Labour Law Update

1997-98 || 1999 || 2000 || 2001 || 2003||2005

Miscellaneous 2004-2005

	REFERENCE		ISSUE RAISED		HELD
1	ENGINEERING KAMGAR UNION VS ELECTRO STEEL CASTINGS LTD 2004(2) LLJ 815[SC]	1 2 3	AS PER ID ACT SEC25 (O) PERMISSION FOR CLOSURE REQUIRED IF ESTABLISHMENT EMPLOYEES MORE THAN 100 WORKERS AS PER UP INDUSTRIAL DISPUTE ACT AMMENDMENT OF 1983, PERMISSION REQUIRED ONLY IF STRENGTH OF WORKMEN ABOVE 300 CAN STATE PROVISION PREVAIL OVER CENTRAL PROVISION	1 2	AS THE STATE AMENDMENT WAS OBTAINED (1983) AFTER THE CENTRAL AMENDMENT IN 1982, THE STATE AMMENDMENT WILL PREVAIL OVER CENTRAL PROVISIONS AS CONTEMPLATED IN ARTICLE 254(2) OF THE CONSTITUTION THEREFORE IN UP NO PERMISSION FOR CLOSURE REQUIRED IF WORKMEN STRENGTH BELOW 300
2	JEEVA TRANSPORT CORP VS PRESIDING OFFICER,LAB COURT, COIMBATORE 2004(3) LLJ 422 [HC-MAD-SC]	1	IS CITY COMPENSATORY ALLOWANCE TO BE TREATED AS “SALARY OR WAGE” FOR COMPUTATION OF BONUS UNDER PAYMENT OF BONUS ACT?	1 2	SECTION 2(21) DEFINES “SALARY OR WAGE” AS ALL REMUNERATION BARRING THE 7 EXCLUSIONS LISTED IN THE SECTION CITY COMPENSATORY ALLOWANCE DOES NOT FALL UNDER ANY OF THE EXCLUSIONS AND HENCE WILL HAVE TO BE TREATED AS “SALARY OR WAGE” FOR BONUS COMPUTATION
3	LEELA VS STATE OF KERALA 2004(3) LLJ106 [HC-KER-DB]	1 2	MADRAS HIGH COURT IN VASANTHA VS UNION OF INDIA [2001(2)LLJ 813] HAD HELD SECTION (66) OF THE FACTORIES ACT[DISALLOWING EMPLOYMENT OF WOMEN IN NIGHT SHIFT IN FACTORIES] AS DISCRIMINATION AND VIOLATION OF THE CONSTITUTION A SIMILAR PLEA WAS RAISED FOR RULING IN KERALA HIGH COURT	1	DISSENTING WITH THE MADRAS HIGH COURT, THE DIVISION BENCH OF THE KERALA HIGH COURT HELD SECTION (66) IS NOT VIOLATIVE OF THE CONSTITUTION AND UPHELD ITS VALIDITY
4	STATE OF GUJARAT VS CHAUHAN RAMJIBAI 2004(102)347 [HC-GUJ-SB]	1	CAN A PERSON SELECTED AS AN APPRENTICE UNDER THE APPRENTICES ACT 1961, CLAIM BENEFITS OF A WORKMAN UNDER ID ACT	1	IF MANAGEMENT DOES NOT GET THE CONTRACT OF APPRENTICESHIP REGISTERED AND GIVE FORMAL TRAINING TO THE PERSON SELECTED INITIALLY AS AN APPRENTICE AND HIS SERVICS/APPRENTICESHIP IS TERMINATED WITHOUT COMPLYING WITH SECTION 25 F OF ID ACT IT WOULD AMOUNT TO ILLEGAL RETRENCHMENT
5	STATE OF UP VS RAM SUKHI DEVI 2004(103) FLR568[SC]	1	WHEN A WRIT PETITION IS FILED CAN HIGH COURTS GRANT THE FINAL RELIEF SOUGHT AS THE INTERIM RELIEF	1	THE HIGH COURTS SHOULD NOT GRANT INTERIM RELIEF WHICH AMOUNTS TO THE FINAL RELIEF AFTER A PRIMA FACIE HEARING
6	MANAGEMENT OF VICTORIA COLLEGE VS AMAR NATH GUPTA 2005(1) LLN 148 [HC-ALL-DB]	1	IF HUSBAND AND WIFE ARE EMPLOYED IN THE SAME ORGANISATION CAN BOTH OF THEM CLAIM HRA?	1 2	ONLY ONE OF THEM CAN CLAIM UNLESS IT IS PROVED THAT THEY ARE DIVORCED OR OTHERWISE SEPERATED IT THEY ARE ELIGIBLE FOR DUAL RATES THE SPOUSE HAVING HIGHER QUANTUM CAN CLAIM THE HIGHER AMOUNT

