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 Labour Law Update 


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Miscellaneous    2000


BINANI ZINC EMPLOYEES UNION

VS

LABOUR COMMISSIONER TRIVANDRUM

[1999-LLR-1156 HC-KER]

G.L.BHATIA

VS

UNION OF INDIA

[1999(3)LLN 835 SC]

RAMESWAR DEVI

VS

STATE OF BIHAR [2000(85)FLR 174 SC]

-    ARE NON-GOVERNMENTAL ORGANISATIONS BOUND TO GIVE A PAID HOLIDAY WHEN THE GOVERNMENT DECLARES A HOLIDAY FOR POLL DAYS UNDER SECTION 135-B(4) OF THE REPRESENTATION OF PEOPLES ACT.

-    A CENTRAL CIVIL SERVANT WAS SEPARATED FROM HER HUSBAND AND DID NOT NOMINATE HER HUSBAND FOR FAMILY PENSION

-    AFTER HER DEATH HE CLAIMED BENEFITS, IS HE ENTITLED

-    A HINDU CIVIL SERVANT CONTRACTED ANOTHER MARRIAGE WHILE HIS FIRST WIFE WAS LIVING AND HAD A CHILD OUT OF THIS MARRIAGE.

-      AFTER THE DEATH OF THE HUSBAND, THE SECOND WIFE CLAIMED DEATH-CUM-RETIREMENT GRATUITY AS HIS WIDOW.

 

-      IS SHE ELIGIBLE FOR THE BENEFIT EXTENDABLE TO A WIDOW

-    IF THE FACTORY IS ENGAGED IN CONTINUOUS PROCESS INDUSTRY AND THE ABSENCE OF EMPLOYEES MAY CAUSE DANGER OR SUBSTANTIAL LOSS TO THE ESTABLISHEMENT BY ITS CLOSURE ON SUCH POLL DAYS, IT IS NOT OBLIGATORY FOR SUCH FACTORIES TO CLOSE ON SUCH POLL DAYS

-    IT IS ENOUGH IF SUITABLE TIME OFF IS GIVEN TO THE EMPLOYEES ON DUTY TO EXERCISE THEIR FRANCHISE

     EVEN THOUGH THEY WERE LIVING SEPARATELY, SINCE THERE WAS NO DIVORCE SEVERING THEIR RELATIONSHIP, HE IS ENTITLED TO FAMILY PENSION UNDER RELEVANT RULES.

 

     UNDER THE HINDU MARRIAGE ACT 1956 SECTIONS 5, 8, 10, 11 SECOND MARRIAGE IS IN VIOLATION OF SECTION 5(1) AND IS NOT A VALID MARRIAGE AND HENCE SHE IS NOT A WIDOW AND HENCE N0T ELIGIBLE

HOWEVER UNDER SECTION 16, HER SON WOULD BE A LEGITIMATE SON AND BE ELIGIBLE TO A SHARE OF THE DEATH GRATUITY BENEFITS ALONG WITH THE FIRST WIFE AND THE SON OUT OF THE FIRST MARRIAGE.

SOVARSI DALAI

VS

DIVISIONAL MANAGER, LIC [1999-II-LLJ 172-HC-ORI]

-    AN EMPLOYEE HAD TAKEN AN LIC POLICY AND EMPLOYER HAD AGREED TO COLLECT AND REMIT PREMIUM THROUGH SALARY

-    THOUGH PREMIUM WAS COLLECTED, IT WAS NOT REMITTED ONTIME AND POLICY LAPSED

-    EMPLOYEE DIED AND NOMINEES CLAIMED BENEFIT

-      IS LIC LIABLE TO PAY

 

-    LIC IS NOT LIABLE AS THERE IS NO VALID POLICY

-    SINCE LIC PREMIA WERE DEDUCTED AND EMPLOYER HAS DEFAULTED IN REMITTANCE, EMPLOYER HAS TO PAY THE BENEFIT PAYABLE UNDER THE LAPSED POLICY.

KAPIL DEO PRASAD SAHA

VS

STATE OF BIHAR

[1999 LAB.IC.3234 SC]

OR

INDIAN AIRPORT EMPLOYES UNION

VS

RAJAN CHATTERJEE [1999 ILL 661-SC]

     WILL CASUAL, ACCIDENTAL OR UNINTENTIONAL ACT OR GENUINE INABILITY TO COMPLY WITH COURTS ORDER AMOUNT TO CONTEMPT OF COURT ATTRACTING PUNISHMENT.

