-K.

RAO

AEM (
)
PUNE,
| PROCES
~

UB:
IU 29,
ras
 Setvensapara Notes
—_< Law ofPromissory 138)-
. oh + Law of Mortgages , 295)-
> F.1.R., Arrest & Bail 150/-
> Supreme Court on Criminal Justice 225]/-
> The Law of Wakf in India 170/-
- Environmental Pollution & Protection 850/-
: Prevention of Food Adulteration Act 295]-
: Law of Mines & Minerals _ 990)/-
: Urban Land (Ceiling & Regulation) Act 100):
: Civil Pleadings & Practice 195/-
: Criminal Pleadings & Practice 195/-
: Pleadings & Practice (Civil & Criminal) 450/-
> Law of Promissory Notes 135/-
_. Law of Appeals 250/-
- Law of Contempt 250)-
> Law of Easements & Licences 240/-
: Law of Injunctions 395/-
+ Law of Insolvency (Bankruptcy) 395/-
: Law of Negotiable Instruments and
Dishonour of Cheques ~ 450).
: Recovery of Debts Due to Banks &
Financial Institutions Act, 1993 345/-
| Al : Banking Regulation Act, 1949 225]-
| PS. Narayane + Law of Specific Relief 330)-
P.S. Navayana + Suits—Law, Practice & Procedure 300).
_ | Padale Rame Redd) §~ Advocates Practice (2 vols.) 750)-
Pattale Bante Reda ~~ Drafting of Deeds and Documents (2 vols.) 795]-
‘PatialaRaima Redes; Criminal Major Acts 200)-
| SA. Chari : Law of Summons & Notices 240)-
S.A. Chari : Stay Orders & Temporary Injunctions 180):
_Y. Sitarama Rao : Law Relating to Water Rights 195)-
| Ud Rav’s : Manual of Workmen's Compensation 225])-
Venkat Roo Law of Consumer Protection

CONTD. ON BACK INNER COVER

 SUPREME COURT
ON
DISCIPLINE,
DISCIPLINARY
PROCEEDINGS
& OTHER ISSUES
by Jeb ESO
A.K. KAO
B.A. (Hons.), B.L., P.G.D. in P.M.

1st Edition 2000

ASIA LAW HOUSE

 Published by :
S.P. GOGIA (H.U.F)
for ASIA LAW HOUSE,
x Opp: High Court, Hyderabad - 2. Ph. 4526212, Fax. 4564007.
x Opp: IOB, Bankstreet, Kothi, Hyd - 95. Ph. 4742324, 4608000.
E-Mail asialaw@satyam.net.in

lst Edition 2000

© Copy rights reserved with the Publishers.

Price: Rs. 200/- only

Copies available throughout India

‘|PPurchased: We
Approval : iV
iGratis : J
AccNo : ISBN : 81-86196-88-9
Price :
“Narayan Rao Meigiri
as 4 vational Law Library”
Bangalore
—————— = le
ee ee
e eee ee es ee “|

| Note:- No part of this book may be reproduced or Copied in any form or by any |
means [Graphic, Electronic or Mechanical], or reproduced on any information
storage device, without the written permission of the publishers. Due care
has been taken while publishing this book, but the Author, Publisher and
Printers are not responsible for any mistake that may have inadvertently crept
in. In case of doubts the reader shall cross-check the contents with original /
Government Publication or Notifications. Any mistakes noted may be
brought to our notice which shall be taken care in the next edition. All
disputes subject to Hyderabad Jurisdiction only. |

Printed at :
Haritha Graphics, Hyderabad.
 GENERAL CONTENTS

Page
ST - iin ii os \
POT d...0e....,.i
.......0 Vil
OT lLdl le ix
ee viationweees...............e....................
——e... xi
aed COhw............. a... xiii
Bk a — CO Ce XXX

CHAPTERS

el Ue
eed Le 1

BEDISCIPLINE EN INDUSPRY -o.ce:.-..:cessceccseesceeceeces.-.cesseesss.-.cscees. 2

3. DOMESTIC ENQUIRY AND + ts :

SEDUSTRESELAW catien..:... ool i a 6.
Me PPISCIPLINARBY PROGEBIINGS onccccccerescocssccececccctéccececeecoces. 16:

5. DISCIPLINARY PROCEDURE & DOMESTIC ENQUIRY |

GUIDELINES FOR ENQUIRY OFFICERS .........ccsccessssesseees ke

6. DIGEST OF CASES AND ISSUE-WISE

PRESENTATION OF SUPREME COURT DECISIONS .. 38

A ee | ee 204
8. SOME COMMONLY USED TERMS IN LETTERS
OF SHOW CAUSE & CHARGE SHEETS
PVD TERE cA L, WEEERIVING. . cocccovasstitensiocsceccoccessevsbiscenes 208

9. RELEVANT EXTRACTS FROM LABOUR ACTGB........... Z15

SUBJECT INDEX ...........000 Satsebosvsccsccssbsdabedasbueecoreccccscovnsoepeesstee 242

i
Os.
Lo
OT
Se
en

fron
see ba A

pag’

Bats,

WwWlres

ALINTeU
VAR |
Ww

. iid 4
 Dedicated to the

Memory of

My
Foster Parents

Late 4. Paruatesam Garu

and

Late Smt. 4. Sauyacamma Gara

 K. Srinivasa Murthy 3-5-1091/15, Narayanguda,
Senior Advocate Hyderabad - 500 029.
Ph : 4751313.

Foreword
India has been increasingly directing her resources since
independence to the development of trade and business. The growth
and development of trade and business naturally presents the problem
of employee-management re-adjustment. The disputes and frictions
between them have to be adjusted and solved expeditiously to avoid
dislocation of industries and community life. It is absolutely necessary
for both employers and employees to understand their statutory rights,
duties and obligations. |

There has also been a rapid development of Industrial and Labour

legislation in the country. This book is an exhaustive compilation in
digest form of cases decided by the Supreme Court. Bearing in mind
the well known dictum of Lord Mansfield that the law does not consist
in particular instances and rules; but the law consists of principles,
which govern specific and individual cases, as happen to arise, the
Author has dealt very elaborately with the controlling principles which’
guide the Court.

The author does not claim midas touch in enhancing the glory of
the reported works. The Author attributes it to the scale, experience
and expertise picked up through long decades of his dedicated
involvement in the field. The Author is determined to scale new
heights and achieve new milestones.

The author has taken pains to explain the importance of Discipline

in Industrial Employment and the need and necessity to correct
aberrations as and when they occur in the course of employment. The
Author’s approach is cautious and of a positive kind which will help
management to take appropriate action based on the circumstances of
each case which will help Managements in the maintenance ofhealthy
relations between Management and Labour.

Vii
vill S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

The inclusion of a write up giving the Legal meaning of certain

commonly used words and expressions in letters of Show Cause as well
as the guidelines for Enquiry Officers is an added feature which will
enhance the value of the Publication to the students as well as
Practitioners of Labour Law.

The procedure for Domestic Enquiry explains in lucid detail the

steps which should be taken for the purpose of establishing the
allegations.

The high light of the compilation is the gist of Supreme Court

Cases during the period 1985-2000 which have been arranged in
subject-wise order for easy reference.

This endeavour by Mr. Rao, I am sure, will be well received in

Labour Law Circles.

K. Srinivasa Murthy

Kk *
 Preface

This is the first Book which I have compiled for publication.

My professional career started on 21st May, 1950 in the Personnel

Dept. of Jardine Henderson Ltd. at Calcutta. I was lucky to learn the
basics of Personnel Management, Industrial Relations and Labour
Welfare under the guidance of Late S R Zachariah, Chief Personnel
Officer of the Company and later from Maj. J Sen Gupta who
succeeded him.

The law governing the relationship of Master and Servant in India

is based on Time honoured practices, statutes and pronouncements of
adjudicating bodies including the Supreme Court of India. The Law
so developed covers a wide range of decisions disclosing in it a deep
concern for a just approach towards the underprivileged, to avoid
miscarriage of Justice. Employer - Employee relations in the Country
are to a very large extent guided by these pronouncements.

This book 1s an attempt to put together important Supreme Court

decisions on discipline and other related issues, the period covered
being 1985 - 2000. It is hoped that the compilation will serve as a
useful guide to all those concerned with the management of discipline
in industry.

While every care has been taken to minimise errors, being a

maiden venture, on my part, there are likely to be lapses which I
request the users to ignore.

ix
 * S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Before issue-wise discussion of the decisions the Book explains

the basics concerning discipline, its need in Industry and the
Disciplinary Procedure to be followed in Disciplinary Cases.

I wish to express my gratitude to Mr. K Srinivasa Murthy Garu,

Senior Advocate, Supreme Court and a Legal Luminary of A.P. who
took time to read the manuscript and agreed to write a Forword. My
thanks are also due to Mr. T K Jagadeesh, a well-known Advocate and
Labour Law eecr. Calcutta who has contributed an Article to
explain the background of Industrial adjudication in India. I also thank
Mr. C R Sridharan of Orient Law Firm, an Advocate of Standing at
Hyderabad for going through the manuscript and making some useful
suggestions to enhance its value.

My special thanks are due to Ms. Prasanna Kumari, my Ex-Steno-

Secretary and the Present Secretary Ms. Naga Rani who demonstrated
Himalayan patience to prepare the material at all stages without
murmur.

A.K. Rao

Hyderabad
6-5-2000
 ABBREVIATIONS
AD (SC) Apex Decisions (Supreme Court)
AIR (SC) All India Reporter (Supreme Courts)
ATC Administrative Tribunal Cases
BC Banking Cases
Wh Current Civil Cases
CLR Current Labour Reporter
FJR Factories Journal Reports
FLR Factories & Labour Reports
JT Judgments Today
LIC Labour and Industrial Cases
LLJ Labour Law Journal
LLN Labour Law Notes
SCC Supreme Court Cases
SCC (Cr.) Supreme Court Cases (Criminal)
SCC (L&S) Supreme Court Cases (Labour & Services)
SCJ Supreme Court Journal
SCR Supreme Court Reports
Scale Scale
SLR Services Law Reporter
SLT Supreme Laws Times
Supreme Supreme Today
UJ Unreported Judgments

xi
 LABOUR/INDUSTRIAL LAWS
DVSR Prabhakara Rao : Supreme Court on Industrial
Employment
DVSR Prabhakara Rao : Supreme Court Digest of
Disciplinary Cases (1990-99)
DVSR Prabhakara Rao : Supreme Court on Contract Labour
Abolition and Absorption
DVSR Prabhakara Rao : Supreme Court on Scope of
Disciplinary Authority
K. Ramakrishna : Disciplining ‘Misconduct’ in Industry
ALH : Maternity Benefit Act
ALH : Apprentices Act, 1961
ALH : Contract Labour Act, 1970
ALH : E.P.F. Act, 1952 with Schemes
ALH : Eepr. Act;-195z
ALH : E.S.I. Act, 1948 with Rules
ALH : E.S.I. Act, 1948
ALH : Industrial Employment (Standing
Orders) Act, 1946
ALH : Payment of Bonus Act, 1965
ALH : Payment of Gratuity Act, 1972
ALH : Payment of Wages Act, 1936
V.J. Rao’s : Shops & Establishments Act
ALH : Shops & Establishments Act [Bare Act|
ALH : The Employment Exchanges
(Compulsory Notification of
Vacancies) Act, 1959
ALH : The Motor Transport Workers Act
M. Sreedhar s*64s Sepoo (Labour Laws)
P.S. Narayana’s : Trade Unions Act, 1926
V.J. Rao’s >: Workmen’s Compensation Act
V.J. Rao’s : Factories Laws in A.P.
V.J. Rao’s : Law of Minimum Wages
Dr. N.M. Swamy : Environmental Pollution & Protection
P. Seshagiri Rao : Lawef Mines & Minerals

ASIA LAW HOUSI ) Opp.10B, Bankstreet, Kothi, Hyd@ 4742324

d Opp. High Court, Hyderabad @ 4566212
 SUPREME COURT ON DISCIPLINE,
DISCIPLINARY PROCEEDINGS &
OTHER ISSUES

DETAILED CONTENTS

Chapter I
DESC
UP LEE casysdscinass ccna dlp dasetneces 100.5 ad aco cons cnerepeppenbense ress eeoes 1

Chapter 2
NG ED ONO coca sxousda en aiRaansxores ensaacia tein cbishant> oink 2

Chapter 3
DOMESTIC ENQUIRY AND INDUSTRIAL LAW
1. Powers or Adjudicatorswerore Sectron flare... PR. 12
2, PC UICC ALOE MUMMIES LAA. ....«.0cisietiserers
+++ .-saniateiilimieeivis acys<e 13

Chapter 4
DISCIPLINARY PROCEEDINGS
is Pree 56.3: 2 EL A....,.....-.- sad £25 spt adesstowios) 16
2s. »Prelaeery Investiogtigmy ono... ..<::susssastssssesasss::--- As 17
2 «CharpeGibect «,; ..cbrdaieadate bd GME Alay 000i Eos lies). 18
Os, ¢ SINC AT ao occu sssssassatbannneenneses::-+---
gene eet S 19
Sp. .Suspemsien. pending nga yeiis...:2.agbbeela..c........pqgeVhoioes.. 20
Gy Consideration of the explanation. ......:.).4pWiie;> 4. s4EAS AY. -- 21
o> Engg ?......i4 MAR 6.0. dogegibiecs--.aaunageatt-oton- 22
Bp .Ems iicer ice MR oes+. AT iiss nao EEE RIG - 23
9. Prosegiittied).::cdcn pees a. nq tiive ove<syl.. epeibteaseni.s.. 24
1). Repregemiation.of Exmpha yet s..c.......<ia2dpepietysy p00..oe.ses Besss..0s.. 24
eh. - [bess 55 cee ico 10 GRR ER i600 RRM en n.. 25
OO ee a | rae ee 25
13. Postpommment of Engi veb:.::......cRt
err hna cn @hitersny os. 26
kA. Recor Gh Proceedingaiigaitesis,, 05.0. opspnietiress 000.5 ooreyed- ugebarepye vob. 26
i. Deciaiites:.:.).. i. 3s)... eee... ers Sb RRR Ies--)-- 3]
6. .Commumigation of thé décision........ MGS. .cone. volves aaehoserren sss. 33
Ki. Risks)... ccc aiid. 610. tH A ee TE G9 5. oS

xiii
xiv S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
ee
Chapter 5
DISCIPLINARY PROCEDURE & DOMESTIC ENQUIRY
GUIDELINES FOR ENQUIRY OFFICERS .........::ccccssseescseseeerceessneneees 35

Chapter 6
DIGEST OF CASES AND ISSUE-WISE
PRESENTATION OF SUPREME COURT DECISIONS................000 38

B BBOIN T MEN Dr cnserese+ss00cdeck te eniiesonesrsososensapmmsinbiensossesscoceseostiaalie 39

Appointment made on basis of erroneous data invalid ..................... 39
Obtained by suppression of truth about educational qualifications ... 39
Mitievan, ADDTORGIG ccasu«---->-<rcacaulllienllaadss vv arenas iilieesomemsec gue 39
B. MEP REN TICES AG © 190) wiccsstentitpeenoonctnsesoocencseemmbabinasansecscccensteinlllll 40
Preference to Trained Apprentigiaenn.....:..<:..:ice0gh---.0.......-..0-2senveptes 40
3. .APPROPRIATBIGOVT: 1.5.14. bicchedb disk igkcl, LAA AL,...ccnennind 41
Appropriate Government - Under S.2(1)(a) of
Seitract Labour (RGA) Achy: ius. ceieees yas ts. rocy>-nar.-.-ssnepeinne 4]
CU ee | eee 41
Effect of Non-publication of arbitration agreement as
required under sub section (3) of Section 10A of the
industrial Disputes-Act,: 1947.0: dNies..c.sccscee 2 RATA 4]
BACK W AGES ssstisissssssssssscssssdetedenhiscteessecss
Stee tebe deecceencubobbes 42
Back wages not payable for period of absence due to conviction ...... 42
EMMGIIOMCN 00-5 556086552505 156... 0R ec cs ces a eee 43
BION W OS iiss siitticictsiisis.ss sliced tare ascetic
eee 43
BARGAINING AGENT ..cicesosdinaisvsel ieUeiba clued 43
Sole Bargaining Agent through Secret Ballot ..........0..0.00:0cccccceeseeee. 43
BOER TH .....cocesescovsooescesessessivooveveatesunwocroevesecssescestiaeaubiiet~k
Aviles 43
Date of birth - When subsequently produced extract from
Birth Register is incorrect refusal to correct the date is correct ......... 43
Seeking correction at the fag end Of ServiCe ....c.cccscccccsessesesessseseveveveees 44
oo! Ue: eee oe 46
Payment of Bonus Act - S.36 -
Exemption from the provisions of the ACt ....cccccccccsesesceeeeseseseesesececsene 46
ee a 46
Exemption under Sec. 32(V)(C) seiiinnis nue, 46
cuba IEE Le
Ele 47
OO OO EE 47
 CONTENTS xv

CANTEEN WORKERS. ...00.....csccsecsesosabdettecesdo

eb biasedadedis
bksisi ct 48
Canteen Emiphsyened. mer ibe .0-audieh Quads. s...caatbantl..iie.< 48
CHELE LABOUR ccc teaeciedi ta gates clam eadbsiieice 48
Sec. 3 and 14 of Child Labour (Regulation and Abolition) Act,
1986 - S.C. Directions on discontinuance of child labour........:......... 48
COMPASSIONATE APPOINTMENT ...........cccccsccecsesseesssesecesseeees 49
Not to be directed when there is ban on recruitment................0..0060. 49
Claim after 13 years of death of employee not tenable ...................... 50
Minor son cannot claim the appointment after 7 years ...................... 50
INGCsgmtee RGR eee... SES A. 5]
Nieteomrorroutids= ic Outs vilecoceditel oa. bo .zdaominasbrocstl. 51
CONCILIATION. PROCEEDINGS ..0....00ccsc.csecercendushsubecneednce cebacess 51
When do Conciliation Proceedings End? .0..........ccccccsseeseeetteeeceeseeeees 51
CONDGONATIGON GE DELAY «0... 8sad50b os cecnnh 162s 2a Gass eee 52
Limitation runs from the date on which plaint
was returned for submission before proper Court ...............::ceeeeeee. 52
COCOA TOI rrrrcccsnscnncacconeapncncantbbans
stdssaladceheperi cdabareyebs <i i82- §3
Deemed confirmation - Can be claimed after specified period
of probation if employee continues to remain at work....................05- Bie
CONS TFT UTION GUINEA 85h Ses Sececaria ln dasdcinssi}. 53
FREEADS +020. -ccdecasatntabtontianssessscencxsaeaaeeeen
Dl isatlt pee eee ILI. 53
Art. 16 - Status of employee employed after Superannuation ........... 53
CONTRACT ACTy Gili s Beal anced 1 Ra asi055). 54
Sec. 23 - An agreement with employer not to claim
Higher Salary on Promotion contrary to Law ..........cccccceceeeeeeeeeeeeeeeees 54
CUONZEACT LAB ORs. sii. cidal peiteiani ag lanuiiniins. 54
Employees of statutory canteen are workmen of the
establishment for the purpose of the Factories Act only ...............05. 54
S. 10 - Contract Labour with overall control of contract, absence
of licence, entitled for regularisation with 240 days of service.......... 56
Contract Labour (Regulation & Abolition) Act, 1970 - Sec. 10
- On abolition of contract labour principal employer is under
statutory obligation to absorb contract labour ................:cccceereees 56
Contract Labour (R & A) Act, 1970, Sec. 21(4) oo... ceeceeeeteeeeees i
ess1000neneedenbatiab bobeddacaee «58
PREARMNE OED AITAGCT SSG TATION UTE PROT 0. escgccceccscc
Whether excluding loading and unloading of Bricks was in order .... 59
CONTRACT OF SER Vir Biss isits ial siccessscseravnvrsnvsncdesesesesininers 60
Termination of service as per clause for termination
A 5 LMR Each ences seercersnnthbignwanvireessseueen 60
xvi S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
oor SS .0—0000000

20. COMPANIES ACT, 1956 .......ccccccccsessssssccseesseseesssesnssnsenecsssscsosonssnens 60

S. 630 - The dispute about failure to handover possession
of rent-free furnished flats is of Civil NAtUTE............ ccc eee eeeee creerees 60
21. DEPARTMENTAL PROCEEDINGS AND CRIMINAL
PROC EE DIINGG iii nn -nniccnoiceeddtdsdisscescass Sesbckegeeeebe sd caledaoandsbeeiode 61
In Departmental proceedings and criminal proceedings are based
on identical facts and evidence, departmental proceedings
eannot be proceeded with : .cGkue. Ju. ab Meee. als coe 61
Circumstances for Stay of criminal proceedingS.........0......:00:ceee 62
DEE AOEPEND END icitsssovesss00-.+-rnsesectebhbsabentbesscenscaithi ies caseua aaa i 64
Dependant means one who 1s financially and physically dependant . 64
232 DIRECT RECRUITS ......s-vvcdakstsestcslechndonstetniletentabhsbtodedindachdeahataale 65
Direct recruits -cannot be placed on the same padatial
asthe. officers-working.in Bank.w....¥.4..2.1).1. 0, OL 4. CAM 65
24.. DISCIPLINARY PROCEEDINGS oiiii..s.cccs 50605, siitis<. ciscccsailelbeede 65
Dismissal for remaining on hunger strike is
BrOssly- diSPrOPOTHON Ale 2c rnncremmverrrnnnvmnavenstorbdhnd dA LOR 65
Discharge from service for abusing and threatening
supervisor is not shockingly disproportionate ..................cceeeeeee 66
Dismissal - Participation in a peaceful demonstration
BSINSSS) OR TUSTIE ........nenerseiestiianlsiiniensnpesnsstniiaimeaniianansess &dactitaeaae 66
Civil Court has no jurisdiction to substitute punishment ................... 67
Punishment : Dismissal for using abusive language ......................0 67
Failure to report for duty after expiry of Leave -
Termination without holding Domestic Enquiry ................0...c.::c0000e 68
Dismissal - For overstaying leave by 12 days harsh. ..........0..0:00000. 69
Disciplinary action - (Punishment of dismissal for
unauthorisedabsence is harsh) wihiAc onininaeimnaccdeskdadaa. 69
Disciplinary proceedings - Punishment for offence of
iorgery is dismissal..............0 Geena c Ae... aeh aor 69
Disciplinary proceedings - (Termination for effecting
forgeries is not shockingly disproportionate punishment). ................ 70
Dismissal - When it is considered unfair labour practice .........0.c00 70
Dismissal - Workmen filing Civil Suit claiming relief of
FETSCATCITICHE ves secessereesses sdiihds
svsuven
ude lekyoilllileeNlas,
ceeeeda (A lbbe 71
Act committed outside results in subversion of discipline
or good behaviour within the premises or
precincts of the establishment Javvsiie 000.cael ..i. dks cee . 72
 CONTENTS xvii

Issue Of REERO MOM |. NOHO ea is. awNebwaus,..tacilaiozivs... 73

Service of Charge Sheet by Registered Post .........cccccccccccsseeesetseeeeeees 73
Authority higher than appointing authority only can
TENT i555 Eco niuin sos aerarcca ERB SC, L004 Re... 73
Preliminary enquiry and enquiry conducted
after jssue@ficharge sheet notgame icaltes. jez....si0....-Jasiaree. ke... 74
Non supply of enquiry report to employee is not illegal .......0.....000... 74
Domestioiaquiry «..::cnnreugashs...cicpetdavatoola\.... seainizitl... 75
Disciplinary action - Non-production of non-relevant
documents will not vitiate the EMquiry ............cccccccescceseeesteesstereeeenees 75
Departmental Enquiry - Charge sheeted employee not
entitled to each and every document required by him..................... 76
Burden of proof depends on nature of charge and
explanations submitted by the delinquent ...........0...cccceeeceesteeeeeeeneees 77
Legal charges for defending advocate ...........cc...cccccceceescceseesteeeeeeeees 77
Dispensing with formal enquiry when justified .................eeeee ¥
Fresh enquiry can be conducted from Stage II was found Illegal ...... 78
In De novo enquiry should the enquiry start with
giving opportunity to employee to produce his evidence................... 79
Domestic enquiry: Fresh enquiry where opportunity to
CTOSS-CXMIENO MID fbSIVENIEWSidi2c:....).. 2aniboneos .vauasheioes.i.... 79
Disciphnany proceed mipbio lili. 456i 2 OHAR dennis onan waus.... 80
Domestic Enquiry - Charge of bias against Enquiry Officer. ............ 80
When Disciplinary Authority differs with the findings of the
Enquiry Officer opportunity should be given to the Delinquent........ 8|
Need for a speaking order by High Court .............ccccseeteeeeeeeeteteeeees 81
Dismissal - witnesses terrorised, failed to depose at
domestic enquiry - dismissal in the circumstances justified .............. 82
Joint enquiry can be conducted when more than one
employesasinwolved ... Reiss. ails depp ans eommmeemial.).... 82
Ex-parte enquiry must be held even if delinquent
fails to give a reply to the charge sheet ...........:cccecsccessteceeesteeseeseees 83
Different consequential orders can be
passed in exceptional circumstances OMLy .......ccccccccccsccseeseeseeeeseereeeees 84
Application challenging after accepting the lesser
punishment hatred |....<sccncemVdi Uli: BURN bis cones tb Labiisehtaed.... 84
Termination of service - Unless termination is
decided as invalid directions for regularisation cannot be given ...... 85
xviii S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
a
——————————————————EEE———
ee —

Disciplinary proceedings - Representation at an enquiry

by a retired employee .i........c:scssesceeneneedgbecesdarerbessnanaduonnsesnabededdessteieeoes 85
Union - Right to represent and negotiate
See.6(C) and Section 22: sissrs-s.--.sssasinnst ecasdapodss
scene tuns0, 85
MOCIIOL
Doctrine of relation back - Date of dismissal relates back to the date
of original dismissal not from the date
of judgment'of LabourCourt :;.::...:1), 2A ge ae... 86
Dismissal - Defective Enquiry - Management
permitted to prove the charge - Dismissal found justified
- The date of dismissal the date on which the order was
originally passed... ¢Wida nk. 2g + hp ee. 87
Disciplinary Proceedings and Criminal Proceedings ......................... 87
Proceedings before criminal court - Effect of acquittal
on Disciplinary. Proceeditigs ii... DOA Wl Le, A 4 88
Domestic Enquiry and Criminal Proceedings ................000006c0eeeeeeeeeeee 89
Disciplinary proceedings - (If finding of guilt is based
on no evidence, it could be amenable to judicial scrutiny). ............... 89
Departmental Progesuings jiueca. We en... upta ae 20)... 90
Disciplinary proceedings - When Tribunal can
substitute. punishmentq@a, 4.3... cae ee. cu ew... 91
Disciplinary proceedings - (Possibility of taking another
view is no ground for interfering with orders passed). ....................... 9]
Domestic Enquiry - Cannot be questioned unless
prejudice is caused or mala fides are proved against
the’ eeiry O fliter! AAiAs.2.. ..nteenggu. teat waupidas 92
Disciplinary Action - (When management was not totally
unjustified in imposing extreme punishment of
dismissal, interference is an Error). °i..ccccuvelie. sescladiellvsubdes cece 92
Disciplinary proceedings -
Questioning punishment when justified? ...........:0...cccceeeeceeseeeeeees 93
Disciplinary proceedings - (High Court cannot examine
the evidence as if it is a Court of first appeal). .......0.00:0.cceceeeee, 93
The disciplinary authority decides the punishment
but the Court is empowered to go into the question of
the nature of punishment
Tribunal is not an appellate authority ......0.ccccccccccsesesesesevessesesseeveveens 95
Dismissal - High Court Entertaining Writ ten years after dismissal .. 95
 CONTENTS xix

Disciplinary action - (Once period of absence is

regularised as period of leave without pay, workman
is not guilty of unauthorised absence). .........0..cccccceseceeseeeseeeseessevansenes 96
Disciplinary proceedings -
(Statement of co-accused can be taken into account)...............c0000 96
Disciplinary proceedings - (If enquiry lapses, the
workman is entitled to full emoluments minus
suspension allowance) .)2..2.42 444 MAL WOIE A. 1 TOK.s 97
Disciplinary proceedings - Suspension for
MiSappropriation and COMTUPHION ............ccccceecseeceesseececeseeeeceecseeeserenes 97
Domestic Enquiry - Enquiry Officer retiring
G@uringe the: courseoGEnquit y..c agiabiiicas >acitingled.-)-)s)-.oad--3 98
E.P.F. (MISC. PROVISIONS) SCHEMES ............ceccccccssessssrseeeeees 99
Sec. 1(3) (b) - Order of Court for benevolent consideration
made. from: a progpective. date csbersiyesessc bvosessbqunet@ncads».jsxasfe.t 99
Sec. 1(3) (9), 2-A and 7-A - Determination of functional unity ........ 99
Defauiting Employers to pay damages ...........cc:cccccessesessseseeeseesneetees 100
Whether Production Bonus would be deemed to “Wages”
for the purpose of Sec. 2(b)(6) E P F and
Miscellaneous Provisions Act Of 1952 .0.......cccscsecececcceeseseeeeeceeeeeens 100
Arrears under wage settlement). sa stiseciusyiss. 136s. svpeegh- (3G ideawenssccsccodehe.. 102
Two companies having same place of business and
management can be declared as one entity ..........ccceeecceceteeeeeesteeeees 103
a a 104
Sec. 40 - Employer failing to deduct contributions whether
can be. forced to pay, after, closusOs5 26) 6s... -0ssctaspetoess-qusres-sstaahde 104
Sec. 2(8): Liability for payment of compensation..............0.::ceeee 104
PO eek fa 104
Sec. 72 - Withdrawal of existing Medical Benefits
On iniroduction.of BSI Schemen......34.........--«s-.setuade.i-iauas 105
Application of the Provisions of the ESI Act and the
Scheme thereunder to Industrial Establishments .................::ccceees 106
Meaning of ‘Shiopre-d..é..(4)5..908 OF 8-1. xt caapeeuee slammed. 106
ESI Scheme - Shipping Company if ‘Shop’ .........ccccccsceceeesseeeeeeeeees 107
Sec. 85 B - Damages cannot exceed the ceiling of 100%
Si Oat Of BERRI oo o.0. cone rvehctapaureives dusytsss ste abeMMMeR a0 04cis cncegdeabes 107
Sec. 2(9) and (22) .......s606+ A ee ee 7 107
CS) Ae 2M ie otedeve os oncacKMVMbaas venience souvetessTlpubiVendsxessceseoecceysiity 107
xx S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
———————_ EE
EE

E.S.I. Court to decide if existing benefits

more favourable Gr iot .......... 0008. Bian... aR RR Ae 108
Wages - ESI Act 1948 S. 2(22) - Subsistence allowance 1s wages .. 108
Employees’ State Insurance Act: Sec. 2(22)
Whether attendance bonus and other additional remuneration
would be “wages W. <i:....%....)/ SOR... . AR ee ea, 108
2). EMPLOYMENT EXCHANGE (COMPULSORY
NOTIFICATION OF VACANCIES ACT ; .......ssccscsscsesseresessneees 110
Employment Exchange (Compulsory Notification of
Vacancies) Act, 1959. Act for Notification of Vacancies
only Sec. 2(e)(f)(g) and 3840s io. 5 AU, 110
Sec. 4(1) - Selection of candidates not to be restricted to
candidates sponsored by the Employment Exchanges ..................... 110
28. EQUAL PAY FOR EQUAL WORK ...........ccccssssssrrsceecescsenseneees 111
Parity cannot be claimed by employees of subsidiary Bank ............ 11]
Principle not applicable where qualitative difference
in function and responsibilities is apparent ..............0600cccececeeeeeeeeeeees 111]
Equal Pay for Equal Work..............0.cc i RAIS. 0.iti AR hee 11]
Mistake committed by administration cannot furnish a valid
legitimate ground for the Court to direct
Administration to go on repeating that mistake ..........0000.cee 112
Principle is applicable among equals but not among unequals: ....... 113
Classification on the basis of educational qualifications
reasonable . ccc ins. ce A tA, heels 113
When cari it D6 S900Ked? *.2 (A2NRAR.GGI AL... 114
Daily wage instructors can be given regular
instructor’s salary only if work and duties are similar to those
GE Fe gular insti ce. cccsnnn i rrecenneconntaiinnelmianne LCs 114
Equal Pay for Rawal Work :..:2. 8G. AY, dG. 115
RAMSUB! Labour vtec cecisscecccore st Nlbn ic. ta IN os) Tle 116
Right to the wages of a Higher Grade Fitter -
Giaim under Sec: 33€e) .:,..:..iid AA Ri a. w atiad.. 117
Equal Remuneration Act 1976 Sec. 2(h) 3, 4 and 7 oo... 117
Claim by casual workmen retained on Company rolls
without work on Humanitarian Grounds ..0.......0.00ccccccccccecceeeeseteveees 118
Claim by Casual Workimen aiiiiititivi
ARciesse
anccs 118
Doctrine cannot be put in a Straight Jacket .......cccccccccccseceeeseeeesevnenes 119
 CONTENTS xxi

Cisun by.Carpentegaiaearas...62caee Oia ta coomiseatl beanies 120

Appheaton of Priieiple sé«8.66.46 BE88. 0.0.50 CAE ow svere 120
PACTORIES AGC8 tiis«. cnccnimnrs inn ccagedafien sis sins 121
Sec. 2(K) - Manufacturing process - (Using of raw material
adapted for constructing a railway line is a manufacturing
preieeas'and hence a factory) «6S... «noid Die cscs 121
Any one of the directors shall be deemed to be
- occupier of the factory...............cc00. Sre insin' ae RRS a FER Ew Fs «ob tS 122
Set, 2.1) Overtantiwaces ...... 209806. 4... Bae eiiiesroiniees 123
GEIERAL Sa A-aehiscssct b cncccssonsboeeh bape(-5.i0is.ccereesopppmrvescscrenteedl 123
Fraud in Selection of Candidates: .................... Jaubal-ko acimwial 123
Freedom of Speech and expression and right to form association ... 123
Go Slow by workmen resulting in the lockout by Management: ..... 124
8 8a eee) ee © rd eee ae eet 125
Liability for period prior to take over of the management:.............. 125
Seasonal workinefiewiiais...205. BREA s 5. cm aamiion ....o3008 126
TRORLIDA YS wereiseler desi stn <encsesb QO sh40605. sesubs Ogata oe 0b60oreenederih 126
Increase in number of festival holidays from seven to
thirteen is not violative of fundamental right) .........0...c:ccccececeeceeee 126
INDUSTRIAL DISPUTES AGE Wats tec. cacocenscppshovatqe care cocecesesssscaetd 127
Industry - Industrial Disputes Act S. 2(2) Physical
Research Laboratory is not an Industry .0............cecsecceeeeeeeeeeeeeeeeeeees re?
Section 2(j) - Interpretation of Industry - Does not call for
FECONSIASTOtION Ge SiMacch we. 01 icc) epee sn 25:50 04 oR Bpe Pony «a 5s sve neneys 128
S.11-A - “Material on record” if found defective, ceases
toe material on record)’. 4, LDP WEE...isc..cetield
«105s 0550d¢ 128
Jurisdiction of Industrial Tribunal - Power to interfere
is not unlimited. Decision of Tribunal is subject to
Judicial review by High Court and Supreme Court................0::c08 129
Industrial Disputes Act, 1947 - Sec. 10 oo... ceceecseeetesreereseeeeeees 130
Jurisdiction of Tribunal or Labour Court
ulider Section: Hi BOOT +Aetasshvepicatecedecses.«....,
ssanenbovqeared coeces.ceedoad 131
Kesindicata ». Bs 66 act ee: cis. os beaglan aiorlcecav 132
STA. , i, id n>+o SORT RIcois «00 ARQ AG arsine 132
Evidence - Proceedings under Sec. 11 A of
I D Act Tribunal to allow employer to lead evidence ..............:0008 133
SETA. «is. GS. A... 0 OT is. MORRO. GAs» vote 133
xxii S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
———————

Reference - (In respect of a Co-op. Society can a

reference be made under Sec. 10 of the InduS$trial Disputes Act?) .. 133
Sec. 17B - full wages last drawn Means WaBES ..........:00ceceeeeereeeseees 134
Sec. 2(rr) and Sec. 33(2) (b) - Dismissal of workmen
during pendency of proceedings - Requirement to
pay one month’s WagES. ...........sssssesescenassessesencsnnsenseonsaentessosssseoseens 135
Industry: Whether Company owning flats, letting them
out to tenants and maintaining employees for their
mamtenance and- Services ......:: 50:2:2 escaetses
abs.11. SUPP ns. en - 135
Reference under Sec. 10(1) of Industrial Disputes Act.............0..04. 135
Reference of Industrial Dispute - Duty of Govt. to apply mind....... 136
Industrial Disputes Act - Sec. 10(1): Should a
notice be given to employer before reference .................ceeeeeeeeeees 138
Notiee-of change fiitietssces:.:ccstesssstebbeeessasissssss.
sce tb.) 139
S. 9-A [.D. Act, 1947 - (Circular restricting employees to
contest elections is not a change in conditions of service)............... 139
Notice of change has to precede rationalisation ..................00ccce 140
Lay Ort. Sec. 25 Pwr 000.1)... RUE 8, I, 140
Seer 25(OO). 25CR anki... RT... OR, Se 14]
Provisions for prohibition of lay off - Valid and
constitutional - Restrictions reasonable - Industrial Disputes Act,
1947 - Sec. 25-M - Constitution of India, Arts. 14, 19.00.00... 141
Sec. 25 FF - Burden of paying retrenchment compensation on
company not on the new company board which took over
the COMpany HANAN ks. RL RR, RRS... ct 142
Distinction Between Sec. 33C (1) & (2)
What is the distinction between Section 33C (1)
ane Section 33C Gyan cI, 142
Closure of undertal@ingi......1:)0. 3h. Ceaacataall 144
Closure of one or two factories belonging to the same
employer - Whether Closure or Retrenchment............c..ccccccccc0eeceees 145
Order to close down hazardous industries in Delhi
employers asked to pay six years’ wages to
workmen if they fail to relocate them
Lock out
When lock out is justified and workmen are not entitled to wages .. 146
When can adjudicator interfere .......cccccccccccescsceeverssvevsee sevest 146
deseseeududec
 CONTENTS Xxili

ATEN stiiiaba isvarennnmaasnnne

esiiedia hodoiats AERA
dhdndavi
Dh sSbeiShes Ebbed n lv 148
Loss of Lien - Remaining absent for more than 8 days and
Or OVerstaying Sanctioned leave. ......6....ccccsececcessapssveesescessevesvascnebareee 148
I 148
I a aaa asacrncanerann niin: 149
Courts to view and treat applications by State on equal basis.......... 149
Not applicable to the proceedings, under Industrial Disputes Act. .. 149
PRE NG ORO URRSS PAU onc cacennarcidamensiseraney>occaceesnanunnrnsetres 150
Sec. 20(2) S (1) Even An Ex-Employee can invoke the provisions. 150
sg. 9) aaeebeindie le rcre hone: eee rect ot ROORARRE RS ceri 151
PRPPTCHOTTEEy sonnet Pare eo 151
Grains ‘whether wages :::i::88ii®ecisicsnnmnd as. LAMA 152
MESCORBUCGEP ices AR cd hides d se ITI SIR 00 20 ed eee 152
Does promotion condone an earlier misconduct ...............ccccceeeeeeees 152
Breach of regulation is “misconduct” .............ccccsssceceeesseeeeecssesseseeens 153
Assault of Staff Officer near the Factory Premises
whether Misconduct? Can acquittal by Criminal Court
have any effect on decision taken on basis of Domestic Enquiry? .. 154
Employee issued with Charge Sheet and
Disciplinary Proceedings contemplated -
Whether this can be ground for denying promotion...............::::00 135
Employee suspended pending Criminal Proceedings ...................... 155
FORCES Ay eee EE 0 BPs gaeeitctedecsnesscconnsvactnipinabivace’seseovessastllearneass 156
Conviction under Sec. 294 of I.P.C. does not amount to
NOE POMMEEEMIEE: .<......0tenoeqaitinigttgnsecesooscscarniemineners+ct.cacss«00xrteanenen 156
Dismissal under Sec. 509 of IPC - Can High Court
direct thé Govt. to make a Reterence .... 822A ....i. SE! 156
NA TURABOUSTIO} in anise cs esck sia idds ok J cess 157
Non-supply of Statements of Witnesses Recorded
During Prehaiimary Enquinyiog. 20!) .ii.caduh adi cnciolios aaa’ 13%
Denial to engage an Advocate to defend the delinquent
does. not vidiate the principles. 5.05%;...ccmspanernanees teins ee mqpae <te+e1 157
Copies of documents be supplied to delinquent ................::ceeeeeeees 158
gait OE ce oe eee ee 158
A a I ine ares mina to aad a0 50) veraraetuiaecs 158
Peas ocr ENR hey v> yore vs cei teabihnures soso +> snes apaganestvtin 158
Principles of natural justice - Cannot be put in straight
jacket. Non-supply of copies no prejudice to respondent................ 161
xxiv S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
ns

40. NIGHT-SHIFT ALLOWANCE .......sccccccsscrseceesssssccsccessssesssecsesesees 162

Whether Part of Wages.............::ccssssecssssetsseseessenecersssesssnnaesesennnesseens 162
41. NOMENCLATURE AND FITMENT. .......cccccccscsssssrereeeeesssssessncees 162
Courts cannot go into the question of equation of posts
of fitment in'a particular Stale Of Pay.) rrvcc scs:...+.snscnannsepensensnress+: 162
AD, PAVEET OF WAC BCT ...ccccocgnnsstnaptinssecensesnomsqunpeeiannenencensoes 163
Payment of Wages Act, 1926 - Authority has no jurisdiction
to interfere with the orders passed by employer
UNGER GISCIDIINATY PTOCBEGINGS. .......-cccccsspisseennrs-+>-+-r-cetieiinieiMRrneatontes 163
43. PRIORITY OF DEBTS IN LIQUIDATION .7.........ccccceceeeeeseeseee 164
44. PROBATIONER. scitesscinttcccascssree-cns celine neiiieliaiees 164
Probationer - Confirmation to date back to initial appointment....... 165
Confinmation of Probationozss. 1:23.16 seebacs.colemerg2saC 165
Termination.of employment......i:: 200 RK... 21. 0uNnS SRO twa. 165
Termination simpliciter of probationer ................cccccccseceeeeeseeeeeseeees 166
Termination of service - Termination of probationer/
Purely temporary employee with one month’s notice is legal ......... 167
Tefmaianon whether retmencntnent 5. cficterssss....s..crssccensviboeiesectesss 168
Under A.P. Shops and Establishments Act - Sec: 41 «0.0.0.0... 168
Termination can be questioned if it was arbitrary or punitive : ....... 169
When Probationer can be deemed to have been confirmed?............ 170
45. PROC ELON s.ocexcesksiaiilinatecssonenypenmeal iaditevsneveg+e.epsenneninibiipeteeense 170
Conclusion of unfair means without showing the
document to the examinee is unfair and invalid .............0.ccccccceeeeees 170
fe i a a aT 170
Guidelines requiring consideration of annual performance
for the immediate preceding years ........ccccccceeceeeeees » Sl A tratninies 171
Person performing the duties in the promotional post ...............000--. 171
46. PUNISHMENT .........ccs00000 drrevecscovevetd wwe vessdeibibubditbe
dbleblvebtubsretne
bin 171
For cases involving corruption ......... ia alli RA as, 171
For dereliction of duty in allowing prisoners to escape ............080.-. 172
Principle of Proportionality of punishment ..............ccccccceeseseseeeeee. 172
Punishment can be imposed even if one out of the
five CHEFYES fs proved Le... Se. Sa 173
REDUCTION IN RAINIER vsscensesovsseonsapniatenerewereseneneittoacoe 173
 CONTENTS XXV

48. RRENGTA TRI. jee

kate aaiad 174
Payment of bachiaiipes: .:.. 2cwerlieedli Jhc.:..:). seodgren. lancer 174
Wihtn not desiehletiisi.....cs atte...
USER QAMICATS 174
The parties appealed to the Supreme Court which held-.................. 175
Reinstatement without Back Wages .............cc:ccscccseesseeseeesecsseeneeenees 176
49. REPRESENTATION DURING DOMESTIC ENQUIRY .......... 176
SUl TERSIGNA TION iienie sacks SR eis WBN Kodi oe sislatdice 177
Is effective only when employee is relieved ..............cccccceeeeeeeeeee tT?
Becomes effective from date mentioned in letter of resignation ..... 177
Nature and effect of - Whether amounts to ‘Retrenchment’ ............ 178
Ween docs it bememe cfiectivensutcui..........n depeapa:. 4.......088 178
Shi BED
IRE MEN aan... RaW lis ee nics 179
pend sory. TmtRPnent «0... .scenceneessvarsnsecssssccvescvecesaniannsce
43.48-208 e 179
Mere expiry of notice cannot automatically put an end to
relationship - Govt. can decline request .............cceeeeeseeeeseeeeeneeeeeeees 180
Retital benefite-< Delay.in.paymeh.iisiis 05...
LCL IS 180
52.| BEPRENC HGR Bais acco
iiss: URE baa. wail 181
Termination of appointment after the expiry of a
fixed period is not “Retrenchment” within the meaning of the
eeeranestciaal Dyrprnib Bi ois LER nnn nnn... vcscrapntonnsnnne ed iL 181
Termination of contractual employment after two years ................. 182
Termination of Service due to non-renewal of contract .............0..... 182
Termination of services of a seasonal workman ...............cc0ceeeee 183
BEY BRS EON Mais 5 Na ooh ARIA, ote we 183
For reversion from ad hoc promotion, opportunity of
NE aeon. aeepmeserre. ©& 183
SACALES OF PAY ccscencchisssi RQ,
URN desceccesssitbiods 184
SORT Wa has GLARE hel Mel visti iba Miedbedbasceveesdsesesabbebe 184
Seniority - Diesel engine drivers absorbed on the electrical side
cannot claim seniority over staff in the electrical locomotives. ........ 184
SET PLE MARIN gies 0), 6262p BIA hese ces dee sesibteRebassaeWidecsvesoussonseisee 185
For non-payment of lay off compensation beyond 45 days
Bospachamng O11 Ab] WWRRNET NL 0A EG. 00. DI 101, OITTTN A bce css Cediben 185
Terms of written statement cannot be varied by oral agreement ..... 185
1203). ANA Darereerve AMOADIINN vevsv
055 Sec leveeMbDedibet
nssve pn
S506 svenDaas 186
 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Settlement under 18(1) of I.D. Act binding on parties to

settlement on whose behalf the dispute is raised ............sscseeeseeeenene 186
57. STANDING ORDERS. ......:.ccssssssosssessnsoscsccscsnsensabsdasesenssssnssesbacnes 187
Clause 62(c)
Advocate appointed as Enquiry Officer has all normal
powers of Enquiry Officer including power to give
findings as to misconduct of the employee. .............:.:csseeeeeereees 187
Representation of employee in Disciplinary Proceedings.
Whether he could be represented only by employee
in same establishmenl? x37. cucu... cuca ».ua,
niles 187
SOG PG ici. .05 alesaaanhateriens.»»»»>>acve
220112sKQReMibace.
dzcstl ed, 187
Supreme Court - Review of earlier decisions when called for ......... 188
58. SIA vcs scnsncesssdibebeasdaseyooenovc eensssenanpheie
ibis cccecaG h 189
MMO AANGhOCEia
Meaning of - Depends on facts of each case and words
employed in the Termination Ordemeiinah.a::....
cio tfiflacnicc 189
59. STPRREICE:. .......scosssscvnscbbiiech
ovinecccescsh SO RMgued seDLA scsiab AcE opsssc 189
If illegal, even though justified employees not entitled to wages) ... 189
60. SUSPENSION ..:i 00. aie See eden Gs dO ROSS). 190
A second suspension in the same matter if justified... 190
oo i ee Per tenes 190
61. TENURE POST wssdesieaiies.ssesncss cssstsnessiecbinesivenetisecseiabapesbepebbepbesssonense 191
Superannuation alien to tenure appointments. .............::cceee
cece 19]
62. TERNEINA TION .icssctitiaeieas.i0ss0
cet teas cine DANEEL scene 191
Automatic termination of service of permanent employee .............. 191
Termination of service - Loss of confidence ...............0c:cccceeceeeeeeee 193
DGERREIRGION .........ssciensellverss0+.+150csdbellieeaeds
sik CII as ss08 194
Public body pursuing prolonged litigation.
The Dismissal of a sales girl was declared invalid. ..........0..0000000000. 194
TCRIRERRUION? Of SCEMIOR lie. 6.vscins ane nann aaeeectaiicianeiiinds 194
For Procuring Appointment by Suppressing material facts ............. 195
Employee member of T.U. - given option to resign from
Union for Promotion to a Managerial Post -
Services Terminated for failure to exercise Option. ......ccccccceeeccee 196
On grounds of absence from duty without leave and for
embezzlement of funds Of society ...scssosseessecesoecvebedeldjebersbbedecsidoebe 196
Validity of order of Termination
 CONTENTS XXxvil

ee CPUS Wea rosecaseoceanpaimars Mee MMNA cls usadsiesasisackonesaceoccccannguasausdsnnsics 197

For transfer on administrative grounds, there is no ground
for interference with the order of transfer ........00..0.cccccccccceseseeseeneeeess 197
Targetting honest officers is illegal and mala fide ....................0006+ 198
TransfereFes Public Servaitin.....\.......0 ROR, AE. 198
64. UNFAIR LABOUR PRACTICE ..00.......cccsscssscsssceccssscsccenscessesreess 199
Sec. 25T, 25U, 34 & 39 of Industrial Disputes Act - Govt.
may authorise someone other than self to file complaint................. 199
65. WAGES FOR STRIKE PERIOD ...........cccccscccssssssssssssescsessssesceeess 199
Backwages to Employee Refusing to accept order of Transfer ....... 200
Where Termination is for absence from duty - Improper ............... 200
Ordinary rates of wages - Under Sec. 59 of Factories Act............... 201
Daily. Wage Employces wade avge ses... 0000060.
L DRAMA, 201
GE WORKIN vcccrcereceeses aiMpiadticiies ithe hiss icsM Aassveesoctone 201
‘Workman’ - Section 2(s) of Industrial Disputes Act. ..................... 201
Medical Representatives - Whether workmen under Sec. 2(S)........ 201
Temporary workmen - Directions to regularise on projects
closed for non-availability of funds wrong ................ceceeceeeeteeees 202
Casual (Onus to prove the object of continuing workmen
on casual basis lies on the employer) .............ccccccseeeeeeeeeeeeeeeteeeees 202
Workmen’sS COMPENSAHON .ccgsocin...4:.-.-
SAMMAN AA. ANNES MAL. 203

Chapter 7
MEANING OF
mas .Misconduct............<2iondsoel
bus saiiua.lapalli.aed lsc hs... 08. 204
mL. Subversnve@odt discipline 1.0.4.0605...intaghe
wk vs endd. 8...A288: 204
in) .Good fxrtbmeatiiwa 0.01 k SUR occ BI, i roe. 206
Sees. Anisti ate MRIS i A AAA 6. iE Rceceret dics dbewerereceves. 206
ES .Victimisiin, ices Sls 2 1 ADROIE Id. 62 ie eer ere RS. 207

Chapter 8
SOME COMMONLY USED TERMS IN LETTERS OF SHOW
CAUSE & CHARGE SHEETS AND
THEIR LEGAL MEANING .............ssccscrsovsveveresrsrcccssecssescssssersssssssooeee 208
xxvili S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
NE

Chapter 9
APPENDIX
1. RELEVANT EXTRACTS FROM INDUSTRIAL DISPUTES
ACT, 1947
9-A. Notice af. Change .sccsciccoons.-aca:nctcsieeiiitaek b:>-adbassiebe 215
15. Duties of Labour Courts, Tribunals and National Tribunals 215
16. Forntof report or aweaitdbriaiis. is, .sce2 2. deh ened cco-e-botebonntee 215
17. Publication of reports and awards ........c::ccccccecceseeeeeeeeeeseneens 216
18. Persons on whom settlements and awards are binding ........ 216
19. Period of operation of settlements and awards .................04. 217
20. Commencement and conclusion of proceedings .................. 218
Zi. Certain matters to be kest confidentighii.t:.......-...<«siileee> 219
Strikes and Lock-outs
22. Prohibition of strikes:and lockouts ...ica.c.....s.4 SE. 219
23. General prohibition of strikes and lock-outs ..................0006. 221
24. Illegal strikes and lock-outs “—_ "3 221
25. Prohibition of financial aid to illegal strikes and lock-outs .222
25-F. Conditions precedent to retrenchment of workmen ............. 222
25-FFF Compensation to workmen in case of closing down of
UNGETEBRINGS ..........csnsdeQh Wes b<0is cscased bias +. Lanes 222
Unfair Labour Practices
25-T Prohibition of unfair labour practices .................cc:eccesseeeeeees 224
25-U_ Penalty for committing unfair labour practices ................... 224
Penalties
26. Penalty for illegal strikes and lock-outs ..............:.:::cceeue 224
27. Penalty for instigation, tc. ..........scaimn.di.,.2ue. 224
28. Penalty for giving financial aid to illegal strikes and
| ae 225
29. Penalty for breach of settlement or award .............00ccccueee. 225
29-A Penalty for failure to comply with an order issued under
Se | Tn 225
30. Penalty for disclosing confidential information ................... 225
30-A_ Penalty for closure without notice ...ccccccccccccceccscssseeceesereeren 225
31. PCTRMIRY TOT OCCT OTPCIIDES occ ieccsccstlDblevebelbevcevsvescssoetanmbennens 226
The Fourth Schedule
Conditions of service for change of which notice is to be given......226
 CONTENTS XXIX

The Fifth Schedule

Unfair Labour Practices
I On the part of employers and trade unions of employers ....227
II On the part of workmen and trade unions of workmen ....... 229
» RELEVANT EXTRACTS FROM CONTRACT LABOUR
(REGULATION AND ABOLITION) ACT, 1970
Licensing of Contractors
ll. Appointment of licensing officers ...............0:.:ccccceseceeeeeeeeees 230
12. Licetisaele SF contractors de)... 8. SEs... 230
13. arent GP OOUBeS «<< cccdaseadere dd ovis ssasscccddotamiptaaddasessccsss.
RAR 230
14. Revocation, suspension and amendment of licenses ........... 231
3. Prppeah ie arcade tt cescesecezbectettzesisccsss.
0) ON. ES 231

es RELEVANT EXTRACTS FROM INDUSTRIAL EMPLOYMENT

(STANDING ORDERS) ACT, 1946
= Submission of draft standing orders................:ccceeeeeeeeeeeeeees 232
4. Conditions for certification of standing orders .................... he
7 COFTIEICEMNnE OF GURTICIIN GUUICTSS... (:..----Giranttetcacten
sas. s..-ncenegmy 233
6. Ft RII 6 AMI ce hth 234
12-A. Temporary application of model standing orders ................ £32
13. Penalties and procedure 24h!) )......8 Td 236
13-A. Interpretation, etc., of standing orders ..............cc eee 237
13-B. Act not apply to certain industrial establishments ............... 238
14. Power to exempt ....)52. FRR...
A eS 238
14-A. Delegation Of POWETS .0......cccceccecccesccesescereeeeeseeeneecsscsueeeenes 238

‘/ RELEVANT EXTRACTS FROM TRADE UNIONS ACT, 1926

16. Constitution of a separate fund for political purposes ......... 239
bi. Criminal conspiracy in trade disputes .............0::ccceeeereeeeeee 240
18. Immunity from civil suit in certain Cases .............cccceeeeeeeeee 240
19. tere 1 PETC | ee 240
21-A. Disqualifications of office-bearers of Trade Unions............ 241

RR ES eo rr 242
 List of Cases

A. Badridas and Tata Oil Mills Co. Ltd. vs. Its WOrKMERN .....00000.0000e0e008 154
Air Freight Ltd. and State of Karnataka and OFS. .......:..cccccc0ccccreee 152
Air India Statutory Corpn. vs. United Labour Union & OF, ..........000:00+ 57
Air India Statutory Corporation ...). 40204 24..i+. ST RETA. «0 485 4]
Ajaib Singh vs. Sirjind Co-op. Marketing-cum-Processing
Sexvice Society Lidiem...........tiiiaccotansan
G20 O Baleneshd 150
Allahabad Bank & Anr. vs. Deepak Kumar Bholla ...........6ccccceecceeccccceeeeeeees 98
Anil Bapurao Kanse vs. Krishna Sahakari Sakhar Karkhana Ltd.
ee a 183
Anil Kapoor (Dr.) vs. Union of India & AMNnr. ...c.cccccccesesesescesseseeeceesensneeees 92
APSEB vs. .£ S-] GOrp@eagnon ...-.....xcinaelentinnssnm
i Rade---nh 106
Arvind Dattatreya Dhande vs. State of Maharashtra & OFS. .........60...0000 198
Aslam Jain'ys SIGGegieBihar .....jeiiiecs:+ss--
raveateeasnieeipavev-e-seniian 14]
Aspiwal & Co. vs. Lait Padi oad yt Rab as 25ig0ss8thlecansnsnp=npe -->-nrnnrainp 126
Assam State Electricity Board & Ors. Gajendra Nath Pathak................. 113
Associate Bank Officers Assn. vs. State Bank of India & OFS. ............060.: 11]
Asst. Superintendent of Post Offices and G. Mohan Nair ..............60..0000000 92
Avinash Nagra vs. Navodaya Vidyalaya Samiti, Ct. .........0ccccc00ccccecseeeee 78

BC, Chaturvedi vs. Oni0n Of India......wesssssysvecsvsssrnseaentlgeovenss..eeventeies 9]

Baty Lai vs. State of Haryana & Oiiegatea...cio..cataietanteas....485 155
Baram Gupta vs. Unieni@pindia sdininaines.i.uladedenins.....385 178
Balbir Chand vs. Food Corpn. of India & OYS. ..ccccccccccccssesceeceeeeveveees 74, 83
Beagev aan vs. Labour Court... IQs... 132, 176
Baleswar Singh vs. District Magistrator and Collector ...................0000000+. 98
Bangalore Water Supply and Sewerage Board vs. V A Rajappa and ors. 128
BGA AGIA VS TS. TAWA Oe OW Bi necateee ccc. s...sssvsensentitntpnesssessss.ccseseneas 200
Bhagirathi Jena vs. Board of Directors, O.S.F.C. & OYS. ..ccccccccccccccceccseeee. 97
Bharat Barrel and Drum Mfg. Co. vs. Employees Union .....................00. 132
Bharat Electronics Ltd. vs. Industrial Tribunal .............c0000c0000000000+. 135, 162
Bharat Forge Co. Ltd. vs. A.B. Zodege & ANP. .....cccscscccssevecsveceseseseseveveee 133
Bharat Kumar K Palicha & Anr. vs. State of Kerala. ....cccccccccsccccccsveceveveve 47
Bharat Petroleum Corporation Ltd. vs. Maharashtra General
FAPRQGT UNION GCG, ..........cccormsentaa
torre ianesececcuee
iscves 176, 187

XXX
 List of Cases | XXXI

Bholanath Mukherjee & Ors. vs. Govt. Bea ee Oneal Wat): 142
Bindra M.S. and Union of India and Other ............cccccccccescvssseveecccceeeseeees 179
Birla VXL Lid. vs. State of Punjab &:Orsh\ ..t.:..0.5:....
SASWR in ee 182
Bishan Singh & Ors. vs. State of Punjab & ANP. ......ccccccccccevceevseevsseceetseeeses 67
Brig. S Ramachandran vs. Hyderabad Allwyn Metal Works Ltd.,
Sunaina gar : 75 Aaweess.33...2:1. Saami... LASS. sone ae 60
Burn Standard Co. Ltd. vs. Dinabandhu Majumdar. ................0.0000000000000 46

C.E.S.C, and C.E.S.C. Supply Workmen Union ........sccsscsssssssssssssssesssees 106

Capt. M. Paul Anthony vs. Bharat Gold Mines ...........c.cccccccccsesscsesseeeesesens 62
IGE peel RR 5 ES. 134
Catering Cleaners of Southern Railway vs. Union of India .................00++ 2 by
Capetnen Of Tie C. PICT GFE... <n... .....crccnegnetiestaceess+scscasenttn 99
Central Co-op. Consumer Stores Ltd. vs. Labour Court Shimla.............: 194
CEPTS VS Ti PRIIIGH | rerttttee.s.....ccescrveetitttttsbsvcsscecveesine 207E
Chairman, Governing Council Anjuman Arts, Commerce &
sememce VS. Syed MEOnammned SHAPE woo... cccccseteterscvesveesscecevsvtnnens 43
Chandigarh Administration & Ors. vs. Naurang Singh & OF. .............+. 112
Chief General Manager, S B I & Anr. vs. Bijay Kumar Mishra...............: 53
Chief Conservator of Forests & Anr. vs. Jagannath Maruti
ET aSch ins <<< RRS SEE RIOR 202
Christian Medical College Hospital Employees Union & Ors. vs.
eID Peeper ASSOCTON Cig iss, +>. 50506. .c ERROR a annie sasee occas 130
Clothing Factory NTL Workers Union vs. Union of India .............0....0006: 123
Cochin Shipping Company vs. ESI Corporation .......000.cccc0cccccccceseccceeeees 107
Coir Board, Ernakulam Kerala State and Anr. vs.
mame Devi P'S Wet OFS. ......0.0...0 ERIN), BARADA, \at0\1.28,. 128
Collector of Land Acquisition vs. MST Katju & OYS. ...ccccccccccceccccectecceees 149
Colour Chem Lid. vs ATL Alaspurkar Bowie WW ae 71
Commissioner of Police, Bombay vs. Bhagvan V Lahane ............0....000006 44
Committee of Management Kisan Degree College vs.
[SEEDED JOT ON FopPtey UNI ONOIEE tivsincs.ssecccsccsacttenautiviseeccccsssursensns 158

DE aires nth tarsi bids ddsciccsicsecbheMbanlins Ns)sivcsbiWedoastabehoale NAVI 63

D.P. Banerjee vs S.N. Bose National Institute of Basic Research,
ET Ds NA MIT... SA A IEW. AEN 189
Di VS. Te ease v css ncargtetp tavenrses
sonsenoryrhagnenmeresenscescsses ovedas 102
wood S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
—loe_e_oVoOw

Daily Rated Casual Labour Employed under the P & T Dept. vs.
Union of India and OFS. 3.......20. 065. sce ths ssNN oho 5200 00 116
Delhi Cloth and General Mills vs. Kushal Bhat ................:c00ccc000000000000000 62
Delhi Clothe BGiLS COSC uccccedssosee®s..::-: LS «:. 20k a As. 133
Dena Bank vs: Kiriti Kumar-f. Patel :......2c3nw..«....eeess...«.. 134
Depot Manager, APSRTC Hanumkonda vs. G. Rajaiah & Anr. ........... 147
Depot Manager, APSRTC vs. Mohd. Yousuf Mid...........0.0cc:0c0c00ce0ceeeseeree 88
Devendrappa M.H. and Karnataka State Small Industries
DP Og Ee eo 124
Dharwar Dist. Employees Association vs, State of Karnataka ...............: 119
Dipti Prakash Banerjee and S.N. Bose, National Institute of
ORC CS, CAI... ». +»-s--dgeagteanipeiiensias-rexrcg
abet seactehens 165
Director Institute of Management Development and Pushpa Srivastav .... 39
Director, B.C.G. Vaccine Lab, Madras V. S. Pandan. .............cc0000000e0000 77
Disciplinary Authority-cum-Regional Manager & Ors. vs.
MO egagg a 154
Dr. (Capt.) Akhann Ramesh Ch. Sunita vs. State of Bihar ........00606...00006+. 165
Dr. Balaje Sieh vs. SIG2TEAIVGNG. .....5,:tilpieessysnorin-areattmansne ose > 180
Dr. Lo eee VS. ULARRRIIAIAIANTG .,..<tetRPERa Pais +>>>seercesseemlabiinnen ens:>-sve' 19]
Dr. Pandurang Godwalkar vs. Governing Council of
Kidwai Memorial Institute of ONCOLOgY ..............ccccceseeseeseessenseeesees 167
Lt. Unig Aer wal VS. SiGbeeee ish. Of AIRE atiles,.......2nstieesiihiien ensev 180

Escorts Ltd. vs. Presiding Officer & ANP. s.ssssesscesessesescseesesessssssserescevess 182

ESI Corporation vs. Apex Engineering Pvt. Ltd. .............0cc0cc0c0000000eecceeees 107
ESI Corporation vs. Narniat Pharmaceuticals & Chemicals Ltd. ........... 107
ESIC vs Hotel Kalpaka International ......cccccccsssccss..ssesscsvsdesaavedbesseecessans 104
EMC vs Ke Swamy & OM ias ied. Ce eialueah BBB. ke iain 107
Excise Superintendent, Machilipatnam vs. K.B.V. Visweswara Rao
E DR seiccees..... tte detis i. D..ss Ait 111

Fabril Gasosa & Anr. vs. Labour Commissioner & AN. ccc... 144, 186
Federation of All India Customs & Central Excise Stenographers
(Reoagnised) vs. UNION Gp AndIA —cccumnimmenecrcvcvcmsiiaiaaiaanasinstth 112
Food Corporation of India Staff Union vs. Food Corporation of India..... 43
Food Corporation of India vs. Banta Singh & AN. .....ccccccccsesesevesersveveneee 85
List of Cases XXXII

Garhwal Jal Sansthan Karmachari Union & Anr. ys.