Miscellaneous 1999

management of kallayar estate

chief inspector of plantations [1999(i)llj 180 hc-mad-sb]

section 5 of the maternity benefit act stipulates that a female employee can claim maternity benefit only if she has worked for 160 days during the 12 months period prior to her expected date of delivery. A female employee who had not put in 160 days work before her miscarriage applied for 6 weeks maternity leave under section 9 for miscarriage. is employer legally obliged to give her the 6-week leave with benefits ?

while section 5 dealing with maternity and delivery prescribes qualifying attendance of 160 days, section 9 dealing with miscarriage and medical termination of pregnancy is silent on any qualifying attendance and hence she is eligible for 6 weeks leave without putting in any qualifying attendance.

hariram gupta

vs.

the state of up 1998(80) flr 67 [sc-db]

in the famous nakara’s case 1983 (47) flr 42 the supreme court held that pensioners form a single class and they cannot be bifurcated.

based on this judgement the petitioners demanded that they be paid the enhanced pension rates announce at a future date after their retirement

the nakara’s case has been over ruled/distinguished in the following subsequent sc judgements 1994 (4) scc 68 1991 (62) flr 287 1992 (1) scc 664

non provident fund pensioners and provident fund eligible retirees form a different class and pf retirees cannot claim benefits of enhanced rates, unless the revised scheme provides for retorspective application.

whenever a revision takes place a cut off date becomes imperative and benefits cannot be claimed by earlier retirees.

Demystifying Some Labour Law Provisions 2005

I. DISCIPLINARY ACTION AND ALTERATION OF SERVICE CONDITIONS DURING PENDENCY OF INDUSTRIAL DISPUTES

II. DETERMINING LEGALITY OF STRIKES AND LOCK OUTS

III. COMPUATATION OF BENEFITS UNDER EDLI SCHEME (UNDER EPF ACT) 1976

I. DISCIPLINARY ACTION AND ALTERATION OF SERVICE CONDITIONS DURING PENDENCY OF CONCILIATION/ADJUDICATION/ARBITRATION PROCEEDINGS UNDER INDUSTRIAL DISPUTES ACT 1947
[ABSTRACT BY Prof. H.A.C POPPEN]

SIGNIFICANCE OF SECTION 33

IT PLACES CERTAIN TEMPORARY RESTRICTIONS ON EMPLOYERS RIGTHT TO:

ARE THESE RESTRICTIONS ALWAYS APPLICABLE?

NO [THERE ARE NO RESTRICTIONS IF NO PROCEDING IS PENDING[ Sn 33(1)]

THEN WHEN ARE THE RESTRICTIONS APPLICABLE

IT APPLIES ONLY DURING THE PERIOD OF PENDENCY OF ANY ONE OF THE FOLLOWING:

WHAT IS MEANT BY PERIOD OF PENDENCY

CONCILIATION IS DEEMED TO COMMENCE & CONCLUDE WHEN CONTINGENCIES MENTIONED IN
Sec 20(1) &20(2) ARE SATISFIED
SIMILARLYADJUDICATION’&’ARBITRATION’ ARE DEEMED TO COMMENCE & CONCLUDE WHEN CONTINGENCIES MENTIONED IN Sec 20(3)ARE SATISFIED
Note: THE INTERVENING PERIOD IS CALLED THE PERIOD OF PENDENCY

5 WHAT IS THE NATURE OF RESTRICTIONS IMPOSED

CONTINGENCY

REQUIRES PRIOR WRITTEN PERMISSION

ALTERATION OF SERVICE CONDITIONS

WHEN EMPLOYER WANTS TO ALTER A MATTER/SERVICE CONDITION WHICH IS THE SUBJECT MATTER OF THE DISPUTE [Sn 33(1) (a)]

