REFERENCES

ISSUE RAISED /FACTS

HELD

1

M.D.TAMIL NADU

STATE TRANSPORT

CORPN VS

NEETHIVILANGAN

2001(90)FLR 27 [SC DB]

1

WHAT IS THE IMPLICATION

WHEN THE TRIBUNAL/COURT

REFUSES APPROVAL TO A PETITION FILED UNDER SECTION 33(2)(b)  OF THE I.D.ACT?

1

THOUGH WORKMENS SERVICES STAND TERMINATED ON DATE OF FILING APPROVAL PETITION, IF IT IS SUBSEQUENTLY NOT APPROVED, THE WORKMEN IS TO BE TREATED AS IF HE WAS NEVER TERMINATED AND PAID NORMAL BENEFITS FOR THE PERIOD HE STOOD DISMISSED OR PERIOD HE WAS KEPT OUT.

2

OTIS ELEVATOR  CO(I) LTD VS GS BAJ & OTHERS

2001 (II) LLJ 298 [HC-BOM-SB]BASED ON PREMIER AUTO CASE 1981 LAB IC 221 BOM DB)

1

2

3

4

COMPANY PUT UP LOCK OUT NOTICE ON 02.02.1994 TOBE EFFECTIVE AFTER 14 DAYS.

DUE TO DISTURBANCE DISCONTINUED OPERATIONS ON SAME DAY OF NOTICE

LOCK OUT LASTED TILL 21.03.1994

IS THE WHOLE PERIOD OF LOCK OUT ILLEGAL (02.021994 TO 21.03.1994)OR ONLY THE FIRST 14 DAYS IS ILLEGAL?

1

2

3

THE INDUSTRIAL TRIBUNAL HAD HELD THE WHOLE PERIOD IS ILLEGAL.

H.C.HELD THAT ONLY THE INITIAL 14 DAYS WITHOUT NOTICE WAS ILLEGAL AND LOCK OUT AFTER EXPIRY OF 14 DAYS NOTICE IS LEGAL.

WORKMEN ENTITLED FOR WAGES ONLY FOR FIRST 14 DAYS OF LOCK OUT.

3

KARNATAKA STATE ROAD TRANSPORT CORPN VS LAKSHMIDEVAMMA

2001 (II) LLJ 199 [SC-5 BENCH] OR 2001 (3) LLN 105 [SC-5 BENCH]

IN REVIEW OF DISCIPLINARY CASES UNDER SECTION 11 A OR UNDER SECTION 33 OF I.D.ACT, CAN MANAGEMENT LEAD FRESH EVIDENCE TO JUSTIFY ACTION AFTER COURT/TRIBUNAL HOLDS THAT THE ENQUIRY IS DEFFECTIVE?.

UNLESS MANAGEMENT SEEKS LEAVE OF THE  COURT/TRIBUNAL TO LEAD FRESH EVIDENCE TO JUSTIFY ITS ACTION AT THE TIME OF FILING ITS STATEMENT OF CLAIM OR WRITTEN STATEMENT FOR  SEEKING PERMISSION/ APROVAL OF ITS ACTION, IT CANNOT  DO SO AT A LATER STAGE.

4

SYSTEMS MFG LTD VS SYSTEMS EMPLOYEES ASSOCIATION

2001 (II) 112 [HC-KAR-DB]

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5

6

MANAGEMENT CLOSED DOWN THE ESTABLISHEMENT AND PAID CLOSURE COMPENSATION

ON A DISPUTE BEING RAISED CHALLENGING THE CLOSURE, THE MANAGEMENT AND ALL WORKMEN SIGNED A SETTLEMENT.

SETTLEMENT GAVE THEM ADDITIONAL EX-GRATIA OF ONE MONTHS WAGES PER YEAR OF SERVICE.

WORKMEN ACCEPTED THE EX-GRATIA IN FULL AND FINAL SETTLEMENT THE CLAIM FOR RE-EMPLOYMENT,IF AND WHEN THE UNIT IS REOPENED IN ANY MANNER.