OF, UT Mile vssnsssncsnsiansanansntinnenseccccecacasce
Das DUM, isd 111
Gaziabad Development Authority and Ors vs Vikram Chowdary
NE OTS... .. airing: -+-+>+<caapiiiphipiiiyss
ASDC ALLO -+.....
DY JOE, 201
General Manager (Operations) State Bank of India & Ors. vs.
State Bank of India Staff Union & ANP. .........0c.ccccccccccccccecccceecseteseeens 139
General Manager, Visweswarayya Iron & Steel Ltd. and others .........0..... 68
Geemre.vs, United © commercial Bama cs ss..s suit teitireetny-u- ur-canedaal 80
Glaxo Laboratories (India) Ltd. vs. Presiding Officer ............ccc0000+. 154
Govt. of Tamil Nadu & Anr. vs. Rajaram Appaswamy ..............0..0c000000000 200
Gujarat Electricity Board vs, A.S, POSRAMNI ..........c..-ssare-saurér“ae saagcbnan@>> 198
Gujarat Steel Tubes Ltd. vs. Mazdoor Sabha ........cccccceeccccevcecsseecttestessencenes 86

HAL Employees Union vs. The Presiding Officer & ANP. ..........00++: Bais 146
Harbans Lal vs. State of Himachal Pradesh ..........0.0.c0ccccccccccccccteseeeeectees 120
Harbhajan Singh vs. State Of PUnjab ....c.ccccccccccccceietscescvcesessseseseveeesetueeees 206
Hari Pada Khan vs. Union of India & OFS. .......ccccccctesccisiecse teen eens 197
Harinarayana Srivasthav & United Commercial Bank & Anr. ..........40:- 158
Haryana State Electricity Board vs. Naresh Tanwar & ANP. ........c.000+00 51
Heavy Engineering Corporation vs. State Of Bihar ..........6.06....0cc0ceeeeserseees 4]
Herbans Lid. ys. State. of Himachgh Pradesh. «,...ess hn teaccantane 115
ass vees:s upe
High Court of Judicature at Patna vs.
Pandey Madan Mohan Prasad Sinha o........2.ccccccccceterevestecsssecevenvcneeees 169
Himachal Pradesh Housing Board vs. Om Pal & OYS. ccccccccccecesestseseteeeess 85
Himachal Pradesh Road Transport Corpn. vs. Dinesh Kumar .......6.-..000++. 49
Gere Je Band ys. Bol COrpOr atti ie sos rreocencrannttastnpens
ns e-sgess es 108
Hindusthan Aeronautics Ltd. vs.
Rashtriya Mill Mazdoor Sangh and Model Mills ....00.......00...cc0:4cceees: 4]
Hindusthan Aeronautics Ltd. vs. Smt. Radhika Thirmumaldi..........0.006.c06 50
Hindusthan Paper Corporation vs. Panhindra Chakravarthy & Ors. .... 148
Hindusthan Steel Construction Ltd. vs.
me Commagmemmeet Of LODOUI AME6 sens we arse ne satis ait 58
HMT Lid. vs. HMI FO. Employees Assn. & O7S..ccccccoveysssoesysscevepesgsepans 189
HR Adyantayya ete. vs Sandoz (India) Ltd. 0.0.01. <e-ergesenetessvoyeesseosstyensenens 202

Indian Iron & Steel Co. Ltd. and another vs, their workmen .........000008 147
vs. Chief Inspector of Factories and Others ...... 122
Indian Oil Corporation
YOdV S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
EE ae
a
e
——————— ———— ee

Indian Petro-chemicals Corporation Ltd. & Anr. vs.

eband- 55
We Saeed
Shavassik Send. Se Ov Barcssssccs-+-+-ccasesesapanuasnsansess+:ckslichaieisn
Inspecting Asst. Commissioner, Bombay & Ors. vs.
Bharat Narayan Pagy.............,scssanieiitansiessss++s.0esaggheeimaansteo
DEVAS 93
Institute of Chartered Accountants of India vs. L K Ratna & Ors. ...........: 81
Isha Steel Treatment vs. Association of Engineering WorkersS................. 145

J N Biswas vs. Empire of India & Ceylon Tea Co. .....ccccccccssesseseseeseeeseesees 72

J. Tate Vs. GOVE ey 6... SHRP rc cs <-->nn secsncghtttedhbaons.++--sensuee 137
J.K. Cotton Spinning Mills Co. Ltd. vs. State of U.P. ........ccccccccccccceeeseees 178
J.K. Industries Ltd. etc. vs. The Chief Inspector of Factories and
Batre ce OFS; GIGI... «ss. -0sctPER tr bss + a>-cre0stesPtilagapress->+>+--s00ne 122
JAGGAET VOSA VS. SHAME OT BUNA? . ccccsevgeressas.....+0+-5d084
PERERA ORESs+ +s50eheele 50
Jagdish Chandra Nijhaman vs. S.K. SArvf. .1ccccccccccccteceeeecceessteeeeeeseeseeserunaes 61
Jaipur Zilla Shahallavi Bhoom Vikas Bank vs.
Ram Gopal Sharma.@Anr........:.:. Cee Wo. a. weed. an.odds 144
Jang Bhadur Singh vs. Baig Nath Tiwari ..cccccccccccecccccccvessesscessseececeveeneeneeeny 62

K A BGVGt GN SUALC OF Mapp

ar at .....sc0revsssbhannonsevvecssvesssessaneasibbabesanesvecensene 165
K. Pochaiah and another vs. A.P.S.R.T.C. .....« ERS oreteNeert 133
K. ROJGRGEanOMN VS. SPAMem a GIN NGI ilians.......5...soshEREpenensase..0s.-.00sa5s 94
K. VigGvees hint VS! nian OF ANGI Gea irasas........5.s.sacneePeievess-cs+-s0s0apn 170
K.V. Krishnamani vs. Lalita Kala ACGQGMP .................cssssatssestossssssscrveees 165
Kailash Sizing Works vs. Municipality of Bhiwandi.................0000000.00000005 206
Kamal Kishore vs. Pan American World Airways INC ...........0000000.000000000 194
Karnal Leather Karmachari Sanghatan vs.
Liberty Footwear Company and OPS. .........0..ccccccceceettetteeee cece eeeenees 42
Karnani Properties Ltd. vs. State of West Bengal ...............00.00000000000000000. 135
KGPRIGESINGN Vs. SIQTETE LEWNUGD ...... ncaa cM sitet 17]
RCP EAG. VS. Presiding eee? Cc ONT interns... OAD... escnnenn 187
Kerala Solvent Extensions. vs. A. Unnikrishnan & An. .......00.0000..000000000004 39
Kerala State Electricity Board vs Anr. and Valasa K. and Anr. .............. 203
KISHI TGGQY VS. SUTHE My TAI YUNG |. ssccatvateees ses... :.cxssattnenbttasteseesesscevateas 123
Kuldeep Singh vs. Commissioner of Police & OFS. .........cc.cc0cc0c00000s00es ee
KUMATE SATA ThaRUP VE, CRION Of THEE cocesvesc..sscoscoscuunenstuetesessscesdesneuns 43
List of Cases XXXV

Kunwar Arun Kumar vs. Uttar Pradesh Hill Electronic Corpn. Ltd.
Be Os. Ay3022d.), 23EeM ONL, by DORR. 2. Ooo webs nua 168
Kusheshwar Dubey vs. Bharat Coking Coal Ltd) .......00.c0cc0cccseceeceveeeees 62,89

Lal Chand and State of Haryana and OPS, .......ssscsssscsseessessescessessessessees 51

Lal Mohammed & Ors. vs. Indian Railway Construction Co. Ltd.
Pog anions OE RRR aR 122
Laxmi Narain Mehar vs. Union of Indi ..........cccccccccsssessessseestetessesesseesnes 197
LIC of India & Anr. vs, Raghavendra Seshagiri Rao Kulkarni. ............... 168
LIC vs. Central Industrial Tribunal, Jaipur & OFS. .......ccccccccccecceeseere tees 87
Lokmat Newspapers Pvt. Ltd. and Shankar Prasad ............cccc0cc0000000+- 52,140
Lucas India Services vs. P.O. Labour Court, Madras .........00......cc0cccceeeese 200

M MR Khan & Ors. vs. Union of India and OFS, .sccccccsssssssescesesrsssseseeeess 48

M M Suri and Associates (P) Ltd. vs. E S I Corporation, ..........6..0000..0006+. 106
M..C. Mehta.vs. State of Tamil Nadu & OMS) .is....c...cctéccccccsccsneneeeeeeeesssnees 49
M. Venugopal vs. Divisional Manager LIC ..0..........0.cccccceeeceeeeeseeeee 168, 181
M.R.F. Ltd. vs. Inspector, Kerala Government & OY. ....cccccccccccscccceseeees 127
Mackinnon & Mackenzie Co. Ltd. vs. Audrey D’COStQ .......ccccccccceeeeee
eee 118
Madura Coats Ltd. and Anr. vs. Papanasam Labour Union................6.. 142
Maharashtra State Electricity Board vs. Maharashtra Veej
Mandal Kamgar Sangh and another o.....0...0..0ccccccccctececcesce
teeeetecseeeeees 47
Makhan Singh vs. Narainpura Co-operative Agriculture Service
Segenilid. .....iatattdden...caVORR Datob Dap aoosrswk.s 197
Management of Panitole Tea Estate vs. The workmen ..........6...c00ccc0cccces 15
Management of Portland Estate vs. Suresh Babu P. & OMS. ......c00cc ccccceces 92
Management of Thanjavur Textile Ltd. vs. B. Purushottaman & Anr. ..... 187
Managing Director, E CI L & Ors. vs. B. Karunakaran & Ors. ......... 75, 78
Manganese Ore (India) Ltd. vs. Chandulal Sadu ............0.c00.0cccccccceccceeess 152
Mehta vsit/nion of Indiawanasioikia ba eeein bl. Swe anil. o.. se 146
Morinda Co-operative Sugar Mills Ltd. vs. Ram Krishna & Ors. ........... 183
Mukund Engineering Works vs. Bansi Purushotam .........0000000cccccccccceeees 132
Mulchandani Electrical and Radio Industries Ltd. vs. Their Workmen ... 154
Municipal Committee Bahadurgath vs. Krishna Behari & Ors. ......... 70,172
Municipal Corporation, Raipur vs. Ashok Kumar Mishra ............0...0.06+ 170
Municipal Hatta vs. Bhagat Singh and others ...........c00cccccveseeiiccceees 15]
XXXvi S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
a

N.K. Prasad vs. LFF. Co-op. Ltd. & Other ..........cssesorsseresssssseccecesennens 177
Narayan Chandra Rajkhowa vs. Associated Industries (Assam)
Spinning Unit and another 120 1:QUNRS.20.103.. SARM 24 SZ 108
Narayan Dattaraya Ramteerthakar ys. State of Maharashtra .............01++: 74
Narayanan vs, BPL Syapemeg Pvt. Lid, ice .y--13-5 amesie 155
National Engineering Industries Ltd. vs. State of Rajasthan and Ors..... 137
National Engineering Industries vs. Srikishan Bhageria ...................000++ 201
National Tobacco Co. of India and others vs.
Fourth Industrigh Treg! Gnd Ci opeckees 6 -Ackirzemadre
tertec s+ ~eoonsaee 207
Nedungadi Bank Ltd. vs. K.P. Madhavankutty and OF .............6..0.00006+. 131
Neeta Ranlish vs. P.O Tapour COuUre el ex. ep-scasp ieee y+ -ne- 129
Nelsen ious and Unigmiof India and (rg, ...............ccessatibtiees-++-....-0.005 8&8
New Rank Of India: vec ReP Sch var cr Pe. e...........--.-<snshantnvancres--oo->-n2-c000me 155
New Shrarrak Mills vs, Wagneshbhar 7. AGO ..............-:sseacennersen-e+++s0>00c0rnenene 66

O.M. Bhargava (Dead) by LRs. and Satyavati Bhargava and Others ... 202
Oil and Natural Commission vs. Dr. Mohd. S. Iskender Ali ...............6.... 166
Orissa Municipal Corpn. & Anr. vs. Anand Chandra Prusty. ............0.000+: 77

PLB Singh vs. Prestding Officers ssi eercvoetss sce bes Weibdeeiababechsseisecb
obvbaiee 117
P.H. Kalyani vs. Air France; Calcutta nao 0.00000
a 3, 87
P.V. Srinivasa Sastry and Comptroller and Auditor General .................. 173
Pali Devi & Ors. vs. Chairman, Managing Committee and another ....... 151
Pan American World Airways & Another .......2....ccccscsssessvsvsevevevsecssesveviens 196
Pavan Kumar vs. State of Haryana & AMP o.....6......0060ccccccececcveeeevvceeeees 98,156
Physical Research Laboratory vs. K G Sharma .....0....000002.000005
00svveseve seca 127
PL Snanys. Union ofindiok Anris. MA aWaas..nccniandl.
Wo wwsnuspan 191
Power Finance Corpn. vs. Pramod Kumar Bhatia ..0...0...00..000.00000.0000000083 177
Pramod Bhartiya and Ors. vs. State of Madhya Pradeshand Anr........... 116
Prantiya Vidyut Mandal Mazdoor Federation and
Rajasthan State Electricity Boar 0.....06...0006c00cc0ccccet
eetcsecceveesceeesvens 103
Principal Industrial Training Institute Ghazipur vs.
Abney Kumar Srivastav........ cha en). in. eoeeaka wiihandal 114
Public Prosecutor vs. V. Venkataramayya, .....0.....0ccccc000ccecbectecssecsesseveenens 206
Punjab Dairy Development Corpn. vs. Kala Singh ...cc.ccc0c0000000:000c0ccccseustons 86
Punjab National Bank & ors. vs. Jagdish Singh .......0.c.c000.00
ccccccccsscsscess 190
Punjab National Bank & Ors. vs. Kunj Bihari Mishra & Anr. ..........0.0000: 8]
List of Cases XXXVI

Punjab National Bank vs. P.K. Mittal ...0..c.cccccccccccccccccectevstttecseseeseees 178,179

Punjab State Electricity Board & Anr. vs. Baldev Singh .........0.0...000.00000. 184

Fe De Pe, SEMIS RT RD OUI raciesasesssssscccsenedapassteassnceceessconateaanal 3

A Poe, FO 2) Ce OFS, cI...
s.+. .snancghagunisacssss+-sseonsnaa 100
K Pogeeeeur, VME IIVOSD Ge COMI... .soccancnanesvanesecesscsesonatten 100
R.C. Tewari vs. M.P. State Co-op. Marketing F ederation Ltd. & Ors, .... 134
KP, a OOUmiSSIONGE We We, A. ROUTING FEMI ,.............snnasnansnesseces+-c+s+-ccnesng 100
Radhey Shyam Gupta vs U.P. State Agro Industries Corporation ........... 195
Rae Bareli Kshetriya Gramin Bank vs. Bhola Nath Singh & Ors. ...........: 94
Raj Kumar Gupta vs. Lt. Governor of Delhi & OFS. ........ccccccccccccceeseseeeees 199
Rajasthan Adult Education Assn. and Anr. vs. Kumari Ashoka
SEE TICL? VO. CME... «2. icin s>-. <n acct Enc ace.+0..00ckeih 167
Rajasthan Prem Kishen Goods Transport Co. vs. RPFC New Delhi ....... 104
Ram Avtar Singh vs. State Public Service Tribunal & OFS. ........cccceceesseeees 66
Kame VS. Unqemeeeeia Ge Crm .....\........cqcginnees.=-..-.---.-s0nee 68
Ram Narayan Yadav vs State of Haryana & OFS. ......0ceiieee 171
Ram Pukar Singh & Ors. vs. Heavy Engineering Corporation................ 186
Ram Swamy Municipal Council and Any. ....0.0.....ccccccccccseeceeeteeetenneseeeeeens 54
Rat YS... LIGA MMEIIA........<cattntatenenscsss5.<cyeetndaeaieeet
ives.06. ssn 53
Ramanlal Khurana (dead) by L.Rs vs. State of Punjab & OFS. .........:600+ 149
Ramesh Chander & Ors. vs. Delhi AdMiniStrAatiONn .......c0ccccccccee eects eeees 84
Rameshwar Das vs. State of HAryand ........ccccccccsccccceteeneceeesensseseesenssseeeees 145
Ramitishan ws. Union Op dndia’ & OFSETI 66. cc cd howe cesses cseenenenenan 8]
Ranchodji Chaturngi Thakur vs. The Superintendent Engineer,
Fuparas Electrtc BOGE Ge ANT is diiageiers visi... Bibel bbedehbatgideessssescenenanees 43
Rashtriya Mill Mazdoor Sangh vs. N.T.C. & ANP. ..ccccccccceteccsesseeeeessseeeeenes 125
Reg. E SI Director vs. M/s. Popular Automobiles ........cccpccccceccceeseesseeses 108
Regional Manager, Bank of Baroda and Presiding Officer,
Central Government Industrial Tribunal ........::cccccccccceenerceeeessceeseesees 195

SK Singh vs. Central Bank of India ..cscesscccecsscssscecssseeeerscsnsscssessnsssneseones 75

S Sharma & Ors. v8: NMDC:s 5555:3:::1:8 BERR IQ ERR RIA 118
S. Ramachandra Raju, vs. State Of OFISS8Q .........ccccc cece beeee eee ee tes 180
S.B.I. Staff Assn. vs. S.B, & Others .ccccccecieci eee ie OOM AR 86
S.U. Motors (P) Ltd. and the WOrkMeD wecsccccccscsscccssceceresvsvectesiesbecccsseeeben 125
XxxVvili S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Sanchalakshri & Anr. vs. Vijayakumar Raghuvirprasad Mehta & Anr. .... 70
Sankar Banerjee & Ors. Union of India and OPS, ..2...2.....0c:cccreeeieeieee 60
Secretary cum Chief Engineer, Chandigarh vs.
ae” 7 OE 8e Oe er ee 54
Secretary to Government, Home Department & Anr. vs.
Maye) Ee a Oe 172
Secretary to Gow. & Ors. vs. 2s BU. . cetiee-,::-----n- eee 76
Secretary, Haryana State Electricity Board vs. Suresh & Ors. Et. cee... 56
Sen. Supdt. of Post Offices, Pathanamtittha & Ors. and
ric Te a ie ae 90
Shankar Chakravarthy vs. Britannia Biscuit CO ......2.....00ccccccccceseeeeneeeeeees 133
Shiba Kumar Dutta & Ors. vs. Union of India & OYS. ......0..cc:ccreceeeeveveees 163
Shiv Kumar & Ors. vs. State of Haryana and OS, ....0....6.cccscecccesreee
serves 14]
Shri Mahila Griha Udyog Lijjat Papad vs. Union of India and Anr. ......... 99
Shri Rattan Lal Sharma and Managing Committee Dr. Hari Ram (Co. Ed.)
Phaher Seconmaey School GG, x,:........:/iagattectebptiney
5...) speaphibensein sso> 80
Shyam Bahadur Tripathy vs. U P S Public Service Tribunal & Ors. ......... 82
many Devi Ge Gis. SIG Gi Ma gUAMG nn <5, sntteeraeenn ory «>». -snerenateeeiionss>: 113
Smt. Indrani Bai and Union IE EE Ee ee 80
Sri Vidyalaya & Anr. vs. Patil Anil Kumar Lallabhdi....................c0c0000
0000+ 9]
State of Madhya Pradesh & Anr. vs. Dharam Bi. .0............00...000000000 ———_ 40
State Bank of Bikaner & Jaipur vs. Ajay Kumar Gulati ............0.c0ecccceccee 79
wale Bank of INGOre. vs. GOVPIE TIBI. .......-.ssprastunmaponsery.»...0xesmeusnmnmnnnays —:
mate Dank Gf Fagin & OFS SE seGEING, «detsetticiess :rs--»:scoupeaiaiansins 162
State of Andhra Pradesh vs. G. Sre@nivaSA RAO .o..ccc.c...c0cccccseseseverseceeeceess 119
Bk eT a aT 207
State of Himachal Pradesh vs. Aswini KUMP .....0.....00000060-00000000000vee
eevee 202
slate of Karnataka. & Ors. VS, Fd. NOT)... emus <os.0:09ssssessrrsinegeess. 173
State of M.P. & Ors. vs. RN MiS1@ .0....cccccccccscessees ae 153
State of Madhya Pradesh vs. M P Ojha & ANP. .ccccccccsccecsssssssessseeseeseeseeseees 64
State of Punjab & Ors. vs. Bakashish Sing .cc..cccccccccccesscssssoeeerteseeeevevevene: 96
State of Punjab & Ors. vs. Baldev Singh ........cccccccccsecceseeesssveessssevseesbsesvees 163
State of Punjab & Ors. vs. Krishna Niwa 00.00. cevveesececses.ccscissisenstaneeeeevevees 8&5
State of Punjab & Ors. vs. Surfit Singh ....cccccccccceeceerscsssvsevsctvecceueatubessteveees 67
sate of Punjad vs, Ram Singh pov... ans, oh A ane 204
wate Of RajaStnGR Vs. B.K. MGGRG................:<steteewssessessss0
Eases. 64
List of Cases XXXIX

State of Rajasthan vs. Rameshwar Lal Gahlot .....c....cccccccccccccvssecsecveecvesees 181

State of Tamil Nadu & Anr. vs. M R Alagappan & OPS. .ecccccccccccccccceeeeees 113
State of Tamil Nadu vs. K V Perumal & OY. ....ccccccccccccccccceccceeseccceeseees 76, 95
State of Tamil Nadu vs. K. Subany) .c.c.c6cccccccccccccccecccccccssecvsescevssuubnvessateees 46
State of U.P. & Anr. vs. Ved Pal Singh & Anh. ........0cc0cccccccccccccceteeesteeseees 174
State of U.P. & Ors. vs. Nand Kishore Sikes. ASR en cle 173
State of U.P. and Anr. vs. Ram Krishna and Anr. .....c.cccc000000000000ceeveeeeveeess 53
SRHEGLUP.. vs EPS Chitirasia 28 2 ise. RED bv... cibotl Ae: 12]
St@#@of U.P. vs. Shatrughan Lal & Ors... iD. A. 157
State of Uttar Pradesh & Ors. vs. Ramasraya Yadav and Ant. ................ 114
State of Uttar Pradesh vs. T P Lal Srivastav .....0..0c0ccccccccccccccccccccsseeseeceeeees &3
State Transport, Punjab & Anr. vs. Gurdev Singh & AMP ...........c:c0eccccee . 87
Steel Authority of India and anr. vs Dr. R K Diwakar and others.............. 73
Sultan Singh vs. State Of Haryana .......c.ccccccescccecccvusteeetbesevcsecsceseesesnenees 139
Swarajya Ashram Karamchari Sangh vs. Swarajya Ashram, Kanpur ....... 47
Syed Azam Hussaini vs. Andhra Bank ..............ccccccccccceceveescssceccseecseeeseeens 168
Syed Zaheer Hussain vs. Union of India & OY. v..cccccccccetcccccecccseeeteeeeees 69

T.C.I. Bombay and other vs. Transport and Dock Workers Union
18M. OPS... .cccarcctntinnnanatetadirsic)oSibimbeDM
ide Was Ga deedEsbeToNDU a> nsbb GEM 4]
Tata Oil Mills Company Ltd. vs. Workmen 0........sccccctcececetescceseeeeceneseebennes 62
TOMMRCTEL BAILS... idateevanntassn.e.ncscavadatnguatangs<+:
Dh) ASSES SD POL. DS 63
Telco Convoy Drivers Mazdoor Sangh vs. State of Bihar ...............0cc00045 136
The Board of Management, SVT Educational Institution &
ND LS ES - e Bg,
The Dy. Collector & Chairman, Vijayanagaram (Social Welfare
Residential School Society) and M. Tripurasundari DeVi.................+. 39
The RD. E.S.1. Corpn. Vs. Francis De COSLA.& ANP. <cseuo..
5.0. yoreryeessanens 105
The Rajasthan State Transport Corporation and Kishan Cah ee 188
Thruvikolam vs. The Presiding Officer & ANP. ........cescuneecsesbegereceeesevsseeeeeees 87

U.P. Rajya Utpadan Mandi Parishad & ors. vs. Sanjiv RAJAN .......+..0006+ 190
U.P. Road Transport Corpn. and Anr. vs U.P. Parivahan
Nigam Shikshuk Berozgar Sangh and ANP. ......0:ccccccccevcccrseeeieiee 4]
UPS TC. VS _TSE ONG OR ie ts theos. nssssasrw saynees eceosee
tenrcenastaghaaae 75
Umesh Gupta & ors. vs. Oil and Natural Gas Communication
58 ee Seeee 184
xl S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Umesh Kumar Nagpal vs. State of Haryana & Other............0..ccccccc00000- 5]

Undumbanchola Estate Workers Union vs. Indian Cardamom
Research Institute ......2) 29S A.A...ilth.
.cicde RRA... 72
Union of India & Ors. v8. Bhagwan Singh ......ccccccccsecececesssseeestenenseeeeeeecnees 50
Union of India & Ors. vs. Dinanath Shantaram Karekar & Ors. ..........---. 73
Union of India and another vs. Raghubir Singh ............00...00c0cccccveeeeeeee: 188
Union of India and another vs. Raj Kumar Gupta and another ............... 167
Union of India and Guniraj Sharma .............cccccccccccee ee 69
cececccccevtsseeteeeeteneeeeee:
Union of India vwe.G. Ganayuthanin...0... 2. RAK EA. 173
Union of IndiawsnGopal. i220). SAG10005.0..28. 2B)... 178
Union of India vs. N. Haragopal ANd OS. ..........cccecccceeceeseeseeetecectenteeeeees 110
Union of India vs. Parma Nanda ee ee Oe 9]
Union of India vs. Suresh C. Baskery & OY. ..cccccccccccccecceeccceeeteeeeteteeeeeees 201
Union Territory, Chandigarh & Ors. vs. Mohinder Singh .............0....0000... 82
United Bank of India vs. Meenakshi Sundaram & OY. ........000000cecececevees 65
University Grants Commissioner vs. Kedar Nath Ram and Ors. ............. 115
Uptron India Limited vs. Shammi Bhan & Another .....................00.00002..- 193

V Kashyap vs. Indian Air LineS.........cccccccccsssscocecessssssesscccsccsesessensecesscesees 17]

V.K. Dubey and Others vs. Union of India and Others ........cccc00c0000cc00008: 185
Vinay Kumar Nyan vs. State of U.P. & OPS. ...ccccccccceccctecceiceieeeeetteeeeeiete 96
PESWES WATASHI ETON & StCOL TEE wecsvesereveencesettatitnaesinrsreveeevesseamtsWO 134
Visweswasaryya Iron & Steel Ltd. vs. Abdul Gani & OFS -.........0.000000000..5.. 87
Vrudhachalam & Ors. vs. Management of Lotus Mills and Anr. ............. 185

Wellman (India) Pvt. Ltd. vs. Employees State Insurance Corporation 109
Workers Union and Food Corporation of India ............0.00..cc0cccc00eeecveevveees 4]
Workmen of Bharat Fritz vs. Their Workmen .........c.0000.000000ccccceseeeeevveeeeee. 176
Workmen of Firestone Tyre and Rubber Co. .............00000000000cc0cseeevveveeeveess 133
Workmen of Kettlewell Bullen & Co. Ltd. vs.
ClCH eh Ce. CO, BE attck....is. seperate cies. ....cssscnRaassss 46
Workmen of Rohtas Industries Ltd. vs. Rohtas Industries Ltd. ......0......... 164

kk
 Chapter I
DISCIPLINES
Employment creates opportunity for different communities to come
together to earn their livelihood. The people who come together may be
from vastly different environments, codes of conduct and covert as well as
Overt patterns of “normal” behaviour. The environment in which a person
lives influences his attitudes and social values in the new environment are
determined by his assessment. He has to adapt himself to the new
environment and the group with which he chooses to live. As time passes
he identifies himself as a member of the ‘group’ and abides by the standards
laid down or enforced by the group.
People who live in a society develop their own Rules or a code of
behaviour. The success of such rules or codes however depend upon the
willing acceptance by the members who may benefit by observing the rules
or codes. Unless the persons constituting a group accept the Rules or Codes
willingly enforcement becomes difficult and endeavours will be made to
circumvent them. Rules and Codes therefore have greater chance of
implementation if there is consent by the group, failing which it may become
necessary to enforce them.
Discipline is a mode of behaviour, which signifies acceptance of rules,
voluntarily by a group. Discipline is derived from the word disciple which
means a follower, adherent of any leader of thought, art etc. Discipline has
several meanings and is defined also as “order maintained among persons
under control or command, as pupils, etc., bring under control, train to
obedience and order’.
In a heterogenous group of persons the aim of discipline is not only to
guide but enforce a uniform code of behaviour. Discipline therefore, secks
to train, to educate, to achleve MATURE BALANCED INDIVIDUAL
SELF CONTROL. Such self accepted behaviour is the result of internalising
discipline through awareness and control.
It is therefore essential that every employee accepts the behaviour that
the “group” expects by realising the benefits of such acceptance. Discipline
in effect is self control rather than an imposition from without. The influence
of members compnising a society is far greater than any written law.

# 1
 Chapter 2
DISCIPLINE IN INDUSTRY
There is need for maintaining discipline in the industry. While in most
cases, problems of discipline are created by a few delinquent workmen, there
are factors which also complicate the question of discipline. A non-co-
operative and militant trade union sometimes may create a situation of
indiscipline out of vindictiveness when relationship between the Union and
the Management is strained. Various groupings among the workmen based
on religion, community, caste, place of origin, culture, trade etc., also
sometimes give nse to conflicts presenting, in their turn, additional problems
of discipline.
Cases of indiscipline must be handled with firmness and may
sometimes demand variations in the degree of firmness to meet specific
situational needs. Discipline in Industry cannot be equated with military
discipline or school discipline, because the objectives are different in each
case. Discipline in industry seeks to ensure a proper atmosphere for the
work in the Unit.
Thus, when workmen commit a breach of the rules which are part of
their common code of behaviour they are issued with show cause notices
or charge sheets to explain their behaviour.
Misconduct is nowhere defined. In the Model Standing Orders under
the I.E. (Standing Orders) Act certain acts of omission or commission on
the part of the workmen have been defined to constitute misconduct.

Misconduct is commonly understood as conduct which is inconsistent

with the faithful discharge of the duties or service or conduct prejudicial
to the Master’s interests. These include breach of confidence,
insubordination or acts of dishonesty. Misconduct therefore, suggests that
the servant has been found to do something which is inconsistent with the
conduct expected of him as an employee.

The Standing Orders framed on the basis of Model Standing Orders

by Industrial undertakings provide for a long list of acts of omission and
commission which are deemed to constitute misconduct. Inspite of every
effort the Standing Orders may never be exhaustive.

# 2
 DISCIPLINE IN INDUSTRY # 3

Absence of Standing Orders does not preclude an employer from taking

action against an employee for subversive acts which are inconsistent with
his employment. However, what will be considered as misconduct will
depend upon the circumstances of each case. The term misconduct does
not necessarily imply corruption or criminal intent. When the word ‘Gross’
is added to an act of misconduct it implies the seriousness of the act
committed. Misconduct, therefore means an act arising from ill-motive. Acts
of negligence, errors of judgment or innocent mistakes, do not constitute
such misconduct (Stroud’s Judicial Dictionary).
A single act of omission or error of Judgment would ordinarily not
constitute misconduct, though if error or omission results in serious or
atrocious consequences the same may amount to misconduct.
(P H Kalyani vs. Air France, AIR 1963 SC 1756 = 1964 (2) SCR
104=1963-64 (24) FIR 464 = 1964(1) SCJ 566 = 1963 (I) LLJ 679
The Principles of Natural Justice have not been completely or
absolutely defined. But some principles have been laid down which are
widely accepted.
In the case of R C Ojha vs. State of U.P. and others', the Principles
were explained as follows:
"The principle of audi alteram partem enjoins a reasonable opportunity
of being heard pnor to the decision and if the opportunity is to be reasonable,
effective and real, it must be an opportunity before the authority arrives at
its conclusion. A post decisional hearing would not ordinarily be a substitute
for a pre-decisional hearing and may in ordinary circumstances degenerate
into a mere exercise in Public Relations since prejudice 1s already caused
by the decision and a fresh decision on the merits by the same authority in
the sense of being a complete review of the circumstances unaffected by
the decision already taken would be hard to imagine."
Two of these Principles are generally applicable to all departmental
enquiries, namely:
(a) aperson must be told clearly and specifically of the offences with which
it is intended to charge him and
(b) he must not be condemned unheard.

I. 1989(59) FLR 722

#4 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
OO eeeeEeEeEe—eEeETETE—ET—ETE>—C—Tl—Tl—T—=—=E—E—oo—eE=eG_eO_Ooo

A person dealing with an enquiry at any stage of the enquiry should

not deal with it, if he is personally interested in the case. He should have
an open mind.

The issue of Charge Sheets should not however, be a routine matter

and charge sheets should not be issued mechanically. Preliminary
investigation reports must be examined and the effects of the breach, the
circumstances and the overall labour relations situation should be evaluated
by men in authority, before a charge sheet is issued. As a matter of fact,
charge-sheets when frequently issued undermine the respect it should have
to be really effective. Once a charge-sheet 1s issued after weighing the pros
and cons, it must be followed up with all seriousness failing which it will
serve no purpose. In all cases of disciplinary action, punishment should be
commensurate with the seriousness of the offence committed, and
vindictiveness should not find place in determining the quantum of
punishment. Such careful handling will give due weight to the Standing
Orders and also enhance the respect and fairness of management decisions.

Loss of employment agitates the people affected. However, no

employer can guarantee security of job at any cost. A sense of security can
however, be created if the procedure and practices of termination of service
of an employee are handled with utmost sympathy and care.

Dismissal or discharge of an employee has been the cause of industrial

unrest. Dismissal should be the last resort for enforcing discipline.
Therefore its justification should be built up over a period of time so that
even the staunch trade unionist and supporters of the workman concerned
feel convinced that the decision of dismissal was inescapable under the
circumstances. This calls for patience, perseverence, tactfulness and
followup action. Since employees are recruited for work, the employer
decides to impose the extreme punishment of dismissal only when he has
no other alternative available. Dismissal therefore, cannot be termed as a
pre-planned objective. However, an alert management may notice in some
workman signs of future industrial relations problems although manifestation
of the delinquencies of such workmen may not be ostensible at the beginning.
[In such cases, if the managements are convinced that, in the long range
DISCIPLINE IN INDUSTRY #5

interests of the industry, it is not desirable to continue such employee,

planning for his/their dismissal becomes necessary. Such plans should
include steps for building up a good background case by giving the
delinquent employee sufficient opportunities for rectification through verbal
advice, written advice, verbal warnings, written warnings (2 or 3),
Suspension and so on, so as to establish that there is no lack of fairness on
the part of the management. An employee, basically delinquent, will
undoubtedly offer the employer occasions for going through these steps.
Dismissal in such cases as the last step can hardly be questioned as a
malafide action. All these need extreme patience. But it pays, by
establishing among the employees a sense of confidence in the faimess of
the management.

g es
 Chapter 3
DOMESTIC ENQUIRY AND INDUSTRIAL LAW
‘Domestic’ derived (from the Latin Word ‘Domus’, meaning House)
is an adjective meaning, “belonging to the house’, ‘relating to internal affairs’
or ‘Private’ (as opposed to public);

And
‘Enquiry’ (inquiry) means ‘making investigation/examination of facts/
principles’ or searching/seeking information by asking questions’ or “asking
what, whether, how, why etc.’ It also means ‘search for truth’, ‘information’
or ‘knowledge’. Thus, ‘domestic enquiry’, in the context of industrial
functions means management’s search for truth/facts/circumstances/
allegations/charges if any alleged by it, against an employee.
Managements consider it their prerogative and privilege to manage their
affairs including those in the area of its disciplinary jurisdiction. Under the
law, it is the management which alleges a fact/circumstance against its
employee and levels a charge against him and again it is management which
seeks the truth of facts/circumstances alleged, to establish the charges
levelled and to award appropriate (punishment) on the basis of the findings.
It is in this sense that we talk of ‘Domestic Enquiry’.
In the field of discipline it is the function of law to define the limits
within which the managements can make the allegations against a workman,
how the managements will establish the allegations and to what extent a
workman will be punished for the allegations so proved. Thus ‘Domestic
Enquiry’ involves an elaborate and exhaustive procedure to be followed by
the management to exercise their disciplinary jurisdiction.
This institution of Domestic Enquiry is a product of social justice
emanating from the rules of natural justice. ‘Domestic Enquiry’ has no place
in a Laissez Faire economy in which the Master reigns Supreme. At the
dawn ofthe Industrial Revolution ‘Contract’ was the basis of relationship
between the master and the servant. The Master had absolute uncontrolled
and unregulated powers of ‘hire and fire’ and the parties, besides their
implied obligations and nghts could provide for any express terms, with free
consent and for lawful consideration for a lawful object and not expressly
declared void under the law. Faithfulness, deligence were expected from

# 6
DOMESTIC ENQUIRY AND INDUSTRIAL LAW #7

the Servant. The Master was the absolute judge in such matters and was
answerable only to the courts under the common law, if and when any action
for damages was brought against him by the servant under law of contract.
Removal from service for breach of express or implied terms was and
continues to be the inherent right of the master. For any breach by either
party, the party affected could claim damages. The state had no part to play
either in determining the content of the terms and conditions of employment
or in providing for any specialised agencies to adjudicate over matters
concerning the relationships of the master and servant.
The industrial revolution changed the entire position and ‘status’
became the basis of relationship between the master and servant.
Following the growth of Unions status assumed importance of workmen.
As time passed the principle of /aissez-faire was discarded and the states
now became welfare states, institutions for social engineering to promote
welfare and social justice.

This change also brought a sea change and States became deeply
interested in the industry as well as industrial peace and industnal relations.
The general law of master and servant was subjected to the laws of the
land.

In India, the avowed objective of achieving social justice and a system

of parliamentary democracy, the State assumed a dominating role in the field
of industrial relations.
In the interest of industrial peace for uninterrupted production industrial
adjudication was provided for under the law. This was in addition to laws
governing health and hygiene, conditions of employment, norms of industrial
relationships came to be defined under law. The norms spelt in the statutes
as well as laid down by adjudicating authorities covered the entire gamut
of relationships between employers and workmen and in the process, a very
large body of principles came to be evolved in the matter of discipline and
disciplinary proceedings. Though under the modern industrial law,
disciplinary jurisdiction of the employer is recognised, there have been
continuous attempts to make inroads into it in the interest of “Social Justice”
and also on the plea of labour being the weaker party needed to be
safeguarded, and the power to victimise or make colourable exercise of
authority needs curbing and thé employers’ disciplinary action needs judicial
# 8 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

scrutiny. Thus industrial adjudication has come to mean not only formulating
terms and conditions of employment in the interest of industrial peace and
social justice but also reinstating the employees dismissed or discharged
wrongfully.
The labour investigation committee (Report 1946 page 113) had
commented:

“There is no fear which haunts an industrial worker more constantly

than the fear of losing his job as there is nothing which he prizes more
than economic security.
The fear of being summarily dismissed for even a slight breach of
rules of discipline or for interesting himself in trade union activity disturbs
his mind. It is a notorious fact that dismissal of workers have been the
originating causes of few industrial disputes and strikes. The provision
of effective safeguards against unjust and wrong dismissals 1s, therefore,
in the interest as much of the industry as of the workers”.
To ameliorate these evils the Industrial Employment (Standing
Orders) Act, 1946 was passed, which requires the employers in industrial
establishments to define with sufficient precision, the conditions of
employment and to make the said conditions known to workmen employed
by them.

The Model of Standing Orders prescribed under the said Act, besides
providing for various misconducts and punishments therefore prescribes the
procedure for punishing a workman whether by way of dismissal, discharge
or Suspension.

a) giving a charge-sheet in wniting detailing the allegations of misconduct;

b) giving reasonable opportunity to explain the circumstances alleged:
c) holding enquiry and giving opportunity to the workman to produce
evidence in his favour (with a right to have a fellow workman to
represent him at the enquiry);
d) approval of the manager or employer, in case of his dismissal;
€) service of the order on the workman.

It has been clarified that in case an order of suspension is rescinded

full wages are required to be paid for the period of suspension and that in
 DOMESTIC ENQUIRY AND INDUSTRIAL LAW # 9

awarding punishment, the gravity of the misconduct, the previous record

of the workman and the extenuating and aggravating circumstances may
. be considered.
To ensure 'Social Justice! to industrial workers through adjudication,
under the Industrial Disputes Act, 1947, ‘Industrial Dispute’ as defined
includes, inter alia, difference or dispute between employer and workmen
in regard to the employment or non-employment and the adjudicators
under the said act have been given ample powers to adjudicate on such
disputes and give appropriate relief in the context of not only law and Rules
but in the light of ever widening concepts of ‘social justice’ and industrial
jurisprudence. It is to be noted that in India there is yet no statutory law
regarding discipline and procedure of disciplinary action.
The Supreme Court and various High Courts in India, while
considering the industrial matters (relating to employment/non-
employment i.e., discharge, dismissal etc.) brought before them under
Articles 32, 136, 226 and 227 of the Constitution of India have evolved
various norms in regard to discipline and the procedures for disciplinary
action and the judicial review of disciplinary action of employers, some
of these judge made laws in brief are:
I. Discharge or dismissal without a fair and proper enquiry and not in
accordance with principles of Natural Justice have been declared to be
unlawful (with some exceptions like continued absence from work) - the
law is same for permanent as well as temporary workmen;
II. Where a management acts in good faith and finds a workman guilty
of a misconduct in terms of Standing Orders on the basis of fair and proper
enquiry, and in accordance with the principles of natural justice, its findings
of guilt as well as the punishment therefor are final and an adjudicator cannot
sit in appeal over such finding unless he finds:

a) Lack of bonafides;
b) Victimisation/unfair labour practice;
c) basic error of facts or violation of principles of natural justice; or
d) baseless or perverse findings.
4
#10 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Note:

i) Malafides or lack of good faith is inferred in case of summary dismissal,

caprice, unreasonableness, colourable exercise of powers, ulterior .
motives, etc.

i) Victimisation is punishing an innocent or giving punishment grossly

disproportionate to the offence.

11) Unfair labour practice includes unjust warnings/denial of promotion,

winning over, purchasing, punishing or dividing workmen or
weakening, denying benefits of permanency by dubious means, any
practice in violation of Article 43 and other Articles of the Constitution
of India dealing with decent wages, living conditions etc., which if
allowed to become normal would lead to industrial strife. (The
Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practice Act, 1971 for the first time has codified the unfair
practices in detail). Similar provision has since been made in the
Industrial Disputes Act also.
iv) Baseless or perverse findings means, evidence not disclosing offence
charged, finding not based on evidence but on extraneous matters,
finding guilty on a charge not included in the chargesheet, punishment
on mere suspicion etc.)

v) The adjudicator has not to appreciate the evidence and is not to decide
whether he would have drawn the same findings on the materials on
record but he has to only see whether the finding can be one of the
conclusions that can be drawn by any reasonable person.
v1) If no enquiry is made by the management before dismissal the detect
can be cured by establishment of the guilt by producing witnesses
before the adjudicator.
Vil) If enquiry is found defective the misconduct can be proved by
producing evidence before the adjudicator but in that case it is for the
adjudicator to find the guilt and award appropriate punishment.
Vill) An employer has no right to suspend a worker without wages unless
it is so provided under the Standing Orders under the contract of
employment.
DOMESTIC ENQUIRY AND INDUSTRIAL LAW #11

ix) An adjudicator can go behind the form of the Order and set it aside 1!
it be colourable exercise of power.
x) An order of dismissal/discharge with retrospective effect 1s declared
to be bad in law, unless provided for in the Standing Orders.
x1) In cases where punishment is grossly disproportionate to the offence
committed or if it is not provided for, an adjudicator can give lesser
punishment inspite of the finality of the finding of guilt by the
management in its enquiry.
xil) An order of dismissal or discharge must be based only on the ground
stated in the charge-sheet.
xii) An employer has the nght to dismiss/discharge a workman for an act
of misconduct even if it occurs outside the working hours or outside
the place of business if the act—
a) iS inconsistent with the fulfilment of the express or implied)
conditions of service, or

b) is directly linked with the general relationship of employer and

employee, or

c) has a direct connection with the contentment or comfort of men

at work, or

d) has a material bearing on the smooth and efficient working of the

concern.
(The above acts constitute acts subversive of discipline)

xiv) The misconducts listed in the Standing Orders are illustrative and not
exhaustive. An employer can make out a case of indiscipline and award
appropniate punishment as per industrial law, for a misconduct not listed
in the Standing Orders but in sucha case, the.whole matter is open
before the adjudicator when a dispute is referred to him. The position
is the same when there are no Standing Orders in an establishment,
The importance of ‘Domestic Enquiry’ lies in the fact that discharges
and dismissals are required to be preceded by Domestic Enquiries in
accordance with law and the said discharge and dismissals can be subject
matter of industrial disputes and the adjudicators have powers to ‘judicially
review' these enquiries and ignore them in appropriate cases and also rescind
 #12 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER /SSUES

or alter the punishment originally given by the management. In this context

it may be stressed that importance of Domestic Enquiry cannot be over-
emphasised in the context of Section 11A to the Industrial Disputes Act.
(This Section is in force since 15-12-1971).
"11A. POWERS OF LABOUR COURTS, TRIBUNALS AND
NATIONAL TRIBUNALS TO GIVE APPROPRIATE RELIEF IN CASE
OF DISCHARGE OR DISMISSAL OF WORKMEN.
"Where an industrial dispute relating to the discharge or dismissal of a
workman has been referred to a Labour Court, Tribunal or National Tribunal
for adjudication and, in the course of the National Tnbunal as the case may
be, is satisfied that the order of discharge or dismissal was not justified, it
may by its award, set aside the order of discharge or dismissal and direct
reinstatement of the workman on such terms and conditions, if any, as it
thinks fit, or give such other relief to the workman including the award ef
vany lesser punishment in lieu of discharge or dismissal as the circumstances
of the case may require;"
Provided that in any proceeding under this section the Labour Court,
Tribunal or National Tribunal, as the case may be, shall rely only on the
materials on record and shall not take any fresh evidence in relation to
the matter."
F Powers of Adjudicators before Section 11A
Prior to this section, the law regarding jurisdiction of adjudicators in
the matter of dismissal/discharge has been given above. However, the same
may be briefly summarised as under:

I. Discharge simplicitor in terms of contract of employment or the

provisions of Standing Orders:
These can be challenged (whatever be the language of the order) and
matter taken for an industrial adjudication, unless the management proves
4
7
that such discharge was for a cause and was done in a bonafide manner
and was not a colourable exercise of power, the order of management is
liable to be set aside.
DOMESTIC ENQUIRY AND INDUSTRIAL LAW # 13

I]. Dismissal after enquiry and findings as per law:

The industrial adjudicator would not act as an appellate court and

would not substitute the decision of the management by his own, if the
enquiry and findings do not suffer from any infirmity as laid down in Indian
Iron and Steel Co. Case. If from the facts proved, the finding of guilt can
be a conclusive of a reasonable man, the adjudicator had no power to
interfere.
II]. Dismissal without enquiry or after improper enquiry: /

The adjudicator could take evidence on the entire matter and he would
~ himself decide whether guilt has been established. If the enquiry is improper
then, the issue of legality of enquiry has to be tried as a preliminary issue.
If adjudicator holds that domestic enquiry was not proper, the management
had a nght to prove its case by producing evidence afresh. The management
could even take alternate pleas to support dismissal on the basis of enquiry
or to support the dismissal by fresh evidence. In that case if adjudicator
upholds the domestic enquiry, the alternate plea was not required to be gone
into. If enquiry was set aside, the adjudicator can consider the evidence
and himself try the issue. But the management must be prepared to exercise
the nght to support dismissal by evidence before adjudicator, in time.
IV. Generally punishment following an enquiry which is upheld by an
adjudicator was not interfered with by the adjudicator unless the punishment
itself is held to be malafide, victimisation or grossly disproportionate to the
offence.

Normally adequacy of punishment was allowed to be determined by

management and adjudicators did not upset it.

Power of adjudicator under 11A

1. The nght to take disciplinary action and to decide upon the quantum
of punishment are mainly managerial functions but if a dispute 1s
referred to a Tribunal, the latter has power to see if action of the
employer is justified. |

2. Before imposing the punishment, an employer is expected to conduct

a proper enquiry in accordance with the provisions of the Standing
Orders, if applicable, andprinciples of natural justice. The enquiry
should not be an empty formality.
#14 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

3, When a proper enquiry has been held by an employer, and the finding
of misconduct is the plausible conclusion following from the evidence
adduced at the said enquiry, the Tribunal has no jurisdiction to sit in
judgment over the decision of the employer as an appellate body. The
interference with the decision of the employer will be justified only
when the findings arrived at in the enquiry are perverse or the
management is guilty of victimisation, unfair labour practice or
malafides.
4. Even if no enquiry has been held by an employer or if the enquiry
held by him is found to be defective, the Tribunal in order to satisfy
itself about the legality and validity of the order, has to give an
Opportunity to the employer and employee to adduce evidence before
it. It 1s open to the employer to adduce evidence for the first time
justifying his action, and it is open to the employee to adduce
evidence contra.
5. The effect of an employer not holding an enquiry is that the Tribunal
would not have to consider only whether there was a prima facie case.
On the other hand, the issue about the merits of the impugned order
of dismissal or discharge 1s at large before the Tribunal and the latter,
on the evidence adduced before it, has to decide for itself whether
the misconduct alleged is proved. In such cases, the point about the
exercise of managerial functions does not arise at all. A case of
defective enquiry stands on the same footing as no enquiry.
6. The Tribunal gets jurisdiction to consider the evidence placed before
it for the first time in justification of the action taken only if no
enquiry has been held or after the enquiry conducted by an employer
is found to be defective.

7. It has never been recognised that the Tnbunal should straightaway,

without anything more, direct reinstatement of a dismissed or
discharged employee, once it is found that no domestic enquiry has
been held or the said enquiry is found to be defective.

8. An employer, who wants to avail himself of the opportunity of

adducing evidence for the first time before the Tribunal to justify his
action, should ask for it at the appropriate stage. If such an opportunity
is asked for, the Tribunal has no power to refuse. The giving of an
 DOMESTIC ENQUIRY AND INDUSTRIAL LAW #15

Opportunity to an, employer to adduce evidence for the first time -

before the Tribunal is in the interest of both the management and the
employee and to enable the Tribunal itself to be satisfied about the
law.

© Once the misconduct is proved either in the enquiry conducted by an

employer or by the evidence placed before a Tribunal for the first time,
punishment imposed cannot be interfered with by the Tribunal except
in cases where the punishment is so harsh as to suggest victimisation.
-10. Ina particular case, after setting aside the order of dismissal, whether _
a workman should be reinstated or paid compensation is, as held
by this Court in Management of Panitole Tea Estate vs. The workmen’
within the judicial decision of Labour Court or Tribunal. The above
was the law laid down by the Court as on 15-12-1971, applicable to
all industrial adjudication arising out of orders of dismissal or
discharge.

The Act is a beneficial piece of legislation enacted in the interest of.

employees.

* Prepared by Mr. T K Jagadeesh, M.A. LL.B. Advocate & Labour Advisor, Calcutta and
Ex-president of National Institute of Personnel Management.

|. (1971-1 LLJ 233 = 1971 (3) SCR 774= 1971 (1) SCC 742 = 1971 LIC 1235 = AIR 1971
(SC) 2171 = 1971 (22) FLR 217= 1971 (1) LLJ 233 = 1971 (40) FIR 352)
 Chapter 4
DISCIPLINARY PROCEEDINGS
SYNOPSIS

pO ee 16 10. Representation of Employee..... 24

Preliminary Investigation ......... 17 Fi! nich preeerec ns... ...<..-. See 25
Charge Sheet ..........000bcccccccee 18 2.-Ex parte Faguny *: 2°)... ee. 25
Serving the charge-sheet .......... 19 13. Postponement of Enquiry ......... 26
Suspension pending enquiry ..... 20 14. Record of Proceedings .............. 26
>
bh
»
&
A» Consideration of the te Decisis ates ..< irri ae 3]
GURIGNGTON. «5. *i.~-rore 21 16. Communication of
~ ERRIEY 30%. -:5cp GA Ke 22 decisiOR AE tte)
ee 33
Eugainy Off Cerna tees 238 17. Right of Appeal....... 4 eres 33
PHOSCOUION «4. FEED.
Bee 5 24

Normally, disciplinary proceedings against an employee are instituted

on receipt of a complaint from a supervisor or fellow employee. Such
complaint may be dealt with in any of the following manner depending upon
the gravity of the misconduct:
If there is no substance in the complaint no action would be taken, but
in that case it 1s necessary that the reasons are carefully explained to
the complainant;
If the complaint is trivial or pertains to an ordinary offence committed
for the first time, the employee may be let off with a verbal warning;
A written warning may be issued if the misconduct though minor, is
repeated; or in case of misconduct not warranting a more severe
punishment after considering the explanation of the workman;
Employee may be awarded punishments like suspension on loss of pay
or fine if there is a provision to that effect in the Standing Orders or
Contract of Employment after a proper disciplinary enquiry:
If the misconduct is of a serious nature or habitual, an employee may
be dismissed or discharged after a formal enquiry procedure.
1. Procedure

It is an elementary principle of natural justice that no one should be

condemned or punished without being given an opportunity to explain the

# 16
DISCIPLINARY PROCEEDINGS #17

circumstances against him. Stemming from this principle, an elaborate

procedure for taking disciplinary action against employees has been evolved
by Industrial Tribunals, which involves the following steps: “
1) Issue ofa letter of charge (charge sheet) to the employee, calling for
his explanation.

2) Consideration of the explanation.

3) Ifthe explanation is not satisfactory, giving notice to the employee, of
an enquiry to be held into the charges levelled against him.

If it is a prima facie case of misconduct, notice of enquiry may be —

combined with the charge-sheet without calling for explanation in the
first instance.
If an employee is asked to explain the charge against him, his
explanation has to be considered and if it is not satisfactory, notice of
enquiry shall be issued.
4) Holding of the enquiry, giving full facilities to the employee for being
represented and heard at the enquiry. (Proceedings of the enquiry to
be fully recorded).

5) Recording the ‘findings’ by Enquiry Officer.

6) Consideration of the same by the authority empowered to take
decision and issue the final order; and

7) Informing the employee, in writing, of the punishment decided upon

by the Management.
2. Preliminary Investigation
As soon as Management becomes aware of an act of misconduct, it
will have to find out whether a charge-sheet should be issued to the employee
alleged to have committed the act of misconduct. The Management will,
therefore, have to make preliminary enquiries and if satisfied that there is a
case for calling explanation of the workman, will issue a charge-sheet in
writing to the employee without delay.
Any material evidence (such as the Punch Card in case of charges
involving misuse of time recording device, objects reported to have been
recovered from the accused in case of a charge of attempted stealing etc.)
#18 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

must be preserved carefully after making proper mark of identification for

further reference/production at the enquiry or any subsequent proceedings.

Statements taken during such preliminary enquiry may have to be

freshly recorded at the formal enquiry, but even then it is better to record
statement during preliminary enquiry stage so as to decide whether there is
a prima facie case or not.
3. Charge Sheet

Framing the charge-sheet-

Absence of furnishing a charge-sheet amounts to violation of the ~
principle of natural justice. The charge-sheet tells the workman exactly what
he is accused of, to enable him to adduce evidence to meet the charge.
Particulars of misconduct committed should be set forth c/early and
precisely and the employee shall be called upon to submit his explanation
within a reasonable period of time (usually 48 hours, but may be extended
if the facts of the case so warrant). ‘The charges made should not be vague
and should state the exact misconduct, place of occurrence, the date and
time. In establishments where Standing Orders are operative, a reference
is to be made to the relevant section of the Standing Orders. The fact
that the particular act falls under several clauses of misconduct, would not
prevent the employer from taking action under any one or more of them.
If several offences are alleged which constitute violation of different items
of misconduct under the Standing Orders, it is open to the Management
to proceed in respect of any or all such offences. Although the Standing
Orders settled under the Company are determinative of the relations between
the parties, they cannot be taken to be a complete code governing such
relations. Sometimes the offences committed may not fall under any specific
clause of misconduct prescribed in the Standing Orders. This would not
mean that workman could commit such offences with impunity; disciplinary
action can be taken against the workman if the offence committed are
considered universally as such, which need not be specifically defined, in
the Standing Orders.

Great care should be taken to ensure that the charge-sheet framed is

factual and complete since on the proper framing of the charge-sheet may
depend, the validity of the punishment awarded. Scope of the enquiry and
all subsequent proceedings, will strictly be confined to the charge(s) as made
 DISCIPLINARY PROCEEDINGS #19

out in the charge-sheet issued to the employee even if it is found that the
employee is guilty of an act which deserves dismissal, if this act is not
included in the charge-sheet no action can be taken against the employee.

A workman was charge sheeted for assaulting another employee and

the dismissal order said that the workman was guilty of an assault and what
was more was driving without permission and in a reckless fashion, which
offence was more serious. In the domestic enquiry charges of driving
without permission and in a reckless manner was not enquired into. It was
’ held that the workman cannot be punished for misconduct which does not
form the subject matter of the charge sheet and which was not enquired
into at the domestic enquiry.
Weavers were dismissed for refusal to clean the weft pims on the
charge of wilful insubordination: Union contended that several weavers had
refused to clean the pirns, which amounted to stnke within the meaning of
Clause (36) of S.3 of the Bombay Industnal Relations Act and that no action
could be taken for participation in an illegal strike as it has not been held to
be illegal by the Labour/Industnal Court. It was held that the employer had
taken action on the charge of wilful insubordination under the Standing
Orders and not illegal strike and hence dismissal was justified.
As far as practicable, charge-sheet should not be issued by a person
who may be subsequently called upon to adduce evidence at the enquiry.
The fact that the wordings of a charge-sheet may be literally interpreted
as indicating that the management has made up its mind to dismiss that
employee will not invalidate the enquiry as showing that the employer has
made up his mind as regards the guilt of the employee.

