the employment on rent basis till his last day of employment, since civil court is not barred by virtue of any special enactment to entertain and try such suits. Filing of eviction suit in civil court is not hit by Section 13 of the U.P. Industrial Housing Act, 1955. The Section 9 of the Civil Procedure Code provides that the civil court shall have jurisdiction to try all suits of a ‘civil nature’ excepting suits of which their cognizance is either expressly or impliedly barred. An employee or his family members are liable to pay rent at the market rate, in addition to damages and compensation, during the period of their illegal possession over the quarter allotted to the employee by virtue of his employment by the employer.
May * Attendance bonus or bonus is not ‘wages’ u/s 2(s) of the Payment of Gratuity Act for the purpose of calculation of gratuity. Order of controlling, not challenged in appeal by the aggrieved party, within prescribed limitation, would attain finality. If the order of controlling authority is not challenged in appeal by the aggrieved party, within prescribed limitation, the appellate authority cannot interfere with the same that being not a lis before it. If the claimant-employee has not vacated the accommodation provided by the employer, he will not be entitled to interest in respect of the period of such unauthorized occupation of the accommodation as held by the Supreme Court in the case Union of India & Anr. Vs. K. Balakrishna Nambiar, AIR 1998 SC 2958.
May * The RPFC (EPF Authority) cannot file writ petition against the order of the EPF Appellate Tribunal since it exercises quasi-judicial authority and the appellate tribunal’s order cannot be said to have adversely affected the right of the EPF Authority to deprive it of something to which it has a right.
May * Non-issue of notice or payment of notice-pay, before or at the time of terminating the services of the workman, having served for 240 days or more than that, is violation of Section 25F of the Industrial Disputes Act, 1947 making the termination illegal and entitling the workman to reinstatement with wages and all consequential benefits. If the Management fails to produce any valid contract or agreement with any man-power supplying agency during the relevant period, in respect of the workman who has worked with it, the relationship of employer-employee between the Management and the Workman would stand proved. If the workman proves his appointment letter issued by the principal employer, his name in the muster-roll of the Management and an experience certificate issued by the principal employer, he would be treated as employee of the principal employer. Retrenchment is illegal if the Management fails to prove that the same is covered under sub-clause (bb) of Section 2(oo) of the Industrial Disputes Act, 1947. Retrenchment is illegal if the Management fails to prove that the same is as per provisions of Section 25FFF of the Act. Engagement of daily wager by itself would not amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto the occurrence of some event making his know that this employment was short lived. If the appointment letter of the workman contains that his employment was for a fixed term or short-lived, then the workman may not raise complaint that the employer has terminated his serves abruptly. If a workman was employed in a project or scheme of temporary duration, contract was to end on the expiry of the contract/scheme or project, termination of his services would be covered by the Section 2(oo)(bb) of the Industrial Disputes Act, 1947. Closure of establishment / undertaking due to unavoidable circumstances beyond the control of the employer, the compensation shall not exceed average pay for 3 months. A workman having served the establishment for not less than 1 year immediately before the closure of the same shall be entitled to notice and compensation as per provisions of Section 25F of the Act at the time of his retrenchment. Delay and latches, if explained to the satisfaction of the court, the delay of 5-7 in raising an industrial dispute on the part of the workman is no ground to disentitle the workman from the benefits for which he is legally entitled.
May * Contractual employees directly employed or through contractor are entitled to maternity leave as per the Maternity Benefit Act, 1961. The Company/Firm of the contractor is an establishment as per Section 3(e) of the Act.
April * Minimum wages are not merely for the bare subsistence of life but also for preservation of efficiency of the worker, some measure of education, medical, amenities for himself and his family. All remuneration, capable of being expressed to employees consisting of basic wages, dearness and other allowances are to constitute ‘minimum wages’. Minimum wages are revisable by the appropriate government from time to tome not just to fix the basic rate of wages but also provide for special allowances keeping in view the cost of living index applicable to the workmen. Where the employer is paying a total sum which is higher than minimum rate of wages fixed under the Act including the cost of living index (VDA), claim demanding VDA or such other benefit separately, is not sustainable. Where the dispute is of general nature a settlement arrived at during conciliation proceeding between union/workmen and the Management is binding even on non-members of the union. Where dispute refers to particular workmen, indicating names of the workmen or class of workmen, the benefit of settlement or even of award is not available to other workmen or class of workmen. Proceeding u/s 33-C(2) of the Industrial Disputes Act is in the nature of an execution proceeding. No workman can raise a claim u/s 33-C(2) of the Act which is not based on an existing right under a settlement or award.