-    A PERSON SUING ANOTHER FOR CONTEMPT MUST PROVE THAT THE NON-COMPLIANCE IS DELIBERATE AND CONTUMACIOUS DISOBEDIENCE OF THE COURTS ORDER

     WILLFUL OR DELIBERATE WOULD NOT INCLUDE BONAFIDE UNINTENTIONAL ACTS OR GENUINE INABILITY IN MAKING COMPLIANCE

PARAPURAM MILL COOP. SOCIETY

VS

DEP. DIRECTORY DEPARTMENT OF DAIRY [1999-I-LLJ 1199-HC-KER]

-    THE BOARD OF THE MILK SOCIETY PASSED RESOLUTION TO TERMINATE AN EMPLOYEES SERVICES FOR MISAPPROPRIATION.

-      ON A PETITION BY THE EMPLOYEE, THE REGISTRAR OF COOP. SOCIETIES USING HIS POWERS OF REVIEW UNDER RULE 176 OF THE COOP. ACT RESCINDED THE RESOLUTION ON THE GROUND THAT THE PUNISHMENT WAS DISPROPORTIONATE AND NO OPPORTUNITY, GIVEN TO EMPLOYEE TO CORRECT HIMSELF.

 

     REVIEWING THE POWERS OF THE REGISTRAR UNDER RULE 176, THE HIGH COURT HELD THAT THE REGISTRAR CAN RESCIND A RESOLUTION OF THE BOARD ONLY IN THE FOLLOWING CIRCUMSTANCES:

i.    it is ultra vires of the objects of the society.

ii    IT is against the act, rules, bye-laws

 

-    the action of the registrar was challenged through a writ.

iii    IT IS AGAINST ANY DIRECTION, OR INSTRUCTIONS, ISSUED BY THE DEPARTMENT

iv    IT IS CALCULATED TO DISTURB THE PEACEFUL AND ORDERLY WORKING OF SOCIETY OR

v     IT IS CONTRARY TO THE INTEREST OF THE SOCIety

       the taking of disciplinary action against an erring employee is not intended to disturb the peaceful and orderly working of the society, nor can it be said that it is ultra vires of the objects of the society

     registrar’s order struck down

 

 

 

 

u.p. geep industrial syndicate

vs

geep ind. syndicate union [1999 ii llj 1197 hc-kar]

     can standing orders provide for matters not listend in the schedule to the industrial employment standing orders act 1946

       the certified standing orders can not provide for a matter not listed inthe  schedule to the industrial employment (standing orders) act 1946

r balaji singh

vs

hindustan machine tools ltd

[decision of karnataka hc in writ appeal

no.565 of 1997 delivered on 09.06.1999]

 

 

 

 

     a 12(3) settlement revised benefits retrospectively and benefits were not extended to employees who quit employment during the retrospective period is denial of benefit to such employees justified

       there is nothing wrong in employer denying benefits to those who quit the company for taking up greener pastures elsewhere.

indian oxygen employees union

vs

b.o.c. india ltd [2000(84) flr 251-HC-mad]

or

chemplast sanmar ltd

vs

mettur chemicals thozhilalar sangam [2000-i-llj-1335-hc-mad]

-    normally the high courts can issue writs only against government/public institutions

-    can high courts issue writs against private institutions and if so, under what circumstances

-    can a writ be issued against a private institution for enforcement of a settlement

·      a private body which is not a ‘state’ under

article 12 of the constitution is not generally amendable to writs under article 226

however writs will issue against private institutions/persons under the following circumstances:

a.   to protect the fundamental rights declared under part-iii of the constitution to prevent outrageous injustice

b.   if there is no equally convenient remedy and there is public duty to be enforced on private person

c.   the implementation of a settlement under section 12(3) of the I.D., ACT IS NOT A PUBLIC DUTY AND NO WRIT WILL LIE 

pepsi foods ltd

vs

bharat coco cola ltd [1999 ii llj 1140 hc-del]

     the contract of employment in pepsi had a stipulation that  employees quitting service should not serve their competitors for 12 months after separation

     is this post retirement restrant clause legally enforceable

-    any such post separation restarining clause would be in clear violation of section 27 of the indian contract act 1872

-    such restraining clauses are unenforceable, void and against public policy

     what is prohibited by law cannot be permitted by courts through injunctions

-    free, fair and uninterrupted competitions is the life of trade and business.  this freedom  in free market economy has to be zealously protected

-   in the larger interest of free trade and business.