4. Serving the charge-sheet

A charge-sheet must be properly served on the employee. If it is
personally served signature on a copy of the charge-sheet must be taken as
indication of the employee having received the charge-sheet. If the employee
refuses to accept the charge-sheet or to acknowledge its receipt, the act of
refusal shall be recorded in the presence of two witnesses. If this is not
done, the employee may deny any service of the charge-sheet later. In such
case of refusal, if a man’s whereabouts are not known, the charge-sheet along
with the notice of enquiry shall be sent to his last known address by
registered post acknowledgement due.
# 20 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Where the Standing Orders provide the mode of service, compliance

with those provisions will be proper service. Where the Standing Orders
provide for affixing the notice on the Company’s Notice Board, it would be
sufficient service of the notice. Where however, the Standing Orders do
not contain such a provision, the affixing of the charge-sheet on Notice Board
will not be sufficient. In such cases when registered notice comes back
unserved, the envelope is to be preserved unopened and the proper course
is to publish the charge-sheet and the notice of enquiry in a newspaper in
regional language having a large circulation in the State in which the,
establishment is situated or the delinquent resides.
Refusal to accept charge-sheet will amount to misconduct and may also
be considered as a relevant factor in deciding the punishment to be awarded.
5. Suspension pending enquiry:
Where the act of misconduct is grave and serious and would, if proved,
warrant dismissal of the employee concerned, Management may forthwith
suspend the employee, especially, if his continuance on duty is either likely
to further affect adversely the interests of the employer or undermine
discipline or interfere with the conduct of a fair enquiry. It is usual to issue
the charge-sheet before the order of suspension. But suspension order may
also be issued alongwith the charge-sheet.
Suspension pending enquiry is only an expedient action and not a
punishment. Indefinite suspension pending an enquiry which is unreasonably
delayed will, however, be taken as punishment. Some Standing Orders may
specify the maximum number of days for which an employee may be
suspended pending enquiry or may even provide for some subsistence
allowance during the period of suspension. Suspension pending enquiry
by which the employee is deprived of his wages can only be done if there
be a provision in the Standing Orders or in the contract of service. Otherwise
the employee will be entitled to wages for the period of suspension pending
enquiry.

If as a result of the enquiry held, it is decided not to take any action,

the suspended employee would be deemed to have been on duty and shall
be entitled to full wages and privileges for the period of suspension.
 DISCIPLINARY PROCEEDINGS # 27

When a man is placed under suspension, as a rule, his wages including

allowance etc., are withheld for the time being. Therefore, free medical
aid and medicines could also be withheld by the management.
It is obvious that for misconduct warranting lesser punishment,
suspension is not desirable. For, if such suspension is with pay, the cost to
the employer is obvious, whereas, if it is without pay, the hardship caused
to the employee will not be fair. The decision to suspend must be based on
the seriousness of the misconduct. The preliminary enquiry is of great
importance in arriving at the decision to suspend.
There must, however, be no delay on Company’s side in carrying out
the enquiry and issuing final orders in cases where suspension pending
enquiry is resorted to. The fact that an employee was placed under
suspension would not indicate that the employer was prejudiced against him.
6. Consideration of the explanation:

After the charge-sheet is received by an employee, he may-

i) submit his explanation admitting the charge and, may be ask for
leniency; or
11) submit his explanation refuting the charge; or
il) apply for an extension of time for submitting his explanation; or
iv) fail to submit his explanation.
In the first case, it is not strictly necessary to hold a formal enquiry
and the punishment that is decided for the misconduct may be awarded.
But, it is desirable to explain the charge to the employee and to record his
acceptance in the presence of witnesses at a formal enquiry, lest he should
resile from his written statement under pretence such as promise of leniency,
etc. The decision regarding the punishment to be awarded and the
punishment itself must be recorded in writing. If admission of guilt 1s
qualified, it is better to hold the formal enquiry to avoid subsequent allegation
that the admission implied something else or that it has been extracted under
- coercion.

In the second case where the employee refutes the charge, the position
should be reviewed thoroughly to find out whether the explanation is
satisfactory and, whether further proceedings are necessary. If it is
# 22 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

unsatisfactory and it is felt that a punishment is warranted, further

proceedings regarding the formal recorded enquiry shall be undertaken.
If request for extension of time is reasonable, it should generally be
granted. As a matter of practical prudence, it is advisable that even in
doubtful cases, it should be granted so that any future controversy is avoided.
Where the employee fails to submit his explanation, it should be
remembered that this in itself does not entitle the management to dispense
with the enquiry and to proceed to award the punishment.
7. Enquiry:
Where the explanation is not satisfactory, or not forthcoming at all, a
notice shall be issued advising the employee, of the enquiry to be held. The
notice shall be issued at least 3/5 days in advance and contain-
- Name of the Enquiry Officer.
- Date, time and place of the enquiry.
- Advice that he should have with him on the date of the enquiry any
documentary evidence that he may wish to tender at the enquiry.
- Whether he intends to produce witness(es), if any, for defence and if
so, to furnish their names.

- Whether he desires to be assisted/represented by a co-worker (or Trade

Union representative, where allowed under the Standing Orders).
- (Any other relevant information
as to the conduct of the proceedings
before the Enquiry Officer).
Enquiry should be held as early as possible specially when a workman
is put under suspension.
The object of holding an enquiry is not to prove the guilt anyhow, but
to give an opportunity to the accused to prove his innocence by explaining
the circumstances alleged against him.
Although the rule requiring the Management to hold an enquiry before
awarding punishment is neither a statutory rule nor a rule of Common Law
of Master and Servant it is a rule that has been evolved and established by
a series of decisions by the Industrial Tribunals in India on the basis of the
DISCIPLINARY PROCEEDINGS # 23

elementary principle of natural justice that no one should be condemned

unheard and non-compliance of this rule would make a punishment order
bad.
Even if Standing Orders provide that a workman may be dismissed
for serious misconduct without notice, an enquiry must be held. In cases
where the employer has failed to make an enquiry before dismissing a
workman, he will have to justify his action before the Tribunal by leading
evidence before it. In such cases, the employer would not have the benefit
which he would have had in domestic enquiries. The entire matter would
be open before the Tribunal which will have jurisdiction not only to go into
the limited question open to a Tnbunal whether domestic enquiry has been
properly held but also to satisfy itself on the facts adduced before it whether
dismissal is justified.

At the appointed time, date and place, the following should be present
at the enquiry:
1) The Enquiry Officer.
2) The Accused Employee.
3) The nominee of the accused employee if so desired by the employee
concerned and otherwise permitted. |
4) An Interpreter, if required.
5) Representative of the Company, to present the Company’s Case.
8. Enquiry Officer:— As far as possible, the Enquiry Officer and, the
Authority empowered to issue the charge-sheet and/or award punishment
should be different on the ground that the Judge and the Prosecutor should
not be the same person. The Prosecutor himself cannot become the Judge
in such an enquiry.
It is essential that the Enquiry Officer does not import his personal
knowledge of facts into the proceedings.
A person who would be required as Company’s witness must not be
asked to act as the Enquiry Officer. If an Officer himself sees the
misconduct of a workman it is desirable that the enquiry should be left to
be held by some other person who does not claim to be an eye witness of
the incident.
 # 24 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

If the charge sheeted person objects to a particular person holding the

enquiry, alleging “personal bias” and if there is any substance in that
allegation it is advisable that someone else conducts the enquiry.
Enquiry can be conducted by an Advocate even though he might have +
appeared for the employer in other legal proceedings.
There is no bar to entrusting the enquiry to a subordinate. It cannot
be attacked on the ground that the Enquiry Officer being a subordinate could
not go against the wish of the Manager, who may be the Prosecutor. The
Enquiry Officer must, however, act with the detachment of a Judge. It
should be borne in mind that in departmental enquiries it is the employer
who has to hold the enquiry and to that extent it is inherent in the very nature
of things that the Enquiry Officer cannot be so detached as Courts of Law
are, adjudicating upon disputes between litigants.
9. Prosecutor:— The man who signs the charge-sheet need not necessarily
act as the Prosecutor. Ordinarily, a representative of the Company acting
as Prosecutor 1s not necessary, as any cross-examination of the defence
witnesses that may be necessary can well be carried out by the Enquiry
Officer. There may, however, be exceptional cases where a Company
representative will have to be present throughout the enquiry to present the
case for the Company and to cross-examine the defence witnesses where
necessary.
10. Representation of Employee: A workman has no nght to representation
_ at the domestic enquiry against him unless the Company has recognised such
right under the Standing Orders. However, if the accused wished another
employee to assist him at the enquiry, it should normally be allowed if there
is nothing otherwise objectionable in the said request. Representation by
any Official of his Trade Union may be refused, unless provided in the
Standing Orders.

Where Standing Orders provide for representation of an employee at

the domestic enquiry by a member of Trade Union recognised by the
Company, the workman cannot ask for representation by a Union not
recognised by the Company. Refusal to allow representation by the rival
Union not recognised by the Company does not vitiate the proceedings.
Whether or not the Union is recognised by the employer, an employee
member or employee official of the Trade Union may, however, be permitted
DISCIPLINARY PROCEEDINGS # 25

to assist the accused as a co-worker, but not in the capacity of Union member
or Union Official unless so provided for in the Standing Orders. Workman
cannot claim to be represented by a Counsel or by an outsider at such
proceedings.

Absence from place of work for helping the enquiries may be treated
as on duty. But when an employee of one establishment seeks to represent
a charge sheeted employee in another establishment, no special leave need
be given and the employee concerned may be allowed normal leave due to
him or leave without pay for the purpose.
11. Interpreter:— An Interpreter, where necessary, should preferably be
chosen from amongst the employees.
12. Ex parte Enquiry:— In some cases the employee may refuse to take
part in the enquiry for some reason or the other, necessitating ex-parte
enquiry.
It is necessary that the enquiry should be held in the presence of the
accused but if he fails to attend the enquiry on the particular date without
assigning any reason, the enquiry can proceed ex-parte. In such cases, it
would be advisable though not legally essential, to give a chance to the
employee again, by postponing the enquiry to another suitable date and
informing the employee that failure to present himself at the enquiry, would
result in ex-parte proceedings. The enquiry can proceed ex-parte if the
accused even then fails to turn up, a note to that effect being recorded in
the enquiry proceedings. If full and free opportunity is given to the employee
to be present and defend himself at the enquiry, no principles of natural
justice can be said to be violated and if the employee does not avail himself
of the opportunity, the employer would be at liberty to come to his own
conclusions in regard to the guilt of the employee and determine the
punishment.
In case of refusal of the employee to partake in the enquiry on the
ground that criminal proceedings were pending against him for the very same
misconduct, employer may proceed with the enquiry ex-parte.
The enquiry even if ex-parte must be proceeded with fully, including
examination of all the documents and witnesses, as the failure of the
employee to turn up at the enquiry does not necessarily imply that the offence
complained of against the employee stands proved. It is advisable to request
# 26 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSULS

an employee member of the Works Committee or a senior employee to:be

present at such ex-parte enquiry.
When the employee refuses to take part in the proceedings and fails
to be present, it will be open to the Enquiry Officer to proceed on the
materials which are placed before him and it is not necessary in such a case
that the Enquiry Officer should examine all the witnesses for the employer.
But where a detailed procedure for enquiry has been prescribed in the
Standing Orders, the Enquiry Officer must comply with it even if the
employee withdraws from the enquiry.
If after the enquiry has started, the accused employee turns up and
submits sufficient justification for his failure to report for the enquiry at the
appointed time, the enquiry may be proceeded with de novo. If the Enquiry
Officer is not convinced with the reasons given by the accused employee
for his absence, he may proceed with the enquiry, allowing the accused
employee to be present during the rest of the enquiry proceedings. The
Enquiry Officer in such cases shall record in writing the proceedings, the
reasons for rejecting the grounds of absence of the accused at the enquiry.
If the charge-sheeted employee withdraws from the enquiry before it
is completed, the enquiry must be completed even though ex-parte and this
shall be recorded in the enquiry proceedings.
13. Postponement of Enquiry:— If the employee asks for an extension
of time, it should be normally granted. To avoid any future controversy, it —
is advisable to grant one or two postponements even where the request may
not appear fully justified.
Mere refusal of the Enquiry Officer to adjourn the enquiry indefinitely
to enable the employee to summon an outside witness cannot be considered
as wrongful and violating natural justice.
Postponement from the employer’s side should be avoided, particularly
in cases where the accused has been suspended.
14. Record of Proceedings:— At the commencement of enquiry the
Enquiry Officer should record in his own hand, the date, place and time of
holding the enquiry on the alleged misconduct, names of persons present at
the enquiry, with a statement making reference to the charge(s), e.g. “letter
of charge dated........ issued to........ ”. If the Enquiry Officer refuses to grant
 DISCIPLINARY PROCEEDINGS # 27

a request by the accused employee to allow an outside union official to be

present, (this can be done if it is not specifically allowed under the Standing
. Orders) the reasons shall also be recorded. In case of an ex-parte enquiry
a note to that effect giving reasons for holding the enquiry ex-parte shall be
recorded in proceedings.

The procedure to be followed at the enquiry shall be explained to the

accused and a statement to that effect recorded.

The charge(s) shall be read out to the accused employee.and explained

_ and he should signify that he has understood the contents of the charge sheet.
The employee concerned shall then be asked if he admits them. If he admits,
the Enquiry Officer shall record this and obtain the signature of those present.
To avoid all future complications, it may be advisable to continue with the
enquiry. |
* | The written explanation, if any, submitted by the employee in reply
to the charge sheet shall be read over to him and he shall be requested to
confirm the contents thereof, which will then be annexed to the
proceedings as an exhibit. It is not correct to cross-examine closely the
employee at the very commencement of the enquiry, before any evidence is
led against him. The first step is the recording of evidence in the presence
of the employee, based on which the charge sheet against him is issued.

The evidence and witness in support of the charge should then be

produced. An enquiry in which questions are put to the defendant and no |
witnesses are examined in support of the charge and before the defendant
is questioned, will be contrary to the principles of natural justice. Witnesses
shall be examined in the presence of the accused one by one and shall be
allowed into the room where the enquiry is taking place one at a time, the
idea being that the prospective witness(es) should not know what the
previous witness(es) has/have deposed.
If statements of witnesses are taken prior to the formal enquiry namely
during preliminary enquiries, it is important that such witnesses are
examined fully again in the presence of the accused. This is because when |
evidence is recorded in the presence of the accused person there is no room
- for persuading the witnesses to make convenient statements and it is always
easier for an accused person to cross-examine the witness if evidence is
recorded in his presence. Besides, the witness knows that he is giving
# 28 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

evidence against a particular individual who is present before him, and

therefore, he 1s cautious in making his statement.
The Enquiry Officer is expected to adopt an objective approach and
any attempt to put leading questions in order to get answers in support of
the charge should be avoided.
In the examination-in-chief, a witness should be asked to give his name,
designation etc., and then to state what he knows about the relevant facts
relating to the charge. If there is any relevant documentary evidence, that
should also be filed at the enquiry during the examination-in-chief and
marked as an exhibit for the Management.
After the witness has given his evidence on the charge, the accused
shall be asked if he or his representative would like to put any question to
the witness. If he puts questions to the witness, the question along with
the evidence of the witness should be recorded under the head “Cross-
Examination”. If he does not, the Enquiry Officer should make an
endorsement below the recorded evidence.
The evidence should be recorded by the Enquiry Officer in the
narrative form for statements, and question-and-answer form for
examination-in-chief as well as cross examination.
At the conclusion of the evidence of each witness, his signature or
thumb impression should be obtained below his deposition and questions
and answers. If the witness is not familiar with the language, an endorsement ©
“as recorded” “interpreted and certified as correct” should be signed by the
Interpreter/Enquiry Officer after the same is interpreted and confirmed as
found correct by the accused. The accused or his representative shall also
sign every page of the enquiry. The Enquiry Officer shall put his signature
on each of the pages and each signature shall be dated. If the accused or
his representative refuses to put his signature his refusal should be recorded
and should be attested by witness.

After all the evidence in support of the charge has been adduced at
the enquiry, the accused will be given opportunity to lead his evidence in
defence and asked to examine his witnesses similarly. If the employee has
no witness or refuses to examine them, a note to that effect shall be recorded
by the Enquiry Officer, so that it can be shown that the employee was given
an opportunity to bring his own witnesses in defence that he was given every
 DISCIPLINARY PROCEEDINGS # 29

opportunity to do so. If he cites his fellow employees as witnesses, they

should be made available. If the witnesses are outsiders, then it is the
responsibility of the employee himself to present them at the enquiry.
Witnesses produced by the accused should also be examined one by one as
in the case of Company’s witnesses. The only difference is that the employee
or his representatives will conduct the examination-in-chief of his witnesses
and the Enquiry Officer or the Company’s representatives will cross-examine
~ them.

The Enquiry Officer at his discretion may disallow the examination of

any witness whose evidence is not relevant to the case as also any irrelevant, .
question and answer at the enquiry. This discretion should however, be
exercised very cautiously so that the enquiry proceedings are not vitiated.
Where this is done, the reasons shall be recorded indicating what facts were
sought to be elicited.
The Enquiry Officer should ensure that documentary evidence if any,
is formally introduced by one or other of the witnesses and properly
marked as exhibits giving serial numbers. The contents of such documents -
and their relevance/connection to the enquiry must be explained to the
accused and he should be given the opportunity of examining or explaining
them. No material should be relied on against an accused without giving
him a chance to explain them.
Re-examination of witnesses may be considered on merits but in such
cases the other party should be given the opportunity of re-cross-examining
such witnesses.
In case it is not possible to examine all the witnesses on the same date,
the enquiry may be adjourned to the next or to a later date. A suitable
endorsement shall be made by the Enquiry Officer in such a case in the
enquiry proceedings.
After all the witnesses on behalf of the Company and those tendered
. by the accused have been examined, the enquiry will come to a close.

But before finally closing the enquiry, the Enquiry Officer should ask
the defendant whether he wants to offer any further explanations or make
any further statement. If the defendant wishes to re-examine any of the
witnesses, his request should be considered on merits. If he does not wish
 # 30 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

to make any further statement or examine any of the witnesses, the fact
should be recorded.
If there is a nominee of the accused employee to assist him at the
enquiry, such nominee should be asked whether he wishes to make any
submission on the basis of evidence etc. If such ‘submission’ is oral, it
should be recorded along with the proceedings. If written ‘submission’ 1s
made, the Enquiry Officer should take the contents into consideration while
giving his ‘findings’.
After the conclusion of the enquiry proceedings, the Enquiry Officer
shall give his precise findings, after a most careful appraisal, as to whether
or not the charge/s levelled against the employee is/are proved on the
evidence recorded at the enquiry. Findings should be recorded separately
for each of the charges.
The findings must be recorded even though the Enquiry Officers and
the punishing authority may be the same person.
Failure to record any findings constitute a serious infirmity in the
_ enquiry itself.
The report of the Enquiry Officer should briefly record the facts of
the case, the points for determination, the substance of evidence led by
either side, his conclusions and reasons thereof.

A witness should not be disbelieved on the ground of an inconsistency

between his statement and document unless he has been given chance to
explain the said document.
Findings should not be based on extraneous matters which are outside
the scope of the charge(s) or which have not been recorded in enquiry
proceedings. Evidence recorded in another enquiry should not be taken
into consideration in arnving at conclusions in the instant case.
Tn thematter of evidence adduced at a Domestic Enquiry the Rules
contained in the Indian Evidence Act regarding admissibility or otherwise
of evidence are not applicable.
There is no warrant for the contention that in considering whether an
employee is guilty of misconduct charged against him, one should apply
the rule followed in criminal trials that an offence is not established unless
proved by evidence beyond reasonable doubt to the satisfaction of the Court.
DISCIPLINARY PROCEEDINGS # 317

Where there is some evidence, which the authority entrusted with the duty
to hold the enquiry has accepted and which evidence may reasonably support
the conclusion, is sufficient to establish the misconduct. Courts may interfere
where the departmental authorities have held the proceedings against the
delinquent in a manner inconsistent with the rules of natural justice or
violation of the rules prescribing the mode of enquiry or where the authorities
have disabled themselves from reaching a fair decision by some
considerations extraneous to be influenced by irrelevant considerations or
where the conclusions on the very face of it are so wholly arbitrary and
capricious, that no reasonable person could ever have arrived at the
conclusion on similar grounds. But the departmental authorities are, if the
enquiry is otherwise properly held, the sole judges of facts and if there be
some evidence on which their findings can be based, the adequacy or
reliability of such evidence is not a matter which can be permitted to be
canvassed before the Tnbunal/Court.
The mere fact that the conclusion arrived at as a result of the enquiry
was wrong would not make the conclusion mala fide. Where an Industrial
Tnbunal comes to the conclusion that a certain order under which a workman
was charged and found guilty was not applieable to that case at all, it does
not mean that finding of the domestic enquiry showed mala fides. It is an
elementary principle of judicial approach that even if a Judge or Tribunal
may reach an erroneous conclusion either of law or fact, the mere error or
conclusion does not make the conclusion mala fide.
The findings of the Enquiry Officer should be that of a reasonable man.
The Enquiry Officer should only state if alleged charges have been
proved or not. He should not make recommendations regarding the action
which should be taken against the defendant.
15. Decision

The proceedings shall then be considered by the authority empowered

to decide on the punishment and make the order.
He shall satisfy himself about the correctness and reasonableness of
the findings but he is not bound by the findings of the Enquiry Officer.
Where the authority agrees with the findings of the Enquiry Officer
he need not discuss the evidence afresh. But if he disagrees he must give
#32 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

reasons and discuss the relevant evidence and decide the suitable punishment
warranted on the proven charge(s) taking into account the gravity of the
misconduct and the extenuating or aggravating circumstances, if any.
Where Standing Orders exist, punishment awarded must be in
accordance with the Standing Orders, and a punishment not provided therein
cannot be given.
If an employee is held guilty in respect of more than one charge and if
the findings in respect of one or other of such charges cannot be sustained
in the event of a dispute over it before a Labour Court/Tribunal, the validity
of the order of dismissal would not be affected provided such order could
be reasonably based on the other item of proved misconduct.
It is necessary therefore, for the order to specifically mention the
nature of punishment each of the misconducts warrant. Otherwise it might
be contended that the punishment meted out is a consolidated one and if
some of the charges cannot be sustained before the Labour Court/Tribunal
the entire punishment would fall through. :
If the punishment is disproportionate to the gravity of the offence/
misconduct, it may be construed as victimisation. The Disciplinary
authority should take into consideration extenuating or aggravating
circumstances if any, that may exist. Past record of service of the employee
may also be looked into in this connection.
Where Standing Orders provide that an employee can be dismissed
for habitual misconduct after a certain number of written warnings, it must
not be taken in a mechanical sense. The cumulative effect of warning
lapses after a reasonable period. Length of blameless service should be
taken into consideration in all cases.

No action can be taken without issuing a fresh charge-sheet if the man

is found guilty of an offence other than those specified in the original charge-
sheet. For example, a man charged for “theft” cannot be punished if on
enquiry “negligence” is proved.
When an order of dismissal is cancelled by the employer because he
discovers certain infirmity in the said order and issues fresh order of
dismissal, it cannot be said that the employer having cancelled the previous
order of dismissal is incompetent to dismiss the employee again by a second
DISCIPLINARY PROCEEDINGS # 33

order on the very grounds on which the previous order was based. The
previous order of dismissal may be said to have been revoked and not the
findings reached at the enquiry. There is no need to hold a fresh enquiry.

16. Communication of the decision:

Management’s decision on the findings of the enquiry should be

communicated to the employee as quickly as possible. The letter
communicating the punishment should make a reference to the charge sheet,
the enquiry held into the charge(s), the findings of the Enquiry Officer, |
extenuating or aggravating circumstances, if any, the decision as to the
punishment and the date from which the punishment is to take effect. If
such advice cannot be served personally to the employee, it shall be sent
by registered post with acknowledgement due to the last known address of
the employee. If the registered cover returns unserved, the decision of the
Management may be displayed on the Notice Board and also published in
any newspaper published in the language understood by the employee, which
has wide circulation in the area in which he resides.
No punishment can be given retrospectively unless permissible under
the Standing Orders. Certain Standing Orders contain provisions that
dismissal can be made effective from the date of suspension pending
enquiry.
Before final order is passed by Management in a disciplinary case, it
must be ascertained whether a dispute is pending before a Tribunal, Labour
Court or Conciliation Officer. Section 33 of the Industrial Disputes Act
imposes certain restrictions on the Management in discharging, dismissing
or otherwise punishing an employee concerned in the dispute and the
employer is required to follow further steps to implement its decision.
Establishments covered under the Employees’ State Insurance Act must
further ensure that the order does not violate Section 73 of the E.S.I. Act,
which prohibits punishing an insured employee during a period in which
he is in receipt of benefits under the E.S.I. Scheme.

17. Right of appeal:

An employee has a right of appeal to the Employer where the Standing

Orders so provide.
# 34 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Some Standing Orders/Rules of Service provide that before final order

of punishment is issued the employee concerned should be informed of the
proposed punishment and given opportunity for appeal to higher authority.
The appellate authority in such cases should preferably be different from
the punishing authority.

Some other Standing Orders/Rules of Service provide that an appeal

should lie to the Head of the Unit or the Company. In either of the above
cases it is incumbent on the appellate authority to review and communicate
its decision without undue delay.
 Chapter 5
DISCIPLINARY PROCEDURE &
DOMESTIC ENQUIRY
GUIDELINES FOR ENQUIRY OFFICERS
At the commencement of the proceedings the Charge Sheet should
be read over to the delinquent. He should then be asked if the written
explanations submitted by him are in his writing. If not, whether they
have been written as per his dictation. When he accepts them he
should be asked whether the signature on the explanation is his own
or not.

The delinquent should be asked if he wants a co-worker to be present

during the enquiry.
The delinquent should be asked if he has witnesses to depose on his
behalf. If so, a list of all such witnesses should be obtained and passed
on to the Company representative to ensure their attendance when
called for. +
The procedure to be followed at the enquiry should be explained to
the delinquent and recorded at the beginning. A position of
impartiality should be maintained. The Proceedings should be
recorded on a day to day basis.
Management Representatives should present the Company’s case.
Representation of the workmen by a co-workman should be permitted.

Management witnesses should give their evidence first and should be

permitted to be cross-examined by the delinquent employee or his
representative.
Leading questions put in order to get answers in support of the charges
should not be permitted.
Statements constituting evidence should be recorded in the narrative
form. Examination-in-chief and cross-examination should be in the
form of questions and answers.
10. Irrelevant, undesirable and insulting questions during cross-
examination should be disallowed.

# 35
 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

The delinquent’s witnesses should be examined only after the

managements witnesses have been examined by Company
Representative and cross-examined by the delinquent or his
representative.
Request for adjournment on valid grounds should be granted.
If the enquiry is adjourned the fact of adjourning the enquiry should
be duly recorded and the next date notified if possible.
Ex parte enquiry should be held only after a reasonable number of
adjournments and opportunity are given to the workman to
participate in the proceedings in person.
Witnesses should be allowed to come into the enquiry room one at
a time only.

Documents submitted by either party at the enquiry as exhibits should

be marked and recorded in the proceedings giving suitable identifying en

numbers. Those presented by the Management as M/D/I etc. and

those by the Delinquent as D/W/I etc.
In case of discrepancy in statements made by a person, appearing for
either party at two different points of time, the Enquiry Officer should
bring the discrepancy to the notice of the delinquent/deponent to get
the statement clarified.
Signatures of the workman and all those present should be obtained
at the end of each page of the recorded proceedings.
In case of objection regarding language of recording, arrangement for
interpreter acceptable to the workman concerned should be made.
Copies of proceedings on day to day basis should be given to the
parties, if asked for, after completing the above formalities and after
obtaining signatures of the parties concerned on the recorded
proceedings.

Once the proceedings are concluded the Enquiry Officer should give
one more chance to the delinquent and ask him if he has anything
further to say regarding the charges against him. Thereafter he should
explain the proceedings to the delinquent in the language understood
by him and obtain his signature by way of confirmation that he has
DO.P. & DOMESTIC ENQUIRY GUIDELINES FOR ENQUIRY OFFICERS # 37

been explained the recorded proceedings and has understood them.

Thereafter the enquiry officer should record that the Domestic Enquiry
has been conducted in accordance with the Principles of Natural
Justice and that the delinquent has been given every opportunity to >

examine his own witnesses, cross-examine the company witnesses and

produce documents, if any, in his defence.
II The Enquiry Officer should submit his findings based on the Enquiry
Proceedings as recorded by him and say if the charges have been
established or not. If the Charge Sheet contains more than one
charge and if only one or two of them have been proved he should
record a finding to the effect that the other charges have not been
proved/established.
i)UJ ‘The duty of the Enquiry Officers is to enquire and submit his
findings to the management whether the charges have been proved/
established or not. He should not recommend punishment as this will
invalidate the enquiry.
24. At the bottom of the last page of the recorded proceedings all those
present on the concluding day of the enquiry including the
delinquent, the Enquiry Officer, the Company Representative, the
Employees Representative should put their signatures as well as the
date.
 Chapter 6
DIGEST OF CASES AND ISSUE-WISE
PRESENTATION OF SUPREME COURT DECISIONS
SYNOPSIS
hk Appel (::...........2maee BQ — 34, HOM 00. eeneervnrsrcmennnrrerserr
rien 148
2. ADDVGHIMGIIIOE .........----sensennatannonne>s 40 53; CO, .. .... ccacsmeeteere
s+ s--.15h 149

3. Appropriate Gove. ...........cccccc000 4] 36. Minimum Wages Act..............-.. 150

4, ArbityG tities snc. <,. ays Baa Dy 4]. B7TRRORRUCE ite 152
DO ee 42 38, Miomal Turpitude. Sve y------.-- 156
6. Bargaining Agent.............c0.c0000+ 43 39. Natural Justice ...........1.0....0-+: 157
YF) R= ARR 43 40. Night-shift allowance ................ 162
6 Bonds ee 46 44° NOmienclature ..0..010..J.6 oe. 162
©. Bundi: «-:---:,1ek tain 47 42. Payment of Wages Act .............. 163
10. Cantegn Workers ...........r--oscgess-- 48 43. Priority of Debts in Liquidation 164
1h. Child Ege. «..., .-+<.s.cseanpetieieaes- 43). FE STIORC. ..... Gan>>2-->> 164
/2. Compassionate Appointment ...... 99 AS PEDINOTION ....), 5). ae 170
13. Conciliation Proceedings ........... YS} | ONG aa sAment ..:, i ARES fo... 17]
14. Condonation of Delay ................ 52 47. Reduction in Rank ...........0......... 173
Pee Ul eee ee 3m, MG, MRBIOUVCINONE ....cry titans pso+-5->0> 174
16. Constitution of India ................... 53 49. Representation during
7. CORUPRIR ICD ..5:0..1 satan EM. 54 AOMESTIC CNQUITY ........00000. oes 176
FS CONTFGRTBGDOUP ©... Jvc 54 .|~ S@Miem nation 250 steel... Lhd.
19. Contract of Service .........0cccces 60 SD. Retirement ....c.ccccccccesecceeccsssccsees 179
20. COTRPRRES- ACT ............scgysegperscss- 60 =-32 EPERCRMEORL ....carptiensss. 0p5544... 18/
2!. Departmental proceedings and pe ae 183
criminal proceedings ............0006+. 61 Ja meme of Payy.chkembe oe. ..00 184
22. DERE A: «5... Sgt 64 $5. Seniority Diesel woncin.............. 184
as. _— — ime me ay 65 § Blomen: . For Non-Payment . 185 .

lege — cram ~ ih pi D7. MARGING OFACTH :oc.rci.i...00..

ces, 187
25. E.P.F. (Misc. provisions) Scheme 99
36 SSE ..........uenn 10. eee =
27. Employment Exchange oS | ee us TBP
(Compulsory Notification of GO. GUBPERSION .. MUTE. 190
VaCamete) ACT ........6 WR A.. 140) «=GTR Post GRIN... 2... 19]
28. Equal pay for Equal Work ........ LVL 62, Termination ......ccccccccc0cc0.c0.000.0. 19]
29. Fact@reaa Att ...........cdcceerserees J2] a 197
30. sain ll 123 64: Aieieir Labour Peaiiiee........ 1m
3]. GIGETTITE eater...
000... cco SS 12) . .
32. HOWE e.......0.....0
ee 126 One LO° SORE ony Tal
re 127 RPO” animes ces
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 39

1. APPOINTMENT

Appointment made on basis of erroneous data invalid

When an advertisement mentions a particular qualification and an

appointment is made on the basis of such qualification, but a person who .
did not possess similar qualification was appointed, it amounts to a fraud
on public. No Court should be a party to the perpetration of the fraudulent
eXeIrcise.

(The Dy. Collector & Chairman, Vijayanagaram (Social Welfare Residential

School Society) and M. Tripurasundari Devi, {1990 (2) LLJ 153].

Adhoc appointment - Adhoc appointment on contract basis for a

limited period comes to an end at the end of the period.

_ (Director Institute of Management Development and Pushpa Srivastay, |

LLJ 1993 p. 190)

(Obtained by suppression of truth about educational qualifications):

The Respondent had suppressed the truth about his educational

qualifications and managed to get an appointment. After dismissal for
fraudulent misappropriation he went to Court The Labour Court and High
~ Court ruled in favour of his continuing in employment.

The Supreme Court deprecated the tendency on the part of the Courts
for misplaced sympathy, generosity and private benevolence and held that
the Labour Court and the High Court have erred in allowing the respondent
to continue in employment.

Kerala Solvent Extensions. vs. A. Unnikrishnan & Anr. 1994(1) Scale 631
= 1994(2) LLJ 888 = 1995(2) LLN 968.

A Human Approach:

The plea that Courts should have a “human approach” and should not
disturb a person who has been working on the post for more than a decade
also cannot be accepted as the Courts are hardly swayed away by emotional
appeals. In dispensing justice the Courts not only go into the merits of the
# 40 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

respective cases they also try to balance the equities so as to do complete

justice between them. If the respondent is allowed to continue on the post
merely on the basis of this concept of “human approach’ it would be at the
cost of a duly selected candidate who would be deprived of employment
for which he had striven and had ultimately cleared the ‘selection’.

1998(2) CLR 389 SC (DB) State of Madhya Pradesh & Anr. vs.
Dharam Bi.

2. APPRENTICES ACT 1961

Preference to Trained Apprentices :

The Apprentices Act, 1961, makes adequate provisions to see that

competent persons receive due training to cater to the needs of the increasing
demand for skilled craftsmen on the one hand and to improve the
employment potential of the trainees on the other. A good amount of money
is also spent on training the apprentices.

- What is required is to see that the nation gets the benefit of the time,
money and energy spent on the trainees, which would be so when they are
employed in preference to non-trained direct recruits.

The following should be kept in mind while dealing with the claim of
trainees to get employment after successful completion of their training:

(1) Other things being equal, a trained apprentice should be given

preference over direct recruits.

(ii) A trainee would not be required to get his name sponsored by any
employment exchange.

(111) Age bar should be relaxed in accordance with service rules and if the
service rules be silent, there should be relaxation to the extent of the
period for which the apprentice has undergone training.

(iv) The concerned training institute should maintain a list of trainees year-
wise and persons trained earlier should be treated as senior to those
trained later. As between trained apprentices, preference should be
given to those who are senior.
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #41

U.P. Road Transport Corpn. and Anr. vs U.P. Parivahan Nigam

Shikshuk Berozgar Sangh and Anr. AIR 1995 (SC) 1115 = 1995(2) SCC2
= 1995(2) JT 26 = 1995(1) Scale 127 = 1995(29) ATC 171 = 1995(1) SLR
609 = 1995 LIC 1361 = 1995(2) LLJ 854 = 1995(86) FJR 339 = 1995(1)
LLN 788 = 1995(70) FLR 890.

3. APPROPRIATE GOVT.

Appropriate Government - Under S.2(1)(a) of Contract Labour (R&A)

Act:
Though the Companies are wholly owned and controlled by the Central
Government a two Judge bench in Heavy Engineering Corporation vs. State
of Bihar', had held that the State Government was the appropriate
Government. The same view was held in the case of Hindusthan
Aeronautics Ltd. vs. Rashtriya Mill Mazdoor Sangh and Model Mills* and
later in the case of Workers Union and Food Corporation of India’.

While dealing with the case of Air India Statutory Corporation" the
Court felt that the two Judge Bench in the case of Heavy Engineering
Corporation had narrowly interpreted the words “appropriate
Government”.

Having regard to the conflict of opinion the Court decided that the case
be laid before a Bench for hearing.

T.C.I. Bombay and other vs. Transport and Dock Workers Union and
Ors. 1999(2) LLJ 1389.

4. ARBITRATION

Effect of Non-publication of arbitration agreement as required

under sub section (3) of Section 10A of the Industrial Disputes Act,
1947:
’]-

1. 1969(3) SCR 995 = 1969(1) SCC 765 AIR 1970 SC 82 = 1970 LIC 212 = 1969(2) LLJ
548 = 1969(19) FLR 27.
2. (1984 Il LLJ 507) ;
3. 1985 2 SCC. 294.
4. 1997 1 LLJ 1113.
# 42 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSULS

Held: Having regard to the language of sub-section (3) of Section

10A and the use of the word “Shall” therein there is little doubt about the
obligation to publish the agreement in the Official Gazette. Moreover.
the Act seeks to achieve Social Justice on the basis of Collective
Bargaining and the Arbitrator is one of the Statutory Tribunals set up under
the Act. It is necessary that the workmen should be made aware of the
dispute as well as the arbitrator whose award ultimately would bind them.
Therefore, the Arbitration agreement must be published before the
arbitrator considers the merits of the dispute and non-compliance with this
requirement of publication in the Official Gazette would be fatal to the
arbitration award.

Sections 10 and 10-A of the Act are alternative remedies to settle an

Industrial Dispute. An Industrial Dispute can either be referred to an
Industrial Tribunal for adjudication under Section 10 or the parties can enter
into an arbitration agreement and refer it to an arbitrator under Section 10-
A. But once the parties have chosen their remedy under Section 10-A the
Government cannot refer that dispute for adjudication under Section 10.

Karnal Leather Karmachari Sanghatan vs. Liberty Footwear

Company and Ors.,1989(3) JT 537 = 1989(4) SCC 448 = 1989(2) LLN
507 = 1989(2) LLJ 550 = AIR 1990(SC) 247 = 1989 (2) Scale 460 =
1990(1) SLJ 108 = 1989(3) SCR 1065 = 1990 LIC 301.

5. BACKWAGES
Back wages not payable for period of absence due to conviction :

Petitioner charged with an offence under Sec. 302 IPC was sentenced
for imprisonment for life. The respondents on the basis of the sentence
removed him from service. Petitioner challenged the validity of the action
by way of Special Leave Application. In the mean time he was acquitted
in the criminal case. The Single Judge dealing with the Special Leave
Petition directed that he be reinstated with continuity of service but without
back wages.

Held: It was the conduct of the Petitioner which was taken into account
for his not being in the service of the respondent. The Petitioner had
involved himself in a crime, though he was acquitted later, and thereby
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 43

disabled himself due to detention in Jail. Under these circumstances the

Petitioner is not entitled to back wages.
1997(2) LLJ 683 SC DB Ranchodji Chaturngi Thakur vs. The
Superintendent Engineer, Gujarat Electric Board & Anr.
Entitlement to:

An employee whose services were terminated had the order set aside.
Pending the Special Leave Petition, the employee was gainfully employed.
It was held that respondent is not entitled to back wages.
1996(1) LLJ 1153 = 1996 LLR 481 Chairman, Governing Council
Anjuman Arts, Commerce & Science vs. Syed Mohammed Shafi.
Back Wages:
The Court had ordered reinstatement of the employee but without back
wages. The Union took its own time to take action. Supreme Court ordered
payment of back wages from the date of the Tnbunal’s Order till date of
actual reinstatement. The appellants request for back wages not entertained.
Kumari Sarita Thakur vs. Union of India 1995(1) LLJ 416.

6. BARGAINING AGENT

Sole Bargaining Agent through Secret Ballot :

Where there is more than one Union the question as to with whom
the employer should negotiate or enter into bargaining assumes importance.
The check-off system which once prevailed has lost its appeal. The method
of Secret Ballot is accepted.

Food Corporation of India Staff Union vs. Food Corporation of India

AIR 1995 (SC) 1344 = 1995 (2) LLJ 272 = 1995 Supp(1) 678 = 1995(1)
Scale 789 = 1995(2) SLR 77 = 1995(9) JT 261 = 1995(3) SLJ 140 = 1995
LIC 1606 = 1995 FLR 278 = 1995 (86) FJR 717 = 1995(1) LLN 783.

7. BIRTH

Date of birth - When subsequently produced extract from Birth

Register is incorrect refusal to correct the date is correct : The |
respondent, a Sub-Inspector of Police made an application for correction |
# 44 S.C, ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

of the date of birth. He produced the School Leaving Certificate as well

as an extract of the Birth Register which was found doubtful, not
convincing and hence rejected. The Tribunal however, directed the
authority to accept the evidence produced by the respondent.

Held: It appears that the respondent had got the Birth Register entry
corrected and then obtained a copy. The authorities were night in rejecting
to correct the entry in the Service Book. The respondent had failed to show
that the entry was made due to want of care on the part of some other person
or that it was an obvious clerical error.

Commissioner of Police, Bombay vs. Bhagvan V Lahane 1997 LLJ(2)

974 = AIR 1997 (SC) 1986 = 1997(1) SCC 247 = 1996(9) Scale 22)=
1996(9) AD (SC) 556 = 1996(6) SLR 633

Seeking correction at the fag end of service :

The Supreme Court answered the question in the negative. Regarding

the actual Legal Position it made the following observations:

(1) “Entertainment of writ applications by employees of the

Government or its instrumentalities at the fag end of their services when
they are due for retirement from their services, 1n our view, is unwarranted
as it will mar the chances of promotion of juniors and prove to be an undue
encouragement to the other employees to make similar applications at the
fag end of their service careers with the sole object of preventing their
retirements when due. Extraordinary nature of the junsdiction vested in the
High Courts under Article 226 of the Constitution is not meant to continue
employees tn service beyond the penod of their entitlement placing reliance
on the so called newly found maternal when an employee of Government or
its instrumentality in service for over decades, with no objection whatsoever
raised as to his date of birth all of a sudden comes forward towards the fag
end of his service career with a writ application before the High Court
seeking correction of his date of birth in his Service Record. Discretionary
jurisdiction of the High Court can never be said to have been reasonably
and judicially exercised if it entertains such writ applications from an
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 45

employee who waited till the fag end of his service career to get it
corrected by availing of the extraordinary jurisdiction of aHigh Court.”

When a person seeks employment, he impliedly agrees with the terms

and conditions on which employment is offered. For every post there is
the minimum age of entry prescribed depending on the functional
requirements for the post. In order to verify that the person concerned is
not below that prescribed age he is required to disclose his date of birth.
The date of birth is verified and if found to be correct is entered in the service
record. It is ordinarily presumed that the birth date disclosed by the
incumbent is accurate. The situation then 1s that the incumbent gives the
date of birth and the employer accepts it as true and accurate before it is
entered in the service record. This entry in the service record made on the
basis of the employee’s statement cannot be changed unilaterally at the sweet
will of the employee except in the manner permitted by service conditions
or the relevant rules. The first thing to consider 1s whether on the date of
entry into service would the employee have been eligible for entry into
service on the revised date of birth. Secondly, would revision of his date of
birth after a long lapse of time upset the promotional chances of others in
the establishment who may have joined on the basis that the incumbent
would retire on a given date opening up promotional avenues for others. If
that be so and if permitting a change in the date of birth is likely to cause
frustration down the line resulting in causing an adverse effect on efficiency
in functioning the employer it may refuse to permit correction in the date at
a belated stage. In any case in such cases interim injunction for continuance
in service should not be granted as it visits the juniors with irreparable injury,
in that, they would be denied promotions, a damage which cannot be repaired
if the claim is ultimately found to be unacceptable. On the other hand, if
no interim relief for continuance in service is granted and ultimately his claim
for correction of birth date is found to be acceptable, the damage can be
repaired by granting him all thoSe monetary benefits which he would have
# 46 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

received had he continued in service. We are, therefore, of the opinion

that in such cases it would be imprudent to grant interim relief.”

Burn Standard Co. Ltd. vs. Dinabandhu Majumdar 1995 Lab LC.
1825 = 1995 (71) F.L.R. 282 = AIR 1995 (SC) 1499 = 1995(4) SCC 172
= 1995(4) JT 23 = 1995(3) Scale 37 = 1995(2) SLJ 441 = 1995(30) ATC
206 = 1995(4) SLR 25 = 1996(1) LLN 96.

8. BONUS

Payment of Bonus Act - S.36 -

Exemption from the provisions of the Act :

Government of Tamil Nadu had issued orders exempting the 1T.N.

Housing Board from all the provisions of the Act. The High Court declared
the impugned order null and void as no opportunity of hearing was given
to the employees by the State.

1998 CLR I SC 132 DB State of Tamil Nadu vs. K. Subanyaj

Customary Bonus

Payment was made at a uniform rate between 1965 and 1973. Such
payment for unbrokén period of nine years has ripened into a claim for
customary or traditional Bonus on the occasion of Pooja Festival. The Court
held that Sec. 17 of the Payment of Bonus Act permits the Company to
deduct the payment made as Customary Bonus from the amount of Bonus
payable under the Act.

Workmen of Kettlewell Bullen & Co. Ltd. vs. Kettlewell Bullen & Co. Ltd.
1995(1) LLJ 1201 = AIR 1994 (SC) 1550 = 1994(2) SCC 357 = 1994(1)
Scale 30 = 1994(1) SLR 323 = 1994 (68) FLR 302 = 1995(2) LLN 40.

Exemption under Sec. 32(V)(C)

Based on the evidence the Court came to the conclusion that although
the Ashram was making profit, making profit was not its primary objective.

The order of the Tribunal declaring that the Ashram was non-profit
making Institution was confirmed.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 47

Swarajya Ashram Karamchari Sangh vs. Swarajya Ashram, Kanpur

1995(1) LLJ 486 = 1994 Supp(2) SCC 392.

Sec. 6(d)

Development rebate or interest paid on bonds or Government Loans

are not reductable from Gross Profits as prior charges as these two items
do not get covered by any one of the clauses from (a) to (c) of Section 6 of
the Payment of Bonus Act.

Maharashtra State Electricity Board vs. Maharashtra Veej Mandal

Kamgar Sangh and another 1999(1) LLJ 348 = AIR 1999 (SC) 2319 =
1999(2) SCC 53 = 1998(6) Scale 557 = 1998(9) JTS7 = 1998(9) Supreme
330 =.1999(2) SRJ 146 = 1998 JT 352 = 1998(10) SLT 285.

9. BUNDH

Bundh - Calling Bundh Unconstitutional :

Disposing of a petition for a declaration that the calling of a BUNDH

was unconstitutional. The Supreme Court opined concept of a bundh by
political parties or organisations can be understood as one where people are
expected not to attend to their work or to travel for any purpose nor to carry
on their trades with a threat held out either express or implied that any
attempt to go against the call for Bundh would result in damage to life and
property. There is clearly a psychological fear instilled into the citizens by
a call for a Bundh which prevents him from enjoying his fundamental nghts.
When a citizen is coerced into not attending to his work or prevented from
going out for his work or from practising his profession or carrying on his
business there is involved a violation of his fundamental right at the
instance of another.

1997 VIJ AD. SC. Bharat Kumar K Palicha & Anr, vs. State of
Kerala.
# 48 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

10. CANTEEN WORKERS

Canteen Employees :

Workers employed in the railway establishments:

(1) In Canteens run under Sec. 46 of the Factories Act;

(1) Non-Statutory recognised Canteens run with the approval of the

Railway Board for establishments employing workmen below 250 and

(i) Non-statutory non-recognised Canteens run for smaller establishments

filed Writ Petitions seeking employment as regular employees of the
Railway Administration.

Held : Having regard to the Provision of Sec. 46 of the Factories Act the
Court decreed that workers in the Recognised Statutory Canteens and Non-
Statutory Recognised Canteens should be treated on par with the other
regular employees of Railway Service. The non-statutory, non-recognised
canteens operated without the approval of the Railway Board were
excluded.
M M R Khan & Ors. vs. Union of India and Ors. 1990(3) JT1 = 1990(4)
SLR 666 = 1990(76) FIR 336 = 1990(1) Scale 324 = AIR 1990 (SC) 937
= 1990 Supp. SCC 287 = 1990(61) FLR 271 = 1990(1) SCR 687.

11. CHILD LABOUR

Sec. 3 and 14 of Child Labour (Regulation and Abolition) Act, 1986 -

S.C. Directions on discontinuance of child labour: In Sivakasi in Tamil
Nadu, which 1s the traditional centre for the manufacture of fireworks there
are 221 registered match factories employing 3000 children. The process
is hazardous, giving rise to accidental injuries including deaths. The S.C.
gave directions to improve the quality of life of the children.

Held: The offending employers must be asked to pay compensation for

every child employed in contravention of the provisions of the Act a sum
of Rs. 20,000/-. Employer’s liability will not cease even if he decides to
disengage the child presently employed. It would be appropriate to have
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 49

such a fund area-wise or district wise. The fund so created will form a
corpus whose income will be utilised for the concerned child. In cases
where a job cannot be provided to an adult, in the family in place of the
child the Employer to pay a sum of Rs.5,000/- for each child who is
disengaged for his education in a suitable institution.

M. C. Mehta vs. State of Tamil Nadu & Ors, 1997(2) LLJ 724 = 1997
CLR 198 = 1997(1) UJ 243 = AIR 1997 (SC) 699 = 1996(6) SCC 756 =
1996(9) Scale 42 = 1996(8) Supreme 450 = 1996(9) AD(SC) 582 =
1997(1) LLN 12.

12. COMPASSIONATE APPOINTMENT

Not to be directed when there is ban on recruitment : When the

husband of the respondent died she made an application for appointment
on Compassionate grounds. On a writ filed by the respondent the High
Court directed the appellant to offer suitable employment as eligible. The
Single Judge confirmed the submission on behalf of the respondent that
due to a ban on recruitment the request could not be considered.

In the appeal it was submitted that due to a serious decline in the work-
order position the appellant was compelled to progressively decrease the
manpower placing a ban on fresh recruitment.

Relying on the earlier decision in the case of Himachal Pradesh Road

Transport Corpn. vs. Dinesh Kumar', it was held that it is not open to the
Tribunal either to direct the appointment of any person to a post or direct
the concerned authorities to create a superannuary post and then appoint
the person to such post.

The Supreme Court however directed that in the event of fresh

recruitment of the application of the respondent shall be given
consideration.

1. 1996(73) FLR 1600 = AIR 1996 (SC) 2226 = 1996(4) SCC 560 = 1996(5) JT 319 =
1996(4) Scale 395 = 1996(4) AD (SC) 469 = 1996(4) Supreme 379 = 1996 SCC (L&S)
1053 = 1996(2) UJ 474 = 1996(2) SCJ 620 = 1996(1) LLN 801 = 1996(4) SLR 246 =
1996(88) FJR 761 = 1996(2) LLJ 760.
# 50 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Hindusthan Aeronautics Ltd. vs. Smt. Radhika Thirmumalai. 1997(1)

LLJ 493 = AIR 1997 (SC) 123 = 1996(6) SCC 394 1996(9) JT 197 =
1996(7) Scale 566 = 1996(7) Supreme 527 1996(7) AD (SC) 809 = 1997(1)
LLN 132 = 1997(90) FIR 472 = 1996(6) SLR 21 = 1997(1),SLJ 105.

Claim after 13 years of death of employee not tenable:

Claimant was only 4 years old at the time his father died in harness.
After attaining majority he filed a wnt petition seeking a direction to appoint
him.

Held : The very object of appointment of dependent of the employee who

dies in harness 1s to relieve unexpected immediate hardship and distress
caused to the family by sudden demise of the earning member of his family.
If compassionate appointment in such cases is permitted it will amount to
another mode of recruitment of the dependant of a deceased Government
servant which cannot be encouraged de hors the recruitment rules.

Jagadesh Prasad vs. State of Bihar 1996(1) SCC 301 = 1995(6) Scale
545 = 1995(9) JT 131 = 1996 SCC (L&S) 303 = 1996(32) ATC 238 =
1996(1) SLR 7(1) = 1996(1) LLJ 1105.

Minor son cannot claim the appointment after 7 years: Normally

compassionate appointments should be made within a period of five years
from the date of occurrence. The measure is to help a family which is left
without a bread winner but where the family was able to pull on for 20 years
the Central Administrative Tribunal acted illegally and wholly without
jurisdiction in directing the authorities to consider the case of the
respondent for appointment on compassionate grounds and to provide him
with appointment.

Union of India & Ors. vs. Bhagwan Singh 1996(72) FLR 782 =
1996(1) LLJ 1127 = 1996(1) LLN 577 = 1996 SLJ 100 = 1996(88) FJR
124 = 1996 SCC (L&S) 33 = 1995(6) SCC 476.
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vw’ > ‘yy * ti“ oe °
 023493
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 51

Not a vested Right :

The Hon’ble Court in Umesh Kumar Nagpal vs. State of Haryana &
Others', held that the very object of the appointment is to relieve
immediate hardship and distress caused to the family by sudden demise
of the earning member. such consideration cannot be binding for years.

Haryana State Electricity Board vs. Naresh Tanwar & Anr. 1996(72)
FIR 815 = 1996(8) SCC 23 = 1996(2) JT 542 = 1996(2) Scale 374 =
1996(2) Supreme 552 = 1996(2) AD (SC) 349 = 1996 SCC (L&S) 816 =
1996(72) FLR 819.

Medical Grounds

Driver retired on Medical Grounds claimed employment for son.

Policy circular provided for such consideration in extreme case of blindness
or person becoming absolutely unfit for Government Job. Unfitness should
be disabling as blindness. Unless employee is declared blind and unfit for
duty no compassionate appointment can be claimed.

Medical Certificate produced by employee does not say he cannot do

light duty - claim for Compassionate Appointment dismissed.

Lal Chand and State of Haryana and Ors. 1999(2) LLJ 1406 =
1999(6) SCC 760 = 1999 SLT 479.

13. CONCILIATION PROCEEDINGS -—

When do Conciliation Proceedings End?

Statutory function of holding conciliation does not come to an end and

Conciliation Officer does not become functus officio as soon as conciliation
is closed since settlement was not possible - Conciliation Officer has
jurisdiction till he submits his report to appropriate Government and he
remains in charge of Conciliation Proceedings - Closure of investigation
by Conciliation Officer would not amount to termination of conciliation
proceedings - Conciliation Proceedings shall be LIBRARTANoncluded
' NATIONAL LAW SCHOOL OF
INDIA UNIVERSITY
1. 1994 (4) SCC 138.
“AGARBHAVI. POST BAG Na 720°
BANGALOR
- 660E
072,
 vGdESO
# 52 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

only when Failure Report of Conciliation Officer is received by

Appropriate Government - Statutory presumption is created by legal fiction
with regard to conclusion of conciliation proceedings - Conciliation
proceedings shall be deemed to have continued till failure report reached
the appropriate Government - Conciliation proceedings would get
terminated only when report reaches appropriate Government - Breach of
Sec. 33(1) during pendency of conciliation proceedings could attract penal
liability - Order of Retrenchment passed without obtaining express
previous permission in writing of Conciliation Officer on closure of
investigation is illegal.

Lokmat Newspapers Pvt. Ltd. and Shankar Prasad 1999(2) LLJ 600
= 1999(3) CLT 79 = 1996(6) SLT 268 = 1999(6) Supreme 104 = 1999(6)
SCC 275 = AIR 1999 (SC) 2423 = 1999(4) Scale 109 = 1999(4) SLR 248.

14. CONDONATION OF DELAY

Limitation runs from the date on which plaint was returned for
submission before proper Court :

The appellant was reverted to the post of Khalasi in Carriage and

Wagon Department. This order was challenged in a regular suit in 1980
and was decreed by the Additional Munsif in November 1981, which was
challenged by Railway Authorities in the Court of District Judge. During
the pendency of appgal, Central Administrative Tribunal Act, 1985 came
into force and the appeal was transferred to CAT, Allahabad. The Tribunal
allowed the appeal and set aside the Judgment and Decree passed by trial
court as it was of the opinion that the suit had not been filed in the proper
Court and directed the plaint to be returned for presentation to the proper
Bench of the Tnbunal for a fresh decision.

Held: The fact remains that the litigative process started by the appellant
in 1980 when he filed the suit, though in a wrong Court within limitation.
Now at this late stage, it will be too much for a poor employee to be driven
out of Court on the ground of limitation, namely that his application before
the Tribunal was beyond time by one and half months or three and half
months. Whatever be the delay in filing the Application before the
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 53

Tribunal, the same is hereby condoned and the order of the Tribunal to
that effect shall be treated to have been set aside.

1999 LIC 172 SC (DB) Ram Ujarey vs. Union of India.

15. CONFIRMATION

Deemed confirmation - Can be claimed after specified period of

probation if employee continues to remain at work : The effect of
permitting the employee to continue in the post even after the end of the
probationary period even without express order of confirmation leads to
the conclusion that the employee has been confirmed in the post. To draw
such a conclusion the Employer should have allowed the employee to
continue in the post. In this case there was no occasion for the employee
to continue in the post as he was absent and not working. The order of
the HC was set aside.

Chief General Manager, S BI & Anr. vs. Bijay Kumar Mishra

1997(2) CLR 846 = 1998(1) LLJ 580.

16. CONSTITUTION OF INDIA

Article 311
The Services of a Government Servant appointed on temporary basis
for three months were terminated as he failed to show any progress in work.
During the period of service he was absent from work. Such employee is
not a regular Government Servant. His position is like that of a probationer
the order of termination is an order of termination simplicitor and therefore
the provisions of Art. 311 will not be attracted.

State of U.P. and Anr. vs. Ram Krishna and Anr. 1999(2) LLJ 950 =
1999(7) SCC 350 = 1999(5) Scale 299 = 1999(6) JT 391 = 1999(7)
Supreme 585 = 1999(7) SLT 268 = 1999(9) SRJ 150.

Art. 16 - Status of employee employed after Superannuation

An employee after Superannuation at age 55 years was allowed to
continue the work. The period after 55 years was treated as re-employment
# 54 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

and no Benefits for such period were given even though subsequent to
his retirement at 55 the age of retirement was raised to 58 years.

Ram Swamy Municipal Council and Anr 1999(1) LLJ 1214.

17. CONTRACT ACT, 1872

Sec. 23 - An agreement with employer not to claim Higher Salary on

Promotion contrary to Law :

An agreement between the parties to the effect that a person would

not claim higher salary or other attendant benefits would be contrary to Law
and against Public Policy.

1998 FLR (79) 657 SC (DB) Secretary cum Chief Engineer,

Chandigarh vs. Hari Om Sharma & Ors.

18. CONTRACT LABOUR

Employees of statutory canteen are workmen of the establishment for

the purpose of the Factories Act only :

The workmen employed in the canteen of the appellants filed wnt

petition before the High Court, Bombay, for a declaration that they are
regular workmen of the management and be absorbed from their date of
joining with consequential benefits retrospectively. According to workmen,
the factory of the appellant Management is governed by the provisions of
the Factories Act and as such the said workmen are the regular workmen
of the management. Workmen contended that the very fact that the
management was required to statutorily provide canteen itself was sufficient
to come to the conclusion that the workmen so employed to provide canteen
facilities would become the regular employees of the principal employer.

Held: The Factories Act does not govern the nght of employees with
reference to recruitment, seniority, promotion, retirement benefits etc.
These are governed by other statutes, rules, contracts or policies.
Therefore, the workmen’s contention that employees of a statutory canteen
ipso facto become the employees of the establishment for all purposes
cannot be accepted. However, considering the following factorsit was
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 55

held that the respondent workmen are in fact the workmen of the appellant
Management based on the following considerations:

1. The canteen has been there since the inception of the factory.

2. The workmen have been employed for long years and despite change
of contractors, the workers have continued to be employed in the
canteen. |

3. The premises, furniture, fixture, fuel, electricity, utensils etc. have been
provided for by the appellant management.

4. The wages of the canteen workmen have been reimbursed by the

Management.

5. Supervision and contract of the canteen is by appellant through its

authorised officer.

6. Contractor is nothing but an agent or a manager of the appellant who

works completely under supervision, control and direction of the
appellant.

7. The workmen have the protection of continuous employment in the

establishment.

The contention of the management that there is no abolition of contract

labour in the canteen of the appellants' establishment would have had some
substance if in reality the management had engaged a contractor who was
wholly independent of management. However, in the background of the
finding that the contractor is engaged only for the purpose of record and
for all purposes the workmen are in fact the workmen of the management,
the appeal of the management fails. (Case law discussed and
distinguished).

(SC (Three Judge Bench), Jndian Petro-chemicals Corporation Ltd.

& Anr. vs. Sharmik Sena & Ors. 1999(II) CLR 634 = 1999(2) LLJ 696 =
1999(6) SCC 439 = 1999(4) Scale 432 = AIR 1999 (SC) 2577 = 1999(5)
JT 339 = 1999(8) SRJ 202 = 1999(6) Supreme 542 = 1999(6) SLT 579.
# 56 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

S. 10 - Contract Labour with overall control of contract, absence of

licence, entitled for regularisation with 240 days of service :

In order to keep the plants and stations clean, the Appellant Board
awarded contract to one Kashmir Singh to engage minimum 42 Safa
Karmacharis. Labour Court passed an award that the workmen are entitled
to reinstatement with continuity of service with 10% back wages. High
Court directed reinstatement without back wages. Hence the appeal.

Held : The maintenance work of the appellant Board cannot by any stretch
be ascribed to be of a seasonal nature but continued effort to achieve the
purpose of its existence in terms of statute. The number of employees
required for such purpose had been specified in the contract itself and
supervision, maintenance of attendance record by the Board have not been
disputed. Documents as disclosed before Labour Court depicts overall
control of the workings of the contract labour including administrative control
being with the Board. If it was a genuine contract system, then obviously
it had to be abolished as per S.10 of the Contract Labour (Regulation and
Abolition) Act after following the procedure laid down therein. However,
on the facts of the present case, the Labour Court and High Court found
that the so-called contractor was a mere name lender and had procured
labour for the Board from open Market. He was almost a broker or agent
of the Board from open market of the Board for that purpose. It has to be
held that factually there was no genuine contract system prevailing. There
is no merit in these appeals and the appeals therefore fail.