ACTION ONLY AFTER GETTING PRIOR WRITTEN PERMISSION FROM AUTHORITY

WHEN SERVICE CONDITIONS/ANY OTHER MATTER NOT CONNECTED WITH THE PENDING DISPUTE ARE TO BE ALTERED IN CASE OF PERSONS CONCERNED IN THE DISPUTE[Sn 33(2)(a)]

DISMISSAL ORDERS

DISCIPLINARY ACTION AGAINST A WORKMAN FOR A MISCONDUCT CONNECTED WITH THE PENDING DISPUTE [Sn33 (1) (b)]

ANY DISCIPLINARY PUNISHMENT ONLY AFTER GETTING PRIOR WRITTEN PERMISSION

DISCIPLINARY ACTION AGAINST A CONCERNED WORKMAN FOR A MISCONDUCT NOT CONNECTED WITH PENDING DISPUTE [Sn 32(2) (b)]

PROTECTED WORKMEN

PUNISHING ‘PROTECTED WORKMEN’ [Sn33 (3), R-62 ]

ANY KIND OF PUNISHMENT TO ‘PROTECTED WORKMEN’ MUST BE GIVEN ONLY AFTER APPLYING AND GETTING WRITTEN PERMISSION

WHERE TO FILE APPROVAL/PERMISSION APPLICATIONS

PERMISSION OR APPROVAL APPLICATIONS TO BE FILED BEFORE THE DISPUTE PENDING AUTHORITY

IF DISPUTE PENDING BEFORE MORE THAN ONE AUTHORITY-EMPLOYER CAN CHOOSE ANY ONE OF THEM

IS THERE ANY SPECIFIC FORMAT PRESCRIBED

SEE THE APPLICABLE STATE RULES
IN KERALA. THE APPLICABLE RULE&FORMAT ARE AS FOLLOWS

CONTINGENCY	RULE NO	IN FORM NO
FOR PERMISSION PETITIONS	61(1) & (3)(4)&(5	J
FOR APPROVAL PETITIONS	61(2) (3) (4) & (5)	K

WHAT CAN A WORKMAN DO WHEN EMPLOYER DOES NOT COMPLY WITH SECTION 33?

AS PER SECTION 33(A) AND RULE 60(1) (2)(3)(4) HE CAN FILE A COMLPAINT TO THE AUTHORITY BEFORE WHOM PROCEEDING IS PENDING AND OBTAIN REINSTATEMENT ORDERS

CONSEQUENCES OF APPROVALS NOT BEING GRANTED

THE WORKMAN HAS TO BE REINSTATED IN SERVICE AND GIVEN FULL BACK PAY AND BENEFITS [Sn33 (A)]

CONSEQUENCES OF EMPLOYER TERMINATING WITHOUT APPLYING FOR APPROVAL OR PERMISSION

IF NO APPLICATION IS FILED AS REQUIRED IN SECTION 33 in 2002(92) FLR 667[JAIPUR ZILLA Vs GOPAL SHARMA] CASE SUPREME COURT HAS HELD THE TERMINATION AS VOID AND WORKMEN COULD GET REINSTATED WITH ALL BENEFITS AND NO BREAK IN SERVICE

GENERAL

1) EVEN IF APPROVAL/PERMISSION IS GIVEN UNDER SECTION 33,WORKMAN CAN RAISE A SEPARATE DISPUTE CHALLENGING HIS DISMISSAL[Sn-2(A)&11A]

2) EVEN IN PERMISSION CASES THE EMPLOYER CAN FILE THE PERMISSION APPLICATION AND PARALLELY PLACE THE WORKMAN UNDER SUSPENSION PENDING ENQUIRY,PROVIDED HE PAID THE APPLICABLE SUBSISTENCE ALLOWANCE TILL THE PERMISSION APPLICATION IS DISPOSED OF