 

Miscellaneous    2001

 

1

SHAHUL HAMEED

 

Vs

 

NARAYANA PILLAI

2001(I) LLJ 959 [HC-KER-DB]

1

 

 

 

2

 

 

 

3

COURT ORDERED POLICE PROTECTION TO THE EMPLOYER

 

POLICE REMAINED AS SPECTATORS OUTSIDE THE ESTABLISHMENT

 

WHAT IS THE SPIRIT OF THE COURT ORDER AND DOES THE ACTION OF POLICE AMOUT TO CONTEMT OF THE COURT'S  ORDER ?

1

 

 

2

 

 

 

 

 

 

3

 

 

 

 

4

 

THE POLICE CANNOT REMAIN SILENT SPECTATORS

 

IT WAS NOT THE SPIRIT OF THE COURT ORDER THAT POLICE SHOULD GO TO THE SPOT AND ARREST THE CULPRITS AFTER THE EVENT IS OVER

 

THEY SHOULD ACT AT THE INITIAL STAGE ITSELF AND PREVENT LOSS BEING CAUSED TO FACTORY PROPERTY

 

NO CONTEMPT OF COURT ORDER PASSED BUT POLICE CAUTIONED TO BE VIGILANT

 

2

SHAMBHU MURALI  SINHA 

 

Vs

 

PROJECT AND DEVELOPMENT CORPN. OF  INDIA AND ANOTHER

 

2000 (3) LLN 513  [SC]

 

UNION OF INDIA AND ANOTHER 

 

Vs

 

WING COMMANDER  T. PARTHASARATHY

 

2001 (1)LLN 16  [SC]

 

1

 

 

 

 

 

 

 

 

2

 

 

 

 

3

 

AN EMPLOYEE APPLIED FOR VRS ON 18.10.95 AND IT WAS ACCEPTED ON 30.07.97.  HE WAS ALLOWED TO CONTINUE IN EMPLOYMENT EVEN AFTER 30.07.1977 AND HE WAS RELIEVED ON 26.09.97

 

HE WITHDREW HIS VRS APPLICATION AFTER 30.07.97 BUT BEFORE 26.09.97.

 

CAN THE MANAGEMENT INSIST THAT HE MUST

 GO ?

 

 

1

 

 

 

 

 

 

 

2

 

 

 

AN EMPLOYEE CAN WITHDRAW HIS RESIGNATION LETTER/VRS APPLICA-TION EVEN AFTER ITS ACCEPTANCE  BUT ANY TIME BEFORE IT BECOMES EFFECTIVE, THAT IS BEFORE HE IS RELIEVED.

 

BASED ON EARLIER SUPREME COURT JUDGEMENTS IN :

 

BALARAM GUPTA  

 

Vs

 

 UNION OF INDIA [1987 (2) LLN 906] AND POWER FINANCE CORPORATION Vs PRAMODKUMAR [1997 (2) LLN 5]

 

c) J.N.SRIVASTAVA Vs UNION OF INDIA [1998 (5) LLN (Supp)]

 

 

3

RHONE POULENCE (I) LTD 

 

Vs

 

STATE OF U.P AND OTHERS

 

2000 (87) FLR 505 [SC]

 

1

 

 

 

 

 

 

 

2

 

 

 

 

3

AN EMPLOYEE REFUSED TO COMPLY WITH A TRANSFER ORDER ISSUED BY HIS REGIONAL MANAGER ON THE GROUND THAT REGIONAL MANAGER WAS NOT COMPETENT TO ISSUE THE ORDER.

 

LATER THE CORPORATE MANAGER (THE COMPETENT AUTHORITY) WROTE TO HIM TO JOIN DUTY AT THE NEW PLACE

 

WILL THE DISOBEDIENCE OF THE FIRST ORDER AMOUNT TO MISCONDUCT AND WILL THE SUBSEQUENT LETTER BY THE COMPETENT AUTHORITY RESTORE THE VALIDITY OF THE INITIAL ORDER ISSUED BY A NON-COMPETENT AUTHORITY ?

 

1

 

 

 

2

 

 

 

 

3

ONLY COMPETENT AUTHO-RITIES CAN ISSUE TRANSFER ORDERS

 

SUBSEQUENT RATIFI-CATION WILL NOT VALI-DATE THE SAME WITH RETROSPECTIVE EFFECT

 

NON-COMPLIANCE WILL NOT AMOUNT TO A MISCONDUCT

 

 

4

THE MANAGER, RESERVE BANK OF INDIA 

 

Vs

 

V RAVEENDRAN, SECRETARY, RESERVE BANK EMPLOYEES ASSOCIATION

 

FLR 2001 (88) 391 [HC-KER]

 

1

 

 

 

 

2

CAN A FULL DAYS WAGE BE DEDUCTED IF EMPLOYEES STRIKE OR DISRUPT WORK FOR PART OF THE DAY ?