Secretary, Haryana State Electricity Board vs. Suresh & Ors.

Etc.1999(1) CLR 959 = 1999(3) SCC 601 = AIR 1999 (SC) 1160 =
1999(2) Scale 315 = 1999(2) JT 435 = 1999 (3) Supreme 277 = 1999(2)
SLR 1 = 1999(3) SLT 353 = 1999(1) LLJ 1086 = 1999(1) SCJ 695.

Contract Labour (Regulation & Abolition) Act, 1970 - Sec. 10 - On

abolition of contract labour principal employer is under statutory
obligation to absorb contract labour :

Held : On abolition of the Contract Labour System, by necessary

implications, the principal employer is under statutory obligation to absorb
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 57

the contract labour. The linkage between the contractor and his employees
stood snapped and direct relationship stood restored between principal
employer and the contract labour as its employees. Considered from this
perspective all the workmen in the respective services working on contract
are required to be absorbed in the establishment of the appellant. Since
after the contract labour gets into the service of the principal employer the
Union of the existing employees may not espouse their cases for reference
under Sec. 10 of the I.D. Act and the workmen may be kept out of job to
endlessly keep watching for award and thereafter resulting in further delay
in enforcement. The management would always keep them at bay for
absorption.

The Court’s earlier decision in Gujarat Electricity case considered

unsatisfactory.

Air India Statutory Corpn. vs. United Labour Union & Ors. 1997(1)
CLR 297 = 1997(1) LLJ 1151 = 1996(11) JT 109 = AIR 1997 (SC) 645 =
1996(11) JT 109 = 1996(9) Scale 70 = 1996(9) AD (SC) 491 = 1997(1)
LLN 75 = 1997(90) FJR 125 = 1996(6) SLR 233 = 1997(2) Supreme 165

Contract Labour (R & A) Act, 1970, Sec. 21(4):

Company not responsible for arrears of wages if contractor fails to

pay the agreed wages. Security Guards engaged through a Security agency
on fixed salaries agreed by the agency were being paid less than the agreed
amount. The agency was directed to pay the balance between the amount
paid by the Contractor and the wages paid by the company to its own
security staff. It also directed that in the event of the contractor failing to
make the payment the company was directed to pay it to the Contract
Labour and thereafter recover the amounts.

The term ‘Wages’ for the purpose of Sec. 21 of the Act means
contractual wages which are payable under the terms of employment as
between the contractor who is the employer and the Contract Labour who
are his employees.
# 58 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

There is no provision under these rules by which the principal

employer is made liable for payment in the event of non-compliance by
the Contractor.

Hindusthan Steel Construction Ltd. vs. The Commissioner of Labour,

A.P. 1997(1) LLJ 656 = 1997 SLJ 207 = 1997(1) UJ 115 = 1996(10) SCC
599 = 1996(7) JT 592 = 1996(6) Scale 346 = 1996(6) Supreme 663 =
1996(5) SLR 650 = 1996(74) FLR 2151 = 1996(2) LLN 1068 = 1996(6)
AD (SC) 747 = 1996 LIC 2520.

Abolition under Sec. 10 of the Act :

A number of Catering cleaners working in the Catering

Establishments at various Railway Stations on the Southern Railway and
in pantry cars attached to trains alleged that though they had been agitating
for the abolition of contract system they had been compelled to approach
the Supreme Court for intervention. They prayed for a directive to the
Central Govt. to exercise its powers under Sec. 10 of the Act, abolish the
Contract System and regularise their services as regular employees of the
Railway. The Southern Railway however pleaded that as the work was
fluctuating and intermittent it was not found possible to abolish the system.
It was also contended that once made permanent it would not be possible
to supervise their work effectively.

The Supreme Court held that the Southern Railway had only made
vague and general statements unsupported by facts or figures. Although,
all the other Railways had abolished the Contract System Southern
Railway had failed to do so.

Even though all the relevant factors mentioned in Section 10(2) of

the Contract Labour (Regulation and Abolition) Act for abolishing the
system were satisfied, the Court opined it was unable straightway to issue
a mandamus directing the Central Government to abolish the Contract
System. Parliament having vested in the appropriate Government the
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 59

power to prohibit the system the Court will not be justified in issuing a
mandamus as prayed for until the Government refuses or fails to exercise
the power.

Catering Cleaners of Southern Railway vs. Union of India 1987(70)

FJR 424 = 1987(1) SCC 700 = 1987(2) SCR 164 = AIR 1987 (SC) 777 =
1987(1) JT. 376 = 1987(1) CCC 591 = 1987(1) LLJ 345 = 1987(1) LLN
480 = 1987 (54) FLR 476 = 1987(2) SLJ 23 = 1987 LIC 619 = 1987(1)
Scale 240 = 1987(1) UJ 560.

Whether excluding loading and unloading of Bricks was in order :

The Government of West Bengal had issued a notification under

Section 10(1) of the Contract Labour (Regulation & Abolition) Act
abolishing Contract Labour in certain Departments of Steel Plant. By the
Notification ‘Loading and Unloading of Bricks from Wagons and Trucks’
in the Bick Department was excluded from the beneficial provisions of the
notification. The Notification was challenged.

Held that:

(1) the Act is an important piece of Social Legislature for the welfare of
Labour and has to be liberally interpreted

(11) that the bricks handled by the Company are used in furnaces in the
Steel Plant refractories and therefore, the work of the Brick
Department including the loading and unloading of bricks was
incidental to the Industry carried on by the Company so there was
no justification to treat the Contract Labour engaged differently and
denying them the nght to regular employment; and

(111) that the purchase of bricks, transportation to the factory, unloading

and stacking them are the jobs in one continuous process. That being
so the workmen performing the jobs are to be treated alike.
# 60 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Therefore, there was no justification for excluding the job of loading

and unloading from the purview of the notification.

Sankar Banerjee & Ors. Union of India and Ors. 1990(2) LLJ 440.

19. CONTRACT OF SERVICE

Termination of service as per clause for termination of service is valid:

Termination of Service based on a contract and the appointment which
was the result of the agreement between the parties is clearly in terms of
the contract of service.

~ The Supreme Court declared that the earlier judgments in the case of
Central Inland Water Transport Corpn. vs. Bojonath Ganguly ' as approved
by Constitution Bench in Delhi Transport Corpn. vs. D T C Mazdoor
Congress* not applicable to case in hand.

Brig. S Ramachandran vs. Hyderabad Allwyn Metal Works Ltd.,

Sanatnagar 1996(2) LLJ 741 = 1995 Supp (3) SCC 674 = 1996 SCC (L&S)
105 = 1996(2) LLN 879.

20. COMPANIES ACT, 1956

S. 630 - The dispute about failure to handover possession of rent-free

furnished flats is of civil nature :

The appellant was allowed to use a flat till he remained with ABC.
On ceasing to be Managing Director of the Company, he was called upon
to handover possession of the flat. He did not comply with the request.
ABC lodged a complaint under S. 630 of the Companies Act, 1956 and
Ss. 406, 408 and 409 of the Indian Penal Code. The Magistrate discharged
the appellant holding that the dispute between the parties is of civil nature.

1. 1986(2) CCC 335 = 1986(3) SCC 156 = 1986(2) SCR 278 = 1986(2) LLJ 171 = AIR
1986 (SC) 1571 = 1986(60) CC 797 = 1986(2) LLN 382 = 1986(53) FLR 523 = 1986(2)
SLJ 320 = 1986 (69) FIR 171 = 1986(2) SLR 345 = 1986(1) Scale 799 = 1986 LIC 1312
= 1986 ATC 103 = 1986(3) Comp LJ.
tO1991 I LLJ 395 = AIR 1991 (SC) 101 = 1990 Supp.(1) SCR 142 = 1991(1) LLJ 395 =
1991(1) ATR 1 = 1991(79) FIR 1 = 1991 Supp(1) SCC 600 = 1990(3)JT 725 = 1991(1)
LLN 27 1991(1) UJ 637 = 1991(2) ATR 604 = 1991(2) SLR 378
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 67

In appeal, High Court held that the material on record discloses a prima
facie case under S. 630 of the Companies Act and therefore the Magistrate
acted illegally in discharging the accused. With these observations, the
matter was left to Magistrate on remand for disposal. In appeal, the
appellant contended that the High Court has wrongly held that the said
appellant is wrongly withholding the property of the complainant
Company.

Held: After going through the material on record and the judgment of the
High Court, we are of the view that the High Court should not have
interfered with the order of discharge passed by the Magistrate. The dispute
between the parties is of civil nature and that in view of the facts and
circumstances of the case, it is not possible to say that the appellant has
wrongfully withheld the property of ABC.

1999(1) LLJ 275 Jagdish Chandra Nijhaman vs. S.K. Saraf.

21. DEPARTMENTAL PROCEEDINGS AND CRIMINAL

PROCEEDINGS

In Departmental proceedings and criminal proceedings are based on

identical facts and evidence, departmental proceedings cannot be
proceeded with :

The appellant charge sheeted for being in possession of material

belonging to the Company denied the allegations as concocted. In the
meantime the Company filed an FIR. The appellant requested that the
departmental proceedings may be dropped or postponed till the conclusion
of the criminal proceedings. The appellant then requested postponment of
the enquiry on health ground but the company proceeded with the enquiry
ex-parte,

In the criminal case the appellant was acquitted with a categorical

finding that the prosecution had failed to establish the case. Appellant
challenged the order of the Company terminating his appointment.

The single Judge set aside the order of dismissal. The D.B. set aside
the order of the single Judge. ”
# 62 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Held: Since the facts and evidence in both the proceedings were the same
without there being any iota of difference the distinction which 1s usually
drawn as between the departmental proceedings and the criminal case on
the basis of approach and burden of proof would not be applicable to the
instant case.

Capt. M. Paul Anthony vs. Bharat Gold Mines 1999(1) CLR 1032.

Circumstances for Stay of criminal proceedings

Analysing its earlier decisions in the cases of Delhi Cloth and General
Mills vs. Kushal Bhan' Tata Oil Mills Company Ltd. vs. Workmen* Jang
Bhadur Singh vs. Baig Nath Tiwari* and Kusheshwar Dubey vs. Bharat
Coking Coal Ltd.* the Supreme Court answered the question in the
following terms:

“Tt would be evident from the above decisions that each of them starts
with the indisputable proposition that there is no legal bar for both
proceedings to go on simultaneously and then say that in certain situations,
it may not be “desirable”, ‘advisable’ or ‘appropriate’ to proceed with the
disciplinary enquiry when a criminal case is pending on identical charges.
The staying of disciplinary proceedings, it is emphasised, is a matter to
be determined having regard to the facts and circumstances of a given case
and that no hard and fast rules can be enunciated in that behalf. The only
ground constituting a valid ground for staying the disciplinary proceedings
is “‘that the defence of the employee in the criminal case may not be
prejudiced.” This ground has, however, been hedged in by providing further
that this may be done in cases of grave nature involving questions of fact
and law, It means that not only the charges must be grave but that the
case must involve complicated questions of law and fact. Moreover,

1. AIR 1960 SC 1960(3) SCR 227 = 1960 SCJ 711 = 1960-61(19) = 1960-61(19) FIR 183 =
1960(1) LLJ 520.
Nm . AIR 1965 SC 155 1964(7) SCR 555 = 1964(9) FLR 142 = 1964-65 (26) FJR 199 = 1964
LLJ 113.
Ww . AIR 1969 SC 30 = 196991) SCR 134 = 1969 LIC 194 = 1969 CrLJ 267 = 1969(1) LLJ
567 = 1969(36) FIR = 1968 CAR 184 = 1968(17) FLR 300.
> . AIR 1988 SC 2118.
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 63

‘advisability’, ‘desirability’ or ‘propriety’ as the case may be, has to be

determined in each case taking into consideration all the facts and
circumstances of the case. The-ground indicated in D.C.M.' and Tata
Oil Mills* is not also an invariable rule. One of the contending
consideration is that the disciplinary enquiry cannot be - and should not
be - delayed unduly. So far as criminal cases are concerned, it is well
known that they drag on endlessly where high officials or persons holding
high public offices are involved. They get bogged down on one or the
other ground. They hardly ever reach a prompt conclusion. That is the
reality in spite of repeated advise and admonitions from this Court and
the High Courts. If a criminal case is unduly delayed that may itself be a
good ground for going ahead with the disciplinary enquiry even where
the disciplinary proceedings are held over at an earlier stage. The interests
of administration and good Government demand that these proceedings
are concluded expeditiously. It must be remembered that interests of
administration demand that undesirable elements are thrown out and any
charge of misdemeanour is enquired into promptly. The disciplinary
proceedings are meant not really to punish the guilty but to keep the
administrative machinery unsullied by getting rid of bad elements. The
interest of the delinquent officer also lies in a prompt conclusion of the
disciplinary proceedings. If he is not guilty of the charges, his honour
should be vindicated at the earliest possible moment and if he Is guilty,
he should be dealt with promptly according to law. It is not also in the
interest of administration that persons accused of serious misdemeanour
should be continued in office indefinitely, i.e. for long periods awaiting
the result of criminal proceedings. It is not in the interest of administration.
It only serves the interest of the guilty and dishonest. While it is not
possible to enumerate the various factors, for and against the stay of
disciplinary proceedings, we found it necessary to emphasise some of the
important considerations in view of the fast that very often the disciplinary
proceedings are being stayed for long periods pending criminal

1. AIR 1960 SC 806 = 1960(3) SCR 227 = 1960 SCJ 711 = 1960-61(19) FJR 183 = 1960(1)
LLJ 520.
_ AIR 1965 SC 155 1964(7) SCR 555
to 1964(9) FLR 142 = 1964-65(26) FJR 199 = 1964
LLJ 113.
# 64 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

proceedings. Stay of disciplinary proceedings cannot be, and should not

be, a matter of course. All the relevant factors, for and against, should be
weighed and a decision taken keeping in view the various principles laid
down in the decisions referred to above.
We are quite aware of the fact that not all the disciplinary proceedings
are based upon true charges; some of them may be unfounded. It may also
be that in some cases, charges are levelled with oblique motives. But these
possibilities do not detract from the desirability of early conclusion of these
proceedings. Indeed in such cases, it 1s all the more in the interest of the
charged officer that the proceedings are expeditiously concluded. Delay in
such cases really works against him.

State of Rajasthan vs. B.K. Meena 1997(1) LLJ 746 = 1996(2) LLN
1269 = 1997(1) SLJ 86 = AIR 1997 (SC) 13 = 1996(6) SCC 417 = 1996(8)
JT 684 = 1996(7) Scale 363 = 1996(7) Supreme 432 = 1996(5) SLR 713
= 1996(7) AD (SC) 321 = 1996(2) UJ 739 = 1997 (90) FIR 280.
22. DEPENDENT
Dependant means one who is financially and physically dependant:

A Govt. Pensioner living with his son developed a serious heart ailment
and advised cardiological investigations. The medical expenses were not
reimbursed. The respondent approached the Tribunal seeking relief which
directed the 2nd respondent to reimburse the expenses. The appellant
contended that being a retired Government Servant the father was not entitled
to rermbursement of the medical expenses.

The Supreme Court held - the expression “wholly dependant” has to

be understood in the context in which it is used keeping in view the object
of the Rule. Ordinarily dependence means financial dependence but for
member of a family it would mean physical as well. To be wholly dependent
would therefore, include both financial and physical dependence. By
getting a pension of paltry Rs. 414/- P.M. it could not be said that the
family was not wholly dependent on the Son.

State of Madhya Pradesh vs. M P Ojha & Anr. 1998(1) CLR 399 =
1998 (93) FIR 465 = 1998(2) SCC 554 = 1998 AIR (SC) 659 = 1997(10)
JT 351 = 1997(7) Scale 776 = 1998(1) Supreme 85 = 1998(1) SLR 232.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 65

23. DIRECT RECRUITS

Direct recruits - cannot be placed on the same pedestal as the officers

working in Bank :

The Bank has granted certain incentives to Officers who were

transferred to the Eastern Region of the Bank. This was not to the liking
of Direct Recruits who filed a Writ Petition in the High Court which
allowed their prayer.

Supreme Court held that Direct Recruits cannot be placed on the same
pedestal as the Officers already working in the Bank. In not granting the
incentives to the directly recruited officers Article 14 of the Constitution
has not been violated.

United Bank of India vs. Meenakshi Sundaram & Ors. 1998 LLR
201 = 1998(2) SCC 609 = AIR 1998 (SC) 789 = 1998(1)JT 179 = 1988(1)
Scale 145 = 1998(2) SLT 356 = 1998(1) Supreme 276 = 1998 (78) FLR
532 = 1998(1) SLR 471 = 1998(1) LLJ 1050.

24. DISCIPLINARY PROCEEDINGS

Dismissal for remaining on hunger strike is grossly disproportionate:

The short question whether the punishment of dismissal from service

on the ground that he had remained on hunger strike for one day 1s grossly
disproportionate or not.

Held: Looking to the facts and circumstances of the case that he remained
absent for one day on hunger strike for opposing his transfer it could not
have been said that it required punishment of dismissal from service.
Consequently, interest of justice will be served if the order of dismissal
is set aside and instead the appellant is ordered to be reinstated in service
with only 50% of back wages as we are told that since 1991 till date he is
out of job. The appellant shall also file a written apology for what he
had done on the fateful day and must undertake to be transferred to any
place to which he is ordered to be transferred by the competent authority.
# 66 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

The appellant shall also be warned to behave in a more disciplined manner

in future.

Ram Avtar Singh vs. State Public Service Tribunal & Ors. 1998(81)
FLR 523 = 1998(9) SCC 666.

Discharge from service for abusing and threatening supervisor is not

shockingly disproportionate :

Respondent, a Badli workman entered the office of the Dy. Manager,

abused and threatened him and said he did not care even if he has to go
to jail for murder of four or five officers. Domestic Enquiry was held
and the Badli was discharged.

Although the Labour Court agreed that the enquiry was legal and
proper ordered his reinstatement with 40% back wages. High Court upheld
the order.

Held: Supreme Court held that the Badli could have been dismissed instead
he was discharged. Lesser punishment having been given by the Company
itself there was no justification for the Labour Court to set aside the
management’s order. The direction of the Labour Court ordering
reinstatement with 40% back wages was clearly unwarranted.

New Shorrak Mills vs. Maheshbhai T. Rao 1997(1) LLJ 1212 =

1997(1) SLJ 125 = AIR 1997 (SC) 252 = 1996(6) SCC 590 = 1996(9) JT
635 = 1996(7) Scale 791 = 1996(7) Supreme 734 = 1996(74) FLR 2749
= 1996(8) AD (SC) 104 = 1997(1) LLN 69 = 1997(90) FJR. 1.

Dismissal - Participation in a peaceful demonstration Dismissal not

justified : The Three appellants, members of the Police force along with
27 others went in a procession after duty hours; inspite of prohibitory
orders, to represent their grievances to the Supreme Court enquiry was
conducted against them charging them with grave misconduct under Rule
16(2) Punjab Police Rules and they were dismissed from service.

That the appellants are no doubt disciplined members of police force.

The grievance of inadequate accommodation and facilities were also
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 67

genuine. Under the circumstances it cannot be held that they have

committed misconduct warranting extreme penalty of dismissal from
service. However, penalty of stoppage of one increment without
cumulative effect was recommended.

Bishan Singh & Ors. vs. State of Punjab & Anr. 1997(1) LLJ 926 =
1997(1) SLJ 239 = 1996(10) SCC 461 = 1996(9) JT 694 = 1996(7) Scale
155 = 1996(7) Supreme 482 = 1996 CLT 135 (SC) = 1996(74) FLR 2751
= 1996(8) AD (SC) 8 = 1996(3) SLR 666.

Civil Court has no jurisdiction to substitute punishment : The

Disciplinary authority imposed stoppage of increments with cumulative effect
and withheld payment of arrears of salary for the suspension period. The
Tnal Court dismissed the suit.

Held: The Civil Court has no jurisdiction to substitute the punishment

imposed by the disciplinary authority.

State of Punjab & Ors. vs. Surjit Singh 1996(2) LLN 254.

Punishment : Dismissal for using abusive language

Appellant in charge of the sub-jail facilitated one industrial prisoner

to drink alcohol before he was taken to the court and absued the Superior
Officer and created an ugly scene. The first charge was not proved but the
second charge was partly proved.

While examining whether dismissal is proportionate to the gravity of

the imputation—

- . The abusive language used against the Superior must be understood

in the environment in which that person is situated and the
circumstances surrounding the event that led to the use of the abusive
language.

- No straight jacket formula could be evolved in adjudging the abusive

language in the given circumstances would warrant dismissal from
Service.
# 68 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Each case has to be considered on its own facts.

The Hon’ble Court considered the imposition of the punishment of

dismissal as harsh and imposed stoppage of two increments.
Ram Kishan vs. Union of India & Ors. 1996(1) LLJ 982 = 1995(71)
FLR 929 = AIR 1996 (SC) 255 1995(6) SCC 157 = 1995(7) JT 43 =
1995(5) Scale 431 = 1995(6) SLR 52 = 1996(1) LLN 14.
Failure to report for duty after expiry of Leave - Termination without
holding Domestic Enquiry : The workman applied for 20 days Leave
which was granted. He did not report for duty after the expiry of Leave.
By a memo issued under Clause XII of the Certified Standing Orders
management informed him that he had lost lien and terminated his
appointment. The workman claimed that he had submitted an application
for extension of Leave which was disputed by the management. The
workman raised a dispute. The Labour Court recorded evidence on behalf
of the workman and the management and found the management was
justified and that the workman was not entitled to reinstatement.
Upholding the Labour Court decision the Judge restricted the back wage
to 50% as the workman had failed to explain the delay in raising the
dispute.

Held: 1) The termination of service without a letter of Show Cause or

Domestic Enquiry and without allowing the workman opportunity to
explain was wrong.
2) The order of termination for continued absence from duty without
seeking extension was without initiating disciplinary proceedings and
therefore fell within the meaning of ‘retrenchment’ as defined under Sec.
2(00). Admittedly Sec. 25F of the I.D. Act had not been complied with.
On this ground too the termination stood vitiated.

However, as the management had produced evidence before the

Labour Court to the satisfaction of the Court and as the Court had
considered the action neither arbitrary or perverse the workman was not
entitled to reinstatement.

General Manager, Visweswarayya Iron & Steel Ltd. and others, 1999
(94) FJR 20.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 69

Dismissal - For overstaying leave by 12 days harsh.

The punishment of dismissal for overstaying the period by 12 days

on account of unexpected circumstances which were not controverted was
declared harsh. It was not the employees intention to wilfully flout the orders
but the circumstances forced him to do so. It was open to the authority to
impose a minor punishment.

(Union of India and Guniraj Sharma, 1999(1) LLJ 604.

Disciplinary action - (Punishment of dismissal for unauthorised

absence is harsh)

The petitioner was unauthorisedly absent. When he tried to resume

his duties thereafter, he was placed under suspension. After a departmental
enquiry he was dismissed from service. The Tribunal took the view that
punishment meted out to the appellant was grossly disproportionate.

Held : The punishment of dismissal from service is too harsh and on the
contrary it is required to be substituted by appropriate lesser punishment.
Ends of justice wit -be served if the order of dismissal is set aside and instead
of reinstatement with continuity of service with all other benefits 50% of
back wages from the date of dismissal is directed. This punishment which
will involve substantial monetary loss to the appellant will meet the ends of
justice and will be a sufficient corrective measure for the appellant.

Syed Zaheer Hussain vs. Union of India & Ors. 1999(81) FLR 704
= 1999(1) JT 367 = 1999(1) LLJ 876.

Disciplinary proceedings - Punishment for offence of forgery is

dismissal :

A clerk employed by the Municipality was alleged to have

misappropriated Rs. 1548.78 p. by falsifying accounts. The municipal
committee dismissed the respondent. The Director of Local Bodies
reduced it to stoppage of four increments.

An appeal to the High Court and the Commissioner were dismissed,

In appeal the Supreme Court held that
#70 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

the respondent has been convicted of a serious crime. In a case of such

nature indeed in cases involving corruption there cannot be any other
punishment than dismissal.

- The amount misappropriated may be small or large it is the act of

misappropriation that is relevant.

Municipal Committee Bahadurgath vs. Krishna Behari & Ors. 1996

CLR 667 = AIR 1996(SC) 1249 = 1996(2) SCC 714 = 1996(3) JT 96 =
1996(2) Scale 698 = 1996(2) Supreme 708 = 1996(3) AD(SC) 34 = 1996
SCC (L&S) 539 = 1996 LIC 1056 = 1996 (33) ATC 238 = 1996(1) UJ
799 = 1996(2) CLT 196 = 1996(73) FLR 1429 = 1996(5) SLR 381 =
1996(2) LLN 881.

Disciplinary proceedings - (Termination for effecting forgeries is not

shockingly disproportionate punishment).

The respondent when asked to get his Service Book completed, was
found to have obtained the same by forging the signature etc. on it. After
holding an enquiry, he was terminated. The Gujarat Secondary Education
Tribunal held that the charges were proved, but took a lenient view of
stopping his one increment rather than terminating him, which was increased
to two increments by Gujarat High Court. Hence the appeal.

Held: There was really no justification for the Tribunal to interfere with
the discretion exercised by the School Management. The acts committed
by him constituted not only a serious misconduct but also a serious
criminal offence. We therefore, allow this appeal and set aside the order
passed by the High Court and Tribunal.

Sanchalakshri & Anr. vs. Vijayakumar Raghuvirprasad Mehta & Anr.

1999(1) CLR 31

Dismissal - When it is considered unfair labour practice:

Respondents found sleeping in the early hours while the machines
kept running without proper raw material inserted therein were dismissed.
The Labour Court, the Industrial Court as well as the High Court awarded
them reinstatement. ,
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #77

The Supreme Court in the appeal held that if a person is made to

suffer by some exceptional treatment it would amount to victimisation.
Even where a charge is proved if the punishment imposed is found to be
grossly disproportionate in the light of the nature of misconduct or the
past record of employee concerned involved in the misconduct or the
punishment is such that no reasonable employer would ever impose in like
circumstances inflictment of such punishment itself could be treated as
victimisation.

Colour Chem Ltd. vs. A L Alaspurkar 1998(3) SCC 192 = AIR 1998
(SC) 948 = 1998(1) JT 455 = 1998(1) Scale 432 = 1998 (2) SLT 497 =
1998(78) FLR 625 = 1998(2) Supreme 127 = 1998(1) SLR 757 = 1998(1)
LLJ 694.

Dismissal - Workmen filing Civil Suit claiming relief of reinstatement

The employee was dismissed from Service for misconduct. He

contended that the Order of Dismissal was contrary to the Standing Orders
framed under the Industrial Employment (Standing Orders) Act, 1946 and
was therefore null and void. He filed a suit before the Munsiff’s Court
claiming relief of back wages and injunction not to give effect to the order
of dismissal. The Trial Court held that it had jurisdiction to try the case.
The High Court however, held that the nature of relief was such as could
be granted under the Industrial Disputes Act and the Civil Court had no
jurisdiction to try the Suit.

The Supreme Court held that:

A contract of employment for personal service cannot be specifically

enforced except under the Industrial Law, Under the Law of Contract and
the Civil Law, an employee whose services are terminated could not seek
the relief of reinstatement or back wages. At best such an employee can
seek thereunder only the relief of damages of breach of contract.

Moreover, in view of the clear language of Section 10 read with

Section 12(5) of the Act an adequate remedy was available to the appellant
 #72 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

under the Scheme of Industrial Disputes Act itself, which provided for
the reliefof reinstatement sought before the Civil Court by filing a suit.
Therefore, the Civil Court has no jurisdiction in the matter.

J N Biswas vs. Empire of India & Ceylon Tea Co., 1989 (75) FLR
267 = 1989(11) LLJ 512.

Act committed outside results in subversion of discipline or good

behaviour within the premises or precincts of the establishment:

A workman of Indian Cardamom Research Institute reported for work

at 6.45 P.M. whereas his regular duty started from 5 P.M. onwards. When
his superior and Asst. Director of the establishment asked the reason for
the same, the workman shouted at him in a very abusive language and
threatened him. The following day while the superior was waiting for
the bus at the Bus stop, the workman came there and abused him in foul
language and threatened him. It continued for half-an-hour till he boarded
a bus. In pursuance of the charges, a domestic enquiry was conducted.
The workman participated initially and thereafter boycotted the enquiry.
Enquiry Officer found him guilty of the charges levelled against him.
Considering the nature and seriousness of the charges, the workman was
dismissed from service.

The Industrial Tribunal, found the findings of the enquiry officer

- proper. The tribunal considered the seriousness of the charges and found
that dismissal was justified. When the matter was taken in appeal the High
Court against the Order of the Court confirmed the Award of the Industrial
Tribunal and dismissed the writ petition. It ruled that an act wherever
committed has effect of subverting discipline or good behaviour within
the premises or precincts of the establishment and amounted to misconduct.

Undumbanchola Estate Workers Union vs. Indian Cardamom

Research Institute, 1998(1) LLJ 834.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 73

Issue of charge memo:— The charge memo could be issued by the

Controlling Authority and not necessarily by the appointing/disciplinary
authority.

Steel Authority of India and anr. vs Dr. R K Diwakar and others

1998(1) LLJ 344.

Service of Charge Sheet by Registered Post :

The employee was removed from service for absenting

unauthorisedly. The Charge Sheet sent to him by post was returned with
the postal endorsement “not found”. The Tribunal in its order found the
service of Charge Sheet and the Show Cause Notice insufficient and
therefore set aside the Order removing the employee from service.

The Division Bench of the Supreme Court where the appeal was filed
declared that where a letter was sent by post and the postal authorities could
not deliver it to the addressee it cannot be legally treated to have been served.
The Company could have made further efforts to serve the Charge Sheet
on the Respondent. One single effort cannot be treated as sufficient. Where
the Notice is published in the Newspaper it should be ensured that it is a
popular Newspaper and which it was expected to be read by the public in
general and that it had wide circulation in the area or locality where the
Respondent lived.

Since the very initiation of the Disciplinary Proceedings was bad for
the above reasons and as the Charge Sheet had not been served all
subsequent efforts including the issuance of the Show Cause Notice were
declared bad.

Union of India & Ors. vs. Dinanath Shantaram Karekar & Ors.
1998(2) LLJ 748 = AIR 1998(SC) 2722 = 1998(6) JT 1 = 1998(4) Scale
659 = 1998(7) SLT 124 = 1998(6) Supreme 534.

Authority higher than appointing authority only can impose penalty:

Disciplinary action was initiated against the petitioner and others for
dereliction of duty and for failure to submit their report truthfully.
# 74 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

In the normal course the Managing Director being the appellate

authority should not pass the order of punishment so as to enable the
delinquent employee to avail the right of appeal. It is well-settled legal
position that an authority lower than the appointing authority cannot take
decisions in the matter of disciplinary action. But there is no prohibition
of Law that the higher authority should not take the decision or impose
the penalty. If by such action the nght of appeal is denied to the delinquent
prejudice may be caused to him. In this case as right of appeal was provided,
the decision was in order.

Balbir Chand vs. Food Corpn. of India & Ors. 1998 (79) FLR 494

Preliminary enquiry and enquiry conducted after issue of charge sheet

not same:

Petitioner misappropriated money deducted from the employees and

failed to deposit it until he was asked to do so. He was removed from
service.

Petitioner alleged that the preliminary enquiry had not been conducted
properly and submitted that it had been vitiated as the principles of Natural
Justice had not been complied with.

The Court held that the Preliminary Enquiry has nothing to do with
the Enquiry held after issue of charge sheet. Preliminary Enquiry is held to
find out if a full-fledged Disciplinary Enquiry should be initiated. After a
full-fledged enquiry is held the preliminary enquiry loses its importance.

Narayan Dattaraya Ramteerthakar vs. State of Maharashtra 1997

(76) FLR 976 = 1997(9) Scale 1 = 1996(9) AD (SC) 305 = AIR 1997 (SC)
2148 = 1997(1) SCC 299 = 1996(3) SLR 778.

Non supply of enquiry report to employee is not illegal:

Respondent was employed in a Bank. A sum of Rs. 20,000/- was

found short. Disciplinary proceedings were initiated, and based on an
enquiry conducted he was removed from service. His appeal challenging
the dismissal was dismissed. Relying on the Judgment of the Constitution
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 75

Bench in Managing Director, E C 1 L, Hyderabad & Ors. vs. B. Karunakar

& Ors., the petitioner contended that supply of copy of the enquiry report
is a precondition for a competent officer to take disciplinary action.

The learned Single Judge as well as the Divisional Bench asked the
respondent as to what prejudice he suffered on account of non-supply of
the enquiry report. The High Court came to the conclusion that though
copy of the report was not supplied on the facts as no prejudice was proved
it did not warrant interference. The Supreme Court held that there was
no illegality in the decision of the High Court.

S K Singh vs. Central Bank of India 1996(74) FLR 2632 = 19906(6)

SCC 415 = 1996(9) JT 542 = 1996(7) Scale 587 = 1996(2) UJ 831 =
1996(9) AD (SC) 283 = 1997(75) FLR 402 = 1997 (1) LLJ 537 = 1997(1)
SLJ 235 = 1997(1) BC 1 = 1997(S) Supreme 527.

Domestic Enquiry

Where the documents mentioned in memo of charge are neither

relevant nor relied upon by the authorities non-supply of such documents
would not vitiate proceedings.

U.P.S.R.T.C. vs Musi Ram and Ors. 1999(2) LLJ 175.

Disciplinary action - Non-production of non-relevant documents will

not vitiate the enquiry :

The delinquent who remained continuously absent on medical

grounds was directed to appear for Medical Examination which he did
not do. He was issued a Charge Memo and a Domestic Enquiry was held
in which he was found guilty of the charges. Before the Tribunal it was
contended that by denying him documents which he wanted he was
deprived of a reasonable opportunity to defend himself.

Held: There is no dispute that the delinquent did not report to the Medical
Officer as directed. Enquiry Officer was right in rejecting request of
#76 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

respondent to supply those documents as those were not relevant and that
the defendant has not suffered in any manner in defending himself.

Secretary to Govt. & Ors. vs. A C J Butto. 1997(1) SLR 732 = AIR
1997(SC) 1393 = 1997(3) SCC 387 = 1996(11) JT 525 = 1997(1) Scale
21 = 1997(1) Supreme 467.

Departmental Enquiry - Charge sheeted employee not entitled to each

and every document required by him:

Respondent was suspended pending Enquiry into certain grave

charges. He did not submit a reply to the memo of charges but asked for
perusal of certain records and files which according to him were quite
essential for preparing his defence. When asked to specify how they were
relevant he did not reply and declined to attend the enquiry. After the
Domestic Enquiry he was removed from service. Tribunal opined that
failure to supply the documents amounted to violation of principle of
natural justice.

Held: The Tribunal was under the impression that the Enquiry Officer ts
bound to supply each and every document that may be asked for by the
delinquent employee. The duty is to supply relevant documents and not
each and every document. The Tribunal also failed to say whether the
documents asked for were relevant and whether non-supply has prejudiced
the respondent’s case.

It was for the respondent to point out how relevant the documents were
to explain the charges and how non-supply of such documents was going
to prejudice his case. Equally it is the duty of the Tribunal to record a finding
whether any relevant documents were not supplied and whether such non-
supply has prejudiced the dependant’s case.

State of Tamil Nadu vs. K V Perumal & Ors. 1996(2) LLN 883 =
1996(2) LLJ 799 = 1996(5) SCC 474 = 1996 (SC) 2474 = 1996(5) Scale
379 = 1996(6) JT 604 = 1996(S) Supreme 696 = 1996 LIC 2069 = 1996
SCC 1280 = 1996(3) SLJ 43 = 1996(4) SLR 603 = 1996 (74) FLR 1999.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #77

Burden of proof depends on nature of charge and explanations

submitted by the delinquent:

Respondent made some false notings while recommending sanction

of loans on documents and records maintained by other employees.

Held: In a Disciplinary Enquiry the question of burden of proof depends

upon the nature of the charges and the nature of explanation put forward
by the delinquent. Depending upon his explanations it may be shifted to
the delinquent and it is then for the delinquent to establish the case. The
department is not expected to examine those other employees in the office
to show that their acts or records could not have formed the basis of wrong
notings made by the delinquent.

| Orissa Municipal Corpn. & Anr. vs. Anand Chandra Prusty. 1997
LLR 25.

Legal charges for defending advocate:

In the rules governing the disciplinary proceedings no provision has

been made with regard to payment of fee or remuneration to the legal
practitioner who is permitted to assist a Government Servant in cases where
the presenting authority is a legal practitioner. Since the respondents were
under suspension they had no resources to pay the legal practitioner assisting
them in the proceedings. Tnbunal has not committed any error in giving
the directions for payment of legal charges.

Director, B.C.G. Vaccine Lab, Madras V. S. Pandian. 1996(2) LLJ

634 = 1996(1) LLN 799.

Dispensing with formal enquiry when justified:

A Post Graduate Teacher was charged with exhibition of immoral

sexual behaviour towards a girl student in the school and was dismissed.
The Appellant challenged the dismissal on the ground that the charges were
in relation to this character. He demanded to be allowed to cross-examine
the girl and other witnesses who had made statements against him. He
argued that Principles of Natural Justice had been violated.
 #78 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Held: The School management submitted a report to the Supreme Court

stating that the Director had taken the decision not to conduct any enquiry
exposing the student and modesty of the girl and had terminated the
services of the appellant. The Court held it was very hazardous to expose
young girls for tortuous process of cross-examination. It was on record
that their recorded statements were supplied to the appellant. He was given
an opportunity to contravert the correctness thereof. Adequate opportunity
was therefore given to him. The conduct of the appellant was unbecoming
of a teacher much less a loco parent's and therefore, dispensing with regular
enquiry under the rules and denial of cross-examination are legal and not
vitiated by violation of Principles of Natural Justice.

Avinash Nagra vs. Navodaya Vidyalaya Samiti, etc. 1997(2) LLJ 640
= 1997(2) SCC 534 = 1996(10) JT 461 = 1996(8) Scale 319 = 1996(8)
AD (SC) 539 = 1997 (75) FLR 86 = 1997(1) SLR 270 = 1997(5) Supreme
306.

Fresh enquiry can be conducted from Stage II was found Illegal:

The Tribunal had set aside the Order of Termination passed on the
delinquent after a Domestic Enquiry as he was not paid the subsistence
allowance and remitted the matter for fresh enquiry.

It is settled Law that Employer has power to conduct enquiry afresh

from the stage at which illegality in the proceedings is found vitiating the
action.

It is now well-settled by a Constitutional Bench decision of the

Supreme Court in Managing Director, EC IL & Ors. vs. B. Karunakaran
& Ors.' that as a corisequence of setting aside of Order of termination or
removal or dismissal further enquiry is required to be undertaken from

1. 1993 (67) FLR 1230 = 1993(4) SCC 727 = AIR 1994(SC) 1074 = 1993(3) SLJ 193 =
1993(6) JT 1 = 1993 (25) ATC 704 = 1994 (84) FIR 210 = 1993(5) SLR $32 = 1994(1)
LLJ 162 = 1994 LIC 762 = 1994 (2) LLN 9.
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS — #7

that stage. Pending enquiry employees will continue to remain under

suspension. The High Court was not right in foreclosing further enquiry.

The Board of Management, SVT Educational Institution & Ors. vs.

A Raghupathy Bhat & Ors. 1997(2) CLR 402 = AIR 1997 (SC) 1898 =
1997 (2) JT 523 = 1997 (2) Scale 414 = 1997(1) SLR 713 = 1997 (2)
Supreme 565 = 1997(1) UJ 492.

In De novo enquiry should the enquiry start with giving opportunity

to employee to produce his evidence :

The reasons given for a de novo enquiry were that the charge sheeted
person has not been given proper opportunity for defending his case by
leading documentary and oral evidence and it was to afford him a reasonable
opportunity that a de novo enquiry was ordered.

The court felt that the enquiry should not be from the beginning. The
departments evidence has already been completed and some evidence of
the petitioner has also been recorded. The new Enquiry Officer should
now proceed to give opportunity to the petitioner to produce his documentary
and oral evidence and also consider the question of recalling any witnesses
for further cross-examination by the petitioner and then proceed to decide
the matter afresh.

State Bank of Bikaner & Jaipur vs. Ajay Kumar Gulati 1996(2) LLJ
713 = AIR 1996(SC) 2447 = 1996(9) SCC 485 = 1996(5) Scale 226 =
1996 (5) Supreme 643 = 1996(6) JT 477 = 1996(2) UJ 566 = 1996 LIC
2067 = 1996 SCC (L&S) 1270 = 1996(2) LLN 892 = 1996(3) SLJ 38 =
1996(4) SLR 482.
Domestic enquiry: Fresh enquiry where opportunity to
cross-examine not given:

- While passing the order of dismissal reliance was placed upon

documents in which conclusion were reached against the appellant.

- The Officers who prepared the report had appeared before the enquiry
and testified to the authorship of the documents.
 # 80 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
i fi a
No opportunity was given to the appellant to cross-examine either
the officers who issued the certificates or those who made the reports.

The grievance made by the appellant was justified. The enquiry

proceedings were set aside from the stage of the enquiry report and the
Bank was directed to conduct the enquiry afresh from the Stage giving
the appellant due opportunity to defend himself.

Girotra vs. United Commercial Bank 1996(1) LLJ 10.

Disciplinary proceedings

The presence of witness as a member in the Enquiry Committee

violates the Principles of Natural Justice.

(Shri Rattan Lal Sharma and Managing Committee Dr. Hari Ram
(Co. Ed.) Higher Secondary School & Ors.1993(2) LLJ 549 = 1993(3)
SCR 863 = AIR 1993 (SC) 2155 = 1993(4) SCC 10 = 1993(4) SLR 109=
1993(3) JT 487 = 1993(2) Scale 924 = 1993(83) FJR 25 = 1993(67) FLR
364 = 1993(2) LLN 253 = 1993 LIC 1808 = 1993(25) ATC 449.

Domestic Enquiry - Charge of bias against Enquiry Officer.

The delinquent doubted the impartiality of the Enquiry Officer and

made representation to change him. The Authorities did not accede to his
request. Inspite of fresh enquiry being ordered the Enquiry Officer did not
give the delinquent the opportunity to cross-examine the witnesses already
examined and adduce his evidence in rebuttal.

The Court held that Principles of Natural Justice were violated and
declared that the Dismissal Order cannot be sustained.

Smt. Indrani Bai and Union of India & Ors. 1995(1) LLI 431 = 1994
Supp(2) SCC 256 = 1994 (3) JT 580 = 1994(2) Scale 777 = 1994 (27)
ATC 755 = 1994(2) UJ 431 = 1994(2) SLR 672 = 1994 (69) FLR 94 =
1994 (2) LLN 391.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 81

When Disciplinary Authority differs with the findings of the Enquiry

Officer opportunity should be given to the Delinquent :

In this case two employees of Punjab National Bank were issued with
Charge Sheets for negligence resulting in loss of Rs. 1,00,000/- to the
Bank. Domestic Enquiries were conducted and in the findings of the
Enquiry Officer one of the employees was found guilty of only one charge
while the other employee was let off as the charges had not been proved.
On receipt of the report of the Enquiry Officer the disciplinary authority
disagreed with the findings of the Enquiry Officer and imposed a penalty
to recover proportionately the sum lost by the Bank.

In the appeal a Three Judge Bench of the Supreme Court held that
the normal procedure of enquiry should have been followed in that the
employees should have been given a chance to offer explanations against
the proposed punishment before imposing the punishment. The Principles
of Natural Justice require the authority which is to take a final decision and
impose a penalty to give opportunity to the employee before imposing the
punishment. In this case the Supreme Court’s earlier decisions in the case
of Institute of Chartered Accountants of India vs. L K Ratna & Ors.' and
Ramkishen vs. Union of India & Ors.’

Punjab National Bank & Ors. vs. Kunj Bihari Mishra & Anr. 1998(7)
SCC 84 = 1998(2) LLJ 809 = 1998(5) JT 548 = AIR 1998(SC) 2713 =
1998(4) Scale 608 = 1998(7) SLT 16 = 1998(6) Supreme 486.

Need for a speaking order by High Court:

The Petitioner was Charge Sheeted and removed from service for not
issuing tickets to 34 out of 58 passengers in the Bus. The Appellate

1. 1986(4) SCC 537 = 1986(3) SCR 1049 = AIR 1987 (SC) 71 = 1986 JT 671 = 1987 (1)
LLN 4 = 1987(61) CC 266 = 1986(2) Scale 614 = 1986 ATC 714 = 1986(3) Comp LJ
352.
2. 1996 I LLJ 982 = 1996(1) LLN 14= AIR 1996(SC) 255 = 1995 (6) SCC 157 = 1995(7)
JT 43 = 1995(5) Scale 431 = 1995 (6) SLR 52.
# 82 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Tribunal confirmed the order. The Service Tribunal and the High Court
too dismissed the appeal.

In the Special Leave Petition the petitioner contended that the order
of the High Court was not a speaking order. The Supreme Court observed
that since the Enquiry Officer had submitted an elaborate report and a
Show Cause Notice was issued to which the petitioner submitted his
explanations, it was not necessary for the High Court to give elaborate
reasoning in support of its conclusions.

Shyam Bahadur Tripathy vs. U P S Public Service Tribunal & Ors.

1997(3) LLN 778 = 1997(2) SCC, 251.

Dismissal - witnesses terrorised, failed to depose at domestic

enquiry - dismissal in the circumstances justified:

A Sub-Inspector of Police was dismissed dispensing with enquiry

involving Article 311 Clause (2) Proviso (b) of the Constitution. The
Central Administrative Tribunal quashed the order and directed his
reinstatement.

According to a report of the Superintendent of Police, the respondent

was a ‘terror in the area’ who by his very presence had intimidated the
witnesses who terrified by his threats had left the office refusing to testify
against him. The Superintendent of Police was justified in holding that it
is not reasonably practicable to hold an enquiry against the respondent.
The order of the Tribunal was set aside.

Union Territory, Chandigarh & Ors. vs. Mohinder Singh 1997 (76)
FLR 289 = 1997(1) LLJ 826 = AIR 1997 (SC) 1201 = 1997(3) SCC 68 =
1997(2) JT 504 = 1997(2) Scale 85 = 1997(1) SLR 707 = 1997(2) Supreme
217 = 1997(1) UJ 590.

Joint enquiry can be conducted when more than one employee is

involved :

Disciplinary authority should not be equated as a prosecution for an

offence in a Criminal Court where the delinquents are arraigned as co-
accused. In disciplinary proceedings the concept of co-accused does not
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 83

arise. Therefore, each of the delinquents would be entitled to summon

the other person and examine on his behalf as a defence witness in the
enquiry to summon to cross-examine any other delinquent if he finds him
to be hostile and have his version placed on record for consideration by
the disciplinary authority. Under the circumstances the need to split up
the case is obviously redundant, time consuming and dilatory. It should
not be encouraged. There is no illegality in the action taken to hold a
joint enquiry.

Balbir Chand vs. Food Corporation of India 1997(2) CLR 391 = AIR
1997(SC) 2229 = 1997(3) Supreme 26 = 1997(1) SLJ 156.

Ex-parte enquiry must be held even if delinquent fails to give a reply

to the charge sheet :
The respondent was called upon to explain the charges for committing
gross-lrregularities. Instead of submitting his reply he was found dilly
dallying. Several letters sent to him also proved ineffective. Respondent
held him guilty of misappropriation and removed him from employment.

Held: The respondent avoided to submit the reply. Nevertheless the

appellant is not absolved of the duty of holding an ex-parte enquiry. In the
event the Enquiry Officer finds the charges proved he should submit report
to the disciplinary authority. The disciplinary authority should communicate
the copy of the Enquiry Report to the delinquent and seek an explanation
for the proposed action. If the respondent submits his explanation the same
may be taken into consideration and appropriate order may be passed
according to Law. Until then the delinquent must be deemed to be under
suspension.

State of Uttar Pradesh vs. T P Lal Srivastav 1997(1) LLJ 831 =

1997(2) LLN 69 = 1997(1) SLR 119 = 1996(10) SCC 702 = 1996(9) JT
301 = 1996(7) Scale 571 = 1996(7) Supreme 579 = 1996(7) AD (SC) 821
= 1997(75) FLR 479.
# 84 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Different consequential orders can be passed in exceptional

circumstances only:

Three policemen attached to Delhi Police extracted Rs.365/- from a

person threatening him for being a drug addict. The Policemen were
dismissed on the basis of Domestic Enquiry but in the Criminal
Proceedings they received ‘clean acquittal’. A representation to the Dept.
having been dismissed, one of them filed an O A before the Tribunal for
reinstatement. The tribunal set aside the order of punishment but declined
to award back wages.

Ruled that the reasons advanced by the Tribunal to deny back wages
were irrelevant. Since the Domestic Enquiry found the three policemen
guilty the consequential order in the absence of exceptional circumstances
should have been the same for all three. If it is not so it will be arbitrary
and unfair.

Ramesh Chander & Ors. vs. Delhi Administration 1997(1) LLJ 224
= 1996 (74) FLR 2235 = 1996(10) SCC 409 = 1996(7) JT 607 = 1996(5)
Scale 836 = 1996(6) Supreme 315 = 1996(3) SLJ 124 = 1996(5) SLR 166
= 1996(6) AD(SC) 316 = 1997 UJ 97.

Application challenging after accepting the lesser punishment barred:

Respondent was charged with offence under 302 IPC and convicted
to undergo imprisonment for life. In appeal the punishment was modified.
After securing the modified punishment the respondent appealed to the
authority. He was offered employment on a lower scale of pay. Having
accepted the offer he challenged the earlier order of dismissal and
subsequent demotion to a lower scale of pay and asked for arrears of
wages. The Trial Court upheld his claim which was also confirmed by
the High Court.

Disposing of the Special Leave Petition the Supreme Court held that
the respondent having accepted the order of the appellate authority and
having joined the post it was not open to challenge the order subsequently.
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 85

State of Punjab & Ors. vs. Krishna Niwas 1997 LIC 2296 = AIR
1997 (SC) 2349 = 1997 (4) JT 213 = 1997(3) Scale 338 = 1997(3) Supreme
551 = 1997(2) 514.

. Termination of service - Unless termination is decided as invalid

directions for regularisation cannot be given:

The Tribunal had disposed of application directing the regularisation

of the respondents without examining the legality of termination of their
service. The Court held that the impugned judgments and order cannot
be upheld for consideration of the question regarding validity of the
termination of their services.

Himachal Pradesh Housing Board vs. Om Pal & Ors. 1997(1) SCC
269 = 1996(10) JT 719 = 1996(8) Scale 174 = 1997 LIC 2657 = 1996(9)
AD (SC) 89 = 1997(75) FLR 154 = 1997(1) SLR 117 = 1997(1) SLJ 135
= 1997(1)UJ 314. )
Disciplinary proceedings - Representation at an enquiry by a
retired employee:

Held: Where the regulations lay down that delinquent can appear himself
or through an employee of the Corporation, the directive of the High Court
to allow the respondent to take the assistance of a Retired Employee was
an error.

Food Corporation of India vs. Banta Singh & Anr. 1997(2) CLR 427
= 1997(6) JT 447 = 1997(S) Scale 14

Union - Right to represent and negotiate: Sec.6(C) and Section 22:

Bank refused to negotiate with the Gen. Secretary of the Staff

Association who though elected for period of 3 years had retired from
‘service. There were provisions in the association rules that a temporary
member may be an office bearer but no where in the rules such a member
was authorised to negotiate. Since the Gen. Secretary ceased to be an
# 86 §.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

ordinary member on his retirement and since he was not elected as an

honorary member he neither remained an ordinary member or an honorary
member of the association.

The court held that he cannot claim a right to negotiate with the
management as a representative of the Union.

S.BJI. Staff Assn. vs. S.B.JI. & Others 1996(4) SCC 378 = AIR
1996(SC) 1685 = 1996 (4) JT 100 = 1996(3) Scale 249 = 1996(3) Supreme
319 = 1996(5) AD (SC) 20 = 1996 SCC (L&S) 949 = 1996(2) UJ 426 =
1996 (89) FJR 61 = 1996(74) FLR 2037 = 1996(2) LLN 277.

Doctrine of relation back - Date of dismissal relates back to the date

of original dismissal not from the date of judgment of Labour Court:

Respondent was dismissed from service. Labour Court found the

Enquiry defective and gave opportunity to management to adduce evidence.
The Court came to the conclusion that the charge was proved and confirmed
dismissal. In appeal the High Court confirmed the dismissal from the date
of original dismissal.

In appeal Supreme Court a bench of two Judges after conducting the

entire law held that the view expressed by a three Judges Bench earlier in
the case of Gujarat Steel Tubes Ltd. vs. Mazdoor Sabha' was not correct.
The decision in the case of Desh Raj Gupta was also not correctly decided.

Following the decision of the Constitution Bench in P. H. Kalyani

vs. AIR France’ the Court held that the Order of dismissal must be from
the date of original order.

Punjab Dairy Development Corpn. vs. Kala Singh 1997(2) CLR 385
= 1997(91) FLR 319 = 1997(S) JT 604 = 1997(4) Scale 324.

1. 1980(2) SCC 593 = 1980(2) SCR 146 = 1980(1) LLN 230 = AIR 1980 (SC) 1896 = 1980(1)
LLN 230 = 1980 (40) FLR 152 = 1980(56) FJR 137 = 1980 LIC 1004 = 1980(1) LLJ 137.

2. 1964 (2) SCR 104 = 1963-64(24) FJR 464 = AIR 1963 (SC) 1756 = 1964(1) SCJ 566 =
1963(1) LLJ 679.
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 87

The above view has confirmed in Visweswasaryya Iron & Steel Ltd.
vs. Abdul Gani & Ors'. and Director, State Transport, Punjab & Anr. vs.
Gurdev Singh & Anr’.

Dismissal - Defective Enquiry - Management permitted to prove the

charge - Dismissal found justified - The date of dismissal the date on
which the order was originally passed:

Confirming the earlier decision in P.H. Kalyani vs. Air France,'

Calcutta’ the Court held that in a case where enquiry was found to be
defective by the Labour Court and it then came to the conclusion on its
own appraisal of evidence adduced before it that the dismissal was
justified, the order of dismissal made by the employer in a defective
enquiry would still relate to the date when the order was made.

Thruvikolam vs. The Presiding Officer & Anr. 1997 LLR 12 =

1997(1) LLJ 400.

Similar Order was passed by S.C. in the case of L/C vs. Central
Industrial Tribunal, Jaipur & Ors. 1997(1) SCC 59 = 1996(10) JT 739 =
1996(8) Scale 301 = 1996(8) Supreme 94 = 1994(8) AD (SC) 677 = 1997
(75) FLR 129(1) = 1997(1) SLR 245.

Disciplinary Proceedings and Criminal Proceedings:

The driver employed by APSRTC had driven without anticipation

causing an accident in which a cyclist was killed. Consequently action
was initiated and a domestic enquiry was held. Prosecution was also
launched by the Police under Sec. 304 Part 11 - IPC/308 IPC. The
delinquent asked for a stay of departmental proceedings which was given
and later confirmed by the Division Bench.

In the Special Leave to appeal the Supreme Court held that:

1. 1997(8) SCC 713 = 1997(7) Scale 11 = 1997(9) Supreme 383 = 1997(9) JT 94.

2. 1998(2) SCC 159 = 1998(4) JT 352 = 1998(79) FLR 791.

3. 1964 SCR 104 1963-64(24) FJR 464 = AIR 1963 (SC) 1756 = 1964(1) SCJ 566 = 1963(1)
LLJ 679.
# 88 §.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

‘the purpose of departmental enquiry and prosecution are two

different and distinctive aspects. The criminal prosecution is launched
for an offence in violation of a duty the offender owes to the society or
for breach of which Law has provided that offener shall make satisfaction
to the public. The departmental enquiry is to maintain discipline in the
service and efficiency of public service. It is therefore, not desirable to
lay down any guidelines as inflexible rules in which the departmental
proceedings may or may not be stayed pending trial in a criminal case
against the delinquent officer’.

Each case requires to be considered in the backdrop of its own facts

and circumstances. There would be no bar to proceed simultaneously with
departmental enquiry and trial of a criminal case unless the charges in the
criminal trial are of grave nature involving complicated questions of fact
and law.

The standard of proof in the departmental proceedings is not the same

as the criminal trial. What is required to be seen is whether the
departmental enquiry would seriously prejudice the delinquent in his
defence at the trial in criminal case. It is always a question of fact to be
considered in each case depending on its own circumstances.

Depot Manager, APSRTC vs. Mohd. Yousuf Mia 1997 LLR 264 =
1997 FJR 78 = 1997(2) SCC 699 = AIR 1997 (SC) 2232 = 1997(1)
Supreme 565 = 1996(9) Scale 65 = 1996(9) AD (SC) 651 = 1996(6) SLR
629 = 1997(1) SLJ 241(2)

Proceedings before criminal court - Effect of acquittal on Disciplinary

Proceedings

The nature and scope of Criminal Case are very different from those
of a departmental disciplinary proceedings. An order of acquittal cannot
conclude the departmental proceedings.

Nelson Motis and Union of India and Ors. 1992(2) LLJ 744 = AIR
1992 (SC) 1981 = 1992 Supp(1) SCR 325 = 1992(4) SCC 711 = 1992(5)
JT 511 = 1992(3) SLJ 65 = 1992(5) SLR 394 = 1992(2) ATR 612 =
1992(2) Scale 476 = 1992(2) LLN 1059 = 1992(65) FLR 853 = 1992 LIC
2037 = 1992(2) LLJ 744 = 1993 (23) ATC 382 = 1993(1) UJ 45.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 89

Domestic Enquiry and Criminal Proceedings

On the question whether Departmental Proceedings against a

workman for alleged acts of misconduct could be proceeded with
simultaneously with Criminal Proceedings 1n a Criminal Court on the same
set of facts this is what the Court had to say.

“While there could be no legal bar for simultaneous proceedings

being taken, yet there may be cases where it would be appropriate to defer
disciplinary proceedings awaiting disposal of the Criminal Case. In the latter
Class of Cases it would be open to the delinquent employee to seek such
an order of stay or injunction from the Court. Whether, in the facts and
circumstances of a particular case there should not be such simultancity of
the proceedings would then receive judicial consideration and the Court will
decide in the given circumstances of a particular case as to whether the
Disciplinary Proceedings should be interdicted, pending Criminal trial. As
we have clearly stated, it is neither possible nor advisable to evolve an hard
and fast rule or a, straight jacket formula, valid for all cases and of general
application without regard to the particulars of the individual situation.

In the instant case, the Criminal action and the Disciplinary Proceedings
are grounded upon the same set of facts. We are of the view that the
Disciplinary Proceedings should have been stayed and the High Court was
not right in interfering with the Trial Court’s Order of injunction which had
been affirmed in appeal.”
Kusheshwar Dubey vs. Bharat Coking Coal 1989(74) FJR 86 =
1988(4) SCC 319 = 1988(3) JT 576 = 1988(2) LLJ 470 = 1988(2) LLN
912 = 1989 LIC 38 = 1988(2) Scale 641 = 1989(1) UJ 17 = 1988(57) FLR
562 = 1988 Supp.(2) SCR 821 = AIR 1988(SC) 2118.
Disciplinary proceedings - (If finding of guilt is based on no evidence,
it could be amenable to judicial scrutiny).

The charge levelled against the appellant was that three labourers had
approached the appellant for his help for non-payment of their salary by
their factory owner. The factory owner gave the appellant Rs.1000/- for
payment to three labourers but the appellant did not pay the whole of the
# 90 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

amount to them. The labourers who had complained were not examined
as witnesses, even the original complaint was not placed on record.
However, on report of the Enquiry Officer, the appellant was dismissed
which was upheld by the Additional Commissioner of Police and also
Central Administrative Tribunal, which is under challenge.

Held: Normally, the High Court and this Court would not interfere with
the findings of fact recorded at the domestic enquiry but if the finding of
“guilt” is based on no evidence, it would be a perverse finding and would
be amenable to judicial scrutiny. There was absolutely no evidence in
support of the charge framed against the appellant and the entire findings
recorded by the Enquiry Officer are vitiated by reason of the fact that they
are not supported by any evidence on record and are wholly perverse. The
order 1s set aside.

Kuldeep Singh vs. Commissioner of Police & Ors. 1999 CLR 499 =
1999(1) SLR 10 = 1999(1) SLR 283 = 1999(1) LLJ 604 = 1998(6) Scale
588 = AIR 1999 (SC) 677 = 1999 SCC 10 = 1998 Supreme 452.

Departmental Proceedings

Acquittal will not conclude Departmental Proceedings. A Sub-Post

Master was dismissed and the punishment was later converted to
Compulsory retirement. He was prosecuted in the Criminal Case on one
of the charges and was acquitted. He appealed that in view of the acquittal
no punishment should be imposed on the basis of the Departmental
Proceedings. The Tribunal directed the Disciplinary authority to consider
the question. The High Court in appeal confirmed the orders.

The Supreme Court held that the Standard for proving the charge is
preponderance of possibility. The Tribunal was therefore in error in
holding that in view of the acquittal of the respondent by the Criminal
Court the proving of the first charge in the departmental proceedings
cannot be upheld and must be set aside.

Sen. Supdt. of Post Offices, Pathanamtittha & Ors. and A. Gopalan

1999 (1) LLJ 1315.
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 97

Disciplinary proceedings - When Tribunal can substitute punishment

The employee was dismissed after initiating disciplinary proceedings

and a regular enquiry into the charges. The Tribunal reappreciated the
evidence and reversed the findings, substituted the punishment of dismissal
by reducing two increments for a period of one year.