MANAGEMENT RESTARTED OPERATIONS SOMETIME LATER AND WORKMEN AND BACK WAGES ON GROUNDS OF MALAFIDE CLOSURE AND UNDER SECTION 25-H OF ID ACT.

ARE WORKMEN ELIGIBLE FOR REAPPOINTMENT?

1

HAVING ENTERED INTO A VALID STEELEMENT AND ACCETPTING HIGHER COMPENSATION WITH UNDERTAKING NOT TO CLAIM FUTURE EMPLOYMENT, THE WORKMENS CLAIM FOR
RE-EMPLOYMENT NOT MAINTAINABLE.

5

DYES & CHEMICAL WORKERS UNION VS BOMBAY OIL INDUSTRIES LTD

2001 (2) LLN 679 [HC-BOM DB]

WHILE COMPUTING THE NUMBER OF WORKMEN UNDER SECTION 25(K) OF THE ID ACT FOR DETERMINING APPLICABILITY OF CHAPTER VA OR VB, ARE WE TO INCLUDE CONTRACT WORKMEN & WORKMEN OF SISTER ESTABLISHEMENTS?

1

2

WHILE COMPUTING THE TOTAL NUMBER FOR PURPOSES OF SECTION 25(K)(I) ONLY PERSONS ANSWERING THE DEFINITION OF WORKMEN UNDER SECTION 2(S) IS TO BE INCLUDED AND THERE IS NO SCOPE FOR INCLUDING, CONTRACT OR LOADING UNLOADING WORKERS.

WORKMEN OF SISTER ESTABLISHMENT NEED NOT BE COUNTED UNLESS A FUNCTIONAL INTEGRITY IS BEING MAINTAINED AMONG THE SISTER ESTABLISHMENTS.

6

AIR INDIA LTD VS NP WADKAR

2001 (3)LLN 404 [HC-BOM-SB]

EARLIER SC CASES REFERRED

LALLA RAM VS DCM CHEMICALS [1978(2) LLN-1] CENTRAL INDIA COAL FIELDS VS RAMBILAS

[AIR 1961 SC 1189] ZUARI AGRO VS ROSARIO FERNANDES [1986 L&IC 300]

WHEN DISPOSING OF AN APPROVAL PETITION UNDER SECTION 33(2)(b) CAN A TRIBUNAL REDUCE THE PUNISHMENT AFTER UPHOLDING THAT THE ENQUIRY IS FAIR AND PROPER?

1

2

UNLIKE A PROCEEDING UNDER SECTION 11A, IN A PROCEEDING UNDER 33(2)(B) THE TRIBUNAL MUST CONFINE  THE EXAMINATION TO WHETHER THERE HAS BEEN A FAIR AND PROPER ENQUIRY AND THAT THERE IS NO MALAFIDE.

ONCE THE ABOVE REQUIREMENTS ARE CLEARED THE  TRIBUNAL UNDER SECTION 33(2)(b) HAS TO GRANT APPROVAL AND HAS NO ROLE TO PLAY IN REVIEWING QUANTUM OF PUNISHMENT.

7

COMMANDANT DEFENCE SECURITY CORPS VS SECRETARY NCC

2001(3)LLN 1106 [HC-KER-DB] OR 2001 (90)FLR 435

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UNDER SECTION 17(B) OF ID ACT EMPLOYER BOUND TO PAY LAST DRAWN WAGES AS SUBSISTENCE ALLOWANCE DURING PENDENCY OF CHALLENGE BEFORE HIGH COURT/SUPREME COURT.

CAN THE HIGH COURT ORDER INTERIM PAYMENT HIGHER THAN LAST DRAWN WAGES?

IF WORKMEN EVENTUALLY LOSE THE CASE CAN THE EMPLOYER DEMAND REPAYMENT OF THE INTERIM RELIEF ORDERED BY HIGH COURT?

ARE PAYMENTS UNDER 17(B) TO BE MADE EVEN FOR PERIOD THE ESTABLISHMENT REMAINED CLOSED DURING PENDENCY OF PROCEEDINGS?