 

EVEN WHEN THE SERVICE RULES ARE SILENT CAN THE MANAGEMENT DEDUCT WAGES FOR CONCERTED ABSENCE FROM DUTY (STRIKE).

1

 

 

 

 

 

 

 

 

 

 

 

2

 

 

 

 

 

 

 

3

 

 

 

 

 

4

IT IS NOT ONLY PERMI-SSIBLE TO DEDUCT WAGES FOR THE HOURS NOT WORKED BUT ALSO PERMISSIBLE TO DEDUCT WAGES FOR THE WHOLE DAY, ESPECIALLY IF THE ABSENCE/ABSTINENCE FROM DUTY IS CONCERTED AND THE SAME FACT IS NOT IN DISPUTE.

 

THE QUESTION IS NOT WHETHER THE WORKMEN DISCHARGED THEIR DUTY IN PART, BUT WHETHER THEY FAILED TO DO THEIR DUTY FOR ANY PART OF THE DAY

 

IN THIS CASE MANAGE-MENT RULES HAD ALSO WARNED THAT PARTIAL STRIKE WILL ENTAIL LOSS OF PAY FOR THE FULL DAY.

 

MANAGEMENT'S REFUSAL TO PAY FOR THE PARTIALLY WORKED HOURS APPROVED BY COURT.

 

 

trade unions

BY H.A.C.POPPEN

reference

issue raised / facts

held

pethambaran

vs

ramachandran [1999-ii-llj-832-hc-ker]

two unions claimed that they had an agreement with the employer to recruit in the ratio 1:1:1 with management having freedom only to recruit 1/3rd and other 2/3rd  to be nominees of the union

-    trade unions cannot acts as recruiting agencies and even there is an agreement for recruitment sharing it is legally unsustainable

-    any such agreement would affect the fundamental rights of members of other unions or claimants who are not members of any union

thuravoor mahakshetra bhaktajana samathi

vs

administrative officer

[2000-i-llj-1267-hc-ker]

-    the temple authorities had tried to construct stalls for the temple festival.

-    the stall traders tried to deploy their own labour for unloading their materials.

-    the local head load workers union obstructed and insisted that the job can only be done by them

-    the kerala head load workers act applies only to establishments mentioned in the scheduled to the act and the temple does not find a place in the schedule

-      headload workers have no claim and police ordered to remove the obstruction caused by such workers.

 

 

bhageeratha engg. ltd.

vs

supdt. of police [1999 (4) LLN-1087-HC-ker]

-  construction workers obstructed the use of mechanical devices for the national highway widening work and insisted that work should be done manually or the union should be given no objection money (ghost money) for permitting the use of mechanical devices.

-    police refused to remove obstruction

-    ordered the police to provide necessary police protection to carry out the work without obstruction

-    union have no right to claim ghost money

-    if there is any manual job the registered head load workers may be considered for deployment.

 

 

 

payment of wages act

 

BY H.A.C.POPPEN

reference

issue raise / facts

held

tyre retreading shop committe

vs

a.p.s.r.t.c [2000-i-llj-438hc-hyd]

payment of wages act section 9(2) provides that employees who go on flash strikes in violation of the contract of employment could be penalised with 8 days wage deduction

can this be applied to all employees irrespective of their salary limits

this provision under 9(2) of the P.W.ACT 1936 cannot be applied to employees drawing wages above its coverage limit fixed under section 1(6)

section 1(6) states  that nothing in the P.W.ACT shall be applicable to employees drawing salary above rs.1,600/- pm.

 

 

 

 

 

 

 

 

 

 

 

 

payment of wages act

 

BY H.A.C.POPPEN

reference

issue raise / facts

held

air freight

vs

state of karnataka [1999-ii-llj 705 sc]

the total minimum wage paid was higher than the statutory minimum but the d.a element was lower than the da prescribed under the notified rates

authorities launched prosecution for not paying statutory wage

is this justified ?

-    the laws does not visualise component wise comparison

         it is enough if the total amount paid by employer is higher than the notified total.

however as per section 2(h) VALUE OF FIVE TYPES OF ELEMENTS MUST BE EXCLUDED FOR DECIDING WHETHER TOTAL AMOUNT PAID BY EMPLOYER IS HIGHER [SEE SECTION 2(h)]