The High Court declined to interfere with the order, the Supreme
Court held that it has been consistently held that the Tribunal/Court cannot
normally substitute its punishment in place of the punishment given by
the disciplinary authority.

Cases cited Union of India vs. Parma Nanda' and B.C. Chaturvedi
vs. Union of India’.

Sri Vidyalaya & Anr. vs. Patil Anil Kumar Lallabhai 1999(1) CLR
Lae

Disciplinary proceedings - (Possibility of taking another view is no

ground for interfering with orders passed).

The appellant was charged for certain misconduct. The enquiry

officer found that except 3 charges all other 11 charges were proved based
on which the disciplinary authority ordered for removal from service. The
Tribunal found that the findings and concludions of the disciplinary
authority cannot be considered as one without any evidence or that they
are perverse and declined to interfere with the order of removal passed
by disciplinary authority. Hence the appeal.

Held: After perusing the order of the Tribunal, the court felt that though
it is possible to take another view in the matter, that will not be a ground
for interfering with the orders passed in the disciplinary proceedings. The

|. 1989(2) JT 132 = 1989(1) Scale 606 = 1989(2) SCC 177 = 1989(2) UJ 97 = 1989(10)
ATC 30 = 1989(1) LLN 800 = 1989(42) ELT 320 = 1989 LIC 1328 = 1989(2) LL] 57 =
1989(2) SCR 19 = 1989(58) FLR 934 = 1989(2) SLR 410 = 1989 (75) FJR 168.

_ 1996 1 CLR 389 SC = 1996(1) LLJ 1231 = 1996(72) FLR 316 = 1996 LIC 462 =1995(6)
tO

SCC 749 = 1995 (8) JT 65 = 1995(6) Scale 188 = 1995(5) SLR 778 = AIR 1996(SC) 484
= 1996 (32) ATC.
# 92 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

court came to the conclusion that there was no case for interference.
Appeal dismissed.

Anil Kapoor (Dr.)vs. Union of India & Anr. 1999(1) CLR 44.

Domestic Enquiry - Cannot be questioned unless prejudice is caused

or mala fides are proved against the Enquiry Officer:

Based on the findings of the E.O. who was appointed by the Original
Disciplinary Authority the delinquent was removed. It was held that unless
prejudice is caused or malafides are proved against the Enquiry Officer,
the ad hoc Disciplinary Authority cannot set aside the Order passed on
the basis of the Enquiry.

Asst. Superintendent of Post Offices and G. Mohan Nair 1999(2) LLJ

986 = AIR 1999 (SC) 2113 =.1999(1), SCC. 183.= 1998(9) JT.365 =
1998(6) SLR 783.
Disciplinary Action - (When management was not totally unjustified
in imposing extreme punishment of dismissal, interference is an error).
The misconduct against the worker was that he closed the line room
allotted for the use of labourers as Reading Room and prevented them from
using it, despite instruction by the management to keep the Reading Room
open. He was therefore dismissed from service. In writ petition, the High
Court held that one cannot say that the management is totally unjustified
in doing so. However, the extreme punishment of dismissal 1s not just
and proper in the instant case. High Court, therefore, ordered for
reinstatement with backwages from the date of award. The Division Bench
declined to interfere and hence the appeal.
Held: Division Bench of High Court was in error in not interfering and
the single Judge was in error in holding that the punishment of dismissal
was harsh after having acknowledged that he could not say that “the
management ts totally unjustified in doing so” - and that there had been a
serious lapse. The punishment that had been imposed by the appellant
should not have been interfered with in the circumstances. The appeal is
allowed. The order under appeal is set aside.

Management of Portland Estate vs. Suresh Babu P. & Ors. 1998(6)

Scale | = 1998(9) SLT 417 = 1998(1) LLJ 300.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 93

Disciplinary proceedings - Questioning punishment when justified?:

Respondent, an Upper Division Clerk in the Income Tax Office led

a crowd of 20-25 people dragged the I.T. Officer from his room by putting
a knife on his chest. He physically removed him from the office building
and asked him never to return. On the basis of a Police Complaint the
Clerk and two others were sentenced to two months imprisonment and
fine.

On his acquittal appellants set aside the order of dismissal and held
a fresh Departmental Enquiry and based on the Enquiry Officer’s Report
ultimately the respondent was dismissed from service. The Central
Appellate Tribunal set aside the order on the ground that Principles of
Natural Justice had been violated in as much as by asking the respondent
to show-cause against the proposed punishment the Principles of Natural
Justice were violated since the authority had already made up its mind.
Disposing of the appeal the Supreme Court held that the question of
punishment cannot be gone into unless the punishment imposed is such that
no reasonable person could have imposed such a punishment looking at the
circumstances of the case.

Inspecting Asst. Commissioner, Bombay & Ors. vs. Bharat Narayan

Parab 1998(2) LLJ 653 = 1998(1) CLR 186.
Disciplinary proceedings - (High Court cannot examine the evidence
as if it is a Court of first appeal).
Respondent working as Cashier-cum-Clerk in the appellant Bank was
charged with the allegation that he had fraudulently withdrawn a sum of
Rs. 28,500/- on different dates from Savings Bank Accounts of different
‘account holders’. The enquiry officer, after detailed examination of the
evidence recorded findings that the respondent was guilty of misconduct
for forgery of signatures and for fraudulent withdrawals of the amounts. The
High Court has gone into the merits of the matter and found that the charges
have not been proved and quashed the punishment. Hence the appeal.

Held: The question arises whether the High Court would be correct
in law to appreciate the evidence and the manner in which the evidence was
examined and to record a finding on that behalf. The judicial review is
# 94 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

not akin to adjudication of the case on merits as an appellate authority.

The High Court under Art. 226 does not act as an appellate authority but
exercises within the limits of judicial review to correct errors of law or
procedural errors leading to manifest injustice or violation of principles of
natural justice. In this case, no such errors were pointed out nor any finding
in that behalf was recorded by the High Court. On the other hand, eh
Court examined the evidence as if it is a Court of first appeal and reversed
the finding of fact recorded by the enquiry officer and accepted by the
disciplinary authority. Under these circumstances, the question of examining
evidence, as was done by the High Court, as a first appellate Court, is
wholly illegal and cannot be sustained.
Rae Bareli Kshetriya Gramin Bank vs. Bhola Nath Singh & Ors.
1997(1) CLR 838 = 1997(2) SLR 433 = 1997(3) SCC 657 = 1997(3) JT
717 = 1997(3) Supreme 480 = AIR 1997 (SC) 1908 = 1997 SCC 657.
The disciplinary authority decides the punishment but the Court is
empowered to go into the question of the nature of punishment:

Petitioner was dismissed for accepting illegal gratification. As many

as 17 witnesses were examined to prove the charge but they turned hostile.

The Supreme Court held that Evidence Act has no application for
disciplinary proceedings. The findings were based on the evidence of a
single witness and therefore it cannot be said that the punishment was based
on no evidence. If all the relevant circumstances and the evidence on record
are taken into consideration and it is found that the evidence establishes
misconduct against a public servant, the disciplinary authority is perfectly
empowered to take appropriate decision as to the nature of the findings on
the proof of guilt. Though the Court is empowered to go into the question
as to the nature of the punishment imposed it has to be considered in the
peculiar facts and circumstances of each case. Even though there is nce
allegation of misconduct during his earlier career the proved allegation is
sufficient to impose the penalty of dismissal from service.

K. Rajarathnam vs. State of Tamil Nadu 1997(1) LLJ 224 = 1996(6)

SLR 696 = 1997(1) SLJ 10 = 1996(74) FLR 2394 = 1996(7) Scale 21 =
1996(8) JT 447 = 1996(7) Supreme 635 = 1996(7) AD SC 327.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 95
ee
———=—=——e Ol as=S=SE ee S—_ een!

Tribunal is not an appellate authority:

The respondent was suspended pending Enquiry into some grave

charges and based on the findings of the Enquiry removed from service
The Tribunal allowed the application on the following grounds:

(1) the charges were vague

(2) appointment of the Enquiry Officer was illegal

(3) certain documents asked for had not been supplied and

(4) the charges against the respondent could not be said to have been
established.

Before the Supreme Court, points 1 and 2 were not pursued, there was
no record of the Tribunal going into the question of non-production of
documents and as such action has not prejudiced the case.

The Court held that the Tribunal is not an appellate body over
departmental authonties. Accordingly it must be held to have exceeded the
jurisdiction in entering upon a decision whether the charges are established
on the basis of materials available.

State of Tamil Nadu vs. Thiru K V Permal 1996(2) CLR 519.

Dismissal - High Court Entertaining Writ ten years after dismissal:

S.C. held - There was no reason for the High Court after a long lapse
of nearly Ten years from the date of the Order of dismissal to entertain the
Writ Petition and quash the Order of dismissal. TheHigh Court should
not have entertained it at all. It should have been dismissed in /imini.

In any event an Order of dismissal passed on 3-10-1977 cannot be

entertained and set aside by a Writ Court after a long lapse of nearly 10
years by reevaluating the evidence and by reappraisal of the Charge Sheet.

State Bank of Indore vs. Govind Rao 1997 CLR 418 = 1997(2) SCC
617 = 1997(1) JT 655 = 1997(1) Scale 360 = 1997(1) Supreme 396 = 1997
(75) FLR 766 = 1997(1) LLJ 841 = 1997(2) SLR 53.

7
# 96 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Disciplinary action - (Once period of absence is regularised as period

of leave without pay, workman is not guilty of unauthorised absence).
The respondent was dismissed from service after a regular
departmental enquiry on a charge of unauthorised absence from duty. Ina
suit, challenging the order, the Trial Court set aside the order of dismissal
as it found that the defendants had themselves regularised and treated the
period of the respondent’s absence from duty as period of leave without pay.
He could not legally be held guilty of misconduct for unauthorised absence
from duty. The matter reached Supreme Court after dismissal by Lower
Appellate Court and the High Court.

Held: The Trial Court as also the Lower Appellate Court had both recorded
the findings that the period of absence from duty having been regularised
and converted into leave without pay, the charge of absence from duty did
not survive. The Judgment and decree passed by the Trial Court is upheld.

State of Punjab & Ors. vs. Bakashish Singh 1999(1) LLJ 1208

Disciplinary proceedings - (Statement of co-accused can be taken into

account):

The appellant, a Sub-Inspector was charged for accepting illegal

gratification from a person running a gambling house. In the departmental
enquiry after giving him due opportunity to defend his case he was
dismissed. The delinquent complained that the evidence of a co-accused
was taken into consideration for imposing the punishment. He took the
matter to the High Court which dismissed the Petition.

The Supreme Court held that in a departmental enquiry whether or

not the delinquent officer 1s co-accused does not arise. It 1s relevant only
for offences under the IPC or Prevention of Corruption Act. The evidence
recorded at the Departmental enquiry is not evidence as per the Evidence
Act. Therefore, the statement of the co-accused also formed part of the
record which could be taken into account in determining the misconduct
against the accused. The High court has not committed any error of law in
dismissing the Writ Petition.

Vinay Kumar Nyan vs. State of U.P. & Ors. 1997(77) FLR 7.
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 97

Disciplinary proceedings - (If enquiry lapses, the workman is entitled

to full emoluments minus suspension allowance).

The appellant was issued a charge-sheet in respect of various items

of alleged misconduct. The disciplinary proceedings were initiated but
for various reasons, the disciplinary enquiry was not concluded before the
date of appellants superannuation. The appellant filed writ petition
contending that once he had retired the disciplinary proceedings could not
be continued even for the purpose of making reduction of the retiral
benefits. The question was also raised about the payment of arrears of
salary and other allowances during the period he was kept under suspension
and upto the date of superannuation.

Held: Inasmuch as the enquiry had lapsed, it is, in our opinion obvious
that the appellant is entitled to get the balance of emoluments payable to
him after deducting the suspension allowance that was paid to him during
the above said period.

Bhagirathi Jena vs. Board of Directors, O.S.F.C. & Ors. 1999(1)

CLR 1074 = 1999(3) SCC 666 = AIR, 1999 (SC) 1841 = 1999(2) Scale
545 = 1999(3) JT 53 = 1999(2) SLR 355 = 1999(3) SLT 494 = 1999(4)
Supreme 9 = 1999(1) LLJ 1236.

Disciplinary proceedings - Suspension for misappropriation and

corruption:

After investigating the matter the CBI/SPE submitted a report for

permission to prosecute the incumbent for criminal misconduct and
cheating. The appellant Bank accorded permission. In a Writ Petition
the High Court held that by the mere fact that a person had entered into
criminal conspiracy it could not be regarded that an offence involving
“moral turpitude” had been committed. It declared that the Bank had no
jurisdiction to pass an order for suspension.
# 98 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Held: Applying the tests as laid down in Baleswar Singh vs. District
Magistrator and Collector! and Pavan Kumar vs. State of Haryana & Ane
the Court held that if the allegation against the respondent is proved it
will clearly show that he had committed an offence involving mocal
turpitude and therefore the appellant had jurisdiction to suspend him under
Clause 19.3 of the bipartite settlement. The finding of the High Court
that entering into a criminal conspiracy to commit the aforesaid offence
is not an offence involving moral turpitude is surprising. The report by
CBI/SPE clearly indicates acts of omission and commission amounting
to moral turpitude, alleged to have been committed by the employee while
he was working in the Bank and punishment for which could extend upto
ten years imprisonment (in case he was convicted under Sec. 467 IPC).
It is inconceivable that a Bank should allow an employee to continue to
remain in duty when he 1s facing serious charges of corruption and
misappropriation of money. Allowing such an employee to remain in this
seat would result in giving him further opportunity to indulge in the acts
for which he was being prosecuted.

Allahabad Bank & Anr. vs. Deepak Kumar Bhola 1997(4) SCC1 =
1997(3) JT 539 = 1997(1) LLJ 854 = 1997(2) LLN 644 = 1997(2) Scale
623 = 1997(3) Supreme 112 = 1997(1) CCR 268(SC) = 1997(2) SLR 236
= 1997(1) UJ 761.

Domestic Enquiry - Enquiry Officer retiring during the course of

Enquiry:

Held: The Domestic Enquiry held by an Enquiry Officer does not

get vitiated because he retires during the course of the Enquiry where the
delinquent participated on all the days of the enquiry and the delinquent
was given full opportunity of being heard and no objection was raised
against the continuation of the Enquiry. The delinquent had not

1. AIR 1959 All 71.

2. 1996 (2) LLN 227 = 1996(5) (AD) SC 1 = AIR 1996 (SC) 3300 = 1996(4) SCC 17 =
1996(5) JT 155 = 1996(4) Scale 480 = 1996(4) Supreme 764 = 1996 SCC (Cr) 583 =
1996(73) FLR 1501 = 1996 LIC 1740 = 1996(2) UJ 184 = 1996 (2) LLN 227 = 1996(2)
LLJ 703 = 1996 (89) FJR 612.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 99

complained of bias or mala fides nor did he complain that he was in any
manner prejudiced on account of the Enquiry Officer continuing with the
Enquiry.

Central Bank of India vs. C. Bernard 1991(1) SCC 319 = 1991(1)

LLN 1111 = 1990(2) Scale 704 = 1990(61) FLR 678 = 1990(6) SLR 29.

28. E.P.F. (MISC. PROVISIONS) SCHEMES

Sec. 1(3) (b) - Order of Court for benevolent consideration made from
a prospective date :

The R.P.F. Commissioner had demanded payment of arrears from

1986-91 on the basis of Entry 24 inserted by Notification under Sec.
1(3)(b) of the Act.

The organisation pleaded for prospective application of the Act.

Lending countenance to this submission Supreme Court directed that the
Act might be applied to the appellant’s Branch from April 1999. The
benevolent consideration was based on the consequences that would ensure
not only to the appellant but also to the poor women employees, if the
past demands were reviewed.

Shri Mahila Griha Udyog Lijjat Papad vs. Union of India and Anr.
1999(2) LLJ 954 = 1999(6) SCC 38 = 1999(9) JT S11.

Sec. 1(3) (9), 2-A and 7-A - Determination of functional unity:

The R P F Commissioner recorded as a fact the functional unity and

integrality between the two concerns. The Division Bench held that they
were registered under the Companies Act as two different individual
identities though they are represented by the members of the same family
they cannot be clubbed together.

In appeal the Supreme Court held that the High Court 1s wholly
unjustified in reaching the above conclusion. The Commissioner had
recorded as a fact the functional unity and integrality between the two
concerns. The High Court had not considered the proper perspective the
#100 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

provision of the Act which is a beneficial legislation to provide healthy

security to the workmen. The Order of the High Court was set aside.

R PFC , Jaipur, Naraini Udyog & Ors. 1996 LLN 60 SC (DB).

R P F C can reduce damages.

RPFCvs. VSD College & Ors. 1997(2) LLJ 55 = 1997 (75) FLR
530

Defaulting Employers to pay damages :-- Sec. 14B for Default in

depositing contributions P.F. Commissioner imposed damages. High Court
set aside the order - Supreme Court held the Employer used the money
for his own purpose without interest and directed the Company to pay
within Two months or Pay Interests @ 18% p.a.

R.P.F. Commissioner vs K.T. Rolling Mills 1995(1) LLJ 882.

Whether Production Bonus would be deemed to “Wages” for the

purpose of Sec. 2(b)(6) E P F and Miscellaneous Provisions Act of 1952:

The Company used to pay amounts under their Production Bonus

scheme it contended that the payments did not form part of the “Basic
Wages’ for the payment of P.F. contributions.

According to the establishments the Production Bonus was paid for

the following reasons:—

a) Where the work allotted was accomplished by a smaller number

of people. Bonus was paid according to the deficiency in the normal
strength for extra efforts by workmen in a shift measured in terms of cubic-
meters, for compositors, speed of machines in process section in terms of
plates and negatives.

The High Court after hearing the pleading directed that P.F.
contributions be made on the Basic Wages only and apply to the authonties
to consider their submissions. The authority after hearing the Appellant
declared that the ‘Production Bonus’ was ‘Wages’ and directed the
Company to deposit the contributions. The Company went in appeal to
the Supreme Court. The Company did not furnish any material in relation
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #1017

to the prescribed normal output by the workmen under the category of

compositors and process section.

The Court concluded that—

1) The first part of the Scheme indicated that any extra effort undertaken
by the workman discharging more than the normal load was to ensure
maintenance of the requisite normal level of production to ensure
normal production at a given point of time and did not amount to
Production Bonus.

il) The second part of the Scheme envisaged an extra payment as an

incentive to any workman in any shift who put in extra effort. The
Scheme however, did not show how the workman had become entitled
to the amount for the work other than work he was expected to do.
There was no data on record to show what was the hours of work
prescribed for the workman. It was therefore not clear whether the
extra amounts paid were infact for the extra work done. In the absence
of relevant data to support the claim as well as there was no nexus or
connection with the extra production effort by the workmen by way
of production bonus, the workman would not get any extra amount
in proportion to the extra output as compared to his fellow workmen.
The Scheme only carried out a category of more enthusiastic or more
efficient workmen for being given a flat rate of extra remuneration
for discharging their duty more efficiently under the contract of
employment.

The following observations of the Hon’ble Court sum up the case:

“In order to become a genuine Production Bonus Scheme so as to

get covered by exception (11) to the definition of “Basic Wages” in Section
2(b) of the Act it must be shown that the Scheme in question seeks to
offer production bonus to the workmen concerned who put in extra output
wherein either collectively Bonus is fixed to all of them on the basis of
the total extra output on a sliding scale or is paid individually to a given
number of workmen who by their own efforts earn such Bonus. In each
#102 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

case Payment of Bonus cannot be of a fixed or proven nature having no

nexus with the quantity of extra output produced by them.

Daily Pratap vs. RDFC (SC) 1999 (94) FJR 167

Arrears under wage settlement:

When the pay scales are revised with retrospective effect by an award
under the Industrial Disputes Act and arrears are paid in consequence of
the award, would the arrears amount to “basic wages” under the EPF &
MP Act?
The Division Bench of the High Court had held that the arrears would
not amount to “basic wages”. In the appeal to the Supreme Court by the
workmen as also by the Regional Provident Fund Commissioner the
Supreme Court held—

“Reading the above two sections (1.e. Sections 2(b) and 6 of the EPF
& MP Act) together, the expression ‘basic wages’ means:—

1) all emoluments which are earned by an employee while on duty or

on lease;

11) with wages in accordance with the terms of the contract of

employment;

111) which are paid or payable in cash; and

iv) are payable for the time being to each of the employees.

When an award gives revised pay scales, the employees become

entitled to the revised emoluments and where the said revision is with
retrospective effect, the arrears paid to the employee as a consequence, are
the emoluments earned by them while on duty.

We do not agree with the Division Bench of the High Court that the
wages which are substituted from back-date as a result of an award under
the Act are not the basic wages as defined under the Fund Act. If the original
emoluments earned by an employee were “basic wage” under the Fund Act,
there is no justification to hold that the substituted emoluments as a result
of the award are not the “basic wages”. The reference to the arbitration,
the acceptance wage-increase with retrospective effect, are the direct
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 103

consequences of the settlement between the workmen and the Board. We

are of the view that revision of wage-structure, as a result of an award under
the Act has to be taken as a part of the contract of employment in the context
of the Fund Act..... The Workmen have inherent right to collective
bargaining under the Act. The demands raised by the workmen through
their unions are decided by conciliation, settlement or adjudication under
the Act. These are time consuming proceedings. When ultimately the
dispute is settled/decided in workers favour, the accrued-benefit may be
made available to them from back date. This is what has happened in the
present case. The award given in the year 1985 has been made operative
from April 1, 1980. Under the circumstances, it would be in conformity
with the objects of the Fund Act, to hold that the revised pay-scales have
become part of the contract of employment with effect from April 1, 1980.

The expression “basic wages of the time being payable to each of

the employees” under Section 6 of the Act means the “basic wages” at
the relevant time. When the existing pay scales are revised with effect
from back date then the revised wages posterior to that date are the “basic
wages for the time being payable”.

Prantiya Vidyut Mandal Mazdoor Federation and Rajasthan State

Electricity Board 1993(1) LLJ 222 = 1992(2) SCR 757 = AIR 1992 (SC)
1737 = 1992(3) JT 51 = 1992(2) SCC 723 = (20) ATC 302 = 1992(4)
SLR 5 = 1992 LIC 1790 = 199291) Scale 922 = 1992(81) FIR 206 = 1992
(2) UJ 386 = 1992 (64) FLR 1051 = 1992(2) LLN 4.
Two companies having same place of business and management can
be declared as one entity:
The two companies were partnership concerns, 10 out of 13 partners
were common, their place of business and address was common, their
telephone numbers were common and their management common from all
of which it was inferred by the inspectorate that the unity of ownership,
management, supervision and control employment, finance and general
purpose to justify both the units being treated as single establishment under
the Act.
# 104 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

The court held that the findings being essentially one of fact or on
legitimate inferences drawn from facts nothing could be suggested as to
why the RPFC could not pierce the veil and read between the lines within
the outwardness of the two apparents.

Rajasthan Prem Kishen Goods Transport Co. vs. RPFC New Delhi
1996(2) LLJ 662 = 1997(2) CLR 217 = 1996(9) SCC 454 = 1996(4) Scale
638 = 1996(4) Supreme 731 = 1996 (5S) AD (SC) 187 = 1996 (73) FLR
1721 = 1996 SCC 1265 = 1996(2) SLJ 48 = 1996(89) FIR 46 = 1996(2)
LLN 287.
26. E.S.I. ACT

Sec. 40 - Employer failing to deduct contributions whether can be

forced to pay after closure:
The Employer had not deducted the contributions from wages and
as such wanted to escape liability.

Held: The Employees State Insurance Corporation was justified in

demanding payment.

ESIC and Hotel Kalpaka International AIR 1993(SC) 1530 = 1993(1)

SCR 219 = 1993 (2) SCC 9 = 1993(1) JT 139 = 1993(1) SLR 560 =
1993(1) Scale 130 = 1993 LIC 416 = 1993(1) LLJ 939 = 1993(1) LLN
230 = 1993(82) FJR 204 = 1993(66) FLR 375.

Sec. 2(8): Liability for payment of compensation:

Accident: - E.S.I. Act Sec. S(8) Arising out of and in the course of
employment - Injury suffered one kilometre away from the factory while
on way to factory cannot be said to be “Accident arising out of and in the
course of employment”.

A workman had met with an accident one kilometre away from the
factory while on the way on his bicycle. He was supposed to be on duty
at 4.30 P.M. and the accident occurred at 4.15 P.M. He claimed
disablement benefit which was disallowed by the Corporation.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #105

Held: Unless it can be said that his employment began as soon as the
worker set out for the factory it cannot be said that the injury was caused
by an accident arising out of and in the course of employment.

The words “accident arising out of and in the course of his

employment” indicate that any accident which occurred while going to
the place of employment or for the purpose of employment cannot be said
to have arisen out of the employment.

The test of what was “reasonably incidental” to employment may

be extended even to cases while an employee is sent on an errand by the
employer outside the factory premises. But in such cases it must be shown
that he was doing some thing incidental to his employment. In the facts
of this case it cannot be said that the injury suffered by the workman one
kilometre away from the factory while he was on his way to the factory was
caused by an accident arising out of and in the course of employment.

The R.D. E.SI. Corpn. vs. Francis De Costa & Anr. 1997(1) LLJ 34
= AIR 1997 (SC) 432 = 1996(6) SCC 1 = 1996(8) JT 118 = 1996(6) Scale
473 = 1996(6) Supreme 678 = 1996(4) CLT 59(SC) = 1996 SCC (L&S)
1361 = 1996(3) SCJ 264 = 1996(2) LLN 895 = 1996 LIC 2720 = 1996(6)
SLR 553.
Sec. 72 - Withdrawal of existing Medical Benefits on Introduction of
ESI Scheme :

Sec. 72 and Regulation 97 whether withdrawal of existing Medical

Benefits existing as part of Service Conditions can be withdrawn on the
implementation of the Scheme without notice under Sec. 9A of the Industrial
Disputes Act.

The Tribunal had held that the Corporation should have notified the
employees before withdrawing the benefits. It was argued that the ESI
Benefits were more favourable but it was not borne out by facts.

The Act does not permit withdrawal of the existing benefits merely
because the employees are covered by the ESI Act. This is borne out by
the provisions continued in Sec. 72. Regulation 97 of the ESI Act permits
withdrawal of benefits which are similar to those offered by the ESI Act.
# 106 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

The award of the Tribunal was upheld.

C.E.S.C. and C.E.S.C. Supply Workmen Union 1995(1) LLJ 874

Application of the Provisions of the ESI Act and the Scheme

thereunder to\Industrial Establishments:

The Provisions of the Act are applicable to both industrial

establishments and offices. The provisions of the Act are applicable to
Factories as defined in the Factories Act and to establishments in which
10 or more persons are employed.

In determining the numbers employed for the purpose of coverage

the E S I authorities have always insisted that the total number employed
by the establishments should be taken to arrive at the number.

In the present case five officers were included to make up the number |
of Twenty which was challenged by the Company before the Delhi High
Court.

‘Held: 1. The Act would be applicable to an establishment only when the

number of employees answer the description of “employee” contained in
Sec. 2(9) of the Act; and

2. The employees should be getting “wages” as prescribed therein.

The A.P. High Court decision in the case of APSEB vs. E S /

Corporation' was disapproved.

M M Suri and Associates (P) Ltd. vs. E S I Corporation, 1994 (94)

FIR OD.

Meaning of ‘Shop’:— - ESI Notification bringing ‘Shop’ under ES]

Advertising Agency. Selling expert service to client for campaigning of
product 1s ‘shop’ and hence covered by ESI Act.

1. 1997 LIC 1107.

 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 107

ESI Scheme - Shipping Company if ‘Shop’

The activities of a Shipping Company were considered in the case

of Cochin Shipping Company vs. ESI Corporation! Regardless of the fact
that the Steam Ship Company does not carry on stevedoring operations
was declared covered by the ESI Act.

ESIC and R K Swamy & Ors. 1994(1) LLJ 636 = 1994(1) SCC 445
= 1994(1) Comp. LJ 255 = 1993 (67) FLR 1145 = AIR 1994(SC) 1154 =
1993(6) JT 176 = 1993(4) Scale 284 = 1993 (2) LLN 639 = 1994(84) FIR
67. |
Sec. 85 B - Damages cannot exceed the ceiling of 100% of amount of
arrears:

The amount of damages fixed by way of penalty should be within

the ceiling of 100% of the amount of arrears of contributions which were
not paid in time.

ESI Corporation vs. Narniat Pharmaceuticals & Chemicals Ltd.

1998(2) LLJ 43 = 1998 (79) FLR 793 = 1998 (4) JT 355 = 1998(1) SCC
185. |

Sec. 2(9) and (22):— Managing Director of Pvt. Ltd. Company paid him
annual remuneration for rendering service and he is an employee and
remuneration to him is wages. Therefore, his name should be added to the
remaining list of 19 employees so as to make the E.S.I. Act applicable.

ESI Corporation vs. Apex Engineering Pvt. Ltd. 1998(1) LLJ 274.

Sec. 1(5) & 2(12):— Provision to extend the Act to “other establishments”
in the State.
The Supreme Court held that the above provision does not controvert
Article 14, 19(1)(G) or 21 of the Constitution. “Shop” - Meaning of -
includes place where services are sold on retail basis and includes place
- where a group of Musicians employed on wages provide Services on
payment of the stipulated price. The place where such business 1s carried
on would be a shop.

1. 1993 If LLJ 795.

# 108 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

That the fact that the Services were rendered by the employees
engaged by the Petitioner intermittently or during marriages only would
not entitle the Petitioner to claim exemption from the operation of the Act.
Hindu Jea Band vs. ESI Corporation 1987(71) FIR 8 = 1987(2) SCC
101 = 1987(2) SCR 377 = 1987(1) JT 518 = AIR 1987 (SC) 1166 = 1987
(1) LLJ 502 = 1987(1) LLN 778 = 1987(54) FLR 443 = 1987 LIC 894 =
1987(1) Scale 393 = 1987(2) UJ 27 = 1987(1) CCC 816.

E.S.I. Court to decide if existing benefits more favourable or not

E.S.I. Court has jurisdiction to decide whether benefits available to

the Employees prior to the E.S.I. Scheme were more advantageous than
those under the E.S.I. Scheme.

Narayan, Chandra Rajkhowa vs. Associated Industries (Assam)

Spinning Unit and another 1998 (1) LLJ 678.

Wages - ESI Act 1948 S. 2(22) - Subsistence allowance is wages:

The Court held the Employee continues to be the employee and

employer continues to be his employer. All that happens is that during
suspension period the employee is not allowed to work and is not given full
remuneration but only permissible subsistence allowance for remaining
attached to the employer as per the relevant service conditions relating to
the contract of service. It must be held that such allowance forms part of
the wages as defined 1n Sec. 2(22) of the Act.

Reg. E SI Director vs. M/s. Popular Automobiles 1997(91) FIR 723

= 1997(2) CLR 1003

Employees’ State Insurance Act: Sec. 2(22): Whether attendance bonus

and other additional remuneration would be “wages”:

(i) whether attendance bonus payable under a settlement would amount

to “Wages” under the ESI Act?

(11) Whether “other additional remuneration” used in the second part of the
definition would be “Wages”?

The above questions were answered by the Supreme Court in the

following terms:
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 109

Attendance bonus payable to the employees is under the terms of the

settlement which has become a part of the contract of employment. Hence
the said bonus will fall within the first part of the definition of “wages”
under S. 2(22) of the Act which covers all remuneration paid or payable
in cash to an employee if the terms of contract of employment, express
or implied, were fulfilled.

The expression “other additional remuneration, if any, paid.....

implies that the said remuneration is not payable under any contract of
employment, express or implied. This is so because while the first part
of the definition refers to remuneration under the contract of employment,
the second part does not refer to remuneration under any such contract.
Secondly, the definition is inclusive and includes only such payments
outside the contract as are mentioned in its second part and none other.
Thirdly, the expression “if any, paid” after the words “other additional
remuneration” will be inconsistent if the remuneration is payable under
the contract of employment since such payment is not dependent on the
will of the employer but on the fulfilment of the terms of the contract.
Lastly, the second part of the definition includes only such contractual
payments as are specifically mentioned therein and the exclusionary part
does not include the attendance bonus like the present which is payable
as stated above under a contract. Hence the expression “other additional
remuneration, if any, paid” does not refer to remuneration payable under
any contract but refers to such remuneration payable at the will of the
employer. Every remuneration that is payable under the contract would,
therefore, fall under the first part of the definition.”

Wellman (India) Pvt. Ltd. vs. Employees State Insurance Corporation

1994(1) LLJ 545 = 1994(1) SCC 219 = AIR 1994 (SC) 1037 = 1993 (6)
JT 227 = 1993 (4) Scale 353 = 1993 (5) SLR 793 = 1993(67) FLR 1208
= 1993(2) LLN 645 = 1994(84) FIR 38 = 1994 LIC 954 = 1994(1) Comp.
LJ 248. ,
#110 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

27. EMPLOYMENT EXCHANGE (COMPULSORY

NOTIFICATION OF VACANCIES ACT :

Employment Exchange (Compulsory Notification of Vacancies) Act,

1959. Act for Notification of Vacancies only Sec. 2(e) (f) (g) and 3&4.

The Supreme Court held that:

The title of the Act viz. Employment Exchanges (Compulsory

Notification of Vacancies) Act, 1959 itself suggests that the compulsion
is in regard to Notification of Vacancies only and nothing more. Like the
title the Act also does not suggest any compulsion in the making of
appointments.

The object of the Act is not to restrict but to enlarge the field of
choice so that the employer may choose the best and the most efficient
and to provide an opportunity to the worker to have a claim for
appointment without having to knock at every door. The Act does not
impose an obligation on the employer to employ only those persons who
have been sponsored by the employment exchange.

Union of India vs. N. Haragopal and Ors. 1987(71) FJR 111 =

1987(3) SCC 308 = 1987(2) UJ 41 = 1987(4) ATC 51 = 1987(2) SCR
910 = AIR 1987(SC) 1227 = 1987(2) JT 182 = 1987(1) LLJ 545 = 1987(2)
LLN 20 = 1987(55) FLR 602 = 1988(1) SLJS9 = 1987(1) SLR 5 = 1987(1)
Scale 753.

Sec. 4(1) - Selection of candidates not to be restricted to candidates

sponsored by the Employment Exchanges:

Supreme Court held that many candidates are unable to have their
names sponsored because either they are waiting for the names to be
registered or their names are not registered with the exchange. The choice
of selection is thus restricted to candidates sponsored by the Employment
Exchange depriving many a candidate the right to be considered for
appointment. The vacancies should also be notified through Press, Radio
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #117

and TV to enable eligible candidates to apply. This will ensure equality

of opportunity in the matter of employment.

Excise Superintendent, Machilipatnam vs. K.B.V. Visweswara Rao

& Ors. 1997(1) LLJ 56 = 1996(6) Scale 676 = 1996(9) JT 638 = 1996(7)
Supreme 201 = 1996(6) SCC 216 = 1996(7) AD SC 174 = 1996(3) SLR
649 = 1997(75) FLR 353 = 1997(1) LLN 8
28. EQUAL PAY FOR EQUAL WORK
Parity cannot be claimed by employees of subsidiary Bank:

The employees of Subsidiary Banks are not entitled to claim the same
benefits as the employees of S B I as the benefits which are conferred are
in accordance with the agreements which have been reached between the
Union of employees and the management of each bank. In the
circumstances, the principle of equal pay for equal work cannot be applied
in present set of facts.

Associate Bank Officers Assn. vs. State Bank of India & Ors. 1998
LIC 152 SC (DB) .
Principle not applicable where qualitative difference in function and
responsibilities is apparent:

Supreme Court held that the duties and functions assigned to employees
of Jal Nigam and Jal Sansthan are in many respects qualitatively different.
There is qualitative difference in the duties and functions discharged by the
employees and therefore, the claim of equal pay for equal work on the plea
of discrimination under Arts. 14 and 16(1) of the Constitution is without
any foundation. |

Garhwal Jal Sansthan Karmachari Union & Anr. vs. State of U.P. &
Ors. 1997(4) SCC 24 = AIR 1997 (SC) 2143 = 1997(4) JT 206 = 1997(3)
Scale 325 = 1997(2) SLR 600 = 1997(4) Supreme 77.

Equal Pay for Equal Work:

“Equal Pay for Equal Work” is a fundamental nght.. But equal pay
must depend on the nature of work done, it cannot be judged by the mere
volume of work, there may be qualitative differences as regards reliability
#112 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

and responsibility. Functions may be the same but the responsibilities

make a difference. One cannot deny that often the difference is a matter
of degree and that there is an element of value Judgment by those who
are charged with the administration in fixing the scales of pay and other
conditions of service. So long as such value judgment is made bonafide,
reasonably on an intelligible criteria which has a rational nexus with the
objective of differentiation, such differentiation will not amount to
discrimination. It is important to emphasise that equal pay for equal work
is a concomitant of Article 14 of the Constitution. But it follows naturally
that equal pay for inequal work will be a negation of that nght’.

Federation of All India Customs & Central Excise Stenographers

(Recognised) vs. Union of India AIR 1998 SC 1291 at 1297.

Mistake committed by administration cannot furnish a valid legitimate

ground for the Court to direct Administration to go on repeating that
mistake:

Respondent storekeepers claimed before the Tribunal that they were

entitled to pay scale of Rs. 570 - 1080 as was given to other storekeepers,
which was upheld by the Tnbunal. The case of the Administration was that
the extending higher pay to storekeepers was a mistake which was
subsequently corrected by treating the higher pay as personal pay to the
said five storekeepers. The respondents cannot treat the said mistake as
a precedent nor can they make it a basis for claiming equal pay.

Held: The claim of the respondent could not have been allowed by
the Tribunal. The doctrine of equal pay for equal work has no application
in such a situation. An evident mistake cannot constitute a valid basis for
compelling the Administration to keep on repeating the mistake. Because
it was a mistake it was treated as a personal pay for existing incumbents
and for future incumbents, the appropriate pay scale was given. Hence the
appeal is allowed and the order of the Tribunal is set aside.

Chandigarh Administration & Ors. vs. Naurang Singh & Ors. 1997(1)
CLR 832 = 1997(4) SCC 177 = 1997(3) JT 536 = 1997(3) Scale 38 =
1997(3) Supreme 116 = 1996(2) SLR 230 = 1997(1) UJ 748.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #113

Principle is applicable among equals but not among unequals:

The Supreme Court held that Dy. Agricultural Officers are promoted
departmentally while the Agricultural Officers are directly recruited
through the Public Service Commission. The minimum qualification for
an Agricultural Officer was B.Sc. (Ag.) whereas for the Dy. Agricultural
Officer it is S.S.L.C. with suitable Diploma. Although they carry out the
same type of work important assignments are exclusively entrusted to
Agricultural Officers. They form two separate cadres of Gazetted and
Non-Gazetted Officers with separate sets of Service Rules and seniority
lists also. Therefore, it is not possible to agree with the contentions that
only on doctrine of equal pay for equal work the pay scale available to
Gazetted Officers must of necessity be made available to non-gazetted
employees.

State of Tamil Nadu & Anr. vs. M R Alagappan & Ors. 1997(2) LLJ
711 = AIR 1997 (SC) 2006 = 1997(4) SCC 401 = 1997(4) JT 515 = 1997
(3) Scale 464 = 1997(2) SLR 554 = 1997(4) Supreme 67.

Classification on the basis of educational qualifications reasonable:

The claims of non-matriculate instructors to be placed in position

similar to matriculate instructors was held unsustainable. The Supreme
Court did not think that the writ petitioners who were non-matriculate
instructors were similarly placed to that of the matriculate instructors.

Sita Devi & Ors. vs. State of Haryana 1996(2) LLJ 817 = AIR 1996
(SC) 2764 = 1996(10) SCC 1 = 1996(7) JT 438 = 1996(6) Scale 151 =
1996(6) Supreme 496 = 1996(6) Supreme 386 = 1996(2) UJ 513 = 1996(6)
SCC 1321 = 1996(3) SLJ 102 = 1996(5) SLR 664 = 1996(74) FLR 2386
= 1996(2) LEN 476.

Assam State Electricity Board & Ors. Gajendra Nath Pathak 1997(3)
LLN 779.
#114 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

When can it be invoked?

It was held that the principle of Equal Pay for Equal Work 1s attracted
only when two sets of employees are similarly situated and are getting
different scales of pay.. In the instant case the posts of investigators cum
Computer Operators had been created purely on a temporary basis. The
essential qualifications for the post was only Intermediate whereas for
regular ones it was Bachelor’s Degree with Statistics or Mathematics with
knowledge of Hindi. The mode of recruitment to the posts was through
departmental committee for temporary posts whereas through Public
Service Commission for regulars. The nature of duties for the respondents
and the regular one was very much different. The principle of equal pay
for equal work was, therefore, not attracted.

State of Uttar Pradesh & Ors. vs. Ramasraya Yadav and Anr. 1996(2)
LLJ 92 = 1996(1) LLN 314 = 1996(3) SCC 332 = 1996(2) Scale 304 =
1996(2) Supreme 434 = 1996(2) JT 418 = 1996(2) AD SC 157 = 1996
LIC 1029 = AIR 1996 (SC) 1188 = 1996 SCC (L&S) 714 = 1996(1) UJ
743 = 1996(1) SLR 813 = 1996(72) FLR 752.
Daily wage instructors can be given regular instructor’s salary only
if work and duties are similar to those of regular instructor:

The respondent appointed as a shorthand instructor on a daily wage

went to High Court claiming regular salary admissible for the post. The
institution challenged the High Court’s order directing it to comply and it
was contended that the work and duties of regular instructors are different,
compared to those employed on daily wage basis.

After perusing the nature of work and duties required to be performed

by the Regular Instructors and the Daily Wage Instructors the Supreme
Court was of the view that the respondent can be given the salary paid to
the Regular Instructors only if it is found that the work and duties
performed by him are the same as those performed by the Regular
Instructor.

Principal Industrial Training Institute Ghazipur vs. Abhay Kumar

Srivastav 1996(2) LLJ 684 = 1996(32) ATC 153 = 1996 SCC 209 = 1995
Supp(4) 617 = 1995(8) SLR 810.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS $ 445

Equal Pay for Equal Work :

“By the general description of their job one cannot come to the
conclusion that every carpenter or craftsman is equal to the other in the
performance of his work. The two jobs by the mere nomenclature or by
the volume of work performed cannot be rated as equal. It is not just a
comparison of physical activity. It requires the consideration of various
dimensions of the job. The accuracy required by the job and the dexterity
it entails may differ from job to job. It cannot be evaluated by the mere
averments in the self-serving affidavits or counter affidavits of the parties.
It must be left to be evaluated and determined by an expert body.”

Herbans Ltd. vs. State of Himachal Pradesh 1989(75) FJR 261 =

1989(59) FLR 375 = 1989(2) Scale 200 = 1989(8) Comp LJ 149 = 1989(3)
SCR 662 = 1989(3) JT 296 = 1989(4) SCC 459 = 1989(2) LLN 966 =
1989(S5) SLR 774 = 1989(11) ATC 869 = 1989 LLJ 466 = 1990(1) UJ
13.
Mechanics and Helpers/Assistants to Mechanics:

The claim of equal pay for equal work was allowed by the High Court
on the ground that the Helper-assistants were doing the same work as the
Mechanics and they should be paid equal pay for equal work. The High
Court held that they could not do so unless they know the job of the
Mechanics.

The Supreme Court Ruled :

“We do not agree with the reasons given by the High Court for
equating the pay-scale of the petitioners with that of the Mechanics. It is
suffice to say that if the reasoning is accepted, the Nurses will have to be
paid the same salary as is paid to the Doctors, whom they assist.

University Grants Commissioner vs. Kedar Nath Ram and Ors. 1994
I LLJ 595 = 1994 Supp.(3) SCC 685 = 1994(28) ATC 715.

Equal Pay for Equal Work :

"It is not enough to say that the qualifications are same nor it Is
enough to say that the Schools are of the same status. It is also not
#116 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

sufficient to say that the Service Conditions are similar. What 1s more
important and crucial is whether they discharge similar duties, functions
and responsibilities. On this score there is a noticeable absence of material.
Whether we look at the averments in, and the material produced along
with, the Original Petition or to the averments in the Counter Affidavit or
even to the averments in the Counter Affidavit filed by the Government
in M.P. 2277/85 (upon which the Counsel for the Respondents has placed
strong reliance) we do not find any clear material to show that the duties,
functions and responsibilities of both the categories of lecturers are
identical or similar.

It would be evident from this definition (Sec.2(h) that the stress is

upon the similarity of skill, effort and responsibility when performed under
similar conditions."

S.C. Pramod Bhartiya and Ors. vs. State of Madhya Pradesh and
Anr. 1993(1) ATR 130 = 1993(1) LLN 210 = 1993(82) FJR 1 = AIR
1993(SC) 286 = 1992 Supp(1) SCR 904 = 1993(1) SCC 539 = 1992/5)
JT 683 = 1992(5) SLR 643 = 1993(2) SLJ 91 = 1992(2) Scale 791 = 1992
LIC 2418 = 1992(65) FLR 991 = 1993 ATC 657 = 1993(1) LLJ 490.
Casual Labour

Employees were classified as regularly recruited employees and even

Casual Employees with more than 10 years of Service were rendering same
kind of Service as rendered by the regular employees and were doing the
same kind of work but were being paid far less Salary and allowances
compared to the regular employees. Such employees were not getting any
increments, leaves or other benefits.

The Court ordered that they should at least be paid Minimum Pay
paid to Regular Employees with Dearness Allowance. Government was
directed to draw up a scheme to absorb its Casual Labour.

Daily Rated Casual Labour Employed under the P & T Dept. vs.
Union of India and ors. 1988(72) FJR 124.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS “(tay

Right to the wages of a Higher Grade Fitter - Claim under Sec. 33(c)

Merely because he was doing the same kind of work which is done
by a ‘B’ Grade Fitter a worker appointed as a ‘C’ Grade Fitter will not be
entitled to claim the wages of a ‘B’ Grade Fitter unless he is duly promoted
after getting through the prescribed tests. Such a workman cannot
complain that he is not getting the salary and allowances of ‘B’ Grade
Fitter since he does not possess an existing right to claim it.

If on an adjudication of the said issue on a reference under Sec. 10(1)

of the I.D. Act it is held that he should be deemed to be a member of the
Cadre of ‘B’ Grade Fitter then only he would be able to claim the salary
and allowances under Sec. 33(2) of the Act.

PK Singh vs. Presiding Officer 1988(73) FIR 203 = 1988(3) SLR

352 = 1988(2) LLN 537 = 1989 LIC 1256 = 1989(1) SLJ 122(2) = 1988
LLJ 363 = 1988 Supp(1) SCR 471 = 1988(3) SCC 457 = 1988(2) Scale
27 = 1988(2) UJ 340.
Equal Remuneration Act 1976 Sec. 2(h) 3, 4 and 7

The Respondent, following the termination of her services, instituted

a Petition before the authority appointed under sub. section (1) of Section 7
of the Act complaining that during the period of her employment, after the
Act came into force, she was being paid remuneration at the rates less
favourable than those at which remuneration was being paid by the
employer to the Stenographers of the male sex performing the same or
similar work.

The Lower Courts had held that the work performed by the Lady
Stenographers was similar to that performed by the Male Stenographers
and there was practically no difference. Lady Stenographers were found
by the Employers, to be proper persons to be confidential too. The Court
further opined that in deciding whether the work is the same or broadly
similar a broad view should be taken and in ascertaining whether any
differences are of a practical importance, an equally broad view should
be taken for the very concept of equal work implies differences in detail
but those should not defeat’a claim for equality on trivial grounds.
#118 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Discrimination arises only where men and women doing the same or
similar kind of work are paid differently.

Mackinnon & Mackenzie Co. Ltd. vs. Audrey D’Costa 1987(2) SCC
469 = 1987(2) SCR 659 = 1387(2) Comp. LJ 165 = 1987(2) JT 34 =
1987(1) LLJ 536 = 1987(2) LLN 10 = 1987(54) FLR 530 = 1988(1) SLJ
196 = 1987(72) FLR 415 = 197 LIC 961 = 1987(2) SLR 690.
Claim by casual workmen retained on Company rolls without work
on Humanitarian Grounds:

The Company has sustained heavy losses. The Petitioners were

surplus to requirements but they were retained on the rolls purely on
Humanitarian Grounds. Directing their absorption and regularisation did
not therefore arise. The Principle of regularisation of a daily paid workman
and payment to him of the pay equal to that of a regular workman arises
only when the daily paid workman is doing the same work as the regular
workman and there being a vacancy available for him, he is not absorbed
against it or not paid the equal pay. This not being the position the Petition
fails.

S Sharma & Ors. vs. NUDC 1998(78) FJR 98

Claim by Casual Workmen :

Workers employed on Casual Basis for 15 to 20 years in a phased

manner, the Court had this to say. “The Legislature of the State controls
the consolidated Fund” out of which the expenditure to be incurred in
giving effect to the scheme will have to be met. The flow into the
Consolidated Fund depends upon the policy of taxation depending perhaps
upon the capacity of the payer. Therefore unduly burdening the State for
implementing the Constitutional obligation forthwith would create
problems which the State may not be able to stand. We have therefore,
made our directions with judicious restraint with the hope and trust that
both parties would appreciate and understand the situation. The
instrumentality of the State must realise that it is charged with a big trust.
The money that flows into the consolidated fund and constitutes the
resources of the state comes from the people and the welfare expenditure
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #119

that 1s meted out goes from the same fund back to the people. May be
that in every situation the same tax payer is not the beneficiary.

Dharwar Dist. Employees Association vs, State of Karnataka

1990(77) FIR 291 = 1990(1) JT 343 = 1990(2) SCC 396 = 1990(2) SLR
43 = 1990(12) ATC 902 = 1990(60) FLR 576 = AIR 1990(SC) 883 =
1990(1) Scale 288 = 1990 LIC 625.
Doctrine cannot be put in a Straight Jacket:

The right to equal pay for equal work is an accompaniment of the

equality clause enshrined in Articles 14 and 16 of the Constitution of India.
Reasonable classification based on intelligible criteria? having nexus with
the object sought to be achieved, is permissible.

Equal Pay for Equal Work does not mean that all the members of a
cadre must receive the same pay packet irrespective of their seniority,
service of recruitment, educational qualifications and various other
incidents of Service. When a single running scale is provided in a cadre,
the constitutional mandate of equal pay for equal work is satisfied.
Ordinarily, grant of higher pay to a junior would ex facie be arbitrary but
if there are justifiable grounds for doing so, the seniors cannot invoke the
equality doctrine. To illustrate, when pay fixation is done under valid
Statutory Rules/executive instructions. When persons recruited from
different sources are given pay protection. When promotee from Lower
Cadre or transferee from another cadre is given pay protection, when a
senior is stopped at efficiency bar, when advance increments are given
for experience/passing a test/acquiring higher qualifications or as incentive
for efficiency, are some examples of the eventualities when a Junior may
be drawing higher pay than his Seniors without violating the mandate of
equal pay for equal work. The differences on these grounds would be
based on intelligible criteria which have a rational nexus with the object
sought to be achieved.

State of Andhra Pradesh vs. G. Sreenivasa Rao 1989 (75) FJR 139
= 1989(1) JT 615 = 1989(2) SCC 290 = 1989(2) LLN1 = 1989(1) ATR
676 = 1989(10) ATC 61 = 1989(2) LLJ 149 = 1989(1) SCR 1000 = 1989
(58) FLR 771 = 1989(1) Scale 627 = 1989(2) UJ 107 = 1989(59) FLR
793.
#120 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Claim by Carpenters :-- Carpenters employed by a Company

incorporated under the Companies Act, 1956, treated as Construction
Workers and paid Minimum Wages admissible to such workman claimed
wages payable to their counterparts in Government Service.

Held: The right to ‘Equal pay for Equal work’ can be enforced only where
the discrimination complained of is among the same set of employees
within the same establishment owned by the same management. A
comparison cannot be made with counterparts in other establishments
under a different management or even in establishments in different
geographical locations though owned by the same employers.

Since the Petitioners were employed by a Company incorporated

under the Companies Act, 1956 and had been treated as constructive
workers and were being paid the minimum wages admissible to such
workmen, they could not claim wages payable to their counterparts in
Government Service.

By the general description of their Job one cannot come to the

conclusion that any Carpenter or Craftsman is equat to the other in the
performance of his work. The two jobs by the mere nomenclature or by
the volume of work performed cannot be rated as equal. It is not just a
comparison of physical activity. The accuracy required by the job and
the dexterity it entails may differ from job to job. It cannot be evaluated
by the mere averments in the self serving affidavits or counter affidavits
of the parties. It must be left to be evaluated by an expert body.
Harbans Lal vs. State of Himachal Pradesh 1989(75) FJR 261 =
1989(2) LLJ 466 = 1989(3) JT 296 = 1989(4) SCC 459 = 1989 (2) LLN
966 = 1989(5) SLR 774 = 1989(7) SLR 444 = 1989(11) ATC 869 =
1990(1) UJ 13 = 1989(59) FLR 375 = 1989(2) Scale 200.
Application of principle

The Court held that even where the workmen have voluntarily
accepted employment on unequal terms the state should not deny their
basic rights of equal treatment. It is in this background that the Principle
of ‘Equal Pay for Equal Work’ in Article 39(d) of the Constitution has to
be construed.
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #127

But this principle has no mechanical application in any case of similar

work. It has to be read into Article 14 of the Constitution which permits
reasonable classification founded on different basis. The classification
based on qualities or characteristics must have a rational relation to the
object sought to be achieved. In several matters merit or experience could
be the proper basis for classification to promote efficiency in
administration. It cannot be denied that the quality of work performed
by persons of longer experience is superior to the work of new comers.
More often functions of two Posts may appear to be the same or similar,
but there may be difference in the degree of performance. Merit governs
the grant of the Higher Pay Scale and that merit is to be evaluated by the
competent authority.
State of U.P. vs. J.P. Chaurasia 1989(1) LLJ 309 = 1989(58) FLR
381 = 1989(1) SCC 121 = 1989(S) SLR 788 = AIR 1989 (SC) 19.
29. FACTORIES ACT
Sec. 2(K) - Manufacturing process - (Using of raw material adapted
for constructing a railway line is a manufacturing process and hence
a factory):

Dispute was whether the workmen engaged on project of

Construction of Rihand Nagar Project could be subjected to Chapter V-B
of the I.D. Act. In any case, the entire project, it was contended, spread
over 54 kms. cannot be held to be a factory since process of construction
of railwuy line cannot be termed as manufacturing process.

Held: Even though the railway line is to be laid over 54 kms. of land every
part of the land would consist of a factory at a given point of time as from
time to time in a phased manner the entire railway-line will have to be
laid. So long as construction work is being carried out in phases, every
part of the land on which such construction activity takes place would form
a part and parcel of the premises as such. Raw materials which were
adapted for their use with a view to constructing railway line which was
the final product could be said to have fallen within the sweep of the
definition of the term ‘manufacturing process’ as found in S.2(K) of the
Factories Act. All the appellant workmen would squarely attract the
definition of the term "workmen" as found in S.2(1) of the Factories Act
#122 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

as they were working for remuneration in manufacturing process carried

out by the project in question. All the requirements of the term factory
as defined by S. 2(m) of the Factories Act are satisfied on the facts of the
present case.

Lal Mohammed & Ors. vs. Indian Railway Construction Co. Ltd. &
Ors. 1999(1) CLR 270.
“Occupier” Who is? Test to be applied is who has ultimate control over
its affairs - ultimate control over Factories of Government Company, like
Indian Oil Corporation, lies with Central Government though Corporation
is a separate legal entity having right to manage its affairs. Persons
appointed by Central Government to manage affairs of Factories (of
Corporation) were therefore directed to be accepted as Occupier of
Factories.

Indian Oil Corporation vs. Chief Inspector of Factories and

Others 1998(2) LLJ 604 = 1998(5) SCC 738 = AIR 1998 (SC) 2456 =
1998(4) JT 631 = 1998(4) Scale 116 = 1998(6) SLT 239.

Any one of the directors shall be deemed to be occupier of the factory:

There is nothing unreasonable in fixing the liability on a Director of

the Company and making him responsible for compliance with the
provisions of the Act and the Rules made thereunder and laying down that
if there is contravention of any of the provisions of the Act or an offence
is committed under the Act, the notified Director and in the absence of
the notification any one of the deemed Director. The Company cannot
nominate any other employee to be Occupier of the factory.

J.K. Industries Ltd. etc. vs. The Chief Inspector of Factories and
Boilers & Ors. etc. 1997(2) LLJ 722 = 1997(88) Comp Cas 285 = 1997(90)
FJR 65 = 1996(6) SCC 665 = 1996(9) JT 27 = 1996(7) Scale 247 = 1997(1)
Supreme 222 = 1996(4) CLT 142 = 1996(74) FLR 2608 = 1996(2) LLN
937.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #123

Sec. 59(1) Overtime wages:—

Workmen engaged on piece rates who were employed for 44-3/4

hours a week claimed overtime wages for the balance of 3-1/4 hours per
week contending that they were required to work beyond the “Normal”
44-3/4 hours each week and that such work should be treated as Over Time
Work.

The Court ruled that Sec. 59(1) of the Act comes into play only if a
piece-worker has worked beyond 9 hours a day or 48 hours in a week and
not otherwise. Further, piece workers are not paid O.T. Wages for the
3-1/4 hours of work in a week because this factor is taken care of in the
calculation of the piece rate.

Clothing Factory NTL Workers Union vs. Union of India 1990(2) JT

231 = 1990(2) SLR 751 = 1990(3) SCC 50 = AIR 1990(SC) 1383 =
1990(60) FLR 864 = 1990(1) Scale 798 = 1990(2) LLJ 201 = 1990(2) UJ
254 = 1990(77) FJR 74 = 1990 LIC 1213 = 1990(2) SCR 617 = 1990(2)
ATR 154.
30. GENERAL

Fraud in Selection of Candidates:

Taxation Inspectors were selected by Subordinate Selection Board

through fraud. As selection was vitiated it was set aside. The selected ©
candidates have no nghts to go to the Office. They should have been directed
to repay the entire Salary and Perks which they have received for the said
Offices for more than 4 years. But showing a streak of sympathy the Court
set aside the appointments to teach them a lesson that dishonesty does not
pay.
Krishna Yadav vs. State of Haryana, 1995(2) LLJ 77.

Freedom of Speech and expression and right to form association -

President of the Association sending letter to Governor of Karnataka on
behalf of the Association alleging that there was bad administration,
corruption and nepotism.
#124 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

He allaged in the letter that the corporation which was making profits
was running at a loss now due to appointment of people without proper
qualification ‘at the instance of political leaders and Ministers. There was
mention of nexus between the management and contractors with regard
to certain projects, purchased Cements being diverted and some other
malpractices. After a lapse of six months he issued a Press Statement
welcoming the dismissal of the Chairman who was President of the City
District Congress Committee.

After seeking confirmation of letter sent by him to the Governor he

was asked to show cause as to why disciplinary action should not be taken
against him.

The employee took the plea that in writing to the Governor or making
a Press Statement he had exercised his Fundamental Right of Speech and
expression under Article 19(1)(a) and that he could not be dismissed from
Service for the exercise of those Rights.

The Supreme Court held that the employee had made a direct public
attack on the head of his Organisation and in the letter to the Governor
had made allegations against various Officers of his Organisation, with
whom he had to work. His conduct was clearly detrimental to the proper
functioning of the organisation in which he worked. On a proper balancing
therefore of the individual freedom of the appellant and proper functioning
of the Government Organisation which had employed him, this was a fit
case where the employer was entitled to take disciplinary action under Rule
22. The Corporation had dismissed him on the above Charges.

Devendrappa M.H. and Karnataka State Small Industries

Development Corporation 1998(1) LLJ 1202.

Go Slow by workmen resulting in the lockout by Management:

Workmen cannot claim wages for such period of lock out on grounds
of unfair Labour Practice. There cannot be two opinions that “Go Slow’
is a serious misconduct being a covert and a more damaging breach of
the contract of employment. It is insidious method of undermining
discipline and at the same time a crude device to defy the norms of work.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #125

It has been normally condemned as an industrial action and has not been
recognised as a legitimate weapon of the workmen to redress their
grievances.

Once it is proved, those guilty of it have to face the consequences

which may include deduction of wages and even dismissal from source.

The Court observed that when go slow is disputed it may be necessary

to investigate into the various aspects such as the nature of the process of
production, the stages of production, their relative importance, the role of
the workers engaged at each stage of production, the pre-production
activities and the facilities
for production, their effect on production, the
factors bearing on the average production etc. The Go Slow may be by
some individual workmen either in one section or different sections or 1n
one shift or both shifts affecting the output in varying degrees and to
different extent depending upon the nature of the product, and the
productive process.

It is therefore necessary that in all cases where the factor of go-slow

and/or the extent of the loss of Production on account of it is disputed
there should be a proper enquiry on changes which furnish particulars of
the go slow and the loss of production on that account.

S.U. Motors (P) Ltd. and the workmen 1990 (2) LLJ 39.

31. GRATUITY

Liability for period prior to take over of the management:

The liabilities for the period prior to take over of the management
are to be discharged from the amount payable to the Owner of the Textile
Undertaking and not by N.T.C.

Rashtriya Mill Mazdoor Sangh vs. N.T.C. & Anr. 1996(1) SCC 313
= AIR 1996(SC) 710 = 1996(1) SCC 313 = 1995(6) Scale 609 = 1996(1)
Supreme 61 = 1995 (9) JT 186 = 1996(1) SCJ 200 = 1996(1) SLR 12 =
1996(72) FLR 114 = 1996(1) LLJ 787 = 1996(1) UJ 456 = 1996 FJR 297.
#126 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Seasonal workmen:

S.4&2(C)

In case of one employee employed in a seasonal establishment the

employer has to pay Gratuity at the rate of seven days wages for each
season. The word season herein presupposes that the employee has not
been employed in annual or regularly durated work during the days in
which the establishment was in operation during the year.