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THE AMOUNT OF LAST DRAWN WAGES PAYABLE AS PER SECTION 17(B) IS BY WAY OF SUBSISTENCE  ALLOWANCE  AND IS NOT RECOVERABLE.

THAT ANY PAYMENT MADE IN EXCESS OF THE LAST DRAWN SALARY CAN BE RECOVERED BY THE EMPLOYER.

PAYMENTS UNDER 17B IS TO BE MADE EVEN IF ESTABLISHMENT IS CLOSED DURING PENDENCY PERIOD.

8.

MANAGEMENT OF SOM VIHAR APARTMENT OWNERS SOCIETY VS WORKMEN C/O INDIAN ENGG MAZDOOR UNION

[2001(3)LLN 815 SC-DB]

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2

WILL AN APARTMENT OWNERS SOCIETY FALL UNDER THE DEFINITION OF INDUSTRY [SN2J] OF THE ID ACT?

WILL WORKMEN OF SUCH SOCIETY FALL UNDER THE DEFINITION OF WORKMAN [SN 2 S] OF THE ID ACT?

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SOCIETY WILL NOT FALL UNDER THE TERM INDUSTRYUNDER ID ACT.

SOCIETY EMPLOYEES WOULD NOT FALL UNDER DEFINITION OF WORKMAN UNDER ID ACT

AN INDUSTRIAL DISPUTE CANNOT BE RAISED BY SUCH EMPLOYEES.

9

PARRYS EMPLOYEES UNION VS IIIRD INDUSTRIAL TRIBUNAL WEST BENGAL

[2001 II LLJ 39] OR 2001 (89) FLR 192 [HC-CAL]

FOR COMPUTATION OF 15 DAYS WAGES FOR RETRENCHEMENT PAYMENT MUST MONTHLY SALARY BE DIVIDED BY 26 AND THEN ONLY BE MULTIPLIED BY 15 (AS IN THE CASE OF GRATUITY COMPUTATION)?

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2

IN SHADLOW INDIA LTD CASE, [2001 II LLJ 208] THE MADRAS HIGH COURT AND IN TRADE WINGS LTD CASE [1992 (64) FLR 978]THE BOMBAY HIGH COURT HAD HELD THAT DIVISION BY 26 IS REQUIRED.

AFTER DISCUSSING AND ANALYSING THE ABOVE REFERRED MADRAS HIGH COURT AS WELL AS BOMBAY HIGH COURT JUDGMENTS, THE CALCUTTA HIGH COURT HAS RULED THAT THERE IS NO NEED FOR DIVISION BY 26 [WHICH MEANS DIVISION CAN BE EVEN BY 30]

10

ANIL SOOD  VS

PRESIDING OFFICER

2001(89) FLR 229 SC]

1

2

CAN A LABOUR COURT CALL BACK AN EX-PARTE AWARD AFTER IT HAS BECOME ENFORCEABLE,IF SUFFICIENT CAUSE IS SHOWN FOR NON APPEARANCE LEADING TO EXPARTE  AWARD?

DOES A LABOUR COURT BECOME FUNCTUS-OFFICIO AFTER 30 DAYS OF SUBMITTING THE AWARD TO GOVERNMENT?

1

2.

AT ONE POINT OF TIME THE APEX COURT HAD HELD THAT A LABOUR COURT BECOMES FUNCTUS-OFFICIO AND CANNOT RECALL ITS EX-PARTE AWARD.

IN THIS JUDGMENT HELD THE LABOUR COURT DOES NOT BECOME FUNCTUS- OFFICIO AND CAN REOPEN ITS EX-PARTE DECISION IF SUFFICIENT REASON IS PUT UP FOR THE NON-APPEARANCE OF THE AFFECTED PARTY.

11

HIRA CEMENT WORKERS UNION VS STATE OF ORISSA [2001 (91) FLR-HC-ORI-SB]

1

A CONTRACTOR OF THE PRINCIPAL EMPLOYER TERMINATED THE SERVICES OF 45 CONTRACT WORKMEN

CAN THE  TERMINATION ISSUE BE  RAISED AS AN INDUSTRIAL  DISPUTE AGAINST THE PRINCIPAL EMPLOYER AND THE CONTRACTOR UNDER SECTION 10(1) OF THE  ID ACT 1947

1

SINCE THERE IS A SPECIAL LEGISLATION ON CONTRACT LABOUR THE CONTRACTORS UNION CANNOT RAISE A DISPUTE UNDER THE ID ACT AGAINST PRICIPAL EMPLOYER.