April * Case under Section 2(d) of the Building & Other Construction Workers (Regulation of Employment & Conditions of Service) Act is applicable upon the work of building structure, done before obtaining registration under the Factories Act or Mines Act. If the work of erection of a building or a particular structure cannot be subjected to Factories Act or Mines Act, the excluding part in Section 2(d) will not be applicable, meaning thereby that the cess is applicable.


March * Power of judicial review by Industrial Tribunal/Labour Court u/s 11A of the Industrial Disputes Act is very limited only when there exists perversity or procedural lapses or violation of principles of natural justice in findings, relied upon by the Management. Industrial Tribunal/Labour Court is empowered u/s 11A of the Industrial Disputes Act to interfere with the order of termination of services of the workman only when the impugned order is passed on the basis of good faith indicating victimization and unfair labour practice by Management. An enquiry is liable to be vitiated if it is held without following the procedure laid down or it is in violation of principles of natural justice. Allegation of sleeping while on duty of watching constantly the running of compressors is a grave and serious misconduct since it may cause heavy damage to the machines for which the workman was duty bound to check the machines frequently, justifying dismissal of workman form his service.
March * Standard of proof in departmental proceedings and criminal proceedings is quite different. Requirement of standard of proof in criminal proceedings is ‘stick proof of evidence’. Basis of enquiry finding is ‘preponderance of probabilities’ i.e. probative material of evidence. Acquittal in criminal case by itself cannot constitute a ground to set aside the finding of enquiry officer.
March * Termination of services of an employee without making compliance of Section 25F of the Industrial Disputes Act is illegal, liable to be set aside, attracting reinstatement with back-wages. Termination of a delinquent employee, who has admitted his guilt, without conducting proper enquiry, is illegal being in violation of principles of natural justice. Non-conducting of proper and fair enquiry, even when the delinquent employee has admitted his guilt, is not proper while punishment of termination of services is imposed upon the delinquent employee.
March * Withdrawal of resignation, after acceptance of the same by the Management and conveying to the workman, is not legally valid. Keeping in view long duration in litigation, offering lumpsum compensation by the Management to the workman through court to settle the dispute in full and final, is appropriate to establish industrial peace and harmony.
February * Enquiry is liable to be quashed on account of violation of principles of natural justice, where the authority who issued the charge sheet also acted as enquiry office and suggested the punishment since such a procedure is inconsistent to the provisions of law. When the same authority who issued the charge sheet also acted as enquiry officer and suggested the punishment, the enquiry is liable to be quashed. Same authority issuing charge sheet, working as an enquiry officer and suggesting quantum of punishment, is an example of biased mind enquiry. Termination of services of an employee is not justified if the findings recorded by the enquiry officer are perverse being on the basis of no evidence. If the Management does not make any effort before the labour court to establish the charges against him when the enquiry finding are held to be not fair and proper, delinquent employee will be held to be discharged from the charges. Forfeiting of gratuity only by alleging that misconduct of the employee constitutes an offence involving moral turpitude is illegal. For forfeiture of gratuity there must be termination of the employee on account of the alleged misconduct which constitute an offence involving moral turpitude.
February * Termination of probationary services of an employee is not illegal until the termination order is having some stigmatic basis of termination. The words ‘unsatisfactory performance/work’, ‘lack of efficiency’, ‘unsuitable’ does not ipso facto become stigmatic. While terminating services of a probationer, neither any notice is required to be given to the employee nor any opportunity of hearing until such a stipulation is there in the service contract. Services of a probationer can be terminated at any time before confirmation provided that the same is not stigmatic. Law is well settled that is the employer who decides whether or not probationary services of an employee are or are not satisfactory for the employer. The court cannot substitute its decision with that of the competent authority / employer that his probationary services are or not satisfactory.