When Gratuity at the rate of seven days wages for each season
requires to be worked out then one has to see the number of seasons in
each completed year of service of the workmen i.e. his continuous years
of service not regulated by the calendar year. In working for each season
thus the employee becomes entitled to Gratuity at the rate of seven days
wages per season.
Aspiwal & Co. vs. Lalitha Padigady & Ors. 1995 (71) FLR 855 =
1995(87) FIR 527 = 1995(5) SLR 213 = 1995(2) UJ 782 = 1995(4) Scale
834 = 1995(5) SCC 642 = AIR 1996 (SC) 580 = 1996(1) LLN 63 =
1996(1) SLJ 96.
32. HOLIDAYS

Increase in number of festival holidays from seven to thirteen is not

violative of fundamental right):

By the Amending Act of 1990, the National Holidays were increased

from 3 to 4 and festival holidays were increased from 4 to 9. This
alteration was challenged by the appellants on the ground that holidays
so increased were violative of the Fundamental Rights guaranteed to
them under Art. 19(1)(g) of the Constitution to carry on their trade,
business and profession. The amendment was upheld by single Judge and
Division Bench and hence the appeal.

Held: The compulsory closure of the industrial concem on national and

festival holidays cannot be treated as unreasonable. It is protected by
Clause (b) of Art. 19 and, therefore, cannot be treated to be violative of
the Fundamental Right under Art. 19(1)(g). The Act is a social legislation
to give effect to the Directive Principles of State Policy contained in Art.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #127

43 of the Constitution and cannot be said to be arbitrary nor can it be struck

down for being violative of Art. 14 of the Constitution. Principles of
Natural Justice cannot be imported in the matter of legislative action.

M.R.F. Ltd. vs. Inspector, Kerala Government & Ors. 1998 LIC 3613

33. INDUSTRIAL DISPUTES ACT

Industry - Industrial Disputes Act S. 2(2) Physical Research

Laboratory is not an industry:

Held: The Labour Court recorded a finding that the research work carried
on by PRL is not connected with production, supply or distribution of
material goods or services. There is no material to show that the
knowledge so acquired by PRL is marketable or has any commercial value.
The object of the research is to obtain knowledge for the benefit of the
Department of Space. Neither from the nature of this organisation nor
from the nature and character of the activity carried on by it, it can be
said to be an undertaking analogous to business or trade. It was not
engaged in a commercial activity and it cannot be described as an
economic venture or a commercial enterprise as it 1s not its object to
produce and distribute services which would satisfy the needs of the
consumer community. It is more an institution discharging governmental
function and a domestic enterprise than a commercial enterprise. PRL is
therefore, not an industry even though it is carrying on the activity of
research in a systematic manner with the help of its employees as it lacks
the elements which make it an organisation carrying on an activity which
can be said to be analogous to the carrying on of a trade or business
because it is not producing and distributing services which are intended
or meant for satisfying human wants and needs as ordinarily understood.

Physical Research Laboratory vs. K G Sharma 1997(90) FJR 485 =

1997 CLR 116 = 1997(4) SCC 257 = AIR 1997(SC) 1855 = 1997 (4) JT
527 = 1997(3) Scale 479 = 1997(3) Supreme 695 = 1997(90) FJR 485 =
1997(2) SLR 593.
#128 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Section 2(j) - Interpretation of Industry - Does not call for

reconsideration

The Judgment in Bangalore Water Supply and Sewerage Board vs.

V A Rajappa and ors. (1978 1 LLJ p. 349) was delivered almost two
decades ago and the law has since been amended pursuant to that Judgment
though the date of enforcement of the Amendment has not been notified.

The Judgment delivered by the learned Judges of the Court in

Bangalore Water Supply case does not in our opinion, require any
reconsideration on a reference being made by a two Judge Bench of the
Court, which is bound by the Judgment of the Larger Bench.

(Coir Board, Ernakulam Kerala State and Anr. vs. Indira Devi P.S.
and Ors. 1999(1) LLJ 1109

S.11-A - “Material on record” if found defective, ceases to be material

on record.

On the basis of the charge-sheet and enquiry, the appellant was

dismissed from service. On reference, on the question whether the enquiry
was fair and proper, the Labour Court held that the enquiry was not held to
be fair and proper and directed the management to produce its evidence.
Since Management did not produce any evidence on record, the appellant
also stated that she would not examine any witness in defence. The Labour
Court, however, dismissed the claim of the appellant on the ground that while
on behalf of the Management whole enquiry file containing the enquiry
proceedings had been produced, there was no evidence on behalf of the
appellant. A writ petition was also dismissed and hence the appellant has
approached the Supreme Court. Respondent management contended that
since the Management was of the view that the charges on the basis of the
evidence already led before the Enquiry Officer, stood proved, the Labour
Court had to rely on the “material on record” as per S.11-A and since the
enquiry proceedings constituted “material on record”, the same could not
be ignored.

Held: The record pertaining to domestic enquiry would not constitute fresh
evidence as those proceedings have been found by the Labour Court to
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #129

be defective. Such record would also not constitute “material on record”

as contended by the respondent, within S.11-A as the enquiry proceedings
on being found to be bad have to be ignored altogether, The record of
enquiry held by the Management ceased to be “material on record” and
the only course open to the Management was to justify its action by leading
fresh evidence as required by the Labour Court. If such evidence has not
been led, the Management has to suffer the consequences. The claim of
the appellant could not be rejected on the ground that she too declined to
lead fresh evidence. The appeal is allowed and matter is remanded to
Labour Court to decide the case afresh after requiring the parties to lead
fresh evidence.

Neeta Kaplish vs. P.O. Labour Court & Anr. 1999(81) FLR 188

Jurisdiction of Industrial Tribunal - Power to interfere is not

unlimited. Decision of Tribunal is subject to Judicial review by High
Court and Supreme Court:

The powers of an Industrial Tribunal to interfere in cases of dismissal

of a workman by the Management are not unlimited and the Tribunal does
not act as a Court of appeal and substitute its own Judgment for that of the
Management. It will interfere

(a) Where there is want of good faith

(b) When there is victimisation or unfair labour practice

(c) When the management has been guilty of basic error or violation of
the Principles of Natural Justice and

(d) When on the basis of the materials before the Court the finding 1s
completely baseless and perverse.

The Section 11A which confers power on the Industrial Tribunal or

the Labour Court to substitute a lesser punishment in lieu of the Order of
- discharge or dismissal passed by the Management cannot be considered
as conferring an arbitrary power on the Industrial Tribunal or Labour
Court. The power under Section 11A of the Act has to be exercised
judicially and only when it is satisfied that the punishment imposed by
# 130 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

the Management is highly disproportionate to the degree of guilt of the

workman concerned. The Industrial Tribunal has to give reasons for its
decision and its decision is subject to Judicial review by the High Court
and the Supreme Court.

Christian Medical College Hospital Employees Union & Ors. vs.

C.M. College Vellore Associations 1987(2) Scale 798 = 1987(4) SCC 691
= 1988(1) SCR 546 = 1987 (4) JT 129 = 1988(1) LLJ 263.

Industrial Disputes Act, 1947 - Sec. 10:

The purpose of the Provision for the reference of Industrial Disputes

to Court/Tribunal is to maintain industrial peace. Power to make a
reference, cannot however be exercised by the Government after a long
lapse of 7 years and particularly when neither an Industrial Dispute exists
nor 1s apprehended.

The Respondent employed by the Bank was charged with falsifying

the books of Account and admitted his guilt and prayed for Pardon. He
was however dismissed by the Bank and his appeal to the appellate
authority was also turned down whereupon he accepted his dues from the
Bank.

After lapse of 7 years he issued a Notice to the Bank alleging

discrimination as two other employees under similar situation had been
reinstated by the Bank. The High Court directed the Central Government
to make a reference which on appeal was upheld by a Division Bench
which asked the Central Government to re-examine the matter. This
direction was challenged by the Bank before the Supreme Court which
held.

“Law does not prescribe any time limit for the appropriate
Government to exercise its powers under Section 10 of the Act. It is not
that this power can be exercised at any point of time and to revive matters
which had since been settled. Power is to be exercised reasonably and in
a rational manner. There appears to us to be no rational basis on which
the Central Government has exercised powers in this case after lapse of
about seven years of order dismissing the respondent from service. At the
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 131

time reference was made no industrial dispute existed or could be even

said to have been apprehended. A dispute which is stale could not be the
subject-matter of reference under Section 10 of the Act. As to when a
dispute can be said to be stale would depend on the facts and circumstances
of each case. When the matter has become final, it appears to us to be
rather incongruous that the reference be made under Section 10 of the Act
in the circumstances like the present one. In fact it could be said that there
was no dispute pending at the time when the reference in question was
made. The only ground advanced by the respondent was that two other
employees who were dismissed from service were reinstated. Under what
circumstances they were dismissed and subsequently reinstated is nowhere
mentioned. Demand raised by the respondent for raising industrial dispute
was ex facie bad and incompetent."

Nedungadi Bank Ltd. vs. K.P. Madhavankutty and Ors. 2000(1) LLJ
261.

Jurisdiction of Tribunal or Labour Court under Section 11A of I.D.

Act:

The Labour Court dealing with the Dismissal of a workman found

that the employer had held a proper enquiry against the workman. The
workman could not show that the enquiry was not fair or proper, but the
Tribunal found the punishment awarded harsh because it was not in
consonance with the nature of the charge against the workman. The Court
found the termination not justified and awarded reinstatement with
continuity of Service but without back wages and directed that the period
of forced idleness be treated as leave, if due. If no leave was due the
period was to be treated as Leave Without Pay. The workman appealed
against the order for not awarding back wages. The High Court dismissed
the writ petition. On a special leave application.

The Supreme Court held that the award of the Tribunal was in
conformity with the provisions of Sec. 11A and the Labour Court had acted
7
#132 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

with jurisdiction to pass appropriate orders which it considered proper and

expedient in the facts and circumstances of the Case.

Baldev Singh vs. Labour Court, Patiala 1986(4) SCC 519 = 1986
JT 655 = 1987(1) LLN 1 = 1986(53) FLR 738 = 1987 LIC 22 = 1986(2)
Scale 596 = 1987 (1) UJ 261 = 1987(70) FJR 1.

Res Judicata

Applies to proceedings before Tribunal where whether a person was

or was not an employee was decided - The Court held that though the
question that Res Judicata applies to proceedings before Industrial Tribunal
is beyond question, it does not mean that a question which is once decided
cannot be reagitated. There are certain classes of cases like disputes
regarding wage structure, service conditions etc. which arise as
circumstances change and new situations arise and which may not be
barred by the rule. But the question whether a person was or was not an
employee under a management after a particular date 1s one which cannot
be reagitated in a subsequent case if it has been finally decided by an
Industrial Tribunal of Competent Jurisdiction, in an earlier case, where
the question necessarily arose for decision.

Bharat Barrel and Drum Mfg. Co. vs. Employees Union 1987(71)
FJR 131 = 1987(2) SCC 591 = AIR 1987(SC) 1415 = 1987(2) JT87 =
1987(1) LLJ 492 = 1987(2) LLN1 = 1987(55) FLR 21 = 1988(1) SLJ 23
= 1987 LIC 1005 = 1987(2) SLR 721 = 1987(1) Scale 716 = 1987(2) UJ
189.
Sec. 11A

When once a misconduct alleged against a workman stood proved

no reinstatement can be ordered with backwages. He should either get
the reinstatement without backwages or just backwages without
reinstatement.

Mukund Engineering Works vs. Bansi Purushotam 1995(2) LLJ 62

= 1994 Supp.(2) SCC 725 = 1994(28) ATC 104 = 1995(2) LLN 291.
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 133

Evidence - Proceedings under Sec. 11 A of I D Act Tribunal to allow

employer to lead evidence:

The right of employer to adduce evidence before tribunal has been

accepted in Workmen of Firestone Tyre and Rubber Co.' and nanan
Chakravarthy vs. Britannia Biscuit Co?.

In Delhi Cloth Mills case’ it was held that before the closure of the
proceedings before the Tribunal an opportunity to produce evidence would
be given if a request for such opportunity is made the employer to the
Tribunal. Hence denial of opportunity to the employer to lead evidence
before the Tribunal in support of the order of denial cannot be justified.

Bharat Forge Co. Ltd. vs. A.B. Zodege & Anr. 1996(2) LLJ 643 =
1996(88) FJR 736.
Sec. 11A

Labour Court upheld the order of Dismissal. High Court while

upholding the Labour Court’s order directed the Company to provide
appointment in Lower Category as a new entrant.

Supreme Court held that the High Court had no jurisdiction to issue
such direction after upholding the Labour Court’s Award. If the
punishment was disproportionate it could have been reduced. No
jurisdiction is vested in the High Court to direct Employer to reemploy
the delinquent employee.

K. Pochaiah and another vs. A.P.S.R.T.C. 1999(2) LLJ 976.

Reference - (In respect of a Co-op. Society can a reference be made

under Sec. 10 of the Industrial Disputes Act?):

Petitioner was dismissed from service for misconduct. A reference

under the Societies Act confirmed the punishment. Petitioner sought
reference under Sec.10 of the Industrial Disputes Act and the Labour Court

1. 1973(43) FIR 375 (SC).

2. 1979(3) SCR 1165 = 1979(3) SCC 3 = 1979(2) LLN 72 = 1979(39) FLR 70 = 1979 SLJ
385 = 1979(54) FIR 526 = 1979(2) LLJ 194 = 1979 LIC 1192.
3. (1972 41 FJR 42)
#134 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

held the Order vitiated by illegality and set aside the Order. High Court
held that in view of Sec. 55 of the Societies Act Labour Court had no
jurisdiction.

Held: Principle laid down under Sec. 11 of CPC Mutatis Mutandis

squarely apply to the procedure provided under the I D Act. It applies as
Res Judicata. The High Court was justified in holding that the Labour
Court has no jurisdiction to decide the dispute once over and the reference
itself is bad in Law.

R.C. Tewari vs. M.P. State Co-op. Marketing Federation Ltd. & Ors.
1997(5) SCC 125 = 1997(5) JT 95 = 1997(3) Scale 741 = 1997 (90) FJR
468 = 1997(5) Supreme 196.

Sec. 17B - full wages last drawn means wages:

The Court held “To read the words ‘full wages Last Drawn’ to mean
wages which would have been drawn by the workman if he had continued
in services, if the order terminating his services had not been passed would
result in so enlarging the benefits as to comprehend the relief that has been
granted under the award that is under challenge. Since the amount Is not
refundable or recoverable in the event of the award being set aside it would
result in the employer being required to give effect to the award during
the pendency of proceedings challenging the award before the High Court
or the Supreme Court.

The words “Full Wages last drawn” must be given their plain and
material meaning and they cannot be given the extended meaning as given
Karnataka High Court in Visweswarayya Iron & Steel Ltd.' or Bombay
High Court in Carana Sahu Co. Ltd.?. |

Dena Bank vs. Kiriti Kumar T. Patel 1998(1) LLJ 1 = 1998 LLR 1.

1. 1994 (84) FLR 46.

2. 1995 (70) FLR 25.

DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #135

Sec. 2(rr) and Sec. 33(2) (b) - Dismissal of workmen during pendency
of proceedings - Requirement to pay one month’s wages.

Held : Wages payable can only be wages for the month following the
dismissal excluding allowances depending on actual work. Workman
cannot claim Night Shift Allowance which can be claimed only on actual
work. Payment made without including Night Shift Allowance does not
vitiate payment of one month’s wages, will not render Dismissal void.

Bharat Electronics Ltd. vs. Industrial Tribunal 1990(76) FIR 300

= 1990(2) LLJ 32.

Industry: Whether Company owning flats, letting them out to tenants

and maintaining employees for their maintenance and Services

The Company provided various facilities to the tenants e.g. free

supply of electricity, washing & cleaning of floors and lavatories, lift
service, electrical repairs etc. and for that purpose employed persons.

Held: Applying the principles laid down by the Supreme Court to the facts
of the case the appellant satisfies the requirements of the definition
‘Industry’ contained in Sec. 2(d) of the Act.

Karnani Properties Ltd. vs. State of West Bengal 1990(3) SCR 933
= AIR 1990 (SC) 2047 = 1990(3) SCR 933 = 1990(3) Comp. LJ 289 =
1991(78) FIR 108 = 1991(2) SLJ 167 =1990 (4) SCC 472 = 1990(3) JT
624 = 1990(2) LLN 996 = 1990(2) Scale 322 = 1990 SLR 61 = 1990(2)
UJ 621 = 1990 (61) FLR 592 = 1990 LIC 1677.
Reference under Sec. 10(1) of Industrial Disputes Act:

Government cannot decide dispute and refuse to make a reference.

Convoy Drivers of Telco, who are engaged to take the Trucks by road,
wanted to be employed as regular employees of the Company. The question
to be determined was whether there was relationship of Master and Servant
between the Company and its Convoy Drivers. The appropriate Govt.
refused to refer the matter for adjudication on the ground that the Convoy
Drivers were not workmen or employees of the Company.

/
# 136 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Held: The appropriate Govt. should in the normal course have referred
the issue for adjudication instead of refusing to make a reference and
deciding the issue on merits on its own. The formation of opinion as to
whether an industrial dispute ‘exists or is apprehended” is not the same
as adjudicating the dispute itself on its merits.

Thus the dispute has been decided by the Government which is

undoubtedly not permissible.

Telco Convoy Drivers Mazdoor Sangh vs. State of Bihar 1989 Supp.
JT 155 = 1989(3) SCC 271 = 1989(2) LLN 718 = 1989 LIC 1546 = AIR
1989 (SC) 1565 = 1989(2) LLJ 558 = 1989(2) SCR 802 = 1989(75) FJR
94 = 1989(1) Scale 1544 = 1989(2) UJ 159 = 1989(59) FLR 734.

Reference of Industrial Dispute - Duty of Govt. to apply mind

The Company had three separate unions one labour union, the staff
union and the third one the workers Union. An earlier settlement with the
three Unions having expired separate but identical Charter of Demands
were submitted by the three unions which were negotiated by the company.
One of the Unions namely the Labour Union had been recognised as the
representative union under the provisions of Section 9E of the Industrial
Disputes Act as inserted by the Rajasthan Government by an amendment
to the Act in 1958. The Workers Union did not accept the offers made by
the Company and the Conciliation Officer submitted a failure report. In
the meantime the Company negotiated a settlement with the two other
Unions and a settlement was signed under Section! 2(3) of the Act.

The Workers Union filed a writ petition in the High Court requiring
the Government to make a reference of the dispute for adjudication, The
High Court issued an order directing the Conciliation Officer to decide
whether or not to make the reference but without waiting for the
Conciliation Officers report the Govt made a reference of the dispute to
the Tribunal. The Appellants challenged the High Court's decision but the
appeals were dismissed by the single judge as well as by the Division
bench. In the appeal filed before the Supreme Court the court averred:
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 137

1) that a settlement arrived at in the course of conciliation

proceedings with a recognized majority union is binding on all
workmen of the establishment, even those who belong to the
minority union which had objected to the same. It would ipso
facto bind all the existing workmen who are all parties to the
industrial dispute and who may not be members of the Unions
that are signatories to such settlement under Section 12(3) of the
Act. Once there was a representative union, in this case, the
labour union, there was no role for the workers' union.

A tripartite setthement had been arrived at among the

management, the labour union and the staff union. When such a
settlement had been arrived as it was a package deal. In such a
deal some demands might be left out. It was not the contention
of the workers’ union that the tripartite settlement was in any way
mala fide. The reference was bad as the tripartite settlement did
bind the members of the workers' union as well.

(11) That the State Government failed to give due consideration to

the direction of the High Court in its judgement also failed in its
duty to bring to the notice of the High Court its notification
making the reference. After the Judgement it was incumbent on
the State Government before making the reference to consider
all the relevant considerations which would clothe it with the
power to make the reference under Section 10 of the Act.
Wholesale reference of all the disputes in the charter of demands
of the workers’ union for adjudication was also bad inasmuch as
many of such disputes were already the subject matter of the
tripartite settlement. This also showed non-application of mind
of the State Government in making the reference.

National Engineering Industries Ltd. vs. State of Rajasthan and

Ors. FIR 2000(96) 202.
# 138 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Industrial Disputes Act - Sec. 10(1): Should a notice be given to

employer before reference:

Whether it was obligatory on the part of the Government to issue a

notice to the employer or to hear him before making a reference on a
second representation made by the workman since it was rejected on an
earlier occasion?

The Supreme Court answered the question in the negative in the

following terms:

“Section 10(1) of the Act provides that where an appropriate

Government is of the opinion that any industrial dispute exists or is
apprehended, it may, at any time, by order in writing refer the dispute to
named authorities. Section 12 (5) of the Act postulates that on receipt and
consideration of a report from the conciliation officer, if the Government
is satisfied that there is a case for reference to the Board, Labour Court,
Tribunal or National Tribunal, as the case may be, it will make such
reference. Where the appropriate Government does not make such a
reference it shall record reasons therefore and communicate to the parties
concerned.

A conjoint reading, therefore, would yield to the conclusion that on

making an application for reference, it would be open to the State
Government to form an opinion whether industrial dispute exists or is
apprehended and then either to make a reference to the appropriate
authorities or refuse to make the reference. Only on rejection thereof, the
order needs to be communicated to the applicant. It would be only a
subjective satisfaction on the basis of the material on record. Being an
administrative order no /ist is involved. Thereby there is no need to issue
any notice to the employer nor to hear the employer before making a
reference or refusing to make a reference. Sub-section (5) of Section 12
of the Act does not enjoin the appropriate Government to record reasons
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #139

for making reference under Section 10(1). It enjoins to record reasons

only when it refuses to make a reference.

Sultan Singh vs. State ofHaryana 1996(2) SCC 66 = AIR 1996(SC)

1007 = 1996(2) SCC 66 = 1995(9) JT 556 = 1996(1) Scale 9 = 1996(1)
Supreme 211 = 1996(1) SCJ 301 = 1996(32) ATC 847 = 1996 LIC 915 =
1996(1) SLR 598 = 1996(73) FLR 955 = 1996(1) LLJ 879.

Notice of change

S. 9-A I.D. Act, 1947 - (Circular restricting employees to contest

elections is not a change in conditions of service):

Bank issued a circular by which local head offices were directed to

obtain an undertaking from the employee indicating that his contesting
election will not interfere with the duties in the bank and that in the case
he is elected, he will immediately resign from Bank’s services, failing
which bank would be free to treat his letter seeking permission as a letter
of resignation. On challenging the circulars, the Andhra Pradesh High
Court held that the two circulars amount to a change in the conditions of
service and are violative of S$.9A of the I.D. Act.

C1.8 of S.9A is “withdrawal of any customary concession or privilege

or change in usage”. The customary concessions or privileges clearly
relate to conditions of service or work. Participating in an election to a
Municipal Council or local body is not a customary privilege connected
with conditions of service or work. The Rules of conduct of the Award
Staff have always included a rule to the effect that the employees of the
Bank may not accept office on Municipal Council or other public body
without prior sanction of the Bank. The circulars, therefore, do not bring
about any change in the conditions of service of a workman. The appeal
is allowed and the impugned judgment and order of the Andhra Pradesh
High Court is set aside.

General Manager (Operations) State Bank of India & Ors. vs. State
Bank of India Staff Union & Anr. 1998 (3) SCC 506 = 1998(2) JT 580 =
1998(2) Scale 401 = 1998(3) SLT 528 = 1998(3) Supreme 134 = 1998(2)
SLR 261 = 1998(1) LLJ 1063 = 1998 (79) FLR 94.
 #140 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Notice of change has to precede rationalisation :

The appellant installed two photo type composing machines at

Nagpur in 1981 which become fully operative by October, 1981.
Appellant issued a notice of change on 25th March, 1982 stating that as a
result of installation of photo composing machines, there was no work
available with the appellant to the respondent and other employees.

Held: Before introducing such a scheme of rationalisation which had a

likelihood and tendency to affect the workman, a notice under S.9-A was
required to be issued, prior to the installation of the photo compasing
machine. Such a notice could have been sent before such a machine was
brought in the premises on experimental measure or at least before the
same was continued to be installed as a confirmed necessary component
of machinery for printing at the appellant’s premises at Nagpur. Therefore,
a notice under S.9-A issued after installation of the machine and after
bringing into force the rationalisation scheme was ex facie a still born and
incompetent notice and was clearly violative of provisions of S.9-A of the
Act, which amounted to putting the cart before the horse. The foundation
of the impugned order of discharge is the notice under S.9-A dated 25th
March, 1982. Once the foundation is knocked off as incompetent, illegal
and uncalled for, the entire edifice of retrenchment order against the
respondent falls on the ground.

Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad 1999(6) SCC 275

= 1999(4) Scale 109 = AIR 1999(SC) 2423 = 1999(4) JT 546 = 1999 (7)
SRJ 316 = 1999(4) SLR 248 = 1999(6) Supreme 104 = 1999(6) SLT 268
»= 1999(2) LLJ 600 = 1999(3) CLT 79.

Lay Off. Sec. 25(2)

Due to chronic shortage of power since 1981 the productive activities

of the Company suffered immensely. The Company found it difficult to
pay the pending Power Bills as well as the Supplementary Charges. The
Company’s petition before Patna High Court to quash the demand for
supplementary charges was turned down. Its request to pay the amount
due in instalments was also rejected. The Company resorted to lay off of
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #1417

workmen without obtaining prior permission for which on the basis of a

complaint the Superintendent of Labour filed a case U/S. 25(O) of the I.D.
Act.

The Court negatived the Company’s contention that Sec. 25M was
ultra-vires.

But based on the difficulties faced by the Company the Criminal

Cases were quashed. Ashok K. Jain vs State of Bihar 1995(1) SCC 516 =
1995 (1) JT 150 = 1994(5) Scale 187 = 1995(1) CLR 98(SC) = 1995(2)
LLJ 685 = 1995 (1) LLN 400 = 1995 (70) FLR 288.

Sec. 25(OQO). 25(F)

The permission granted by the Authority under 25(N) of the Act was
challenged as there was no proof of the application being submitted either
by the Employer or Workmen.

The Rules framed by the State Government required the application

to be-made out in Triplicate and Copies to be served by the Employer on
the Workmen concerned and “proof to that effect to be submitted along
with the application”. The application did not mention anything about
the “Proof” of service to the workmen. The Court was not satisfied and
awarded in addition to the Compensation under Sec. 25(F) a further sum
of Rs.10,000/- per worker.

Shiv Kumar & Ors. vs. State of Haryana and Ors. 1995(1) LLJ 1162
= 1994(4) SCC 445 = 1994(4) JT 162 = 1994(2) Scale 839 = 1994(1) UJ
744 = 1994(2) SLJ 151 = 1994(2) SLR 704 = 1994 (69) FLR 250 =
1994(2) LLN 425 = 1995(87) FLR 66.

Provisions for prohibition of lay off - Valid and constitutional -

Restrictions reasonable - Industrial Disputes Act, 1947 - Sec. 25-M -
Constitution of India, Arts. 14, 19: .

The provisions of Section 25-M of the Industrial Disputes Act, 1947,

which prohibit lay off of workmen without previous permission, are valid
#142 ‘$C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

and constitutional. The restrictions imposed thereby on fundamental rights

under Article 19 of the Constitution of India are reasonable.

Madura Coats Ltd. and Anr, vs. Papanasam Labour Union AIR 1995
(SC) 2200 = 1995(1) SCC 501 = 1995(1) JT 71 = 1994(5) Scale 153 =
1995(1) SLR 259 = 1995 LIC 735 = 1995 (86) FJR 280 = 1995(1) LLN
408 = 1995 (70) FLR 319.
Sec. 25 FF - Burden of paying retrenchment compensation on
company not on the new company board which took over the
company:

The West Bengal Govt. revoked the License of Asansol Electric Co.
Ltd. and directed it to sell the company to the W.B. State E. Board. The
employees were retained in service. After a few weeks the Board asked
the employees to execute a form containing fresh terms and conditions of
service. They were to be treated as fresh recruits from the date of take
over of the undertaking by the Board.

‘The appeal Court held that the employees were entitled to

retrenchment compensation in accordance with Sec. 25 FF of the I.D. Act.

Supreme Court held that none of the conditions of Sec. 25 FF had

been complied with. While holding that the employees were entitled to
Retrenchment Compensation it ruled out that such payment was due from
the Board.

Bholanath Mukherjee & Ors. vs. Govt. of W.B. & Ors. 1997(1) SCC
562 = 1996(10) JT 625 = 1996(8) Scale 577 = 1996(9) AD (SC) 191 =
1996(3) SLR 797 = 1997(75) FLR 95 = 1997(1) LLN 523.

Distinction Between Sec. 33C (1) & (2)

What is the distinction between Section 33C (1) and Section 33C (2)?

The distinction between Section 33C (1) and Section 33C (2) was
explained and clarified by the Supreme Court in the following terms:

“The distinction between sub-section (1) and sub-section (2) of

Section 33C lies mainly in the procedural aspect and not with any
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 143

substantive rights of workmen as conferred by these two sub-sections.

Sub-section (1) comes into play when on the application of a workman
himself or any other person assigned by him in writing in this behalf or
his assignee or heirs in case of his death, the appropriate Government is
satisfied that the amounts so paid are due and payable to that workmen.
On that satisfaction being arrived at, the Government can initiate action
under this sub-section for recovery of the amount is a determined one and
requires no ‘adjudication’. The appropriate Government does not have
the power to determine the amount due to any workman under sub-section
(1) and that determination can only be done by the Labour Court under
sub-section (2) or in a reference under Section 10(1) of the Act.

An analysis of the scheme of Sections 33C (1) and 33C (2) shows
that the difference between the two sub-sections is quite obvious. While
the former sub-section deals with cases where money is due to a workman
from an employer under a settlement or an award or under the provisions
of Chapter V-A or V-B, sub-section (2) deals with cases where a workman
is entitled to receive from the employer any money or any benefit which
is capable of being computed in terms of money. Thus, where the amount
due to the workmen flowing from the obligations under a settlement 1s
predetermined and ascertained or can be arrived at by any arithmetical
calculation or simpliciter verification and the only inquiry that 1s required
to be made is whether it is due to the workman or not, recourse to the
summary proceedings under Section 33C (1) of the Act is not only
appropriate but also desirable to prevent harassment to the workmen. Sub-
section (1) of Section 33C entitles the workmen to apply to the appropriate
Government for issuance of a certificate of recovery for any money due
to them under an award or a settlement or under the provisions of Chapter
VA and the Government, if satisfied that a specific sum is due to the
workmen, is obliged to issue a certificate for the recovery of the amount
due. After the requisite certificate is issued by the Government to the
Collector, the Collector is under a statutory duty to recover the amounts
due under the certificate issued to him. The procedure is aimed at providing
# 144 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

a speedy, cheap and summary manner of recovery of the amount due,

which the employer has wrongfully withheld. It, therefore, follows that
where money due is on the basis of some amount predetermined like the
VDA, the rate of which stands determined in terms of the settlement or
an award or under Chapter V-A or V-B and the period for which the arrears
are claimed is also known, the case would be covered by sub-section (1)
as only a calculation of the amount 1s required to be made.”

M/s. Fabril Gasosa vs. Labour Commissioner AIR 1997 SC 254 =

1997(3) SCC 150 = 1997(2) JT 171 = 1997(1) Scale 5544 = 1997(75) FLR
715 = 1997(90) FJR 306 = 1997(1) LLJ 872 = 1997(2) SLR 347 = 1997(2)
Supreme 515 - Per Dr. A.S. Anand and S.B. Majumdar JJ.

Sec. 33-C(2)(B): What is the status of workmen during the period of date
of dismissal and date of approval of the Order. Matter was referred to a
Bench of Five Judges.

Jaipur Zilla Shahallavi Bhoom Vikas Bank vs. Ram Gopal Sharma
& Anr. 1994(6) SCC 522 = 1995(3) SLR 710.
Closure of undertaking

Section 25 of I D Act provides that when an undertaking is closed

down for any reason whatsoever every workman who has been in
continuous service for not less than one year in that undertaking
immediately before such closure shall be entitled to notice and
compensation in accordance with the provisions of Section 25 FFF as if
the workman had been retrenched.

Where however, the undertaking is closed down on account of

unavoidable circumstances beyond the control of the employer the
compensation to be paid to the workmen under Section 25F(b) shall not
exceed his average pay for three months.

The Supreme Court held that on the facts of the Case which showed
that in the course of seven years there has been continuous industrial strife
marked by strikes and lock outs followed invanably by acts of violence and
that whenever an industrial dispute was referred for adjudication the
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #145

workmen refused to co-operate and would not appear before the Tribunal,
it cannot be said that the circumstances were not “unavoidable
circumstances beyond the control of the Employer”.

Rameshwar Das vs. State of Haryana 1987 FJR 309 = 1987 Supp.
SCC 711 = 1987(1) JT 420 = 1987(1) LLJ 514 = 1987(1) LLN 425 =
1987(54) FLR 445 = 1987 LIC 637.
Closure of one or two factories belonging to the same employer -
Whether Closure or Retrenchment.

The Employer engaged in the business of heat treatment of metals

had established a Factory with 32 workmen. After 12 years one more
Factory was established for the same business with 75 workmen.

Due to growing indiscipline the employer decided to close down the

First Unit. A dispute raised by the workmen was referred to the Industrial
Tribunal. The Tribunal held that the two Units were independent to each
other, and the seniority lists of workmen in the Units were different and
there were no inter-transfers between the Units. It rejected the plea that
the closure was in retaliation for Trade Union activities.

When the First Unit stopped work, Normal work continued in the
Second Unit. The Supreme Court held that the High Court's contention
that since the Units were located near each other, as well as being under
the control of the same employer the two units were integral cannot be
sustained and held that the case was one of bona fide closure.

Isha Steel Treatment vs. Association of Engineering Workers

1987(71) FIR 11 = 1987(2) SCC 203 = 1987(2) SCR 414 = 1987(1) JT
548 = 1987(1) LLJ 427 = 1987(1) LLN 741 = 1987(54) FLR 454 = 1988(1)
SLJ 68 = 1987 LIC 1028 = 1987(1) Scale 442 = 1987(1) CCC 928.

Order to close down hazardous industries in Delhi employers asked

to pay six years’ wages to workmen if they fail to relocate them:

Held: Workmen of industries which are not relocating and have closed
down shall be paid retrenchment compensation as per Sec. 25 F(b) and
six years’ wages as additional Compensation.
#146 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Workmen who refuse relocation shall receive one year wages, as

additional compensation. Workmen of closing industries shall remain in
the quarters for | to 1-1/2 years. In lieu of occupation of quarters industry
shall pay a sum of Rs. 20,000/- to each workman leaving the quarters.

Mehta vs. Union of India AIR 1996 SC 2231 = 1996(4) SCC 750 =
1996 LIC 1825 = 1996(3) CCC 78 (SC) = 1996(6) JT 129 = 1996(5)
Supreme 255 = 1996(5) Scale 21.

Lock out

When lock out is justified and workmen are not entitled to wages:

When in consequence of an illegal strike lock-out was declared by

the management. It cannot be said that the lock out is illegal. It 1s both
legal and justified and the workmen are not entitled to the payment of
wages for the period during which the lock out continued.

The Court relied upon the case of Syndicate Bank & Anr. vs. Umesh
Nayak' dealt with the Constitution Bench.

HAL Employees Union vs. The Presiding Officer & Anr. 1996(4) SCC
223 = 1996(4) Scale 475 = 1996(6) Supreme 60 = 1996(4) Supreme 409
= 1996(5) AD (SC) 12 = 1996 SCC 921 = 1996(73) FLR 1722 = 1996(2)
SCJ 497 = 1996(2) LLJ 930 = 1996 (2) SLJ 47 = 1996(4) SLR 244 =
1996(89) FJR 37 = 1996(2) LLN 265.

When can adjudicator interfere :

The Labour Appellate Tribunal in the case of B and C Mills° has

held that the decision of the management to dismiss, discharge or terminate
the services of a workman would not prevail in the following
circumstances :

(1) If there is want of bona fides, or

(11) If it is a case of victimisation or unfair labour practice or violation of

principles of natural justice, or

1. 1994 II CLR p. 753.

2. 1952 LIC 490, 1951 (2) LLJ 314.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #147

(i) If there is a basic error on facts, or

(iv) If there has been perverse finding on the materials.

The above decision was approved by the Supreme Court in the case
of Indian Iron & Steel Co. Ltd. and another vs. their workmen, 1958 (1)
LLJ 260 = 1958 SCR 667 = AIR 1958 (SC) 130 = 1958 SCJ 285 = 1957-
58 (13) FJR 377.

Note:

The following observations by Justice B Sudarshan Reddy in the

case of Depot Manager, APSRTC Hanumkonda vs. G. Rajaiah & Anr.'
explain the scope of Section 11A of the Industrial Disputes Act, 1947.

The Hon’ble Justice Sudarshan Reddy observed as follows:

“The basic requirement in law 1s that the Labour Court before

interfering with an award in purported exercise ofjurisdiction under
Section 11-A of the Act is required to record categorical finding as to the
proportionality of punishment and the reasons therefor. Mere statement that
interests of justice requires interference is of no consequence for interfering
with the order of the disciplinary authority in purported exercise of power
under Section 11-A ofthe Act. It is settled law that Section 11-A ofthe
Act does not authorise the Labour Court to interfere with the order of the
disciplinary authority for the sake of interference and on undisclosed
grounds. Misplaced sympathies have no place whatsoever in adjudicating
an Industrial Dispute between the Management and its employees. Such
misplaced sympathies may prove counter-productive leading to large scale
indiscipline and free for all atmosphere among the workmen which would
be neither in the public interest nor in the interests of management.

The Labour Court cannot be permitted to act according to its own

whims and fancies. Justice is required to be administered in accordance
with law and on the basis of the material available on record in a given
case. Justice according to law is to be administered between the parties.
The Labour Court cannot act like a bull in China Shop and interfere with
the orders of the disciplinary authority merely because it likes to interfere

1. 1999(5) ALT 636.

# 148 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

in a given case. Such interference would lead to chaos and disorder and
may ultimately result in causing irreparable damage to the system of
administration of justice.

34. LIEN

Loss of Lien - Remaining absent for more than 8 days and or

overstaying sanctioned leave.

Rule 23 of the Corporation states that:

Proceeding on leave without prior sanction and remaining

unauthorisedly absent for more than 8 consecutive days and/or overstaying
his sanctioned leave beyond the period originally granted or subsequently
extended for more than 8 consecutive days would result in loss of lien of
the appointment of the employee.

The respondent had applied for one day’s casual leave and thereafter
went on sending applications for Leave on medical grounds without
enclosing certificates. According to the medical certificates produced
before the Court nowhere it was stated that he was suffering from heart
disease. In fact no nature of sickness was mentioned nor the ailment
disclosed in the application.

It cannot be said that Principles of Natural Justice have not been

complied with or the circumstances require any enquiry as contemplated
under Rule 25. There was no reason for the High Court to interfere with
the order.

Hindusthan Paper Corporation vs. Panhindra Chakravarthy & Ors.

1997(2) LLJ 704.

Lien - Meaning of : When a person having lien against a post is appointed

substantively to another post, such person acquires lien against the latter
Post. Lien is not a word of art. It canons the right of a Civil Servant to
hold the post substanting to which he was appointed. When a person with
a lien against a post is appointed substantively to another post he acquires
a lien against the latter post. Then the lien against his previous post
_ DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 149

automatically disappears. Principle is no Government Servant can have

simultaneously two liens against two posts in two different cadres.

Ramanlal Khurana (dead) by L.Rs vs. State of Punjab & Ors. 1990(1)
LLJ 313.

35. LIMITATION ACT

Courts to view and treat applications by State on equal basis :

Power to condone delay under Sec.5 of the Limitation Act. Section

5 confers powers to condone delay to enable the Courts to do substantial
justice to partiesby disposing off matters on merits. The expression
“Sufficient Cause” is adequately elastic to enable the Courts to apply the
Law in a meaningful manner to subserve the ends of Justice - that being
the life purpose of the existence of the Institution of Courts. “Everyday’s
delay must be explained” does not imply a pedantic approach. The doctrine
must be applied in a rational, common sense and pragmatic manner. |

The doctrine of equality before law demands that all litigants

including the State as a litigant are accorded the same treatment and the
law is administered in an even handed manner. There is no warrant for
according a step-motherly treatment when the state is the applicant praying
for condonation of delay.

Collector of Land Acquisition vs. MST Katju & Ors. 1987(71) FJR
143.

Not applicable to the proceedings, under Industrial Disputes Act.

The Supreme Court of India, in its judgement dated 08-04-99 held

that Limitation Act is not made applicable to ID Act. Hence the relief
under the ID Act cannot be denied to the workman merely on the ground
of delay.

The appellant was dismissed from services from 16-07-97. He raised

demand of reinstatement after lapse of 17 years on 08-12-81. The Labour
Court passed an award of reinstatement with full back wages from 08-
12-81. The respondent approached the High Court merely on the ground
#150 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

of delay in claiming reference. The learned single Judge of the High Court.
held that the workman was not entitled to any relief as he was allegedly
shown to have slept for over the matter for 7 years. The matter came up
before the Supreme Court. The Supreme Court made the following
observations while disposing off the case. The provisions of Limitation
Act 1963 are not applicable to the proceedings under the ID Act and that
the relief cannot be denied to workman merely on the ground of delay.
The plea of delay if raised by the employer is required to be proved as a
matter of fact by showing the real prejudice and not as a merely
hypothetical defence. No reference to the Labour Court can be generally
questioned on the ground of delay alone. Even in a case where the delay
is shown to be existing, the tribunal, Labour Court or Board or both can
appropriately mould the relief by declining to grant back wages to the
workman till the date he raised the demand regarding his illegal
retrenchment/termination or dismissal. The Court may also in appropriate
cases direct the payment of part of the back wages instead of full back
wages. On account of the admitted delay, the Labour Court ought to have
appropriately moulded the relief by denying the appellant workman some
part of the back wages. In the circumstances the Court upheld that upon
his reinstatement the appellant would be entitled to continuity of service,
but back wages to the extent of 60% with effect from 08-12-81 til the
date of award of the Labour Court 1.e. 16-04-96 and full back wages
thereafter till his reinstatement would be payable to him.

Ajaib Singh vs. Sirjind Co-op. Marketing-cum-Processing Service

Society Ltd. 1999 CLR 1068.

36. MINIMUM WAGES ACT

Sec. 20(2) S (1) Even An Ex-Employee can invoke the provisions:

Held that Sec. 30 of the Act confers on the appropriate Govt. powers
to make rules. Form IV framed under the Central Rules for the purpose
of S. 20(2) is for seeking relief provides ‘the applicant was/has been
employed from......... tOics.006h . It is plain that the para one of the form
’
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #7157

equates the past and the present as an alternative. It obviously establishes

the mght of an ex-employee to move a petition under Sec. 20(2) of the
Act.

Pali Devi & Ors. vs. Chairman, Managing Committee and another.
AIR 1996 SC 1589 = 1996(3) SCC 296 = 1996(73) FLR 1150 = 1996(1)
LLN 811 = 1996(2) LLJ 57 = 1996(88) FJR 728 = 1996(3) JT 306 =
1996(2) Scale 633 = 1996(2) Supreme 679 = 1996 LIC 1273.

Claim for O.T.

Payment for Over Time work can be claimed only by those

employees who are getting Minimum Rate of Wages under the Act and
not by those getting better wages.

Municipal Hatta vs. Bhagat Singh and others 1998(1) LLJ 815.

Applicability

Applicability to Shops and Commercial Establishments governed by

the Karnataka State Shops and Establishments Act.

The Court held that this Act was applicable to Shops and
Establishments and even if such establishments were paying the Employees
more than the prescribed Minimum Wages. Such payments will have no
relevance for deciding applicability of the Notification. Government ts
not bound to make distinction for each and every Shop and Establishment
by actual verification whether they are paying Minimum Wages or not.

Establishments paying higher wages or wages more than are

prescribed by the Notification are not obliged to Pay Minimum Wages
plus Variable Dearness Allowance. Minimum wage is one unit of fixed
amount. Variable Dearness Allowance is part and parcel of wages.
Minimum Wages cannot be split up on basis
of cost of each of necessities
- Employer paying total sum which is higher than Minimum Rates of
_ Wages fixed under the Notification including cost of living index 1s not
required to pay variable Dearness Allowance separately.

Competent authority cannot bifurcate each component of cost of each

item taken into consideration for fixing Minimum Wages. Dearness
#152 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Allowance is part and parcel of cost of necessities - where minimum rates

of wages are linked with variable dearness allowance it would not mean
that it is a separate component which is to be paid separately.

Air Freight Ltd. and State of Karnataka and Ors. 1999(2) LLJ 705
= 1999(6) SLT 417 = 1999(6) Supreme 551 = 1999(8) SRJ 175 = 1999(5)
JT 320 = 1999(4) Scale 451 = AIR 1999 SC 2459 = 1999(6) SCC 567.

Grains whether wages :

Whether Grains supplied by the employer not covered by the

Government Notification can be treated as Wages in kind?

The Court held that Grains supplied at concessional rates to the

workmen, which is not covered by the Government Notification, is an
amenity in kind or additional facility or service. Cash value of such
concession cannot be treated as wage in kind and cannot be deducted from
the Minimum Wages payable under the Act.

Attendance Bonus, is extra remuneration paid for regular attendance

with object of increasing production and is only an incentive and not a
wage and does not form part of the Minimum Wage.

There is a basic difference between the incentive bonus and the

minimum wage. Every workman was entitled to the Minimum Wage from
the very first day of his joining the employment where as the Bonus had
to be earned and it becomes payable “after the event”.

Manganese Ore (India) Ltd. vs. Chandulal Sadu 1990(77) FJR 420
= 1990(2) Scale 902 = 1990(62) FLR 75 = 1991(1) JT 47 = 1991(1) SLR
625 AIR 1991 SC 520.

37. MISCONDUCT

Does promotion condone an earlier misconduct:

Under ordinary law an employer has option to punish an erring

employee on the ground of misconduct committed by him but if the
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 153

employer voluntarily elects not to take action to punish the employee then
it would be a case of condonation of misconduct by the master. Where
an employee is required to be considered for promotion despite the
pendency of preliminary enquiry or contemplated enquiry against him and
finds him fit the promotion so made would not amount to condonation of
misconduct.

State of M.P. & Ors. vs. R N Misra 1997(91) FJR 68 = 1997 (77)
FLR 582
Breach of regulation is “misconduct”

The respondent Branch Manager of a Bank - was suspended pending

enquiry and ten charges were communicated to him. Since 4 charges were
fully established and five partly, the appropriate authority dismissed the
respondent from service. However, High Court allowed the petition
holding that the charges held established against the respondent represent
errors of judgment but not misconduct. It was not established that it was
done with an ulterior motive under Regulation 24 of the Banks Discipline
and Appeal Regulations, misconduct has been defined as “a breach of any
of the provisions of these regulation shall be deemed to constitute a
misconduct punishable under the Regulations”.

Held: In the case of a bank, for that matter any other organisation, every
officer/employee is supposed to act within the limits of his authority,
failing which the discipline of the organisation/bank will disappear and
the functioning of the bank would become chaotic and unmanageable.
Acting beyond one’s authority is by itself a breach of discipline and a
breach of Regulation 3. It constitutes misconduct within Regulation 24.
No further proof of loss is really necessary though as a matter of fact, in
this case, there are findings that several advances and overdraws allowed
by respondent have become sticky and irrecoverable, although some have
fetched some profit - huge profit. High Court has committed a clear error
# 154 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

in holding that aforesaid conduct of the respondent does not amount to

misconduct or that it does not constitute violation of Regulations 3 and
24.

Disciplinary Authority-cum-Regional Manager & Ors. vs. Nikunja

Bihari Patnaik 1996 (89) FJR 49 = 1996(2) LLN9 = 1996 (73) FLR 1252
= 1996(2) LLJ 379 = 1996(9) SCC 69 = 1996(4) JT 454 = 1996(3)
Supreme 710 = 1996(4) AD(SC) 41.

Assault of Staff Officer near the Factory Premises whether

Misconduct? Can acquittal by Criminal Court have any effect on
decision taken on basis of Domestic Enquiry?

Relying on the decision of the Court in M/s. Glaxo Laboratories

(India) Ltd. vs, Presiding Officer in which it was held that since the
incident of assault had taken place outside the factory premises, the
dismissal was declared bad. Before disposing of the petition the Supreme
Court renewed earlier decision of the Court in the case of Mulchandani
Electrical and Radio Industries Ltd. vs. Their Workmen' Glaxo
Laboratories (India) Ltd. vs. Presiding Officer,? A. Badridas* and
Tata Oil Mills Co. Ltd. vs. Its Workmen’.

In the case of Mulchandani Electricals a workman had assaulted the

chargeman outside the factory, in a suburban train while the latter was
going home. It was clearly held that the words “within the Premises or
Precincts of the establishment refer not to the place where the Act which
was subversive of discipline or good conduct is committed but where the
consequences of such act manifest itself.”

“In other words an Act whenever committed if it has the effect of

subverting discipline and good behaviour within the premises or precincts
of the establishment will amount to Misconduct”.

. 1975 | LLJ 391 = 1975(4) SCC 731 = 1975(30) FLR 169 = 1975 (48) FIR 1 = 1975(1)
LLJ 391 = 1975 LIC 1508 = 1976(1) SLR 48.
2. 1984 - I LLJ 546.
w. 1963 | LLJ 684.
4. 1964(2) LLJ 113 = 1964(7) SCR 555 = 1965(26) FIR 199 = AIR 1965 (SC) 155.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #155

In the case of Glaxo it was observed that “the casual connection in.
order to provide linkage between the alleged act of misconduct and
employment must be real and substantial, immediate and proximate and
not remote or tenuous”’.

So far as the acquittal in the criminal cases concerned the same is

not of any effect in view of the findings arrived at by the Industrial
Tribunal.

Narayanan vs. BPL Systems Pvt. Ltd. 1995(1) LLJ 43

Employee issued with Charge Sheet and Disciplinary Proceedings

contemplated - Whether this can be ground for denying promotion:

Held: In Law the mere fact that disciplinary proceedings are contemplated
or one under consideration against the employee does not constitute a
ground for not considering the employee concerned for promotion if he
is in the zone of consideration and otherwise fit for promotion.

New Bank of India vs. N P Sehgal & Anr. 1991(78) LLJ 276 =
1991(78) FJR 276.

Employee suspended pending Criminal Proceedings

Held: Employee suspended pending Criminal Proceedings, on being

acquitted of the Criminal Charge is entitled to be reinstated in service.
His acquittal on the criminal charge does not debar the disciplinary
authorities from initiating disciplinary proceedings and after giving an
opportunity of hearing to the employee pass an order of termination of
service on the basis of the terms and conditions of service.

Babu Lal vs. State of Haryana & Ors. 1990(2) LLJ 32 = 1990 LIC
854 = 1990(1) JT 431 = 1990(2) SCC 314 = 1990(2) SLR 711 = 1990(76)
FJR 300 =.AIR 1990 SC 1080 = 1990(60) FLR 622.
# 156 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

38. MORAL TURPITUDE

Conviction under Sec. 294 of I.P.C. does not amount to Moral

Turpitude:

Moral Turpitude is an expression which is used in legal as also social

parlance to describe a conduct which is inherently base, vile, depraved or
having any conviction showing depravity and is an offence triable
summarily under Sec. 260 of the Criminal Procedure Code.

While allowing the appeal the S.C. also recommended that remedial
measures are necessary in raising the tolerance limit with regard to petty
offences especially when tried summarily provided that punishment of fine
upto a certain limit say upto Rs. 2000/- or so on summary/ordinary
conviction shall not be treated as conviction at all for entry into and
retention in Government service. =

Pawan kumar vs. State of Haryana 1996(2) LLJ 703 = 1996(2) SLJ
9 = 1996(4) SLR 40 = 1996(89) FIR 612 = 1996(2) LLN 227 = 1996(5)
AD (SC) 1 = 1996(73) FLR 1501 = 1996(5) JT 155 = 1996(4) SCC 17 =
1996(5) JT 155 = 1996(4) Scale 480 = 1996(4) Supreme 764.

Dismissal under Sec. 509 of IPC - Can High Court direct the Govt. to
make a Reference :

(Sec.509 - Gesture or act intended to insult the modesty of a woman)

The Petitioner was convicted under Section 509 of IPC and sentenced
to pay a fine of Rs. 200/-. The Govt. refused to make a reference. A
Single Judge directed the Govt. to make a reference. In appeal Division
Bench converted the Dismissal into one of discharge without retiral
benefits.

On appeal Supreme Court held that where a Government employee

is involved in Moral Turpitude it automatically leads to his removal from
service. The Court further held that for Moral Turpitude he had been
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #157

rightly dismissed. The Single Judge was in error in directing Govt. to

make a reference.

J. Jaishanker vs. Govt. of India 1996(6) SCC 204 = 1996(7) JT 483

= 1996(6) Scale 186 = 1996(6) Supreme 410 = 1996 SCC (L&S) 1372 =
1996(3) SLJ'131 = 1996(5) SLR 661 = 1996(6) AD (SC) 570 = 1997(1)
LLJ 49.
39. NATURAL JUSTICE

Non-supply of Statements of Witnesses Recorded During Preliminary

Enquiry:

The employee was dismissed from services after a regular

departmental enquiry. In the proceedings before the Tribunal it found that
copies of statements recorded during preliminary enquiry which has
formed the basis of the charges were not supplied to the employee even
though a request was made. On this account the Tribunal declared the
enquiry proceedings were bad in law.

In the appeal to the Supreme Court it was held that the copies ofthe
statements though asked for by the Respondent had not been supplied to
him. Since there was a failure on the part of the Appellant in this regard
the Tribunal was justified in coming to the conclusion that Principles of
Natural Justice were violated as the Respondent had not been provided
and effective opportunity of hearing and as the Appellants had failed to
establish that non-supply of the copies had not caused any prejudice to
the Respondent defend himself. The appeal was dismissed.

State of U.P. vs. Shatrughan Lal & Ors. 1998(2) LLJ 799 = 1998(6)
Supreme 587 = 1998(6) JT 55 = 1998(6) SCC 651 = AIR 1998 (SC) 3038.

Denial to engage an Advocate to defend the delinquent does not violate

the principles:

The delinquent had asked that in view ofthe criminal case instituted
by the Bank at non-engagement of an Advocate to defend him at the
Domestic Enquiry would prejudice his case, and is violative of the
# 158 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Principles of Natural Justice. The Court held one simple and not
complicated and failure to permit an Advocate to defend him is not
violative of the Principles of Natural Justice.

Harinarayana Srivasthav & United Commercial Bank & Anr. 1997(4)

SCC 384 = 1997(4) JT 598 = 1997(3) Scale 536 = 1997(3) Supreme 739.

Copies of documents be supplied to delinquent:

Copies of documents mentioned in the chargesheet which are relied

on as proof of charge should be supplied to the delinquent unless such
documents are voluminous in which event inspection should be allowed
before conducting the enquiry. It is an erroneous procedure to offer such
documents at the time of final hearing.

Committee of Management Kisan Degree College vs. Shambu Saran

Pandey and another 1995(2) LLJ 625 = 1995(1) SCC 404 = 1994(4) Scale
1082 = 1995(1) SCJ 203 = 1995(29) ATC 123 = 1995(1) SLR 31 =
1995(1) SLJ 156 = 1995 (70) FLR 352.

Principles of Natural Justice:

The procedure of domestic enquiry is based on the principles of

Natural Justice which are fundamental in any judicial procedure and which
are enforceable in all Courts of law statutory or otherwise and all persons
and bodies acting in judicial or quasi-judicial capacity (domestic tribunals).

There are two main principles from which all other dicta are derived:

Principle No.1 - No man shall be a judge in his own cause

(Nemo debet case judex in propria causa);

Under this Rule, a person 1s disqualified to be a judge:

a) if he is a party to the dispute;

b) if he has any interest whatsoever in the dispute before him

(Pecuniary or otherwise, big or small)
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #159

c) if he is interested in the result of the dispute;

d) if he does not give his own decision, on evidence placed before

him by the parties (i.e., he cannot import his knowledge into his
decision; he cannot be a judge and a witness at the same time);

e) if he does not act according to his own judgment or if he acts at

the dictation of others.

Principle No. 2 - Hear other side (Audi alterem partem).

This is a duty cast upon a judge to hear the evidence of the party to
be proceeded against before passing orders contrary to his interest.

Under this Rule, a judge is required to give:

a) Notice to the party as to when he proposes to proceed with the matter:

b) Fair and reasonable opportunity to the opposite party-

i) to deny his guilt and to establish his innocence (for which he 1s

to be told of the charges levelled against him and the allegations
on which such charges are based).

11) to defend himself by cross-examining the witnesses produced

against him and by examining himself or any other witness in his
defence,

(111) to make representation as to why the proposed punishment should

not be inflicted on him.

In other words, these Rules imply that a judge must act without bias
or prejudice and with a sense of fair play (openmindedness, fairness and
impartiality).

It should be noted that if a statute or Rule (even Standing Orders

made under a law) contains any Rules of procedure, they over-ride the
principles of natural justice. These principles supplement and do not
supplant law and the procedures laid down by law. It is also worthwhile
to note that Indian Constitution does not guarantee natural justice as a
fundamental right.
 #160 / S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Regarding Industrial Employment matters, these principles are

evolved by judge made laws. In applying these principles, in matter of
domestic enquiry, one should not forget the complexities and perplexities
of the problem arising from:

1) Illiteracy and intellectual level of workmen;

ii) Workmen’s social background (indebtedness, drinking habits,
joint family system, regional and linguistic prejudice, casteism
and other social evils);

ii1) Workmen’s personal problems and their fears, apprehensions,

hopes and aspirations;

iv) Workmen’s lack of confidence in and adjustment with Superiors

and equals;

v) Working Conditions;

vi) Monotony of work;

vii) inborn tendency to sometimes flout the instructions;

vill)absence of enlightened sympathetic and scientific management;

ix) absence of organisation and service manuals;

Xx) errors of judgment;

xi) absence of good supervisors who know good techniques, can

critically appreciate efforts, listen to their men, give clear and
complete orders and believe in correction of men rather than in
uprooting them.

The success of any rules of discipline depend upon the co-operation

of the management and the workmen in themselves evolving the rules and
its fruitfulness will depend upon the management’s enlightened attitude,
its own overall efficiency and the workmen’s strong and sound trade
unionism.

In the ultimate analysis besides sound human relations the content

of the terms and conditions of employment and healthy and purposeful
industrial relations along would create contentment and as a corollary,
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 161

subjugation to authority would become voluntary. No doubt, external

factors like political atmosphere, social objectives, level of national
economy and sense of moral values would give tone and temper to such
discipline.

If a management has built up a reputation for its fairness, open-

mindedness, fairplay, objective approach and justice, its problems of
discipline would be few. If the whole man in the worker is aroused to work
for the shared objectives his willingness to observe rules would become
voluntary and discipline would be part of self-culture, because it is self-
discipline that alone would answer the challenge posed by indiscipline.

Rules of discipline while buttressed by legal forms of compulsion

should proceed in most cases, if not by coercion but by education,
persuasion, exhortation and cajolery. Thus future of discipline in industry
would, in the ultimate analysis, depend upon the quality and calibre of
the cadre of managers of man.

Principles of natural justice - Cannot be put in straight jacket. Non-

supply of copies no prejudice to respondent:

The High Court decreed that non-furnishing of pre-recorded

statements had prejudiced the respondent who was dismissed on the basis
of the Findings of a domestic enquiry into some charges.

Where the person is dismissed without hearing altogether it will be

a violation of the principles but dismissal from service without being
supplied a copy of the enquiry officer’s report or without giving him due
opportunity to cross-examine a witness would amount to violation of a
facet of the principle. In such case the validity of the order has to be tested
on the touchstone of prejudice i.e., all in all whether the persons concerned
did or did not have a fair hearing. It would not be correct to say that for
any and every violation of a facet of justice or of a rule incorporating such
facet, the order passed is altogether void and ought to be set aside without
further enquiry. The complaint should be examined on the touchstone of
prejudice as aforesaid. Since no prejudice has resulted to the respondent
# 162 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

on account of non-furnishing him copies of the statements of witnesses it

cannot be said that the respondent did not have a fair hearing or that
disciplinary enquiry against him was not a fair enquiry.

State Bank of Patiala & Ors. vs. Sharma 1996(2) CLR 29 = 1996(3)
SCC 364 = 1996(3) JT 722 = 1996(3) Scale 202 = 1996(3) Supreme 511
= 1996(3) AD (SC) 349 = 1996 SCC (L&S) 717 = 1996(2) SLR 631 =
1996(2) UJ 338 = 1996(1) LLN 819 = 1996(2) LLJ 296.

40. NIGHT-SHIFT ALLOWANCE

Whether Part of Wages

Payment of Night Shift Allowance 1s contingent upon working Night

Shift. Night Shift Allowance does not automatically form part of wages.
The workmen have to earn Night Shift Allowance by actually working in
the Night Shift.

Bharat Electronics Ltd. vs. Industrial Tribunal, Karnataka 1990(2)

LLJ 32 = 1990(2) UJ 32 = 1990 LIC 854 = 1990(1) SCR 971 = 1990(1)
JT 431 = 1990(2) SCC 314 = 1990(2) SLR 711 = 1990(76) FJR 300.=
AIR 1990 (SC) 1080 = 1990 (60) FLR 622.

41. NOMENCLATURE AND FITMENT

Courts cannot go into the question of equation of posts of fitment in

a particular scale of pay:

The Petitioners, working as Fitters sought to be fused in the category

of and to be on par with Jig Borers. They sought equal pay on par with
them. The Third Pay Commission had gone into this aspect of the matter
and fixed the scales of pay. Thereafter, the Expert Classification
Committee and Anomalies Removal Committee had also gone into the
matter and made distinction between them. Subsequently, nomenclature
of all of them were removed and fused into cne category viz. fitter.