THE CONTRACT WORKERS UNION CAN RAISE THE ISSUE ONLY UNDER PROVISIONS OF THE CONTRACT LABOUR ACT 1970.

12

HIND RECCTIFICERS LTD VS PRESIDING OFFICER LAB.COURT,
BOMBAY 2001(89) FLR 55 [HC-BOM] OR 2001(1)LLN 156

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2

AS PER SECTION 17 B  AN EMPLOYER CHALLENGING A LABOUR COURTS ORDER OR  REINSTATEMENT UNDER SECTION 11A HAS TO PAY THE WORKMEN LAST DRAWN WAGES TILL THE HIGH COURT DISPOSES OF THE CASE.

IN CASE THE WORKMAN SUPERANNUATE BEFORE DISPOSAL OF THE CASE IS EMPLOYER REQUIRED TO PAY LAST DRAWN WAGES FOR PERIOD BEYOND SUPERANNUATION DATE?

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2

OBLIGATION TO PAY LAST DRAWN WAGES IS ONLY UPTO DATE OF SUPERANNUATION.

WORKMAN NOT ELIGIBLE FOR WAGES BEYOND DATE OF SUPERANNUATION.

13

ENGLISH ELECTRIC CO VS MANOHARA RAO

2002 SCC (L&S) 268 [SC]

1

 

2

A DISPUTE OF A WORKMAN WAS PENDING UNDER SECTION 33 (2)

CAN THE WORKMEN CLAIM THE PROTECTIONS UNDER SECTION 33/33A DURING SUCH PENDENCY UNDER 33(2)?

1

PROTECTION OF SECTION 33 & 33 A IS AVAILABLE  ONLY WHEN IT IS AN INDUSTRIAL DISPUTE AS CONTEMPLATED UNDER SECTION 2(K) AND NOT WHEN THERE IS ONLY PENDENCY UNDER 33(2)

14

JAIPUR ZILA SAHAKARI BANK LTD VS SHRI RAM GOPASL SHARMA

2002(92) FLR 667 ]SC-CB] OR 2002 (1000 FJR 268 [SC-CB]

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ONE SET OF SC JUDGMENTS (3 JUDGES) HAD HELD THAT WHEN AN EMPLOYERS APPLICATION FOR APPROVAL OF DISMISSAL UNDER SECTION 33(2)(b) IS REJECTED OR EMPLOYER DOES NOT APPLY FOR THE APPROVAL, EMPLOYEE DOES NOT GET AUTOMATICALLY REINSTATED, HE SHOULD THEN GET A RE-INSTATEMENT ORDER UNDER SECTION 33A.

ANOTHER SET OF SUPREME COURT JUDGES HAD HELD THAT WHEN AN APPROVAL UNDER 33(2)(b) IS REFUSED THERE  IS  NOTHING FURTHER TO BE DONE AND THE TERMINATED WORKMAN STANDS REINSTATED WITH RETROSPECTIVE    EFFECT.[WHAT IS  THE  EFFECT OF AN  EMPLOYER NOT MAKING  COMPLIANCE   WITH   SECTION  33 (2)(b).

IN VIEW OF THIS CONFLICT A CONSTITUTION BENCH DECISION WAS NECESSARY.

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IF AN APPROVAL PETITION IS TURNED DOWN NOTHING MORE IS TO BE DONE BY THE EMPLOYEE.

IT WILL HAVE TO BE TREATED AS IF THERE NEVER WAS AN ORDER OF DISMISSAL.

CONSEQUENCE OF NON COMPLIANCE OF SECTION 33(2)(b) WILL NOT  END WITH MERE PROSECUTION OF EMPLOYER FOR NON-COMPLIANCE  WITH  LAW.