January * Plea of abandonment taken by the Management is not sustainable if the Management had not issued any notice asking the workman to report for duty, followed by conducting of regular enquiry, to hold the workman guilty of absenteeism i.e. abandonment of job. Non-issue of any demand notice within a reasonable time by the workman to the Management for allowing him to perform duty may affect adversely to the relief for which he was otherwise entitled. Presumption of abandonment of job by the workman, to be taken by Management without issuing any show-cause notice to the workman and conducting regular enquiry is not sustainable. Pleas of the workman that he was not allowed to perform duty without sufficient material on record is not sustainable. Non-issue of demand notice by the workman within a reasonable time may convert the entitlement of reinstatement and back wages into lumpsum compensation.
January * When an order issued by the government, extending retirement age from 58 to 60 years applies only to union government servants, an employee of private sector is not entitled to seek relief under that order. When there are certified standing orders of a private sector company, having retirement age as 58 years, a workman cannot claim the retirement age as 60 years in the absence of any amendment in the certified standing orders to this effect.
December * Considering the definition of the term ‘superannuation’ in Section 2(r) of the Payment of Gratuity Act, the employee cannot claim gratuity, for the period of his attaining the age of retirement i.e. superannuation.
December * On considering the definition of ‘wages’ in the EPF Act, it is quite clear that the amounts paid for expenditure incurred towards canteen subsidy or mess allowance or food subsidy, does not form part of ‘wages’ under the Act.
December * The basic principle well accepted is that whatever is not payable by all the concerns or may not be earned by all employees of a concern, is excluded for the purpose of contributions. It is settled principle that production bonus is a category of bonus which has to be excluded from ‘basic wages’.
November * In light of Section 2A of the Payment of Gratuity Act, weekly holiday or national day are not be considered to be break in service. Sundays/weekly holidays and national holidays are to be added to the number of days worked for completion of 240 days. 15 days wages per completed year of service, for calculation of gratuity ought to be on treating the monthly wages as being paid for 26 working days. For the period of delay in releasing the payment of gratuity, if not due to any fault of the employee, the employer has to pay interest. Wages for the purpose of calculation are to be taken the last revised rates. An employee is entitled to gratuity for the period he was in the employment of the employer irrespective of his employment as casual or temporary or regular employee.
November * An employee will remain on probation till his services are confirmed in writing, in the absence of any contrary stipulation in the appointment letter. When the service rules fixed a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation, is allowed to continue in that post after completion of the maximum period of probation without any express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. Termination of services on account of ‘unsatisfactory performance’ does not amount to retrenchment. Termination of services of a probationer on account of ‘unsatisfactory performance’ is neither stigmatic nor in violation of Section 25F of the Industrial Dispute Act, 1947. Termination of services of a probationer is covered by clause (bb) of Section 2(oo) of the Industrial Disputes Act, 1947.
October * Whether the preliminary issue of employer-employee relationship is to be decided first? Yes. The Madras High Court directed the industrial adjudicator first to decide the issue of existence of employer-employee relationship as preliminary issue and then to proceed further to decide other issues on merits on the basis of outcome of the preliminary issue.
October * As per proviso to Regulation 3 of the EPS, 1995 no contribution is required from the employer in respect of wages above the prescribed limit.
September * Engaging and continuing him as trainee for over 4 years without imparting any training by the employer, terminating the training will be illegal and the Industrial Tribunal has rightly granted reinstatement with back-wages hence the High Court will not interfere. Merely engaging a trainee without providing any training for four years, such trainee will be squarely covered by Section 2(a) of the Industrial Disputes Act defining ‘workman’ more so even the appointment letter stated that the concerned trainee can be transferred to any other location which is not stated in the letter to a trainee.
September * Misconduct of misappropriation when stands proved against the delinquent employee, reinstatement cannot be ordered. Normally the courts do not substitute the punishment unless they are shockingly disproportionate. Misconduct of misappropriation should be dealt with iron hands and not leniently. More stating that punishment is disproportionate without substantial reasons would not suffice to substitute lighter punishment. An employee holding a position of trust where honesty and integrity are inbuilt requirements of functioning, dealing the matter leniently would not be proper. Highest degree of integrity and trustworthiness is must while dealing with the public money.
August * The Directors of a Private Ltd Company are not personally liable to the contribution collected under the ESI Act. Under Section 2(15) of the ESI Act, occupier means the person who has ultimate control over the affairs of the factory/company. Principal employer is liable to pay contributions in respect of every employee under Section 40 of the ESI Act.