Held: Nomenclature and fitment is one of the executive policy of the

Government. Unless the action is arbitrary or there is invidiqus
discrimination between persons similarly situated, doing same type of work
it would be difficult for the Courts to go into the question of equation of
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 163

posts or fitment in a particular scale of pay. They must be left to be

decided by the Experts Committees and Government. The Courts cannot
go into them and evaluate the job criteria and scales of pay prescribed for
each category. Under these circumstances, the Tribunal is justified in
refusing to go into the question.

Shiba Kumar Dutta & Ors. vs. Union of India & Ors. 1997(3) SCC
545 = 1997(3) JT 453 = 1997(2) Scale 557 = 1997(3) Supreme 517 =
1997(2) SLR 212.

42. PAYMENT OF WAGES ACT

Payment of Wages Act, 1926 - Authority has no jurisdiction to

interfere with the orders passed by employer under disciplinary
proceedings.

Disciplinary Action was taken which culminated in the orders of

punishment reducing the pay to the minimum stage of time scale. Instead
of challenging the orders passed, pursuant to the disciplinary proceedings,
the respondent moved the authority under the Payment of Wages Act and
the authority set aside the order on the ground that the order passed in the
disciplinary proceedings did not prescribe any time limit for the minimum
stage of time scale and, therefore, it was bad in law. The revision filed
in the High Court also failed. Hence the appeal by special leave.
Appellant submitted that the Authority constituted under the Payment of
Wages Act has no jurisdiction to interfere with the orders passed under
the disciplinary proceedings.

Held: Orders passed by the Authority under the Payment of Wages Act
was without jurisdiction. The order passed by the Authority and confirmed
by High Court is set aside.

State of Punjab & Ors. vs. Baldev Singh 1999(1) LLN 18 = 1999(6)
SCC 172 = 1999(4) Scale 144 = AIR 1999 (SC) 2378 = 1999(3) Crimes
147 (SC) = 1999 SCC (Cr) 1080 = 1999(7) SRJ 409 = 1999(6) Supreme
159 = 1999(6) SLT 109 = 1999 Cr LJ 3672 = 1999(2) JCC (SC) 348.
 # 164 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

43. PRIORITY OF DEBTS IN LIQUIDATION

The State Bank of India and the other Financial Institutions with
whom the goods, lying in stock after the closure, had been pledged claimed
prionty for payment. The workmen however, claimed payment on priority
basis, as the goods had been produced when the plant was working, and
as their wages and other dues had not been paid.

The Court held that even though the goods had been pledged with
the State Bank of India and other Financial Institutions the workmen had
contributed their Labour and that was the result of their hard work and
therefore it cannot be denied that they would not rank in priority.

Workmen of Rohtas Industries Ltd. vs. Rohtas Industries Ltd. 1987(2)

LLJ 1 = 1987(71) FIR 404 = 1987(2) SCC 588 = 1987(2) SCR 1216 =
~-1987(2) JT 283 = 1987(2) LLN 8 = 1987(55) FLR 340 = 1987(62) CC
872 = 1987(1) Scale 894 = 1987(2) UJ 318 = 1987(1) CCC 1062 = 1987(2)
Comp. LJ 125.

44. PROBATIONER

Termination of Service to be treated as found on allegations and bad

if findings were arrived at the back of the employee. The probationer’s
term was twice extended culminating in the impugned order. The Supreme
Court quashed the Termination Order and directed reinstatement.

In the judgment the Supreme Court elucidated the well marked

distinction between cause of allegation against a Probationer forming the
foundation for the order of termination. It observed that if the findings
were arrived at in the enquiry behind the back of the employee the order
founded on such findings will be bad.

But if enquiry was not held and no findings were arrived at and the
employer was not inclined to hold an enquiry but at the same time he did
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #¢ 165

not want to continue the employee it would only be a case of motive and
the order would not be bad.

Dipti Prakash Banerjee and S.N. Bose, National Institute of Basic

Sciences, Calcutta 1999(3) SCC 60 = 1999(1) Scale 421 = 1999(1) JT 396
= 1999(2) Supreme 34 = 1999(4) SRJ 120 = 1999(2) SLT 182 = 1999(1)
SLR 622 = AIR 1999 (SC) 983.
Probationer - Confirmation to date back to initial appointment:

It was held that on completion of the satisfactory probation

confirmation would date back to the date of his initial appointment.
Dr. (Capt.) Akhann Ramesh Ch. Sunita vs. State of Bihar 1996 LLN
SC 449.

Confirmation of Probation:

In the absence of a rule to the contrary probation does not transform

itself into confirmation unless there is a specific order conferring confirmed
status on the employee.

When the order of termination falls short of the period of Notice

mentioned in the terms of order, the termination does not become invalid
or illegal. It entitles the employee to pay in view of notice.

K A Barot and State of Gujarat 1992(1) LLN 376 = 1991(15) ATC

887 = 1991 (79) FIR 606 = 1990 Supp. SCC 287 = 1992 (64) FLR 431 =
1992(1) LLJ 473.

Termination of employment:

The very object of the probation is to test the suitability of the

candidate and if the appointing authority finds that the candidate is not
suitable it certainly has power to terminate the services of probationer.

Held: The reasons mentioned constitute motive and not foundation for
termination of service.

K.V. Krishnamani vs. Lalita Kala Academy 1996(2) LLJ 661 =

1996(74) FLR 1936 = 1996(3) SLJ 29 = 1996(2) LLN 495 = 1996(5) SCC
89 = AIR 1996 2444 = 1996(6) JT 312 = 1996(5) Supreme 438.
# 166 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Termination simpliciter of probationer

The Supreme Court answered the question in the following terms:

If an employee who is on Probation or holding an appointment on

temporary basis is removed from the service with stigma because of some
specific charge, then a plea cannot be taken that as his service was
temporary or his appointment was on probation, there was no requirement
of holding any enquiry.

When an appointment is made on probation, it presupposes that the

conduct, performance, ability and the capacity of the employee concerned
have to be watched and examined during the period of probation. He is
to be confirmed after the expiry of probation only when his service during
the period of probation is found to be satisfactory and he is considered
suitable for the post against which he has been appointed. The principle
of tearing off the veil for finding out the real nature of the order shall be
applicable only in a case where the court is satisfied that there is a direct
nexus between the charge so levelled and the action taken. If the decision
is taken, to terminate the service of an employee during the period of
probation, after taking into consideration the overall performance and some
action or inaction on the part of such employee then it cannot be said that
it amounts to his removal from service as punishment.

Even if such employee while questioning the validity of an order of

termination simplicitor brings on the record that some preliminary enquiry
or examination of some allegations had been made, that will not vitiate
the order of the termination. Reference in this connection may be made
to the case of Oil and Natural Commission vs. Dr. Mohd. S. Iskender Ali'
that a temporary employee is appointed on probation for a particular period
“only in order to test whether his conduct is good and satisfactory so that
he may be retained”. It was also said that even if misconduct, negligence,

1. (1980) 3 SCR 603:

DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #167

inefficiency may be the motive or the influencing factor which induced

the employer to terminate the service of the employee which such
employer admittedly had under the terms of the appointment, such
termination cannot be held to be penalty or punishment.

Dr. Pandurang Godwalkar vs. Governing Council of Kidwai

Memorial Institute of Oncology 1992(2) LLN 1026 = 1992 LIC 2439 =
1992(2) Scale 861 = 1992 Supp.(2) SCR 250 = 1992(4) SCC 719 = 1992(5)
SLR 661 = 1992 Supp.(2) SCR 250.

Termination of service - Termination of probationer/Purely temporary

employee with one month’s notice is legal:

The Supreme Court held that the respondent was not holding a regular
appointment. She was employed for a particular project. She was at the
most on probation and was told to show improvement in her work. Letter
terminating her services does not cast any stigma on the respondent. It
was a termination simplicitor.

Rajasthan Adult Education Assn. and Anr. vs. Kumari Ashoka

Bhattacharya and Anr. 1998(1) LLJ 261 = 1998(1) CLR 126.

Probationary Appointment

Where there is a stipulation in the letter of appointment that failure

to pass a test would result in discharge, right to continue in Service will
arise on confirmation after passing test.

Union of India and another vs. Raj Kumar Gupta and another
1995(2) Scale 822 = 1995(6) JT 107 = 1995(2) UJ 286 = 1995(2) SLR
609 = 1995(3) SLJ 60 = 1995 (30) ATC 278 = 1995(2) LLJ 673 = 1995
LIC 1811 = 1995(2) LLN 654(2) = 1996(1) SLJ 43.
Termination of service on the ground of unsatisfactory service without
enquiry is legal:

During the Probation the authorities are entitled to assess the

suitability of the candidate and if it is found that the candidate is not
suitable to retain in service they are entitled to record a finding of
unsatisfactory performance of’the work during the period of probation.
# 168 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

This does not amount to stigma. In the findings they have recorded that
the Petitioner was regularly absent on one ground or the other. There is
no illegality in the action taken by the respondents.
Kunwar Arun Kumar vs. Uttar Pradesh Hill Electronic Corpn. Ltd.
& Ors. 1997(1) LLN 570 = 1997(1) SLR 136 = 1997(1) SLJ 234 = 1997(1)
Supreme 187 = 1997(2) SCC 191 = 1996(8) Scale 426.

Termination whether retrenchment:

In the Brajonath Ganguly's case it was a permanent employee whose

services had been terminated with three months notice. It was held to be
an arbitrary provision. A probationer on the other hand cannot be equated
with a permanent employee who on account of his status is entitled to be
retained in service and his service cannot be terminated abruptly without
any notice or plausible cause. The respondent cannot take the case of
M. Venugopal vs. Divisional Manager LIV' to support his plea that the
termination of his services amounts to retrenchment.

LIC of India & Anr. vs, Raghavendra Seshagiri Rao Kulkarni.

1997(77) FLR 782 = 1997(92) FJR 25.
Under A.P. Shops and Establishments Act - Sec. 41

The Services of a probationer employed by Andhra Bank were

terminated after he had put in more than 240 days of work. The court
decided that it was open to the authority U/S. 41 to determine whether
Sec. 25(f) and 25(G) of Industrial Disputes Act were complied with or »
not to grant appropriate relief.

Since an applicant was a workman termination without complying

with Sec. 25(F) and 25(G) of the Act, the termination amounted to
retrenchment.

Syed Azam Hussaini vs. Andhra Bank 1995(2) LLJ 126 = 1995(2)
LLN 250 = 1995(70) FLR 827 = 1995 Supp(1) SCC 557 = 1995(2) JT 37
= 1995(1) SLR 706 = 1995(1) UJ 361 = 1995(2) LLJ 126 = 1995(2) LLN
250 = 1995 (70) FLR 827.

1. 1994 1 CLR 544 (SC)

DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #7169

Termination can be questioned if it was arbitrary or punitive :

Respondent No. | was appointed as Munsiff on probation for a period

of two years. He was, however, not found fit for confirmation. The High
Court decided to recommend the State Government for his termination. ,
State Government asked for grounds for termination and adverse material
in the service record of the respondent was communicated to State
Government and then to Respondent also and an order for his termination
were passed and his services were terminated. His representation was
rejected and he filed writ petition which has given rise to this appeal.

Held: A Probationer does not have a right to hold the post. An order
terminating services of a probationer can be questioned only if it is shown
that it has been passed arbitrarily or has been passed by way of punishment,
without complying with Art. 311(2) of the Constitution. But the principles
of natural justice have no application in the case of termination of the
services of a probationer during the period of probation since he has no
right to hold the post. It is therefore, not possible to hold that there is an
obligation to communicate the adverse material to a probationer before a
decision is taken on the basis of the said material that he is not fit for
being retained in service. Such material can be relied upon to show that
such a decision does not suffer from vice of arbitrariness and is not
capricious. The said remarks touching the integrity of the respondent with
respect to the judicial work and complaints regarding his character and
morality etc. does not lead to the inference that the order was passed by
way of punishment for particular acts of misconduct. The said remarks
could legitimately form the basis for deciding whether the respondent was
suitable for retention in service or not. It is, therefore, not possible to
hold that the order for termination of the respondent was passed by way
of punishment for misconduct. The judgment of the High Court is set
aside.

High Court of Judicature at Patna vs. Pandey Madan Mohan Prasad

Sinha 1999(2) LLN 669.
#170 ; S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

When Probationer can be deemed to have been confirmed?

In the case of an employee on probation the rules should provide for _

either confirmation or discharge from service or reversion to the
substantive Post within a reasonable time after the expiry of the period of
probation. If the rules do not empower the appointing authority to extend
the probation beyond a certain period, where rules are absent about
confirmation or the passing of the required test any inaction for a very
long time may lead to an indication of the satisfactory completion of the
probation. Where however, the rules provide for extension of the period
of probation and for sufficient reasons the appointing authority is vested
with powers to extend the probation for a further period and where the
probationer is neither confirmed nor discharged and is allowed to continue
in employment he will be deemed to have been continued on probation
subject to his appointment being terminated by a month’s notice or a
month’s salary in lieu thereof.

Municipal Corporation, Raipur vs. Ashok Kumar Mishra 1991(78)

FJR 495.

45. PROMOTION

Conclusion of unfair means without showing the document to the

examinee is unfair and invalid:

The appellant was not selected after written test and interview on
the ground that she and two others had adopted unfair means. After
verifying with the help of expert and after issuing Show Cause the charge
was held proved. The document based on which the conclusion came to
be reached having not been supplied to the appellant, the Court held that
the decision cannot be sustained.

K. Vijayalakshmi vs. Union of India & Ors. 1998(2) CLR 409.

Promotion

Juniors promoted on the ground that the Past Record of the Seniors
was bad and Confidential Report was also bad. No opportunity for hearing
was given and no enquiry conducted.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS $474

The Court ordered that they will be deemed to have been promoted
on par with the Juniors and consequential benefits paid.

Karnial Singh vs. State of Punjab 1995(70) FLR 42 = 1995(2) LLN

313 = 1995(2) LLJ 296 = 1995 LIC 336 = 1994 (28) ATC 754 = 1995(1)
SLJ 180 = 1994(4) Scale 558 = 1994(5) SLR 772.

Guidelines requiring consideration of annual performance for the

immediate preceding years:

Authorities considering reports of Three available years. In the facts

and circumstances of the case for cogent and adequate reasons reports were
considered adequate.

V Kashyap vs. Indian Air Lines 1995(2) LLJ 60 = 1994(1) LLN 881
= 1994(2) SLR 370 = 1994(2) SLJ 184 = 1994(1) UJ 572 = 1994 Supp(2)
SCC 176 = 1994(3) JT 246 = 1994(2) Scale 514 = AIR 1994 (SC) 2128.

Person performing the duties in the promotional post:

The appellant was promoted on Probation. He was reverted during

the probation and was asked to carry on work in the promotional post till
the arrival of the new incumbent.

Held that the appellant was entitled to emoluments applicable to the

Promotional Post.

Ram Narayan Yadav vs State of Haryana & Ors. 1993(2) LLJ 1232
= 1993(3) SLR 10 = 1993(1) ATR 493 = 1993(24) ATC 831 = 1993
Supp(2) SCC 732 = AIR 1993 (SC) 1170.

46. PUNISHMENT

For cases involving corruption:

Respondent, a Clerk in the Municipality was alleged to have

misappropriated a sum of Rs.1548-78 by falsifying accounts. He was
prosecuted and convicted for an offence under Sec. 40 IPC. The municipal
committee dismissed him from service.
 #172 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

In cases involving corruption there cannot be any other punishment

than dismissal. Any sympathy shown in such cases is totally uncalled for
and opposedto public policy. The amount misappropriated may be small
. or large. It is the act of misappropriation that is relevant.

Municipal Committee, Bahadurghat vs. Krishnnan Behari & Ors.

1996 LLR 881, SC (DB).

For dereliction of duty in allowing prisoners to escape:

The respondent and another were entrusted the job of taking prisoners
to Magistrate and back. On their return journey the prisoner was
unauthorisedly taken to his village and he escaped. They were charge-
sheeted and dismissed after enquiry. Government modified punishment
to removal from service in one case and compulsory retirement in another.
The Tribunal set aside the punishment of removal from service and
remitted the matter to the Superintendent of Police to reconsider the extent
of guilt with stipulation that no punishment involving termination should
be imposed. Hence the appeal. hi

Held: The disciplinary authority in the present case, looking to the pravity
of charges and looking to the fact that both the respondent and another
were entrusted with the custody of two prisoners and had been guilty of
dereliction of duty, as a result of which a life convict escaped, has imposed
somewhat lesser punishment of removal from service on the respondent.
The Tribunal in a serious matter involving proper discharge of duty by a
member of the Police Force, ought not to have interfered in this wholly
unwarranted manner with the punishment imposed. The appeal is allowed
and the impugned order of the Tribunal is set aside.

Secretary to Government, Home Department & Anr. ys.

Srivaikundathan 1999(81) FLR 257.

Principle of Proportionality of punishment :

The Respondent Police Constable was charge-sheeted since he used

to collect from each driver Rs. 50/- to Rs. 70/- for traffic offences and
_ would let them go. He was basically charged with gross misconduct in
collecting money from autorickshaw drivers. After enquiry, disciplinary
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #173

authority imposed punishment of dismissal. The Karnataka Administrative

Tribunal reduced the punishment to withholding of two increments. Hence
the appeal.

Held: In a recent decision of this Court in Union of India vs. G.

Ganayuthan, it was held that the principle of proportionality can be
invoked regarding punishment only in a case where the punishment was
totally irrational in the sense that it was in outrageous defiance of logic
or moral standard. Such is not the present case. Hence, the order of the
Tribunal is set aside.

State of Karnataka & Ors. vs. H. Nagraj 1999(81) FLR 516.

Punishment can be imposed even if one out of the five charges is

proved:

Respondent was issued orders suspending him and enquiry was

conducted. Respondent did not avail the opportunities given to him.

Since Charges 1, 3, 4 and 5 could not be gone into due to the non-
availment of opportunity on the part of the respondent he was removed
on the basis of one charge proved against him.

The Court held that the Disciplinary Authority was justified in

imposing punishment on the basis of one of the charges which was held
proved.

State of U.P. & Ors. vs. Nand Kishore Shukla 1996(2) LLJ 672=
1996(2) LLN 241 = 1996(3) SCC 750 = 1996(3) JT 551 = 1996(3) Scale
69 = 1996(3) Supreme 242 = 1996(3) AD (SC) 317 = 1996(2) SLR 504.
47. REDUCTION IN RANK

The delinquent should have held the post to which he is being

reverted. If he had not held the post or was not a member of that cadre \ os

then he cannot be reverted.

P.V. Srinivasa Sastry and Comptroller and Auditor General 1993(1)

LLJ 824 = 1993(1) SCC 419 = 1992(1) SCC 419 = 1992 Supp. JT 442 =
- 1992(3) Scale 469 = 1993(1) SLR 25 = 1993(23) ATC 645 = 1993(1) UJ
278 = 1993 LIC 421 = 1993(1) LLN 642.
 #174 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

48. REINSTATEMENT
Payment of back wages :
The respondent on temporary service was removed on conviction by
Criminal Court. Later he was acquitted of the charge. High Court
intervened to restrain his removal.

Held: Based on the facts laid before the Court, the Court was satisfied
that he was not entitled to back wages. His integrity was doubted as he
was of doubtful integrity as per the Confidential Reports. In view of the
reports the Court did not consider it expedient to direct payment of wages
though he was acquitted by the Criminal Court which may have been on
~ merit or technical grounds. The circumstances of the case and conduct
of the appellant do furnish justification in denying him the back wages
lest it would be a premium on proclivity for corruption.
State of U.P. & Anr. vs. Ved Pal Singh & Anr. 1997 CLR 366 =
1997(3) SCC 483 = 1996(8) Scale 231 = 1996(8) Supreme 798 = AIR
1997 (SC) 608 = 1996(8) AD (SC) 675 = 1997(1) SLR 24 = 1997(1) SLJ
215.

When not desirable?

The Employer had put up a notice in connection with the recruitment

of Superiors for the Mechanic Shop and invited applications from internal
Candidates. The notice created resentment among the workmen. Some
- workmen allegedly entered the Office of the President of the Company
terrorised him and wrongfully confined him in his Office and compelled
him to withdraw the notice.
About 19 workmen were Charge Sheeted under the Standing Orders
but they did not appear before the enquiry. The enquiry officer conducted
the proceedings ex-parte finding 15 out of the 19 workmen guilty. The
workmen were dismissed. The dismissals were challenged and referred
to the Industrial Tnbunal for adjudication.
The Industrial Tribunal held that the Enquiry was not fair and proper
and allowed the Employer to adduce evidence to prove the alleged
misconduct and directed the Company to pay certain interim relief to the
affected workmen. The workmen as well as the Management filed Writ
Petitions before the High Court.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #175

Both the Writs were heard by a single judge who did not agree with
the Tribunals view that the ex-parte enquiry held by the Enquiry Officer
was in violation of the principles of Natural Justice and held that the
workmen alone were to blame for the incident. As such it was not,
therefore, open to them to contend that the Enquiry was violative of the
Principles of Law. He however, held that the Charge Sheet were vogue
as they did not contain specific particulars of the various acts of
misconducts falling under the various clauses of the Standing Orders.

He also held that the Findings of the Enquiry were not supported by
discussion of the evidence on record or by reason in support of the findings.
The learned Judge directed the Company to pay each of the dismissed
workmen a sum of Rs.60,000/- in full and Final Settlement of their claim
as Compensation for loss of employment.

Both the parties being aggrieved by the Judgment appealed to the

Division Bench to decide the matter once and for all without remitting it
once again to the Tribunal. The learned Judges in their Judgment agreed
that the acts of misconduct had been specified clearly in the Charge Sheets
and that the Enquiry Officers Report was not in accordance with law as
he had not discussed the incriminating evidence recorded in the ex-parte
domestic enquiry. The Division Bench recommended that the workers
should be taken back with payment of one half of Back Wages.

The parties appealed to the Supreme Court which held-

(i) The view of the Division Bench was in conformity with the powers
which an Industrial Tribunal has to exercise under section 11A of the
Industrial Disputes Act.

(11) The misconduct is established against the four workmen involves

threatening the higher executive of the Company with dire
consequences, wrongfully confining him in his room and compelling
him to withdraw the notices. These acts of misconduct involve acts
subversive of discipline on the part of the workmen. Three of the
workmen involved happen to be office bearers of the Union. They
did not act under instigation.

In the circumstances the Court, keeping in view the interest of the

Industry did not consider it desifable or expedient to direct reinstatement
 #176 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

of the workmen and instead directed payment of compensation for.loss _

of employment.

Workmen of Bharat Fritz vs. Their Workmen 1990(77) FJR 1 = 1990

LIC 844 = 1990(2) ATR 160 = 1990(60) FLR 482 = 1990(1) JT 305 =
1990(2) SLR 20 = 1990(3) SCC 565 = 1990(1) UJ 344 = AIR 1990 (SC)
1054.

Reinstatement without Back Wages :

Although the Employer had held a proper enquiry the Labour Court
found the punishment harsh, being not in consonance with the Charge
against the workman. It awarded reinstatement with continuity of services
but without back wages.

The Supreme Court upheld the Tribunal award as being in conformity

with the provisions of Sec. 11.A of the Industrial Disputes Act and there
was no lack of jurisdiction in the Labour Court in1 making the Order and ,
it was not contrary to the provisions of Sec. 1A.

Baldev Singh vs. Labour Court 1987(1) FJR 1 = 1987(1) LLN2 =1986 -
(53) FLR 738 = 1987 LIC 22 = 1986(2) Scale 596 = 1987(1) UJ 261.

49. REPRESENTATION DURING DOMESTIC ENQUIRY

The question for decision was whether an employee against whom

disciplinary proceedings have been initiated can claim to be represented by
a person who, though a member of the Trade Union is not an Employee
of the Applicant.

The Supreme Court decided that the representative should be an

employee of the parent establishment.

Bharat Petroleum Corporation Ltd. vs. Maharashtra General

Kamgar Union & Ors. 1999(1) LLJ 352 = 1999(81) FLR 358 = 1998(10)
SLT 236 = 1999(2) SRJ 182 = 1998(9) Supreme 402 = 1998(6) Scale 537
~ = 1999(1) SCC 626 = AIR 1999 (SC) 401.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 477

50. RESIGNATION

Is effective only when employee is relieved:

An employee had applied for Voluntary Retirement as per the

Scheme amended by the Company to relieve the surplus staff. In the
meantime the Company withdrew the scheme. Respondent contended that
Voluntary Retirement had become effective and vested right had been
created in him. This view was upheld by the High Court.

The Supreme Court held that it was a conditional order and until the
dues are paid the order does not become effective. It is now settled
position that unless the employee is relieved of the duty after acceptance
of the offer of Voluntary Retirement or resignation Jural Relationship of
the employee and the employer does not come to an end. Consequently
the order accepting Voluntary Retirement had not become effective.
Thereby no vested right has been created in favour of the respondent.

Power Finance Corpn. vs. Pramod Kumar Bhatia 1997(91) FLR 526
= 1997(4) SCC 280 = 1997(4) JT 300 = 1997(3) Scale 347 = 1997(3)
Supreme 445 = 1997(2) SLR 519.

Becomes effective from date mentioned in letter of resignation:

“After getting over careful consideration to the facts and

circumstances of the case, it appears to us that the Law is well settled by
this Court in a number of decisions that unless controlled by conditions
of service or the statutory provisions, the retirement mentioned in the letter
of resignation must take effect from the date mentioned therein and such
date cannot be advanced by accepting the resignation from an earlier date,
when the employee concerned did not intend to retire from such earlier
date. It has also been held by this Court that it is open to the employee
concerned to withdraw letter of resignation before the same becomes
effective’.

N.K. Prasad vs. I.F.F. Co-op. Ltd. & Others 1998(2) LLJ 1011.
#178 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Reference made to Union of India vs. Gopal' Punjab National Bank

vs. P.K. Mittal’ and Baham Gupta vs. Union of India’.

Nature and effect of - Whether amounts to ‘Retrenchment’

Held: If an employee makes his intention to resign his job known to

the employer and the latter accepts the resignation, the contract of
employment comes to an end and with it stands severed the employer-
employee relationship. Under the Common Law, the resignation is not
complete until it is accepted by the proper authority and before such
acceptance an employee can change his mind and withdraw the resignation,
but once the resignation is accepted, the contract comes to an end and the
relationship of master and servant stands snapped.

Merely, because the employer is expected to accept the employee's

resignation, it cannot be said that the employer has brought about an end
to the Contract of employment so as to bring the case within the first part
of the definition of ‘Retrenchment’. Where an employee takes the
initiative and exercises his right to put an end to the contract of service
and the employer merely assents to it, 1t cannot be said that the employer
has terminated the employment. Here the employee’s role is active while
the employer’s role 1s passive and formal.

J.K. Cotton Spinning Mills Co. Ltd. vs. State of U.P. 1990(4) SCC
27 = 1990(78) FIR 12 = 1990(2) ATR 674 = 1990(2) Scale 153 = 1990(3)
SLJ 105 = 1990(5) SLR 642 = 1990(2) UJ 438 = 1990(61) FLR 329 =
1990 LIC 1511 = 1990(2) LLN 682 = AIR 1990 SC 1808 = 1991(1) LLJ
39,

When does it become effective

An employee of the Bank sent in his resignation on 21-01-1986

stating that it would be effective from 30-06-1986. The Bank accepted

1. 1978(1) LLJ 492 = 1978(3) SCR 12 = 1978(2) SCC 301 = 1978(37) FLR 16 = 1978 LIC
660.
2. 1989(1) LLJ 368 = 1989(1) JT 264 = 1989(2) Comp. LJ 184 = 1989(2) Bank CLR 29 =
1989(1) UJ 495 = 1989 Supp.(2) SCC 175 = 1990(12) ATC 683 = 1989(1) LLN 533 =
1989 LIC 1248 = 1989(2) SLJ1 = 1989(1) SCR 612 = 1989(74) FIR 456 = 1989 586 FLR
449 = 1989(1) SLR 596.
3. 1987(2) LLJ 541.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #179

the resignation by waiving the condition of notice and relieved him.

During a Writ Proceeding Challenging the action of the Bank the
Employee withdrew his resignation.

Held: Resignation is a voluntary act of an employee and he may choose

to resign with immediate effect or with a notice of less than three months
if the Bank agreed to the same. The Bank was not entitled to thrust a
resignation with effect from a different date. It is open to the employee,
on general principles, to withdraw his resignation. As the employee had .
withdrawn his resignation before it became effective he continued to be |
in the service of the Bank.

Punjab National Bank vs. P.K. Mittal 1989(74) FJR 456 = AIR 1989
SC 1083 = 1989(1) LLN 533 = 1989 LIC 1248 = 1989(1) LLJ 368 =
1989(58) FLR 449 = 1989(1) SLR 596 = 1989(1) Scale 353.

51. RETIREMENT

Compulsory Retirement

Court will interfere if order for Compulsory Retirement is mala fide

or based on no evidence or is arbitrary.

Judicial scrutiny of any order imposing compulsory retirement 1s

permissible if the order is either arbitrary or mala fide or if it is based on
no evidence.

To dink an officer into the puddle of ‘Doubtful integrity’ it is not

enough that the doubt fringes on the mere hunch.

There must be preponderance of probability for the reasonable man

to entertain doubt regarding that possibility.

Bindra M.S. and Union of India and Other 1999(1) LLJ 923.

Based on solitary adverse report compulsory Retirement Order was issued.

Earlier and subsequent reports show meritorious service.
#180 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Considering the facts the case falls in the category of arbitrary

exercise of power or failure to take the total record of Service into
consideration objectively. Thus in that background the exercise of the
power is illegal.

S. Ramachandra Raju, vs. State of Orissa 1995(1) LLJ 1083 =

1994(5) SLR 199 = 1994(3) SLJ 93 = 1994(69) FLR 832 = 1994(2) LLN
1311 = 1994 Supp.(3) SCC 424 = 1994 JT 459 = AIR 1995 (SC) 111.

Mere expiry of notice cannot automatically put an end to

relationship - Govt. can decline request:

When serious offences are pending investigation and trial Govt. can
decide whether or not to accept request for voluntary retirement. Mere
expiry of notice by employee does not put an end to the jural relationship
employer and employee between the Government and the delinquent
official. Only on acceptance of the request by the employer their jural
relationship ceases.

Dr. Balaji Singh vs. State of Haryana, 1997(77) FLR 109.

Retiral benefits - Delay in payment :

_ Held : The case before us is a clear example to department delay
which is not excusable. The petitioner retired on 30-04-1993 and it was
only after 12-02-1996 when an interim order was passed in this writ
petition that the respondents woke up and started work by sending a special
messenger to various places where the petitioner had worked. Such an
exercise should have started at least in 1991, two years before retirement.
This is a fit case for awarding interest to the petitioner. There is no purpose
of computation of interest, the matter should go back and on the facts of
this case, the interest payable is quantified at Rs. 1 lakh to be paid within
two months.

Dr. Uma Agarwal vs. State of U.P. & Anr. 1999(1) LLJ 1335 =
1999(3) SCC 438 = 1999(2) Scale 153 = 1999(2) JT 359 = 1999/3)
Supreme 138 = 1999(4) SRJ 329 = 1999(3) SLT 138 = 1999(2) SLR 22.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #181

52. RETRENCHMENT

Termination of appointment after the expiry of a fixed period is not

“Retrenchment” within the meaning of the Industrial Disputes Act?

The workman was originally appointed for a period of three months

or till the regularly selected candidate assumed office. After extending it
for some more months the appointment was terminated. The workman
filed a Complaint and the learned single Judge held that since the employee
had completed more than 240 days, the termination was in violation of
Section 25-F of the Industrial Disputes Act, 1947. He directed the
respondent to be appointed afresh. In appeal the Division Bench set aside
the latter part of the order and directed reinstatement with back wages.

Disposing of the appeal the Supreme Court held—

“The controversy now stands concluded by a judgment of this Court

reported in M. Venugopal vs. Divisional Manager LIC'. Therein this Court
had held that once an appointment is fora fixed period, Section 25-F does
not apply as it is covered by clause (bb) of Section 2(00) of the Act. When
the appointment is for a fixed period, unless there is finding that power
under clause (bb) of Section 2(00) was misused or vitiated by its mala
fide exercise, it cannot be held that the termination is illegal. It must be
established in each case that the power was misused by the management
or the appointment for a fixed period was a colourable exercise of power.
Unfortunately, neither the learned single Judge nor the Division Bench
recorded any finding in this behalf. Therefore, where the termination is
in terms of the letter of appointment saved by clause (b), neither
reinstatement nor fresh appointment could be made.”

State of Rajasthan vs. Rameshwar Lal Gahlot: 1996 LIC 914 =

1996(1) SLR 595 = 1996(1) LLJ 888 = 1996(1) LLN 296 = 1996(1) SCC
595 = 1995(9) JT 621 = 1996(1) Scale 11 = AIR 1996 (SC) 1001.

1. 1994(2) SCC 323 = 1994(1) JT 281 = 1994(1) Scale 264 = 1994(2) UJ 73 = 1994(27)
ATC 84 = 1994(1) SLR 855 = 1994(84) FJR 317 = 1994(68) FLR 443 = 1994(1) LLJ 597
= 1994(3) SLJ 206 = AIR 1994 SC 1343.
#182 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Termination of contractual employment after two years :

Held: Having regard to the clear terms of his appointment order, the
appellant was entitled to bring his employment to an end at the conclusion
of the period of his temporary employment. There was no stigma
whatsoever cast by the letter of termination. The High Court was not
justified in concluding that the services had been terminated because of
the third respondent’s misconduct and upholding his reinstatement with
his back wages. In the result, the appeal is allowed and the impugned
judgment and order of the High Court is set aside.

Birla VXL Ltd. vs. State of Punjab & Ors. 1998 LLR 1167 = 1998(S)
SCC 632 = 1998(6) JT 626 = 1998(9) SLT 85.

Termination of Service due to non-renewal of contract:

A workman appointed on Daily Basis had done 214 days of work

only when his services were terminated. The Labour Court found that
his services were terminated in violation of S. 25-F and 25-G of the I.D.
Act and directed his reinstatement with continuity of service.

Without going into the question whether the workman had completed
240 days in a year and whether Saturdays and other Holidays should be
counted, as has been done by the Labour Court, the Court held that the
termination of the services of the workman as a result of the non-renewal
of the Contract of employment between the employer and the workman
concerned on its expiry or of such contract being terminated under a
stipulation in that behalf contained therein. Since the services were
terminated as per terms of his contract of employment it does not amount
to retrenchment under Sec. 2(00) of the Act and the Labour Court erred
in holding that it constituted retrenchment.

Escorts Ltd. vs. Presiding Officer & Anr. 1997 LLR 699.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #183

Termination of services of a seasonal workman :

In Morinda Co-operative Sugar Mills Ltd. vs. Ram Krishna & Ors.'
the Supreme Court had held that engagement of Seasonal workman in the
Sugarcane crushing and termination at the end of the season is not a case
of retrenchment but closure of the factory after the crushing season.

The Court however, directed the management to maintain a register

of workmen in order of seniority and when the Season starts in the
succeeding years, management should not go in for fresh engagement of
workmen until all the employees in the list are engaged.

Anil Bapurao Kanse vs. Krishna Sahakari Sakhar Karkhana Ltd. &
Anr. 1997(76) FLR 847 = 1997(5) JT 597 = 1997(4) Scale 338 = 1997(S)
Supreme 646.

53. REVERSION

For reversion from ad hoc promotion, opportunity of hearing not

necessary:

The respondent filed a suit challenging his order of termination on

the ground that before issuance of the aforesaid order, the Respondent had
no opportunity of being heard. The Tnal Court came to hold that impugned
order cannot be said to be an order terminating services of the Respondent
since he was holding the post of Assistant Lineman on ad hoc basis. The
Lower Appellate Court, however, reversed the judgment and decree of the
trial judge on a finding that his reversion to his substantive post without
giving him an opportunity of being heard amounts to punishment and the
impugned order must be said to be invalid. The High Court confirmed
the said order and hence the appeal. 3

Held: Since the plaintiff's appointment/promotion to the post of

Assistant Lineman was purely on ad hoc basis and the higher authorities
directed to discontinue such ad hoc appointment, the competent authority

1. 1995(71) FLR 822 = 1996 LIC 221 = 1996(1) LLJ 870 = 1996(1) SLJ 170 = 1996(88)
FJR 4 = 1995(5) SLR 232 = 1995(2) UJ 742 = 1995(5) Scale 198 = 1995(6) JT 546 = AIR
1996(SC) 332.
# 184 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

passed the impugned order posting the respondent against his substantive
post of charge 1 mate. The Respondent had not acquired any right to the
post of Assistant Lineman and the impugned order cannot be treated to
be penal in nature. In that view of the matter, the question of giving an
opportunity of hearing does not arise. The judgment of Lower Appellate
Court and the High Court were set aside.

Punjab State Electricity Board & Anr. vs. Baldev Singh 1998(9) SLT
214 = 1998(5) SCC 540 = 1998(6) JT 78 = 1998(2) CLR 867.

54. SCALES OF PAY

Fixation of Nature of work and responsibilities of Grades are matters

to be evaluated by employer and not determined by Courts. Nature of
work of two grades may be same but there may be qualitative difference
in performance.

Held on the facts of the Case, according to the High Court there was
a distinction between Technicians Grade IJ and Technicians Gr. III, the
Technicians Grade II appeared to be better qualified than Technicians
Grade III. The Nature of Work of both Grades of Technicians may be
the same but there may be qualitative difference in the performance. It is
for the employer to evaluate and not for the court to determine.

Umesh Gupta & ors. vs. Oil and Natural Gas Communication and
Ors. 1989(74) FJR 83 = 1989(1) LLJ 74.

55. SENIORITY

Seniority - Diesel engine drivers absorbed on the electrical side cannot

claim seniority over staff in the electrical locomotives:

Following the introduction of Electric Locomotive Diesel Engine

Drivers were given training and absorbed on the Electrical Locomotives.

Under the circumstances they were shifted to a new cadre. They

cannot therefore, have lien on the posts on electrical side nor to seniority
over the staff regularly working on the electrical locomotives. The
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #185

Tribunal’s Order that future promotions should take place on redetermined

seniority is in order.

V.K. Dubey and Others vs. Union of India and Others. 1997(3) LLN -
786 = 1997(5) SCC 81 = 1997(3) Scale 675 = 1997(4) Supreme 227.

56. SETTLEMENT

For non-payment of lay off compensation beyond 45 days binding on

all workmen:

There were five Unions in the Mill. The mill remained closed for
almost 2 years due to financial crisis. During conciliation a settlement
was reached for payment of Lay Off Compensation for certain period
during the non-working period. Four out of five Unions signed the
Settlement. The fifth union, although it participated in the meeting did
not sign the Settlement, contending that the nghts of workmen under 25(C) .
of Chapter VA cannot be whittled down and that a Settlement under
Secs.12(3), 18(3) could not have any adverse effect on the workmen’s
rights.

The Supreme Court held that Sec. 25 C must be read with the proviso
and once a settlement is arrived in conciliation proceedings as laid down
under Secs. 12(3), 18(3) the binding effect of such settlement gets vested
on all the workmen.Consequently the appellants would remain bound by
the Settlement.

Vrudhachalam & Ors. vs. Management of Lotus Mills and Anr.

1998(1) CLR 1 = 1998(1) LLJ 389.

Terms of written statement cannot be varied by oral agreement:

The Written Statement could not be varied or modified except by a

Written Statement or by a Written Memorandum duly signed by the parties
incorporating the terms of understanding. Even as per provisions of»
Evidence Act, no evidence of any oral agreement or settlement shall be
admitted as between the parties to any such instrument or their
representatives in interest for the purpose of contradicting, varying, adding
or substituting from its terms. Thus both on facts of the instant case as
 # 186 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

well as on the interpretation of law, the conclusion arrived at by the High

Court that there was no understanding between the parties and that the
so-called oral agreement pleaded by the appellants could not in any case
_- vary the terms of the 1986 settlement is unexceptionable.

Fabril Gasosa & Anr. vs. Labour Commissioner & Anr. 1997(3) SCC
150 = 1997(2) JT 171 = 1997(1) Scale 544 = 1997(75) FLR 715 =
1997(90) FJR 306 = 1997(1) LLJ 872 = 1997(2) SLR 347 = 1997(2)
Supreme 515.

Sec. 12(3) and 18

When a settlement is entered into between the Union and the

Management it is binding on all workmen even if they are not members
of the Union. Since the appellants who already received benefits under
the Settlements continue to be workmen in non-supervisory Category they
are barred by the Settlement.

Ram Pukar Singh & Ors. vs. Heavy Engineering Corporation 1995(1)
LLJ 214 = 1994(2) UJ 517 = 1994(3) Scale 916 = 1994(5) SLR 189 =
1994(69) FLR 801 = 1994(2) UJ 517 = 1994(3) Scale 916.

Settlement under 18(1) of I.D. Act binding on parties to settlement on

whose behalf the dispute is raised:

_Based on the findings of a Domestic Enquiry 29 workmen were |

dismissed. The workmen authorised the Union to represent them before
the Conciliation Officer, whereafter a reference was made. During the
pendency of the reference an understanding was reached between the
Company and the Union by which the 29 workmen were either to accept
reinstatement without back wages or a lump sum amount of Rs. 75,000/-
and other benefits.

About 12 workmen contended in the Labour Court where the

reference was pending that they were not bound by the settlement.

Held: The dispute was between the Company and the workmen
represented by the Union which was authorised by the workmen to
represent them a conciliation. The conciliation settlement was signed by
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 187

both parties. Under normal circumstances even the 12 dissenting workmen

would be deemed covered by the Settlement unless the Settlement was
ex-facie, unfair, unjust and mala fide.

KCP Ltd. vs. Presiding Officer & Ors. 1996(74) FLR 2540 =
1996(89) FJR 632 = 1996(2) LLN 970 = 1996(7) AD SC 178 = 1997(1)
LLJ 308 = 1996(8) JT 707 = 1996(10) SCC 446 = AIR 1997 (SC) 2334.

57. STANDING ORDERS

Clause 62(c)

Advocate appointed as Enquiry Officer has all normal powers of

Enquiry Officer including power to give findings as to misconduct of
the employee.

Management of Thanjavur Textile Ltd. vs. B. Purushottaman & Anr.

1999(1) LLJ 1049 = 1999(2) Scale 216 = 1999(3) Supreme 409 = 1999(3)
SCC 316 = 1999(6) JT 211 = 1999(2) JT 364 = AIR 1999 (SC) 1280.

Representation of employee in Disciplinary Proceedings. Whether he

could be represented only by employee in same establishment?

The certified Standing Orders contained a provision, similar to that

in the Model Standing Orders, where by the delinquent was required to
select his representative from one of his co-employees of the same
establishment. The logic behind this is that the co-employee would be
fully aware of the conditions prevailing in the parent establishment.

Bharat Petroleum Corporation Ltd. vs. Maharashtra General

Kamegar Union 1999(1) SCC 626 = 1999(1) LLJ 352 = 1998(10) SLT 236
= AIR 1999 (SC) 401 = 1999(2) SRJ 182 = 1998(6) Scale 537.

Sec. 13A

Certified Standing Orders do not have Statutory Force. Such

Standing Orders bind both employer and employees and constitute
conditions of service.

The Certified Standing Orders are conditions of Service framed by

the employer. The Employer may be a Private Corporation a Firm or an
individual and not necessarily a Statutory Corporation. The Standing
Orders are approved/Certified by prescribed Authority after hearing the
# 188 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

concerned workmen. The Act does not say that on such certification this
Standing Orders acquire statutory effect or become part of the statute.

It is one thing to say that they are Statutorily imposed conditions

service and altogether different thing to say that the constitute statutory
provisions themselves.

The Rajasthan State Transport Corporation and Kishan Kanth

1995(2) LLJ 728 = 1995(87) FJR 204 = 1995(71) FLR 211 = 1995 LIC
2241 = 1995(2) LLN 271 = 1995(2) UJ 318 = 1995(2) SCJ 511 = 1995(2)
SLR 784 = 1995(5) SCC 75 = 1995(4) JT 348.

Supreme Court - Review of earlier decisions when called for

Whether the Court should review its decisions? If so on what relevant

considerations?

Answering this the court held that the considerations could be—

(a) What was the nature of the infirmity or error on the earlier occasion;

(1) did some patent aspects of the question involved remain unnoticed;

(11) was the attention of the Court not drawn to any relevant and material
statutory provision; or

(111) was any previous decision of the Court bearing on the point not
noticed?

(b) Is the Court hearing the plea for review unanimous that there is such
an error in the earlier view;

(c) Has the earlier decision been followed on subsequent occasions, either
by the Supreme Court or the High Courts?

(d) What would be the impact of the error on the general administration
of law or on the public good?
(e) Would the reversal of the earlier decision lead to public inconvenience,
hardship or mischief?
Union of India and another vs. Raghubir Singh 1989(2) SCC 754 =
1989(74) STC 313 = 1989(178) ITR 548 = 1989 (66) CC 466 = 1989(75)
FJR 100 = 1989(1) Scale 1337 = 1989(3) SCR 316.
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #189

58. STIGMA

_ Meaning of - Depends on facts of each case and words employed in

the Termination Order.

The Employee was found to have been involved in a scuffle with

one Mr. P. Chakraborty. An enquiry committee went into the matter and
gave a report. “Whatever may be said about the other words in findings
of the Enquiry Committee about the scuffle and the appellant obtaining
signature are in our opinion clearly in the nature of a stigma. Further, the
enquiry committee said must be “punished”. It did not say proceedings
for disciplinary action must be initiated. Thus on the ground of “stigma”
the impugned order 1s liable to be set aside.”
“In our view........ the Committee was in fact constituted on a
complaint by the appellant against Shri Chakraborty cannot be used for
terminating the appellants probation without a proper departmental
enquiry. The said findings in our view were the foundation for the
impugned order among other facts. Such findings must in law, be arrived
at only in a regular departmental enquiry”.

D.P. Banerjee vs S.N. Bose National Institute of Basic Research,

Calcutta, 1999(3) SCC 60 = 1999(1) Scale 421 = 1999(1) JT 396 = 1999(2)
Supreme 34 = 1999(4) SRJ 120 = 1999(2) SLT 182 = 1999(1) LLJ 1054
= 1999(1) SLJ 415 = AIR 1999 (SC) 983.

59. STRIKE
If illegal, even though justified employees not entitled to wages):
The facts on record show that the workmen had resorted to illegal
strike. Since the strike was illegal in all the five undertakings no wages
for the strike period were awarded to workmen. Since the Lock Out was
declared in consequence of the illegal strike it was not illegal even though
the requirement of Sec. 22 had not been complied with. The award of
the Tribunal awarding workers wages was set aside.
HMT Ltd. vs. HMT H.O. Employees Assn. & Ors. 1997 LIC 263 =
1997 (90) FJR 427 = AIR 1997 SC 585 = 1996(11) SCC 319 = 1996(7)
Scale 898 = 1996(3) SLR 1 = 1997(75) FLR 29 = 1997(1) LLN 28.
#190 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

60. SUSPENSION

Bank Employee was suspended for an offence under Sec. 304 of

I.P.C. and detained in connection with the offence. High Court quashed
the order on the ground that there was no provision in the bi-partite
Settlement.

The High Court referred only to clause 19.12(b) which entitled Bank
to suspend pending departmental enquiry only. Under Clause 19(3) the
Bank has power to suspend an employee for an offence for which he is
being prosecuted: The High Court was wrong in coming to the conclusion
that the Bank could not suspend the Officer when a Criminal Case is
pending.

Punjab National Bank & ors. vs. Jagdish Singh 1999(1) LLJ 945

A second suspension in the same matter if justified.

There is no restriction on the authority to impose suspension for a

second time. The first order may have been withdrawn, on the ground, at
that stage, that the evidence against the delinquent is not sufficient. The
Court should not interfere with the orders of suspension unless they are
passed mala fide and without there being a prima facie evidence connecting
the employee with the misconduct.

U.P. Rajya Utpadan Mandi Parishad & ors. vs. Sanjiv Rajan 1993(2)
LLJ 66 = 1993 Supp.(3) SCC 483 = 1993(4) SLR 543 = 1993(25) ATC
764 = 1993(2) LLJ 958 = 1993(2) JT 550 = 1993(2) Scale 330 = 1993(2)
UJ 47 = 1993(66) FLR 1058 = 1994(1) SLJ 28.

Principles

Order of Suspension is not an order imposing punishment on person

found to be guilty. It is an Order made against him before he is found guilty
to ensure smooth disposal of the Proceedings initiated against him. Such
Proceedings should be completed expeditiously in Public Interest and also
in the interest of the Government Servant concerned. The subsistence
allowance is paid to help the employee to maintain himself and his
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #191

dependants until the Departmental Proceedings or the Criminal Case, as

the case may be comes to an end and appropriate orders are passed by
the Government.

The Court further awarded that the subsistence allowance should be

sufficient for his bare subsistence. He should not engage himself in any
other activity andif the Proceedings drag on for a long time the amount
of the allowance should be reviewed.

PL Shah vs. Union of India & Anr. FJR 1989(1) LLJ 302 = 1989(9)
ATC 627 = 1989(1) JT 98 1989(1) SCC 546 = 1989(1) ATR 683 = 1989(1)
UJ 441 = 1989(1) LLN 546 = 1989 LIC 1253 = 1989(2) SLJ 49 = 1989(1) —
SCR 224 = 1989(74) FJR 163 = 1989(58) FLR 334. %

61. TENURE POST

Superannuation alien to tenure appointments.

Appellant was appointed as Director of AIITMS for a period of five

years or till he reached the age of 62 years. He was confirmed after one
year and retired by order nine months later.

The post being a Tenure post the appointment could be terminated

before he attained 62 years. Tenure means a term during which an office
is held. It is a condition of holding the Office. “Once a person is appointed
to a tenure post his appointment to the said Office begins when he Joins
and it comes to an end on the completion of the tenure unless curtailed
on justifiable grounds. Such a person does not superannuate, he only goes
out of the Office on completion of his tenure”.

Dr. L.P. Agarwal vs. Union of India 1993(2) LLJ 825 = 1992(3) SCR
567 = AIR 1992 (SC) 1872 = 1992(3) SCC 526 = 1992(2) ATR 377 =
1992(3) SLJ 137 = 1992(4) SLR 583 = 1992 LIC 1807 = 1992 (81) FJR
625 = 1992(2) UJ 266 = 1992(2) Scale 54 = 1992(65) FLR 758.

62. TERMINATION

Automatic termination of service of permanent employee:

The Supreme Court of India in its judgment dated 6-2-98 held that
notwithstanding any provision in the contract or certified standing orders
a permanent employee’s services cannot be terminated abruptly and
 #192 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

arbitrarily. Realising that a contract or service was often so unilateral ip

character that it could be described as mere manifestation of subdued wysh
of workmen to sustain their living at any cost and that it was frequently
an agreement between unequals, the Supreme Court minced no wards to
uphold the right of a permanent employee to protection against abrupt and
arbitrary termination of an employee’s services and without notice or
hearing, able it in the purported exercise of the employer’s right to
terminate under an alleged provision m the certified standing orders.

The Supreme Court also held that although the person in question
was a permanent employee of the company, there was no fixed contract
of services between them. There was therefore no question of services
being terminated on the expiry of the contract. In the absence of the fixed
term of contract between the parties the question relating to the
contingency namely that the termination was in pursuance of a stipulation
to that effect in the contract of employment does not arise. There should
have been a contract of employment for fixed term between the employer
and the workmen containing a stipulation that the services can be
terminated even before the expiry of the period of the contract. If such
contract on the expiry of its orginal period is not renewed and the services
are terminated as a consequence to that period it would not amount to
retrenchment. Similarly if the services are terminated even before the
expiry of period of contract but in pursuance of a stipulation contained in
that contract that the service can be so terminated, then in that case also
the termination would not amount to retrenchment.

The person in question was appointed as an operator (trainee) on

13-5-1980 and on completion of training she was absorbed in that post
with effect from July 13, 1981 and was confirmed on 13th July, 1982.
She thus acquired the status of a permanent employee. She proceeded on
maternity leave from 7-11-84 to 29-1-85. Thereafter she allegedly
remained absent with effect from 30-1-85 to 12-4-85 without any
application for leave and consequently by order dated 12-4-85 she was
informed in terms of Clause 17 (g) of the certified standing orders. When
_ the matter went before the Tribunal, the Tribunal held that the termination
of services amounted to retrenchment within the meaning of Section 2 (00)
of the Industrial Disputes Act. Since all other legal requirements had not
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #193

been followed, the termination was bad and consequently she was entitled
to reinstatement as also 50% of back wages from the date of termination
till reinstatement. When the matter went before the Allahabad High Court,
the High Court dismissed the writ petition upholding the findings of the
Tribunal that termination of services was retrenchment. The High Court
further held that while invoking the provisions of Clause 17(g) of the
certified standing orders, the petitioner ought to have been given an
opportunity of hearing to the employee. When the matter went before
the Supreme Court, the Supreme Court observed that the conferment of
“permanent” status on an employee guarantees security of tenure. It is
now well settled that the services of a permanent employee whether |
employed by the government or government company or government
instrumentality or statutory corporations or any other “Authority” within
the meaning of Article 12 cannot be terminated abruptly either by giving
him a month’s or three months’ notice or notice pay in lieu thereof or even
without notice, notwithstanding that there may be a stipulation to that effect
either in the contract of service or in the certified Standing Orders. This
being the legal position, the action taken against the permanent employee
was wholly illegal.

Uptron India Limited vs. Shammi Bhan & Another 1998(1) LLJ 1165
= 1998(6) SCC 538 = 1998(3) JT 47 = AIR 1998 (SC) 1681 = 1998(2)
Scale 586 = 1998(4) SLT 152 = 1998(S) Supreme 203 = 1998(3) Supreme
493 = 1998(2) SLR 544 = 1998(1) LLJ 1165 = 1998(79) FLR 233.

Termination of service - Loss of confidence:

“Loss of Confidence by the Employer in the Employee is a feature

which certainly affects the character or reputation of the employee and
therefore, this Court correctly held in Chandulal’s case that allegation of
Loss of Confidence amounted to stigma. The ratio in Jagdish Mitta's case
AIR 1964 SC 449 also supports the conclusion”.

The Court further held that termination of service for loss of

confidence is not retrenchment. “In the present case though no formal
domestic enquiry had been held the employer took the stand in the
adjudication that termination’was grounded upon loss of confidence and
#194 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

substantiated that allegation by leading evidence” and the Labour Court

has come to that conclusion upon assessment of the evidence”.

Kamal Kishore vs. Pan American World Airways Inc 1987(1) SCC
146 = 1987(1) LLJ 107 = 1986 JT 946 = 1987(1) LLN 83 = 1987(54)
FLR 43 = 1987 LIC 218 = 1986(4) SLR 281 = 1987(1) SLR 792 = 1986(2)
Scale 922 = 1987 (70) FJR 65 = 1987(1) UJ 147 = 1987(1) CCC1.

Termination :

Public body pursuing prolonged litigation. The Dismissal of a sales

girl was declared invalid.

Thereafter the society pursued the matter before the appellate

authority revisional authority, the High Court, the Labour Court and again
the High Court.

The Court deprecated the attitude of certain persons in authority.

They have literally persecuted her. Despite unequal strength the
respondent has managed painful litigation of more than 20 years. The
Society was directed to reinstate her with full back wages. It is open to
the society to recover the sums paid as wages from the officers from their
personal salary.

Central Co-op. Consumer Stores Ltd. vs. Labour Court Shimla

1993(2) LLJ 563 = 1993(67) FLR 72 = 1993 LIC 1943 = 1943 (4) SLR
94 = 1993(2) UJ 123 = 1993(2) Scale 842 = 1993(3) SCC 214 = 1993(3)
JT 532 = 1993(3) SCR 477 = AIR 1994 (SC) 23.

Termination of service:— The Termination was preceded by an ex-parte

enquiry but notice of Termination mentioned that it was as per conditions
in appointment letter.

The Court held that in certain cases of temporary services or

probationers ex-parte enquiry or report were held as motive for the
termination order. In such cases the termination is not punitive merely
because ‘Principles of Natural Justice’ have not been followed. The other
cases where such ex-parte enquiry is conducted and form the foundation
for the termination of the services of the temporary servant on probation
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #495

and where Principles of Natural Justice have not been followed such orders
are declared void. To find out whether a case falls within either of these
two categories it is permissible for the High Court or Administrative
Tribunal to go behind the order and look into the record of the proceedings,
the antecedents and attendant circumstances culminating in the order of
Termination. In case the evidence is received and findings as to
misconduct of a definitive nature are arrived at behind the back of the
officer 2 termination order on the basis of such a report will be violative
of principles.

The Court upheld the order passed by the Tribunal, questioning the
termination order.

Radhey Shyam Gupta vs U.P. State Agro Industries Corporation

1999(1) LLJ 432 = 1999(1) SLR 44 = 1999(2) SRJ 232 = 1999(10) SLT
299(2) = 1998(8) JT 585 = 1998(6) Scale 562 = 1999(2) SCC 21 = AIR
1999 (SC) 609.

For Procuring Appointment by Suppressing material facts:

The respondent workman was selected for the post of Cash Collector.
Both in his application for employment as well as his joining report he
did not disclose that First Information Report had been lodged against him
and two others for an offence under Sec. 307 I.P.C. The Bank terminated
his services. The Labour Court directed reinstatement and on appeal a
Single Judge confirmed the Labour Court’s direction.

The Supreme Court observed that there could be no dispute and

termination would be justified even though no domestic enquiry had been
held. However, on acquittal reinstatement as a fresh recruit was ordered.

Regional Manager, Bank of Baroda and Presiding Officer, Central

Government Industrial Tribunal AIR 1999 (SC) 912 = 1999(2) SCC 247
= 1999(1) Scale 211 = 1999(1) JT 241 = 1999(3) SRJ 43 = 1999(1) SLT
404 = 1999(1) SLR 618 = 1999(1) Supreme 265 = 1999(1) LLJ 656 =
1999(2) LLJ 148.
#196 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Employee member of T.U. - given option to resign from Union for

Promotion to a Managerial Post - Services Terminated for failure to
exercise option.

The employee after serving in various capacities was promoted to a

managerial post but refused to exercise the option to resign from the
membership of the Union. Instead of reverting him to his substantive Post
Services were terminated. The Labour Court upheld the contention of the
Employer that the reference was not maintainable.

Held in the facts of the case, Justice could be done adequately to the”
Employee if he was given the liberty to exercise the option indicated to
him by the employer at an early stage. Order of Termination was quashed
and employee was directed to report for duty and granted 75% of his wages
for the period for which he remained under Termination of Service.

Pan American World Airways & Another 1987(71) FIR 434.

On grounds of absence from duty without leave and for embezzlement

of funds of society:

The appellant’s Services were terminated on the ground that he had

absented himself from duty without obtaining leave and for embezzling
funds belonging to the society. In a reference to the Labour Court the
appellant contended that his absence was due to illness, that he had taken
leave for the period and that the Society had terminated his appointment
without justification.The Society however, contended that the I.D. Act
was not applicable as it was not an ‘Industry’ and that the appellant had
gone on strike and committed embezzlement of funds belonging to the
society. The Labour Court held that I.D. Act was applicable and upheld
the termination of employment as legal.

The Supreme Court reversing the decision held that no Domestic

Enquiry was held and in evidence the management had produced photostat
copies of the originals and did not produce the Original Documents before
the Labour Court. The Management had not given any explanations as
 DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS 4} 197

to why the originals had not been produced. The court held that the charge
of embezzlement was liable to be set aside.

Makhan Singh vs. Narainpura Co-operative Agriculture Service -

Society Ltd. 1987(3) SCC 571 = 1987(2) LLJ 533 = 1987(2) LLN 404 =
1987(55) FLR 294 = 1987(71) FIR 170 = 1987(2) UJ 342 = 1987(2) CCC
~ 411 = 1987 LIC 1631 = 1987(4) SLR 394 = 1987(2) Scale 57 = 1987(3)
JT 87 = AIR 1987 (SC) 1892.

Validity of order of Termination :

Indian Oil Corporation had dismissed a workman for theft of oil. A

criminal case was also lodged against him. The dismissal done was in
accordance with the Standing Orders but without following the procedure
of Domestic Enquiry. Employee challenged the order.

The Court held ‘the Principle of Natural Justice’ require to be

modulated consistent with the scheme of the rules; it cannot supplan but
can supplement the law. The rule in the Standing Orders has been made
to meet a specified contingency and the principle of Natural Justice by
implication Stands cancelled.

Hari Pada Khan vs. Union of India & Ors. 1996(1) LLJ 1044 =
1996(1) SCC 536 = 1995(9) JT 343 = 1995(7) Scale 315 = 1996(1) SCJ
21 = 1996(32) ATC 481 = 1996 LIC 934 = 1996(1) SLR 641 = 1996(1)
LLN 462.
63. TRANSFER

For transfer on administrative grounds, there is no ground for

interference with the order of transfer :

The petitioner was transferred on account of administrative exigencies

from Kota to Mumbai. The services of the experienced officer were
necessary and so the transfer order came to be made.

Held: There is no justification to interfere with the impugned order.

Laxmi Narain Mehar vs. Union of India AIR 1997 (SC) 1347 =
1997(3) SCC 87 = 1997(3) JT 444 = 1997 (2) Scale 531, = 1997 (3)
Supreme 107 = 1997(2) SLR 383 = 1997(1) UJ 583 = 1997 CLR 828 SC
(DB).
#198 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Targetting honest officers is illegal and mala fide :

An Excise Inspector raided the premises of a toddy licensee and
charged him with supplying adulterated toddy. He asked for permission
to prosecute him. Although permission was granted on the basis of a
complaint by the Guardian Minister action was taken against the appellant
and he came to be transferred.
In view of the unimpeachable and eloquent testimony of the
performance of the duties it is obvious that the transfer is not in the public
interest but is a case of victimisation of an honest officer. The transfer is
nothing but a mala fide exercise of power to demoralise honest officers.
Arvind Dattatreya Dhande vs. State of Maharashtra & Ors. 1997(2)
CLR 461 = 1997(6) JT 229 = 1997(4) Scale 742.
Transfer of a Public Servant

Transfer of a Public Servant appointed to a particular cadre of

Transferable Posts from one place to another, 1s an incident of Service.
No Public Servant or employee of a public undertaking has a legal right
to be posted at any particular place. Transfer from one place to another
is generally a condition of service and the employee has no choice in the
matter. It is open to a Public Servant to make a representation to the
competent authority for stay, modification or cancellation of the Transfer
Order.