II. TEST FOR DETERMINING LEGALITY/ILLEGALITY OF LOCK OUTS & STRIKES AS PER I.D ACT [ABSTACT BY Prof H.A.C POPPEN]
FACTORS	IN PUBLIC UTILITY SERVICES	IN NON- PUBLIC UTILITY SERVICES
IS ISSUE OF STRIKE/LOCKOUT NOTICE MANDATORY	YES [SN 22] [WITHOUT PRORPER NOTICE IS ILLEGAL]	NOT REQUIRED [Sn23][UNLESS THE STANDING ORDERS OR SERVICE RULES REQUIRE IT]
IF DONE DURING PENDENCY OF CONCILIATION BEFORE A CONCILIATION OFFICER	ILLEGAL [Sn 22]	LEGAL [Sn 23]
IF DONE DURING PENDENCY OF CONCILIATION BEFORE A BOARD OF CONCILIATORS	ILLEGAL [Sn 22]	ILLEGAL [Sn 23]
IF DONE DURING PENDENCY OF ADJUDICATION PROCEEDINGS	ILLEGAL [Sn 22]	ILLEGAL [Sn 23]
IF DONE DURING PENDENCY OF ARBITRATION PROCEEDINGS	ILLEGAL [Sn 22]	ILLEGAL [Sn 23]
A LEGALLY COMMENCED STRIKE OR LOCK OUT IF CONTINUED AFTER GOVERNMENT ISSUES A BAN ORDER UNDER Sn 10(3) OR 10-A (4A)	ILLEGAL [Sn 24] FROM DATE OF BAN	ILLEGAL [Sn 24] FROM DATE OF BAN
ELIGIBILITY FOR WAGES IF COURTS DECLARED THE LOCK OUTS AS ILLEGAL	ELIGIBILE FOR WAGES FOR DURATION OF ILLEGALITY	ELIGIBILE FOR WAGES FOR DURATION OF ILLEGALITY
ELIGIBILITY FOR WAGES IF STRIKE IS HELD TO BE LEGAL	NOT ELIGIBLE UNLESS THE COURTS GIVE A FINDING THAT THE STRIKE WAS ALSO JUSTIFIED	NOT ELIGIBLE UNLESS THE STRIKE IS FOUND TO BE LEGAL AS WELL AS JUSTIFIED
CONSEQUENCES OF PARTICIPATING IN ILLEGAL STRIKE OR DECLARING ILLEGAL LOCK OUT	PUNISHABLE AS PER SECTION 26	PUNISHABLE AS PER SECTION 26
CONSEQUENCES OF INSTIGATING ILLEGAL STRIKE	PUNISHABLE AS PER SECTION 27	PUNISHABLE AS PER SECTION 27
CONSEQUENCES OF EXTENDING FINANCIAL SUPPORT FOR ILLEGAL STRIKE	PUNISHABLE AS PER SECTION 28	PUNISHABLE AS PER SECTION 28
WHICH INDUSTRY OR SERVICE IS CATEGORISED AS PUBLIC UTILITY UNDER I.D. ACT	1. SOME INDUSTRIES/ SERVICES ARE CATEGORISED AS PERMANENT PUBLIC UTILITIES [Sn2n (i) to (v)] 2. SOME CAN BE DECLARED AS PUBLIC UTILITY FOR TEMPORARY PERIODS UPTO 6months AT A TIME [Sn2n(vi)&Sch-I]	ALL INDUSTRIES/SERVICENOT DECLARED OR FALLING OUTSIDE THE SCOPE OF SECTION 2n (i) to(vi)]

III. COMPUTATION OF BENEFITS UNDER EDLI SCHEME 1976
[TABLE BY Prof H.A.C POPPEN]

AVERAGE BALANCE IN EPF FOR 12 MONTHS PRIOR TO DEATH	PART-1 UPTO Rs.35000/-FULL	PART-II 25%OF AMOUNT IN EXCESS OF 35000/-	TOTAL OF COL. (2)+(3)	TOTAL ELIGIBLE AMOUNT SUBJECT TO CEILING OF Rs 60000/-
Rs 800/-	NIL [TO QUALIFY AVERAGE SHOULD HAVE BEEN ATLEAST Rs 1000]	-	-	NIL
Rs 32000/-	Rs 32000/-	-	Rs 32000/-	Rs 32000/-
Rs 55000/-	Rs 35000/-	25/100x20000 =Rs 5000	Rs 40000/-	Rs 40000/-
Rs 155000/-	Rs 35000/-	25/100 x 120000 =Rs 30000	Rs 65000/-	Rs 60000/-ONLY [MAXIMUM ELIGIBILITY LIMITED TO Rs 60000/-]


			Labour Law Update