EMPLOYEE  WILL HAVE TO BE DEEMED TO HAVE  CONTINUED IN SERVICE  WITHOUT ANY BREAK  AND BE PAID  ALL  CONSEQUENTIAL BENEFITS.

15

ORISSA TEXTILES LTD VS STATE OF ORISSA

2002(92) FLR 648
[SC-CB]

OR 2002 (1) LLJ 858 [SC-CB]

1

2

3

4.

THE SUPREME COURT DECISION IN EXCEL WEAR CASE [1978937) FLR 314] HAD POINTED OUT THE SHORT COMING IN SECTION 25(0) ON CLOSURE PRIOR TO ITS AMENDMENT IN 1984.

THE SUPREME COURT JUDGMENT IN MEENAKSHI MILLS CASE [1992 (65) FLR 1] HAD ALSO OCCATION TO LOOK INTO THE VALIDITY OF SECTION 25[N] [SIMILAR TO SECTION 25(0)]

THERE  APPEARED TO BE SOME CONFUSION  BETWEEN THE  TWO  JUDGMENTS.

HENCE THIS CONSTITUTION BENCH   WAS   ASKED  T O  LOOK INTO THE ISSUE AND PRESCRIBE    THE    CORRECT INTERPRETATION.

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THE  PRINCIPLES  LAID DOWN  IN MEENAKSHI  MILLS CASE WILL HOLD GOOD.

THE GROUND FOR GOVERNMENT TO GRANT/REFUSE PERMISSION FOR CLOSURE/RETRENCHMENT IN SECTION 25(O) OR 25(N) ARE NOT EXHAUSTIVE.

THE CIRCUMSTANCES OF EACH CASE MUST BE ANALYSED AND A DECISION TAKEN.

GOVERNMENT IS NOT TO TAKE A MERE ADMINISTRATIVE DECISION.

IT HAS TO TAKE A QUASI JUDICIAL DECISION GIVING REASONS FOR ITS DECISION.FOR APPROVING OR REJECTING THE PETITION FOR CLOSURE/RETRENCHMENT.

16

MANAGEMENT OF BASF LTD VS STATE OR BIHAR

2002(1) LLJ 389 [HC-JHA-DB]

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3

AN ESTABLISHMENT HAVING AVERAGE LESS THAN 100 WORKMEN SENT NOTICE OF CLOSURE TO THE GOVERNMENT.

GOVERNMENT REFERRED THE ISSUE OF JUSTIFIABILITY OF CLOSURE FOR ADJUDICATION

IS GOVERNMENTS  ACTION IN ORDER WHEN ESTABLISHMENT EMPLOYS LESS THAN 100?

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AS PER SECTION 25-K OF CHAPTER V-A, SECTION 25(O) DEALING WITH PERMISSISON FOR CLOSURE ARE NOT APPLICABLE TO INDUSTRIAL ESTABLISHMENTS EMPLOYING LESS THAN 100 WORKMEN.

SECTION 25(O) IS THEREFORE NOT APPLICABLE AND ONLY SECTION 25 FFA IS APPLICABLE.

UNDER SECTION 25 FFA GOVERNMENT HAS NO POWER TO REFER THE ISSUE OF CLOSURE OR ITS JUSTIFIABILITY FOR ADJUDICATION.

SECTION 25-A HAS LIMITED APPLICATION ONLY TO SECTION 
25-C, 25-D, & 25 E  AND IT HAS NO APPLICATION TO SECTIONS  25 FFA

17

ASST EXECUTIVE ENGINEER,
KARNATAKA VS SRI SHIVALINGA
[2002 (92) FLR 601] OR 2002(1) LLJ 457 [SC]

1

DOES THE LAW OF LIMITATION  APPLY  TO RAISING OF INDUSTRIAL DISPUTES?

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3

IN AJAIB SINGS CASE [1999(82) FLR 137 AND IN SAPAN KUMAR PANDITS CASE [2001 (90) FLR 754 OR [2001(3) LLN 862] THE APEX COURT HAD HELD THAT THE LAW OF LIMITATION WILL NOT APPLY TO RAISING OF INDUSTRIAL DISPUTES.