August * Enquiry should be conducted in the language which is understood by the delinquent employee. Enquiry conducted in Hindi whereas the delinquent does not have knowledge of Hindi, is liable to be set aside since it does not fulfill the requirement of principles of natural justice.
August * Section 13(3) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 provides – (a) that report of committee shall have to be deemed as an enquiry report in a disciplinary action (b) it has to be treated as finding in disciplinary enquiry (c) finding and report of the internal complaints committee shall not be treated as a mere preliminary investigation but a finding in enquiry. Bar of alternative effective remedy is a self-imposed restraint and not a constitutional bar.
July * In the absence of relationship of employer-employee between the principal employer and the employees, demand of EPF contributions by the EPF Authority from principal employer in respect of such employees, is illegal. When canteen premises given to the third party is free of cost, the principal employer is not liable to pay EPF contributions in respect of employees engaged by the third party for running of the canteen independently.
July * Employees of contractor, having separate legal entity cannot be treated as employees of principal employer, cannot claim benefits equal to that of regular employees and can only be determined in terms of their contract with the contractor.
July * Acts being contrary to justice, honesty, modesty or good morals, shocking to the moral sense of community, are to be covered under the term ‘moral turpitude’. Causing physical assault to the superior officer, using unparliamentary language and tampering the service records are to be covered under the term ‘moral turpitude’. There is no need of conducting domestic enquiry prior to effecting dismissal from service of an employee if the dismissal order is to be passed by issuing charge-sheet calling for his explanation only on the basis of conviction order passed by the criminal court.
June * In view of definite wording of the relevant provisions of the Payment of Gratuity Act, without there being a conviction of the employee for an offence, involving moral turpitude by the criminal court, his amount of gratuity cannot be forfeited, only on the basis that charges or misappropriation etc. are established in the disciplinary inquiry held be the Management.
June * Consuming liquor by an employee while on duty is a serious misconduct. The quantum of presence of alcohol in the blood of employee-driver is not so much relevant or significance but the influence of alcohol while on duty is a serious misconduct since a driver while driving bus of the corporation is not only to cause damage to the bus due to any accident but it has to cause a lot of dame to the general public, at large, and damage to the reputation of the corporation.
June * To establish employer-employee relationship would include inter alia (i) who appoints the workman, (ii) who pays the salary, (iii) who has the authority to dismiss, (iv) who can take disciplinary action (v) whether there is continuity of service and (vi) extent of control and supervision. An employee would not be treated as n employee of the principal employer only on the basis that the contractor is not a registered one or having licence under the Contract Labour Act. When the workman has no employer-employee relationship with principal employer, his plea that termination of his services by the principal employer is in violation of Section 25F of the Industrial Disputes Act, is not sustainable even when the contractor was not a registered one. Mere implementing the contractor as a party by the workman would not enable him to establish that he was employee of the principal employer. Mere depositing of ESI contribution of the contractor’s employees by the principal employer since it is a mandatory responsibility of the principal employer to ensure that workman is registered member under ESI Scheme and contributions are deposited subject to realization of the same from the contractor as the ESI Act does not prescribe that a contractor has to possess his own code number. Only on the basis of ESI card having address of the principal employer and the employee would not come into existence. An award passed by the Industrial Tribunal can only be interfered by the writ jurisdiction under Article 226 of the Constitution of India if the same is illegal, irrational and suffers from procedural impropriety.
June * Notice u/s 25F(c) read with Rule 76(a), in Form-P, is mandatory, to be sent to the appropriate government, within 3 days from the date the notice, given to the workman. Retirement of a workman would be illegal in case of non-compliance of provisions of Section 25F(c) & Rule 76(a) of the Industrial Disputes Act and Rules, respectively. When termination of services of a workman is set aside for non-compliance of mandatory provisions of the Industrial Disputes Act & Rules, it would attract reinstatement with full back-wages with consequential benefits. The Section 8(2) of the Delhi School Education Act, 1973 is a substantive right provided from safeguarding the conditions of services of an employee to avoid arbitrary or unreasonable termination of services of an employee hence the approval of the Director on termination of an employee will be necessary. Entire amount, to be paid to an employee towards back-wages, must be spread over the period from the date of retrenchment to final decision of the Court for providing benefits u/s 89 of the Income Tax Act, 1961 to the employee.