IN THIS CASE HELD THAT THE ABOVE RULING IS IN ORDER WHEN THERE IS NO DISPUTE OF EMPLOYER EMPLOYEE RELATIONSHIP AND MANAGEMENT IS NOT REQUIRED TO PUT UP ITS DEFENSE.

WHERE PAST RECORDS ARE CRITICAL IN DETERMINING THE MERIT OF THE CASE COURTS COULD DECLARE THEM AS  STALE  CLAIMS OR REFUSE TO GRANT BACK WAGES FOR PAST PERIOD.

18.

KAILAS RUBBER CO VS INSPECTOR OF PLANTATIONS
2001 (88) FLR  555 OR  2001 (2) LLN 601 [HC-KER]

1

2 

AS PER SECTION 23(b) ANY STRIKE DURING PENDENCY OF ADJUDICATION WOULD BE ILLEGAL.

IS THIS RESTRICTION APPLICABLE  WHEN THE DISPUTE PENDING IS AN INDIVIDUAL DISPUTE UNDER SECTION 2(A)

1

THIS RESTRICTION ON STRIKES IS NOT APPLICABLE WHEN THE DISPUTE PENDING IS ONLY AN INDIVIDUAL DISPUTE UNDER SECTION 2 A.IT WILL APPLY ONLY IF IT IS A DISPUTE UNDER 2(K).

19

THE RANGE FOREST OFFICER VS.S.THADAMANI

 2002(93) FLR 179 [SC]

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3

WORKER FILED FOR RETRENCHMENT COMPENSATION CLAIMING ATTENDANCE OF 240 DAYS.

COURT PUT THE ONUS ON THE MANAGEMENT TO PROVE THAT THE WORMAN HAD NOT PUT IN 240 DAYS ATTENDANCE.

ON WHOM IS THE ONUS?

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3

MERE CLAIM OF 240 DAYS WITHOUT SUPORTING EVIDENCE BY  WORKMAN IS NOT ENOUGH.

ONUS OF PROVING 240 DAYS ATTENDANCE IS ON THE WORKMAN AND NOT ON THE COMPANY.

HC ORDER STIPULATING THAT ONUS IS ON COMPANY SET ASIDE.

20

PRATHIMA BANK VS PRESIDING OFFICER LAB.COURT KANPUR 2002(930 FLR 197 [HC-ALL]

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2

FOR COMPUTING THE  240 DAYS ATTENDANCE UNDER 25B(2) AND SECTION 25(1) ARE SUNDAYS AND OTHER HOLIDAYS TO BE COUNTED?

WORKER CLAIMED 240 AND MANAGEMENT RECORD SHOWED WORKED ONLY FOR  207

1

FOR THE QUALIFYING TEST OF 240, THE WORKER SHOULD BE GIVEN THE BENEFIT OF WEEKLY AND OTHER HOLIDAY ALSO DURING THE  PREVIOUS  12 MONTHS.

21

ANAVALI GRAMIN BANK VS PRESIDING OFFICER, IND.TRIBUNAL JAIPUR

2002(93)FLR 79[HC-RAJ]

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2

AS PER SECTION 25-H AND RULES 77 & 78 RETRENCHED WORKMEN ARE TO BE GIVEN PREFERENCE IN REEMPLOYMENT.

IS THIS RIGHT TO BE EXTENDED TO WORKMEN WHO DID NOT QUALIFY FOR RETRENCHMENT COMPENSATION DUE TO NOT PUTTING IN 240 DAYS QUALIFYING ATTENDANCE?

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2

RIGHT TO REEMPLOYMENT UNDER SECTION 25-H IS NOT LIMITED TO EMPLOYEES WHO WERE ELIGIBLE TO COMPENSATION.

IT WILL EXTEND TO ALL WORKMEN INCLUDING THOSE WHO PUT IN LESSER ATTENDANCE.

[SEE EARLIER SUPREME COURT JUDGMENT IN CENTRAL BANK CASE (1996(74)FLR 2063]