May * Indiscipline at work place is not to be tolerated and in case the workers repeatedly indulge in intimidation and threating the officers, the entire working atmosphere would stand vitiated. Only punishment appropriate for such misconduct would be dismissal from service.
May * Transfer of an employee is an incident of service if the employee is having a transferable post, from one machine to another is as per condition of employment and does not amount to change in conditions of service, from winding department to double winding department without notice u/s 9A of the Industrial Disputes Act is not illegal if the employee fails to point out any change in conditions of his service. Admission of the employee that he was given printed attendance card of badliwala, he neither made any complaint nor raised any industrial dispute for removal of his designation as badliwala through his long service duration or to make him permanent, leaves no doubt that transfer was not mala fide since he was having no knowledge that he would be given duty in only one particular department. No relief can be granted to a transferee-employee if he has refused to report for duty at the place of his transfer since transfer order is arising from the due course of his service condition. Selection of transferee-employee keeping in view his suitability at the transferred place always rests with the employer. It cannot be presumed that the management is under any legal obligation to transfer the same set of employees to transferred place instead one out of them.
May * No discretion is provided under Section 85(a)(i)(b) of the ESI Act to award less than the prescribed fine of Rs.5000 under the main provision. Discretion of the Court is limited only to the proviso which is in the nature of an exception whereunder the Court is vested with discretion limited to imposition of imprisonment for a lesser term. When wordings of the statute are clear, no interpretation is required unless there is a requirement of saving the provisions form vice of unconstitutionality or absurdity.
April * It is well-settled that whenever termination of service of workman was found to be not in accordance with law, it does not automatically follow there would be reinstatement in service with full back wages.
April * It is settled position of law that if a workman is placed under suspension pending the departmental inquiry, and if ultimately he is found guilty and punishment is imposed as the necessary consequence, the suspension would be treated as such.
April * Delay in raising dispute is definitely an important circumstance to be kept in mind by the Industrial Tribunal or Labour Court at the time of exercise of discretion, irrespective of whether or not such an objection has been raised by the other side.
April * In view of the principle of double jeopardy, once an individual is convicted for an offence under the provisions of the Factories Act, for the same incident/occurrence, he cannot be prosecuted for an offence under IPC.
April * The casual employees of the club will be covered under ESI Act since such employees work for the day of racing which is perennial activity of turf club and in view of the provisions of the Act, Rules, Regulations and Notification, there is no doubt that such employees are covered and consequently are entitled for benefit of the Act. The casual employees in a club are distinguishable for the coolies who were available for work to others and on the very day worked for several others who also engaged them for loading and unloading of goods. Thus it was held that coolies could not be said to be casual workmen under the ESI Act. The Management of the Club will be liable to pay contributions of the casual employees and for the past employees even when no benefits have been derived by the employee. The ESI Act is welfare legislation and is required to be interpreted so as to ensure extension of benefits to the employees and not to deprive them of the same which are available under the Act.
April * Considering the termination as stigmatic on the basis of memos issued to the workman indicating his/her short-comings and directing his/her to improve his/her performance is unwarranted. Termination of services of a probationer on the basis of his overall performance does not amount removal as punishment. Appointing authority is entitled to look into any complaint made in respect of the probationer while making assessment of his performance regarding his confirmation. Even if an order of termination simplicitor brings on record some preliminary enquiry regarding allegations against the probationer that will not vitiate order of termination. If an employee did not question his/her first or second extensions, she is not entitled to challenge the consequences of her poor assessment at belated state at the time of termination of her services on account of unsatisfactory performance. If some sort of misconduct on the part of probationer is disclosed in the cross-examination of the witness of the Management being the reason of termination from services of the probationer, the same could not be used as evidence by the Industrial Adjudicator to conclude that order of termination, which otherwise being simplicitor, is motivated by any consideration of the Management other than the decision of the Management as to be satisfactory nature of the work.


March Important Points
February Important Points
January Important Points
December Important Points
November Important Points
October Important Points
September Important Points
August Important Points
July Important Points
June Important Points
May Important Points
April Important Points


January January - March 2015
October October - December 2014
July July - September 2014
April April - June 2014