A Public Servant has no justification to avoid or evade the transfer

order merely on the ground of having made a representation or on the
ground of his difficulty in moving from one place to another. Further, no
employee in Public Service has a right to be absent from duty without
sanction of leave merely on account of the pendency of the representation
against the transfer order. A warning need not be in any particular form.
The object of the warning is to remind the delinquent employee that his
continued unauthorised absence from duties was liable to result in the
discharge of his Service.
Gujarat Electricity Board vs. A.S. Poshani 1989(3) JT 20 = 1989 (3)
SLJ 68 = 1989(2) SCC 602 = 1989(2) LLN 299 = 1989(10) ATC 396 =:
AIR 1989 (SC) 1483 = 1989 LIC 1374 = 1989(2) SCR 357 = 1989(3)
SLR 684(2) = 1989(75) FIR 83 = 1989(1) Scale 907 = 1989(2) UJ 222 =
1989(59) FLR 474 = 1989(2) LLJ 470.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS #199

64. UNFAIR LABOUR PRACTICE

Sec. 25T, 25U, 34 & 39 of Industrial Disputes Act - Govt. may

authorise someone other than self to file complaint:

The Court held that Sec. 34 envisages a Complaint made by the

appropriate Government or under the authority of the appropriate Govt.
There is no limitation therein in regard to the party to whom the
authorisation may be given.

Raj Kumar Gupta vs. Lt. Governor of Delhi & Ors. 1997(1) SCC
556 = 1996(10) JT 559 =1996(8) Scale 177 = 1996(4) CLT 307 = 1997(1)
UJ60 = 1997(1) LLN 52 = 1997(90) FJR 325 = 1996(8) AD (SC) 671.

65. WAGES FOR STRIKE PERIOD

Whenever a worker indulges in a misconduct such as a deliberate

refusal to work the Employer can take a disciplinary action against him
and impose on him the penalty prescribed for it which may include some
deduction from his wages. However, when misconduct is not disputed but
it is, on the other hand, admitted and it is resorted to on a mass scale such
as when the employees go on strike, legal or illegal, there is no need to
hold an enquiry. To insist on an enquiry in insist on an in a mass action
such as a Strike it is not possible to hold an enquiry against every employee
nor is it necessary to do so unless of course an employee contends that
although he did not want to go on strike and wanted to resume his duty ’
he was prevented from doing so by the other employees or that the
employer did not give him proper assistance to resume his duty though
he had asked for it. Normally when the employees go on strike for a
portion of the day the employer at the most could deduct only pro-rata
wage.

The Court held further, that when the employees go on strike during
the crucial working hours which generate work for the rest of the day to
accept such argument is in effect to regrate the purpose and efficiency of
the remedy and to permit its circumvention effectively. When the
employees come back for work after their strike during such crucial hours,
it may be that they are not prevented from entering the Work place but
such attendance after the crucial working hours would be useless as there
would not be work to do during the rest of the hours. Such later resumption
# 200 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

of work by the employees was not in fulfilment of the contract of service

or any obligation under it. The employer therefore is not liable to pay either
full day salary or even the pro-rata salary.

Bank of India vs T.S. Kelawala & Ors 1990(2) LLJ 39 = 1990(2) UJ

424 = 1990(77) FIR 95 = 1990(3) SCR 214 = 1991(15) ATC 747 =
1990(3) SLJ 81 = 1990(2) JT 339 = 1990(4) SLR 248 = 1990(60) FLR
898 = 1990 Supp.(1) Scale 140.

Backwages to Employee Refusing to accept order of Transfer :

An employee holding a transferable post refused to join at the place

of his posting. A domestic enquiry was held and based on the findings of
the enquiry it was decided to dismiss him. The employer however, took a
sympathetic view and gave him one more chance to accept the transfer
which was refused. He was dismissed.

The Tribunal adjudicating the issue awarded full back wages but the
High Court found the order for payment of full wages incongruous.

The Supreme Court in appeal held that the employee was not entitled
to any back wages.

Lucas India Services vs. P.O. Labour Court, Madras 1999(1) FLR
384.

Where Termination is for absence from duty - Improper :

A Doctor proceeded on Leave and made a representation for his

posting. Thereafter for five years he remained absent. Departmental
Enquiry was conducted and he was removed from service. The Tribunal
set aside the Order and directed to pay 50% of the back wages till the
date of filing of the Original Application till date of reinstatement.

Held: The respondent did not choose to join duty for five years. He
was not prevented from reporting to duty. The Tribunal was therefore
wholly wrong in directing the appellants to pay 50% of the back wages
etc.

Govt. of Tamil Nadu & Anr. vs. Rajaram Appaswamy: 1997(2) CLR
23 = 1998(1) LLJ 56 = 1997(5) SCC 57 = 1997(S) JT 178 = 1997(4) Scale
3 = 1997(4) Supreme 642.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 2017

Ordinary rates of wages - Under Sec. 59 of Factories Act:

Employees who are not paid H.R.A. cannot notionally include H.R.A.
paid to other employees to whom the company has not provided quarters.

Union of India vs. Suresh C. Baskery & Ors. 1996(11) SCC 701 -=
1995 (6) Scale 328 = 1995(9) JT 661 = 1996(1) UJ 635 = 1996(1) SLR
309 = 1996 (72) FLR 124 = 1996(1) LLJ 1094 = 1996(1) LLN 305.

Daily Wage Employees:

Making payment on par with regular employees does not arise they
will be paid minimum wages prescribed under the statute if any, or the
prevailing wages in locality will apply.

Gaziabad Development Authority and Ors vs Vikram Chowdary and

Ors. 1995(3) SCJ 390 = 1995(2) LLJ 703 = 1995(3) SLJ 239 = 1995(31)
ATC 129 = 1995(87) FJR 324 = 1995 (71) FLR 462 = 1995 LIC 2474 =
1995(2) LLN 633.

66. WORKMAN

‘Workman’ - Section 2(s) of Industrial Disputes Act.

Held on the facts of the Case that the duties of an Internal Auditor
were mainly reporting and checking up on behalf of the employer. He
has no independent right or authority to take decision and his decision did
not bind the employer. A reporter or checking clerk is not a supervisor
and he cannot be said to be doing any kind of supervisory work. The
employee was held to be a ‘Workman’.

National Engineering Industries vs. Srikishan Bhageria 1988(72) FJR

190 = 1988(1) LLJ 363 = 1988 Supp. SCC 82 = 1988(1) SCR 985 =
1987(4) JT 569 = 1998(56) FLR 148 = 1988(2) SLJ 23 = 1988 LIC 384.

Medical Representatives - Whether workmen under Sec. 2(S) :

For the first time by virtue of the Amending Act 46 of 1982 workmen
doing “Operational” Work came to be included in the definition of
“workmen”. By virtue of this amendment for the first time persons doing
# 202 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

non-manual unskilled and skilled work also came to be included in the

definition.

The Court declared that the work of Sales Promotion is distinct from
and independent of the types of work covered by the definition.
HR Adyantayya etc. vs Sandoz (India) Ltd. 1995(1) LLJ 303 =
1994(2) LLN 1017 = 1994(85) FJR 586 = 1994 (69) FLR 593 = 1994(3)
SLJ 145 = 1994(5) JT 176 = 1994(5) SCC 737 = 1994 (3) Scale 816 =
AIR 1994 (SC) 2608.
(In the case of O.M. Bhargava (Dead) by LRs. and Satyavati
Bhargava and Others) the Supreme Court decided to refer to a larger bench
the question whether Medical Representatives are ‘workmen’ under the
Industrial Disputes Act.
Temporary workmen - Directions to regularise on projects closed for
non-availability of funds wrong:

Held that when the project is completed and closed due to non-
availability of funds, employees have to go along with the closed project.
The High Court was not right in giving directions to regularise them or
to continue them in other places. No vested right is created in temporary
employment. Directions cannot be given to create posts by the State to a
non-existent establishment.
State of Himachal Pradesh vs. Aswini Kumar 1996 (72) FLR 540.
Casual (Onus to prove the object of continuing workmen on casual
basis lies on the employer):

The burden of establishing the object of continuing the workmen as

casual lies on the employer. Such continuance deprives of the status and
privilege of permanent employees.
The Court held that the objects of the state law would be thwarted
and frustrated if such burden is placed on the workmen which he cannot
reasonably discharge.
Chief Conservator of Forests & Anr. vs. Jagannath Maruti Kondhara
& Ors. 1996(1) LLJ 1223 = AIR 1996 (SC) 2898 = 1996(2) SCC 293 =
1995(7) Scale 101 = 1995(9) JT 465 = 1996(1) UJ 484 = 1996 LIC 967 =
1996 SCC 500 = 1996(1) AD (SC) 32 = 1996(1) SLR 56 = 1996(72) FLR
840 = 1996(1) LLN 475.
DIGEST OF CASES AND ISSUE-WISE PRESENTATION OF S.C. DECISIONS # 203

Workmen’s compensation:

An employee is liable to pay compensation for employment injury

as soon as a personal injury is caused to workman by accident arising out
of and in the course of employment.

Relevant date for determination of rate of compensation is date of

accident and not date of adjudication of the claim.

Kerala State Electricity Board vs Anr. and Valasa K. and Anr.

1999(8) SCC 254 = 1999(6) Scale 31 = 1999(7)JT 292 = 1999(8) Supreme
362 = 1999(2) LLJ 1112 =1999(8) SLJ 101 = 1999(9) SRJ 494.
 Chapter 7
MEANING OF
i) Misconduct

In the case of State of Punjab vs. Ram Singh,' the Supreme Court
expressed its views as follows:

‘Thus it could be seen that the word ‘Misconduct’ though not capable
of precise definition, its reflection receives its connotation from the context,
the delinquency in its performance and its effect on discipline and the nature
of the duty. It may involve moral turpitude, it must be improper or wrong
behaviour; unlawful behaviour, wilful in character; forbidden act, a
transgression of established and definite rule of action or code of conduct
but not mere error of judgment, carelessness or negligence in performance
of the duty; the act complained of bears forbidden quality or character. Its
ambit has to be construed with reference to the subject matter and the context
wherein the term occurs regard being had to the scope of the statute and
the public purpose it seeks to serve.”

ii) Subversive of discipline

In most Standing Orders an exhaustive list of Acts of omissions and

commissions which constitute misconduct is given. The expression ‘or any
act of subversive of discipline’ in the A.P. Model Standing Orders reads as
follows:

“riotous or disorderly behaviour during working hours at the

establishments or any act subversive of discipline.”

Rules of discipline are laid down in the certified Standing Orders. The
word ‘Discipline’ is used to denote order which is maintained in a School.
College, among Soldiers, Sailors, or Policemen. Order is maintained by
training them, and also by taking them to task for violations. Discipline is
essential for attaining objectives of the group. In employment too there are
objectives which the employer seeks to achieve through the men or women

1. 1992(3) SCR 634 = 1992(4) JT 253 = AIR 1992 (SC) 2188 = 1992(2) SLJ 160 = 1992(2)
ATR 366 = 1992(2) UJ 274 = 1992(2) LLN 419 = 1992(5) SLR 543 = 1992(2) Scale 76 =
1992 LIC 2391 = 1992(81) FIR 572 = 1992(4) SCC $4 = 1992(21) ATC 435 = 1992/65)
FLR 448 = 1993(1) LLJ 218.

# 204
MEANING OF # 205
Ce
een liebe’
whom he employs. The expression ‘Subversive of Discipline’ has not been
defined but adjudicating authorities have interpreted it differently on
different occasions.

The word ‘Subversive’ is derived from ‘Subvert’ which means

‘destroy, overthrow’. Subversive is defined as tending to subvert. Thus
any action which may destroy or overthrow discipline is termed as an act
of misconduct. Such subversion may be attempted by raising slogans inside
the factory during working hours, practising violence or inciting workmen
to indisciplined behaviour, ete.

In a broader sense the words are capable of including all types of

misconduct such as disobedience, insubordination, negligence all of which
have a bearing on the smooth and disciplined working of the establishment.
While the primary conditions relating to employment may be specified in
the letter or offer of appointment, secondary obligations incidental to the
primary obligations come within the ambit of the words “Acts subversive
of discipline’. Thus workmen may indulge or involve themselves in acts
which involve obligations of either kind. The test whether the performance
of a secondary obligation is to be treatedas an act subversive of discipline
depends on the subversive act and its effect on the internal working of the
establishment.

Thus it has to be seen if:

1) the act complained of is inconsistent with the fulfilment of the express

or implied conditions of service; or is against the behaviour expected
towards a co-worker.

ii) 1s directly linked with the general relationship of employer and

employee;

iii) has a direct connection with the contentment or comfort of the men at
work;

iv) has a material bearing on the smooth and effective working of the
concem;

v) the act complained of has offended the Company’s customers or clients

who come to transact business with the Company; or
# 206 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

vi) the act complained of offends the Standards of Moral behaviour or

acts involving grossly immoral behaviour or moral turpitude.

iii) Good faith

The expression ‘Good Faith’ is not defined in the Act. Therefore,

the meaning assigned to this expression in Sec. 3(22) of the General
Clauses Act, 1897 shall apply. Under Sec. 3(22) of the General Clauses
Act, 1897:

‘A thing shall be deemed to be done in Good Faith where it is in

fact done honestly, whether it is done negligently or not’.

The question of Good Faith is naturally one of fact to be determined

with reference to the circumstances of each case. If a person to whom
any duty is addressed by the Act performs it honestly, he is protected even
if it is ultimately found that there was some mistake or negligence on his
part resulting in injury to another or that there was a contravention of any
of the comprehensive provisions of the Act or the Rules made thereunder.
~

Public Prosecutor vs. V. Venkataramayya, 1962(2) LLJ 21.

To act in Good Faith a person must act honestly. A person cannot

be said to act honestly unless he acts with fairness and uprightness.
Sines Good Faith precludes pretence, deceit, lack of fairness and uprightness
and wanton or wilful negligence.

Kailash Sizing Works vs. Municipality of Bhiwandi, AIR 1969

Bombay 127, Harbhajan Singh vs. State of Punjab AIR 1961(SC) 215.

iv) Instigate or Incite

What amounts to instigation 1s explained in Sec. 137 of Indian Penal

Code as follows:

‘A person who by wilful misrepresentation or by wilful concealment

of a material fact which he is bound to disclose voluntarily causes or
procures or attempts to cause or procure a thing to be done, is said to
instigate the doing of that thing.
MEANING OF # 207

“The word “Jnstigate’’ means to goad or urge forward or to provoke

incite, urge or encourage one to do an act. A mere intention or preparation
or advice cannot be considered instigation. Instigation presupposes
knowledge of the criminality of the Act.
What acts would amount to instigation or incitement will depend
upon the facts of the particular case.

There must be something tangible in evidence to show that the

persons responsible for such action were deliberately trying to stir up other
persons to bring about a certain object.”

(State of Bihar vs. Ranen Nath, AIR 1958 (SC) 259 (261)
Vv) Victimisation -

In the case of National Tobacco Co. of India and others vs. Fourth
Industrial Tribunal and Ors. 1960(2) LLJ 175 = 1960(18) FJR 157 the
Calcutta High Court held that:

“Victimisation means one of two things. The first is where the

workman concerned is innocent and yet he is being punished because he
has in some way displeased the Employer, for example, by being an active
member of a Union of Workmen who were acting prejudicially to the
Employers Interests. The Second case is where an employee has
committed an offence but he is given a punishment quite out of proportion
to the gravity of the offence, simply because he has incurred the displeasure
of the employer in a similar manner.”
It is not possible to give an exhaustive definition.
Websters New International Dictionary defines ‘‘Victimise” to make
a victim, to sacrifice, specially to make a victim by deception, deceive,
dupe or cheat.”
In Industrial Relations the taking of some actions prejudicial to the
worker on some pretext or other than the real reason is taken to be an act
of victimisation.
“In our opinion the expression victimisation should embrace all cases
of discharge, dismissal or punishment inflicted or suffering cast by an
employer where such discharge, dismissal or infliction of such punishment
or infliction is so unjust that a remedy is called for in the interest of Justice
between the parties Certain Banks vs. Their workmen, 1950(1) LLJ 556.
 Chapter 8

SOME COMMONLY USED TERMS IN LETTERS OF

SHOW CAUSE & CHARGE SHEETS AND THEIR
LEGAL MEANING

Abet to encourage someone to commit a crime

Accomplice Person who helps another to commit a crime

or who commits a crime with another person

Accuse Say that someone has committed a crime or to

charge someone with a crime

Acquit to set a person free because he has been found

not guilty

Adduce to bring before the Court, to bring evidence

before the Court

Adhoc for this particular purpose

Agreement Document setting out the contractual terms

agreed between the Parties

Aiding and abetting Offence of helping and encouraging someone

to commit a crime
Alias taken to hide real name

Alibi Plea that a person charged with a Crime

was somewhere else when the crime was
committed

Allege to state that something has happened

Allegation Statement that something has happened or

is true

Appellant person who appeals or who goes to a higher

Court to ask it to change decision

# 208
SOME COMMONLY USED TERMS AND LEGAL MEANINGS # 209

Assault — test of acting in such a way that someone is

afraid he will be attacked and hurt
Assemble to come together or gather
Bias leaning towards or favouring one party in a
case
Bona fides Latin phrase meaning good faith
Casual not permanent or regular or not formal

Caveat to enter a caveat - to warn legally that you

have an interest in a case and that no steps can
be taken without notice to you

Clue thing which helps someone to solve a crime

Coercion forcing someone by pressure to commit a

crime or do some act

Collusion agreement between parties in order to cheat

another party

Commit to carry out (a crime)

Compel to force someone to do something

Condone to forgive

Confess to admit the commission of a Crime

Confine to keep in a room or area

Contractor a person who does work according to a

written agreement

Corroborate to prove evidence which has already been given

Counter claim in a court by a defendant against the

plaintiff who has already brought on a
claim against him

Covenant agreement or understanding to do something

ornot to do something contained in a deed
or contract
#210 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Cross-examine to question witnesses called by the other side

in a case, in the hope that you can destroy their
evidence
Culprit person who is responsible for a crime

Damage harm done to things

Defalcation illegal use of money by someone who is

‘not owner but who has been trusted to look
after it

Defraud to trick someone as to obtain money illegally

Deponent person who makes a statement under oath

Deterrent punishment which will defer people from

committing crimes

Discrimination treating people in different ways because

of class, religion, race, language, colour or sex

Dismissal removal of an employee from a Job

Dismissal Procedure correct way of dismissing an employee

following the rules in the contract of
employment

Unfair Dismissal removing someone from a Job by an employer

who appears not to be acting in a
reasonable way

Wrongful Dismissal removing someone from a Job for a reason

which does not justify dismissal and which
is breach of the contract of Employment

Disorderly badly behaved or wild

Embezzle to use illegally or steal money which is not

yours or which you are looking after for
someone

Emoluments wages, salaries, fees or any monetary

benefit from an employment
SOME COMMONLY USED TERMS AND LEGAL MEANINGS #217

Ex-gratia Latin phrase meaning as a Favour

Ex-gratia Payment payment made as a gift with no obligation
Exonerate to say that someone who has been blamed
should not be blamed
Ex-parte where only one side is represented

Extenuating
Circumstances factors which excuse a crime in some way
Extortion getting money by threats

Feasible which can be done

Forgery crime of making an illegal copy of a

document or recording or banknote to use as
if it were a real one

Fraud harming someone (by obtaining property or

money from him) after making him believe
something which 1s not true

Fraudulent not honest or aiming to cheat people

Functus Officio no longer having power or jurisdiction

Habitual a person who does something frequently

Impersonate to pretend to be someone else

Incite encourage or persuade or advise someone to

commit a crime

Incident thing which has happened

Indecent rude or not decent or which an ordinary

person would find shocking

Infer to reach an opinion about something

Injunction court order compelling someone to stop

doing something or not to do something
a
#212 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Intimidate — to frighten someone to make him do

something or prevent committing a crime

Mens Rea Guilty mind; mental state required to be guilty

of committing a crime

Modus Operandi Latin Phrase meaning ‘way of working’

especially a particular way of committing
crimes which can identify a criminal

Prejudge to judge an issue before having heard the

evidence

Redundancy state where someone is no longer employed,

because the job is no longer necessary

Sabotage malicious damage done to machines

Severance ending of a contract of employment

Sub-Judice Latin Phrase meaning ‘under’the law’ being

considered by a court and so not decided

Swindle Illegal deal in which someone is cheated out

of his money

Terminate to end something or to bring something to

an end

Theft crime of stealing, taking of property which be-

longs to someone else with the intention of
depriving that person of it

Transfer moving someone or something to a new place

Ulterior Motive reason for doing something which is

not immediately connected with the Action but
is done in anticipation of its result and so is an
act of bad faith

Ultra Vires Latin phrase meaning beyond powers

Vice versa Latin Phrase meaning ‘reverse position’ in the

opposite way
SOME COMMONLY USED TERMS AND LEGAL MEANINGS # 213

Violent using force

Violate to break a rule or a law

Vouch for to state that you believe something is

correct or to say that you take responsibility
for something

Waive to give up

Wilful (a person) who is determined to do what

he wants or (act) which is done
because someone wants to do it regardless
of the effect it may have on others
Wilful Misconduct behaviour which may harm someone and
which is known to be wrong

Wilful neglect intentionally not doing something which it is

your duty to do

Wrongful unlawful
stb Bt ob of
 APPENDIX
1. RELEVANT EXTRACTS FROM
INDUSTRIAL DISPUTES ACT, 1947
X X X

9-A. Notice of Change:— No employer, who proposes to effect any

change in the conditions of service applicable to any workman in respect of
any matter specified in the Fourth Schedule, shall effect such change,—
(a) without giving to the workmen likely to be affected by such change
a notice in the prescribed manner of the nature of the change
proposed to be effected ; or
(b) within '[forty two days] of giving such notice ;
Provided that no notice shall be required for effecting any such change—
(a) where the change is effected in pursuance of any ’[settlement or
award]; or
(b) where the workmen likely to be affected by the change are persons
to whom the Fundamental and Supplementary Rules, Civil Services
[Classification, Control and Appeal] Rules, Civil Services (Temporary
Service) Rules, Revised Leave Rules, Civil Service Regulations.
Civiliance in Defence Services (Classification, Control and Appeal)
Rules of the Indian Railway Establishment Code or any other rules
or regulations that may be notified in this behalf, by the appropriate
Government in the Official Gazette apply.
XX X

°{15. Duties of Labour Courts, Tribunals and National Tribunals:—

Where an industrial dispute has been referred to a Labour Court, Tribunal
or National Tribunal for adjudication, it shall hold its proceedings expeditiously
and shall *[within the period specified in the order referring such industrial
dispute or the further period extended under the second proviso to sub-section
(2-A) of Section 10] submit its award to the appropriate Government. |
5{16. Form of report or award:— The report of a Board or Court shall
be in writing and shall be signed by all the members of the Board or Court,
as the case may be :

Substituted by A.P. Amendment Act, 32 of 1987, w.c.f. 22-7-1987.

Subs. by Act 46 of 1982, w.e.f. 21-8-1984.
Subs. by Act No. 36 of 1956, S. 12, w.e.f. 10-3-1957.
Subs. by Act No. 46 of 1982, w.e.f. 21-8-1984.
nA
—
kwhSubs. by Section 10 of the Act No. 36 of 1956, w.e.f. 10-3-1957.
a

215
# 21 6 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

Provided that nothing in this Section shall be deemed to prevent any

member of the Board or Court from recording any minute of dissent from a
report or from any recommendation made therein.
(2) The award of a Labour Court or Tribunal or National Tribunal shall
be in writing and shall be signed by its presiding officer.
'{17. Publication of reports and awards:— (1) Every report of a Board
or Court together with any minute of dissent recorded therewith, every arbitration
award and every award of a Labour Court, Tribunal or National Tribunal shal!
within a period of thirty days from the date of its receipt by the appropriate
Government, be published in such manner as the appropriate Government
thinks fit.
(2) Subject to the provisions of Section 17-A, the award published under
sub-section (1) shall be final and shall not be called in question by any Court
in any manner whatsoever. |
18. Persons on whom settlements and awards are binding:—
*[(1) A settlement arrived at by agreement between the employer and workman
otherwise than in the course of conciliation proceeding shall be binding on
the parties to the agreement.
(2) *[Subject to the provisions of sub-section (3), an arbitration award
which has become enforceable shall be binding on the parties to the agreement
who referred the dispute to arbitration].
*{(3) A settlement arrived at in the course of conciliation proceedings
under this Act *[or an arbitration award in a case where a notification has
been issued under sub-section (3-A) of Section 10-A] or °[an award ‘[of a
Labour Court, Tribunal or National Tribunal ] which has become enforceable |
shall be binding on—
(a) all parties to the industrial dispute ;

1. Subs. by Section 10 of the Act No. 36 of 1956, wee.f. 10-3-1957.

2. The original Sec. 18 renumbered as sub-section (3) of that Section, and new sub-
sections (1) and (2) ins. by Act No. 36 of 1956, Sec. 13, w.e.f. 7-10-1956.
3. Subs. by Act No. 36 of 1964, Sec. 9, for “An arbitration award”, w.e.f. 19-12-1964.
4. Sec. 18 renumbered as sub-section (3) of that Section by Act No. 36 of 1956, Sec. 13,
w.e.f. 7-10-1956.
5. Ins. by Act No. 36 of 1964, Sec. 9, w.e.f. 19-12-1964.
6. Subs. by Act No. 48 of 1950, Sec. 34 and Schedule, “for the words” an award which
is declared by the appropriate Government to be binding under sub-sec. (2) of
Section 15".
4. Ins. by Act No. 36 of 1956, Sec. 13, w.e.f. 10-3-1957.
INDUSTRIAL DISPUTES ACT, 1947 # 217

(b) all other parties summoned to appear in the proceedings as parties

to the dispute, unless the Board '[arbitrator] *[Labour Court, Tribunal |
or National Tribunal], as the case may be, records the opinion that
they were so summoned without proper cause.
(c) Where a party referred to in clause (a) or clause (b) is an employer
his heirs, successors or assignees in respect of the establishment to
which the dispute relates.
(d) Where a party referred to in clause (a) or clause (b) is composed
of workmen, all persons who were employed in the establishment
or part of the establishment, as the case may be, which the dispute
relates on the date of the dispute and all persons who subsequently
become employed in that establishment or part.
19. Period of operation of settlements and awards:— (1) A settlement
*[x x x] shall come into operation on such date as is agreed upon by the parties
to the dispute, and if no date is agreed upon, on the date on which the
memorandum of the settlement is signed by the parties to the dispute.
(2) Such settlement shall be binding for such period as is agreed upon
by the parties, and if no such period is agreed upon, for a period of six months
‘{from the date on which the memorandum of settlement is signed by the parties
to the dispute], and shall continue to be binding on the parties after the expiry
of the period aforesaid, until the expiry of two months from the date on which
a notice in writing of an intention to terminate the settlement is given by one
of the parties to the other party or parties to the settlement.
>{(3) An award shall, subject to the provisions of this Section, remain
in operation for a period of one year °[from the date on which the award
becomes enforceable under Section 17-A] :
Provided that the appropriate Government may reduce the said period
and fix such period as it thinks fit :
Provided further that the appropriate Government may before the expiry
of the said period, extend the period of operation by any period not exceeding

1. Ins. by Act No. 36 of 1956, Sec. 13, w.e.f. 10-3-1957.

2. Subs. by Sec. 13 /bid for “or Tribunal”, w.e.f. 10-3-1957.
3. The words “arrived at in the course of a conciliation proceeding under this Act”
omitted by Act No. 36 of 1956 Sec. 14, w.e.f. 7-10-1950.
4. Ins. by Sec. 14, /bid, w.e.f. 7-10-1956.
5. Subs. by Act No. 48 of 1950, Sec. 34 and Sch. for sub-Section (3).
6. Ins. by Act No. 36 of 1956, Sec. 14, w.e.f. 17-9-19506.
“Ky
# 21 8 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

one year at a time as it thinks fit, so however, that the total period of operation
of any award does not exceed three years from the date on which it came into
operation.
(4) Where the appropriate Government, whether of its own motion or
on the application of any party bound by the award, considers that since
the award was made, there has been a material change in the circumstances
on which it was based, the appropriate Government may refer the award or
a part of it '[to a Labour Court, if the award was that of a Labour Court
or to a Tribunal, if the award was that of a Tribunal or of a National Tribunal]
for decision whether the period of operation should not, by reason of such
change be shortened and the decision of '[Labour Court or the Tribunal as
the case may be], on such reference shall, 7{x x x] be final.
(5) Nothing contained in sub-section (3) shall apply to any award which
by its nature, terms or other circumstances does not impose, after, it has been
given effect to any continuing obligation on the parties bound by the award.
(6) Notwithstanding the expiry of the period of operation under sub-
section (3), the award shall continue to be binding on the parties until a period
of two months has elapsed from the date on which notice is given by any party
bound by the award to the other party or parties intimating its intention to
terminate the award.
*[(7) No Notice given under sub-section (2) or sub-section (6) shall have
effect, unless it is given by a party representing the majority of persons bound
by the settlement or award, as the case may be.]
20. Commencement and conclusion of proceedings:— (1) A conciliation
proceeding shall be deemed to have commenced in the date on which a notice
of strike or lock-out under Section 22 is received by the conciliation officer
or on the date of the order referring the dispute to a Board, as the case may be.
(2) A conciliation proceeding shall be deemed to have concluded—
(a) where a settlement is arrived at, when a memorandum of the settlement
is signed by the parties to the dispute ;
(b) where no settlement is arrived at, when the report of the conciliation
officer is received by the appropriate Government or when the report
of the Board is published under Section 17, as the case may be : or
St eESnStan SSS VTn TceSa Tee aC ee ee ae ene
l. Subs. by Sec. 14, Act No. 39 of 1956 for “to a Tribunal”, w.ef. 10-3-1957
2. The words “subject to the provision for appeal” omitted by Sec. 14 ibid, w.cf.
10-3-1957.
3. Ins. by Act No. 36 of 1964 Sec. 10, w.e.f. 19-12-1964. The former sub-Section (7)
was omitted by Act No. 36 of 1956, Sec. 14, w.e.f. 17-9-1956.
INDUSTRIAL DISPUTES ACT, 1947 #219

(c) when a reference is made to a Court '[Labour Court, Tribunal or

National Tribunal] under Section 10 during the pendency of
conciliation proceedings. 4
(3) Proceedings *[before an arbitrator under Section 10-A or before a
Labour Court Tribunal or National tribunal,] shall be deemed to have commenced
on the date of the *[reference of the dispute for arbitration or adjudication,
as the case may be], and such proceedings shall be deemed to have concluded
‘[on the date on which the award becomes enforceable under Section 17-A].

21. Certain matters to be kept confidential:— There shall not be

included in any report or award under this Act any information obtained by
a conciliation officer, Board, Court, °>{Labour Court, Tribunal, National Tribunal
or an arbitrator] in the course of any investigation or inquiry as to a trade
union or as to any individual business (whether carried on by a person, firm
or company), which is not available otherwise than through the evidence given
before such Officer, Board, Court *[Labour Court, Tribunal, National Tribunal
or arbitrator], if the trade union, person, firm or company in question has made
a request in writing to the conciliation officer, Board, Court, *[Labour Court,
Tribunal, National Tribunal or arbitrator], as the case may be, that such
information shall be treated as confidential; nor shall such conciliation officer
or any individual member of the Board, *[or Court or the presiding officer of
the Labour Court, Tribunal or National Tribunal or the arbitrator] or any
person present at or concerned in the proceedings disclosed any such information
without the consent in writing of the secretary of the trade union or the person,
firm or company in question, as the case may be:
Provided that nothing contained in this Section shall apply to a disclosure
of any such information for the purposes of a prosecution under Section 193
of the Indian Penal Code, 1860 (45 of 1860).
CHAPTER—V
Strikes and Lock-outs

22. Prohibition of strikes and lock-outs:— (1) No person employed

in a public utility service shall go on strike in breach of contract—

Subs. by Act No. 36 of 1956, Sec. 15 for “or Tribunals”, w.e.f. 10-3-1957.
Subs. by Sec. 15 ibid, for “before a Tribunal”, w.e.f. 10-3-1957.
Subs. by Sec. 15 ibid for “reference of a dispute for adjudication” , w.e.f. 10-3-1957.
Subs. by Act No. 18 of 1952, Sec. 4, for certain words and figures.
Subs. by Act No. 36 of 1956, Sec. 16, for “or Tribunal”, w.e.f. 10-3-1957.
SS
en
Se Subs. by Sec. 16, ibid, or “Court or Tribunal”, w.e.f. 10-3-1957.
# 220 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

(a) without giving to the employer notice of strike, as hereinafter provided.

within six weeks before striking ;
(b) within fourteen days of giving such notice ; or
(c) before the expiry of the date of strike specified in any such notice
as aforesaid ; or

(d) during the pendency of any conciliation proceedings before a

conciliation officer and seven days after the conclusion of such
proceedings.
(2) No employer carrying on any public utility service shall lock-out any
ot his workmen—
(a) without giving them notice of lock-out as hereinafter provided, within
six weeks before locking-out ; or
(b) within fourteen days of giving such notice ; or
(c) before the expiry of the date of lock-out specified in any such notice
as aforesaid ; or

(d) during the pendency of any conciliation proceedings before a

conciliation officer and seven days after the conclusion of such
proceedings.
(3) The notice of lock-out or strike under this Section shall not be
necessary where there is already in existence of a strike or as the case may
be, lock-out in the public utility service but the employer shall send intimation
of such lock-out or strike on the day on which it is declared, to such authority
as may be specified by the appropriate Government either generally or for
a particular area or for a particular class of public utility services.
(4) The notice of strike referred to in sub-section (1) shall be given by
such number of persons to such person or persons and in such manner as may
be prescribed.
(5) The notice of lock-out referred to in sub-section (2) shall be given
in such manner as may be prescribed.
(6) If on any day an employer receives from any person employed by
him any such notices as are referred to in sub-section (1) or given to any persons
employed by him any such notices as are referred to in sub-section (2), he
shall within five days thereof report to the appropriate Government or to such
authority as that Government may prescribe, the number of such notices
received or given on that day.
INDUSTRIAL DISPUTES ACT, 1947 # 221

23. General prohibition of strikes and lock-outs:— No workman who

is employed in any industrial establishment shall go on strike in breach of
contract and no employer of any such workman shall declare a lock-out—
(a) during the pendency of conciliation proceedings before a Board and
seven days after the conclusion of such proceedings ;
(b) during the pendency of proceedings before '[a Labour Court, Tribunal
or National Tribunal] and two months after the conclusion of such
proceedings *[x x x ].
*{(bb) during the pendency of arbitration proceedings before an arbitrator
and two months after the conclusion of such proceedings, where a
notification has been issued under sub-section (3-A) of Section
10-A ; or]

(c) during any period in which a settlement or award is in operation,

in respect of any of the matters covered by the settlement or award.
24. Illegal strikes and lock-outs:— (1) A strike or a lock-out shall be
illegal if—
(1) it 1s commenced or declared in contravention of Section 22 or
Section 23 ; or

(ii) itis continued in contravention of an order made under sub-section

(3) of Section 10 *[or sub-section (4-A) of Section 10A].
(2) Where a strike or lock-out in pursuence of an industrial dispute has
already commenced and is in existence at the time of the reference of the dispute
to a Board, *[an arbitrator], °*[Labour Court, Tribunal or National Tribunal],
the continuance of such strike or lock-out shall not be deemed to be illegal,
provided that such strike or lock-out was not at its commencement in contravention
of the provisions of this Act or the continuance thereof was not prohibited
under sub-section (3) of Section 10 °for sub-section (4-a) of Sec. 10-A].

(3) A lock-out declared in consequence of an illegal strike or a strike

declared in consequence of an illegal lock-out shall not be deemed to be illegal.

Subs. by Act No. 36 of 1956, Sec. 17, for “a Tribunal”, w.e.f. 10-3-1957.
The word “or” omitted by Act No. 36 of 1964, Section 11, w.e.f. 19-12-1964.
Ins. by Sec. 11 ibid, w.e.f. 19-12-1964.
Ins. by Act No. 36 of 1964, Sec. 12, w.e.f. 19-12-1964.
Subs. by Act No. 36 of 1956, Sec. 18 for “or Tribunal”, w.e.f. 10-3-1957,
Ins. by Act No. 43 of 1953, Sec. 3, w.e.f. 24-10-1953.
DAARWH
# 222 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

25. Prohibition of financial aid to illegal strikes and lock-outs:— No

person shall knowingly expend or apply any money in direct furtherance or
support of any illegal strike or lock-out.
XXK X

25-F. Conditions precedent to retrenchment of workmen:— No

workmen employed in any industry who has been in continuous service for
not less than one year under an employer shall be retrenched by that employer
until—
(a) the workman has been given one month’s notice in writing indicating
the reasons for retrenchment and the period of notice has expired,
or the workmen has been paid in lieu of such notice, wages for the
period of the notice.
iD
(b) the workman has been paid, at the time of retrenchment, compensation
which shall be equivalent to fifteen days’ average pay *[for every
completed year of continuous service] or any part thereof in excess
of six months ; and
(c) notice in the prescribed manner is served on the appropriate
Government *[or such authority as may be specified by the appropriate
Government by notification in the Official Gazette].
X X X

25-FFF. Compensation to workmen in case of closing down of

undertakings:— (1) Where an undertaking is closed down for any reason
whatsoever, every workman who has been in continuous service for not less
than one year in that undertaking immediately before such closure shall, subject
to the provisions of sub-section (2), be entitled to notice and compensation
in accordance with the provisions of Section 25-F as if the workman had been
retrenched.
‘(Provided that the prior payment of compensation to the workman shall
be a condition precedent to the closure of any undertaking.
>[Provided, further that] where the undertaking is closed down on account
of unavoidable circumstances beyond the control of the employer, the

1. Proviso omitted by Act 49 of 1984, w.e.f. 18-8-1984.

2. Substituted by Act No. 36 of 1964, Sec. 14, “for every completed year of service”
w.e.f. 19-10-1964.
3. Ins. by Act 36 of 1964, Sec. 14, w.e.f. 19-12-1965.
4. Ins. by A.P. Act 32 of 1987, w.e.f. 27-7-1987.
5. Subs. by /bid.
INDUSTRIAL DISPUTES ACT, 1947 # 223

compensation to be paid to the workmen under clause (b) of Section 25-F shall
not exceed his average pay for three months.
'|Explanation:— An undertaking which is closed down by reason merely
of—

(1) financial difficulties (including financial losses) ; or

(1) accumulation of undisposed stocks ; or

(iii) the expiry of the period of the lease or licence granted to it: or
(iv) in a case where the undertaking is engaged in mining operations,
exhaustion of the minerals in the area in which such operations are
carried on :
shall not be deemed to be closed down on account of unavoidable circumstances
beyond the control of the employer within the meaning of the proviso to this
sub-section. |

*{(1-A). Notwithstanding anything contained in sub-section (1), where an

undertaking engaged in mining operations is closed down by reason merely
or exhaustion of the minerals in the area in which such operations are carried
on, no workman referred to in that sub-section shall be entitled to any notice
or compensation in accordance with the provisions of Section 25F, if—
(a) the employer provides the workman with alternative employment
with effect from the dateof closure at the same remuneration as
he was entitled to receive, and on the same terms and conditions
of service as were applicable to him, immediately before the closure;
(b) the service of the workman has not been interrupted by such alternative
employment ; and
(c) the employer is, under the terms of such alternative employment or
otherwise, legally liable to pay to the workman, in the event of his
retrenchment, compensation on the basis that his service has been
continuous and has not been interrupted by such alternative
employment.
(1-B) For the purposes of sub-sections (1) and (1-A), the expressions
“minerals” and “mining operations” shall have the meanings respectively assigned
to them in clauses (a) and (d) of Section 3 of the Mines and Minerals (Regulation
and Development) Act, 1957 (67 of 1957).]
SE ea ee
1. Ins. by Act 32 of 1987, w.e.f, 27-7-1987.
2. Substituted by Act 45 of 1971.
# 224 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

(2) Where any undertaking set up for the construction of buildings,

bridges, roads, canals, dams or other construction work is closed down on
account of the completion of the work within two years from the date on which
the undertaking had been set up no workman employed therein shall be entitled
to any compensation under clause (b) of Section 25-F, but if the construction
work is not so completed within two years, he shall be entitled to notice and
compensation under that Section for every '[completed year of continuous
service] or any part thereof in excess of six months. |
y eae ee

?71CHAPTER—V-C
Unfair Labour Practices

25-T. Prohibition of unfair labour practices:— No employer or workman

or a trade union, whether registered under the Trade Unions Act, 1926 [16
of 1926], or not, shall commit any unfair labour practice.
25-U. Penalty for committing unfair labour practices:— Any person
who commits any unfair labour practice shall be punishable with imprisonment
for a term which may extend to six months or with fine which may extend
to one thousand rupees or both.]
CHAPTER—VI
Penalties

26. Penalty for illegal strikes and lock-outs:— (1) Any workman who
commences, continues or otherwise acts in furtherance of a strike which is
illegal under this Act, shall be punishable with imprisonment for a term
which may extend to one month, or with fine which may extend to fifty rupees,
or with both.
(2) Any employer who commences, continues or otherwise acts in
furtherance of a lock-out which is illegal under this Act, shall be punishable
with improsonment for a term which may extend to one month or with fine
which may extend to one thousand rupees, or with both.
27. Penalty for instigation, etc.:— Any person who instigates or incites
others to take part in or otherwise acts in furtherance of, a strike or lock-out
which is illegal under this Act, shall be punishable with imprisonment for a
term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both.

1. Subs. by Act 36 of 1964, Sec. 16, for completed year of service, w.e.f. 19-12-1964.
2. Chapter V-C Ins. by Act No. 46 of 1982, Sec. 16, w.e.f. 21-8-1984.
INDUSTRIAL DISPUTES ACT, 1947 # 225

28. Penalty for giving financial aid to illegal strikes and lock-outs:—
Any person who knowingly expends or applies any money indirect furtherance
or support of any illegal strike or lock-out shall be punishable with imprisonment
for a term which may extend to six months, or with fine which may extend
to one thousand rupees, or with both.

'|29. Penalty for breach of settlement or award:— Any person who

commits a breach of any term of any settlement or award, which is binding
on him under this Act, shall be punishable with imprisonment for a term which
may extend to six months or with fine, or with both 7[and where the breach
is a continuing one, with a further fine which may extend to two hundred rupees
for every day during which the breach continues after the conviction for the
first] and the Court trying the offence, if it fines the offender, may direct
that the whole or any part of the fine realised from him shall be paid, by
way of compensation, to any person who in its opinion, has been injured by
such breach. ]
°[29-A. Penalty for failure to comply with an order issued under
Section 10-B:— Any person who fails to comply with any provisions contained
in an order made under sub-section (1) of Section 10-B, shall be punishable
with imprisonment for a term which shall not be less than six months, but
which may extend to one year and with fine :
Provided that the Court may, for reasons to be recorded in its judgment,
award a sentence of imprisonment for a term of less than six months. ]
30. Penalty for disclosing confidential information:— Any person who
wilfully discloses any such information as is referred to in Section 21
in contravention of the provisions of that Section shall, on complaint made
by or on behalf of the trade union or individual business affected, be punishable
with imprisonment for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.
4(30-A. Penalty for closure without notice:— Any employer who closes
down any undertaking without complying with the provisions of Section 25-
FFA shall be punishable with imprisonment for a term which may extend
to six months, or with fine which may extend to fine which may extend to
five rupees, or with both].

Subs. by Act No. 36 of 1956, Sec. 20 for Sec. 29, w.e.f. 17-9-1956.
Ins. by Act No. 35 of 1965, Sec. 29.
Ins. by A.P. Act 32 of 1987, w.e.f. 27-7-1987.
=awn
Ins. by Act No. 32 of 1972.
# 226 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

31. Penalty for other offences:— (1) Any employer who contravenes
the provisions of Section 33, shall be punishable with imprisonment for a
term which may extend to six months, or with fine which may extend to
one thousand rupees or with both.
(2) Whoever contravenes any of the provisions of this Act or any rule
made thereunder shall, if no other penalty is elsewhere provided by or under
this Act for such contravention, be punishable with fine which may extend
to one hundred rupees.
Hox &
THE FOURTH SCHEDULE
[See Section 9-A]
Conditions of service for change of which notice is to be given
I. Wages, including the period and mode of payment ;
2. Contribution paid, or payable by the employer to any provident fund
or pension fund or for the benefit of the workmen under any law for
’ the time being in force.
. Compensatory and other allowances ;
. Hours of work and rest intervals ;

. Leave with wages and holidays ;

SS
fb
=n
Oo. Starting, alterations or discontinuance of shift working otheryise than
in accordance with standing orders ;
. Classification by grades;
. Withdrawal of any customary concession or privilege or change in
usage ;

. Introduction of new rules of discipline, or alteration of existing rules.

except in so far as they are provided in standing orders :
10. Rationalisation, standardisation or improvement of plant or technique
which is likely to lead to retrenchment or workmen;
11. Any increase or reduction (other than casual) in the number of persons
employed or to be employed in any occupation or process or department
of shift '[not occasioned by circumstances over which the employer has
no control].

I. Subs. by Act 36 of 1964, Section 23, for "not due to forced matter", w.e-f.
19-12-1964.
INDUSTRIAL DISPUTES ACT, 1947 # 227

'{THE FIFTH SCHEDULE

[See Section 2 (ra)]
Unfair Labour Practices
I—On the part of employers and trade unions of employers.
1. To interfere with, restrain from, or coerce, workmen in the exercise
of their right to organize, form, join or assist a trade union or to engage in
concerted activities for the purposes of collective bargaining or other mutual
aid or protection that is to say—
a. threatening workmen with discharge or dismissal, if they join a trade
union;

b. threatening a lock-out or closure, if a trade union is organised ;

c. granting wage increase to workmen at crucial periods of trade union
organisation, with a view to undermining the efforts of the trade
union at organisation.

2. To dominate, interfere with or contribute support, financial or otherwise,

to any trade union, that is to say—
a. anemployer taking an active interest in organising a trade union
of his workmen, and
b. an employer showing partiality or granting favour to one of several
trade unions attempting to organise his workmen or to its members,
where such a trade union is not a recognised trade union.
3. To establish employer-sponsored trade unions of workmen.
4. To encourage or discourage membership in any trade union. by
discriminating against any workman, that is to say:—
a. discharging or punishing a workman because he urged other workmen
to join or organise a trade union ;
b. discharging or dismissing a workman for taking part in any strike |
(not being a strike which is deemed to be an illegal strike under
this Act) ;
c. changing seniority rating of workmen because of trade union
activites ;

d. refusing to promote workmen to higher posts on account of their

trade union activities ;
# 228 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

e. giving unmerited promotions to certain workmen with a view to

creating discord amongst other workmen, or to undermine the strength
of their trade union ;
f. discharging office-bearers or active members of the trade union on
account of their trade union activities.

5. To discharge or dismiss workmen—

a. by way of victimisation ;
b. not in good faith, but in the colourable exercise of the employer’s
rights;
c. by falsely implicating a workman in a criminal case on false evidence
or on concerned evidence.
d. for patently false reasons ;
e. on untrue or trumped up allegation of absence without leave ;
f. in utter disregard of the principles of natural justice in the conduct
of domestic enquiry or with undue haste ;
g. for misconduct of a minor or technical character, without having
any regard to the nature of the particular misconduct or the past
record or service of the workman, thereby leading to a disproportionate
punishment.
6. To abolish the work of a regular nature being done by workmen, and
to give such work to contractors as a measure of breaking a strike.
7. To transfer a workman mala fide from one place to another, under
the guise of following management policy.
8. To insist upon individual workmen, who are on a legal strike to sign
a good conduct bond, as a pre-condition to allowing them to resume work.
9. To show favouritism or partiality to one set of workers regardless of
merit. |

10. To employ workmen as ‘badlis’, casuals or temporaries and to-

continue them as such for years, with the object of depriving them of the
status and privileges of permanent workmen.
11. To discharge or discriminate against any workman for filing charges
or testifying against an employer in any enquiry or proceeding relating to any
industrial dispute.
INDUSTRIAL DISPUTES ACT, 1947 # 229

12. To recruit workmen during a strike which is not an illegal strike.

13. Failure to implement award, settlement or agreement.
14. To indulge in acts of force or violence.
15. To refuse to bargain collectively, in good faith with the recognised
trade unions.

16. Proposing or continuing a lockout deemed to be illegal under this

Act.

I1—On the part of workmen and trade unions of workmen.

1. To advice or actively support or instigate any strike deemed to be
illegal under this Act.
2. To coerce workmen in the exercise of their right to self-organisation
or to join a trade union or refrain from joining any trade union, that is to say-
a. for a trade union or its members to Picketing in such a manner
that non-striking workmen are physically debarred from entering
the work places;
b. to indulge in acts of force or violence or to hold out threats of
intimidation in connection with a strike against non-striking workmen
or against managerial staff.
3. For a recognised union to refuse to bargain collectively in good faith
with the employer.
4. To indulge in coercive activities against certification of a bargaining
representative.
5. To stage, encourage or instigate such forms of coercive actions as
wilful “go slow”, squatting on the work premises after working hours or
“sherao” of any of the members of the managerial or other staff.
6. To stage demonstrations at the residence of the employers or the
managerial staff members.
7. To incite or indulge in wilful damage to employer’s property connected
with the industry.
8. To indulge in acts of force or violence or to hold out threats of
intimidation against any workman with a view to prevent him from attending
work. a
 2. RELEVANT EXTRACTS FROM
CONTRACT LABOUR (REGULATION AND
ABOLITION) ACT, 1970
X X X

CHAPTER IV
Licensing of Contractors
11. Appointment of licensing officers:— The appropriate Government
may, by an order notified in the Official Gazette—

(a) appoint such persons, being Gazetted Officers of Government, as

it thinks fit to be licensing officer for the purposes of this Chapter :
and
(b) define the limits, within which as licensing officer shall exercise the
powers conferred on licensing officers by or under this Act.
12. Licensing of contractors:— (1) With effect from such date as the
appropriate Government may, by notification in the Official gazette, appoint,
no contractor to whom this Act applies, shall undertake or execute any work
through contract labour except under and in accordance with a licence issued
in that behalf by the licensing Officer.
(2) Subject to the provisions of this Act, a licence under sub-section
(1) may contain such conditions including, in particular, conditions as to hours
of work, fixation of wages and other essential amenities in respect of contract
labour as the appropriate Government may deem fit to impose in accordance
with the rules, 1f any, made under Section 35 and shall be issued on payment
of such fees and on the deposit of such sum, if any, as security for the
performance of the conditions as may be prescribed.
13. Grant of Licences:— (1) Every application for the grant of a licence
under sub-section (1) of Section 12 shall be made in the prescribed form and
shall contain the particulars regarding the location of the establishment, the
nature of process, operation or work for which contract labour is to be
employed and such other particulars as may be prescribed.
(2) The licensing officer may make such investigation in respect of the
application received under sub-section (1) and in making any such investigation
the licensing officer shall follow such procedure as may be prescribed.

230
CONTRACT LABOUR (REGULATION AND ABOLITION) ACT, 1970 # 231

(3) A licence granted under this Chapter shall be valid for the period
specified therein and may be renewed from time to time for such period and
on payment of such fees and on such conditions as may be prescribed.
14. Revocation, suspension and amendment of licenses:— (1) If the
licensing officer is satisfied, either on a reference made to him in this behalf
or otherwise, that—

(a) a licence granted under Section 12 has been obtained by

musrepresentation or suppression of any material fact, or
(b) the holder of a licence has, without reasonable cause, failed to
comply with the conditions subject to which the licence has been
granted or has contravened any of the provisions of this Act or the
rules made thereunder, then, without prejudice to any other penalty
to which the holder of the licence may be liable under this Act. the
licensing officer may, after giving the holder of the licence an
opportunity of showing cause, revoke or suspend the licence or
forfeit the sum, if any, or any portion thereof deposited as security
for the due performance of the conditions subject to which the licence
has been granted.
(2) Subject to any rules that may be made in this behalf, the licensing
officer may vary or amend a licence granted under Section 12.
15. Appeal:— (1) Any person aggrieved by an order made under Section
7, Section 8, Section 12 or Section 14 may, within thirty days from the date
on which the order is communicated to him, prefer an appeal to an appellate
officer who shall be a person nominated: in this behalf by the appropriate
Goverment.
Provided that the appellate officer may entertain the appeal after the
expiry of the said period of thirty days, if he is satisfied that the appellant
was prevented by sufficient cause from filing the appeal in time.
(2) On receipt of an appeal under sub-section (1), the appellate officer
shall, after giving the appellant an opportunity of being heard dispose of the
appeal as expeditiously as possible.
 3. RELEVANT EXTRACTS FROM
INDUSTRIAL EMPLOYMENT (STANDING
ORDERS) ACT, 1946
X X X

3. Submission of draft standing orders:— (1) Within six months from

the date on which this Act becomes applicable to an industria] establishment
the employer shall submit to the Certifying Officer five copies of the draft
standing orders proposed by him for adoption in his industrial establishment.

(2) Provision shall be made in such draft for every matter set out in the
Schedule which may be applicable to the industrial establishment, and where
model standing orders have been prescribed, shall be, so far as is practicable,
in conformity with such model.
(3) The draft standing orders submitted under this Section shall be
accompanied by a statement giving prescribed particulars of the workmen
employed in the industrial establishment including the name of the trade union,
if any, to which they belong.
(4) Subject to such conditions as may be prescribed, a group of employers
in similar industrial establishments may submit joint draft of standing order
under this Section.

STATE AMENDMENTS

Maharashtra:— In Section 3,—

(a) for Sub-section (1), the following shall be substituted, namely:—

‘“(1) Within six months from the date on which the model standing orders
apply to any industrial establishment under Section 2-A, the employer
or any workmen employed therein may submit to the Certifying Officer
five copies of the draft amendments for adoption in such industrial
establishment:

Provided that no amendment which provides for the deletion or omission

of any rule in the model standing orders relating to any matter set out
in the Schedule shall be submitted under this section”;

(b) Sub-section (2) shall be deleted;

(c) in Sub-section (3), for the words “draft standing orders” the words “draft
amendments” shall be substituted:

232
INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 # 233

(d) in Sub-section (4), for the words “draft of standing orders” the words
“draft of amendments” shall be substituted:

(e) for the marginal note, the marginal note “submission of amendments”
shall be substituted - vide Bombay Act No. XXI of 1958.

4. Conditions for certification of standing orders:— Standing Orders

shall be certifiable under the Act if,—

(a) provision is made therein for every matter set out in the Schedule
which is applicable to the industrial establishment, and
(b) the standing orders are otherwise in conformity with the provisions
of this Act and it shall be the function of the Certifying Officer or
appellate authority to adjudicate upon the fairness or reasonableness
of the provision of any standing orders.

STATE AMENDMENT
Maharashtra:— Deletion of Section 4 of Act XX of 1946.—Section 4 of the
said Act shall be deleted - vide Bombay Act No. XXI of 1958.

5. Certification of standing orders:— (1) On receipt of the draft under

Section 3, the Certifying Officer shall forward a copy thereof to the trade union,
if any, of the workmen, or where there is no such trade union to the workmen
in such manner as may be prescribed, together with a notice in the prescribed
form requiring objections, if any which the workmen may desire to make to
the draft standing orders to be submitted to him within fifteen days from the
receipt of the notice.
(2) After giving the employer and the trade union or such other
representatives of the workmen as may be prescribed an opportunity of being
heard, the Certifying Officer shall decide whether or not any modification of
or addition to the draft submitted by the employer is necessary to render the
draft standing orders certifiable under this Act, and shall make an order in
writing accordingly.
(3) The Certifying Officer shall thereupon certify the draft standing
orders, after making any modifications therein which his order under sub-
section (2) may require, and shall within seven days thereafter send copies
of the certified standing orders authenticated in the prescribed manner and of
his order under sub-section (2) to the employer and to the trade union or other
prescribed representatives of the workmen.
7
# 234 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

STATE AMENDMENTS
Maharashtra:— In Section 5,—

(a) in Sub-section (1),—

(1) after the words “as may be prescribed” the words “or the employer, as
the case may be,” and after the words “workmen”, where it occurs for
the third time, the words “or employer” shall be inserted;

(11) for the words “draft standing orders” the words “draft amendments: shall
be substituted;

(b) in Sub-section (2),—

(1) after the words “giving the employer” the words “the workmen submitting
the amendments” shall be inserted;

(11) the words “or addition to” shall be deleted;

(111) for the words “the draft submitted by the employer is necessary to render
the draft standing orders certifiable under this Act” the words, brackets
and figures “the draft submitted under Sub-section (1) of Section 3 is
+

necessary” shall be substituted;

(c) in Sub-section (3),—

(1) for the words “certify the draft standing orders” substitute the words
“certify the draft amendments”
(11) for the words “certified standing orders”, substitute the words “model
standing orders together with copies of the certified amendments thereof”
(d) in the marginal note, for the words “standing orders” substitute the word
“amendments” - vide Bombay Act No. XXI of 1958.

6. Appeals:— (1)' Any employer, workman, trade union or other

prescribed representatives of the workmen, aggrieved by the order of the
Certifying Officer under sub-section (2) of Section 5 may within *[thirty days]
from the date on which copies are sent under sub-section (3) of that Section,
appeal to the appellate authority, and the appellate authority whose decision
shall be final, shall by order in writing confirm the standing orders either in
the form certified by the Certifying Officer or after amending the said standing
orders by making such modifications thereof or additions thereto as it thinks
necessary to render the standing orders certifiable under this Act.
(2) The appellate authority shall, within seven days of its order under
sub-section (1), send copies thereof to the Certifying Officer, to the employer

1. Subs. by Act 18 of 1982, w.e.f. 17-5-1982.

2. Subs. by Act 16 of 1961, Sec. 4 for "twenty one days".
 INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 # 235

and to the trade union or other prescribed representatives of the workmen.

accompanied, unless it has confirmed without amendment, the standing orders
as certified by the Certifying Officer, by copies of the standing orders as
certified by it and authenticated in the prescribed manner.

STATE AMENDMENTS

Maharashtra:— In Section 6,—

(a) in Sub-section (1), for the portion beginning with the words ‘confirm
the standing orders” and ending with the words “certificate under this
Act” the words “confirm the amendments either in the form certified
by the Certifying Officer or after further modifying the same as the
appellate authority thinks necessary” shall be substituted:

(b) in Sub-section (2),—

(1) for the words “unless it has confirmed without amendment the standing
orders” substitute the words “unless it has confirmed without further
modifications the amendments”

(11) for the words “by copies of the standing orders” the words “by copies
of the model standing orders together with the amendments” shall be
substituted - vide Bombay Act No. XXI of 1958

XX X

'{12-A. Temporary application of model standing orders:- (1)

Notwithstanding anything contained in Sections 3 to 12, for the period
commencing on the date on which this Act becomes applicable to an industrial
establishment and ending with the date on which the standing orders as finally
certified under this Act come into operation under Section 7 in that establishment,
the prescribed model standing orders shall be deemed to be adopted in that
establishment, and the provisions of Section 9, sub-section (2) of Section 13
and Section 13-A shall apply to such model standing orders as they apply to
the standing orders so certified.

(2) Nothing contained in sub-section(1) shall apply to an industrial

establishment in respect of which the appropriate Government is the Government
of the State of Gujarat or Government of Maharashtra.

ee a
1. Inserted by Act No. 39 of 1963, Section 6.
#2 36 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

13. Penalties and procedure :— (1) An employer who fails to submit

draft standing orders as required by Section 3, or who modifies his standing
orders otherwise than in accordance with Section 10, shall be punishable with
fine which may extend to five thousand rupees, and in case of a continuing
offence, with a further fine which may extend to two hundred rupees for every
day after the first during which the offence continues.
(2) An employer who does any act in contravention of the standing orders
finally certified under this Act for his industrial establishment shall be punishable
with fine which may extend to one hundred rupees, and in the case of a
continuing offence with a further fine which may extend to twenty five rupees
for every day after the first during which the offence continues.
(3) No prosecution for an offence punishable under this Section shall
be instituted except with the previous sanction of the appropriate Government.
(4) No Court inferior to that of '[a Metropolitan Magistrate or a Judicial
Magistrate of the second class] try any. offence under this Section.
STATE AMENDMENTS

Maharashtra :— In Section 13,—

(a) in Sub-section (1),—

(i) for the words and figure “who fails to submit draft standing orders as
required by section 3, or who modifies his standing orders” the words
“who modifies the standing orders, model standing orders or amendments”
shall be substituted;

(11) for the words and figures “Section 10” the words “the provisions of this
Act” shall be substituted ;

(111) for the words “shall be punishable” the words “shall on conviction, be
punished” shall be substituted;

(b) in Sub-section (2), for the words “the standing orders finally certified
under this Act for his industrial establishment shall be punishable” the
words “the standing orders, model standing orders, model standing orders
or the amendments, as finally certified under this Act for his industrial
establishment, as the case may be, shall, on conviction, be punished”
shall be substituted;

(c) after Sub-section (2), the following new sub-sections shall be inserted,
namely:——

1. Inserted by Act 18 of 1982.

 RELEVANT EXTRACTS FROM INDUSTRIAL EMPT. (...) ACT, 1946 # 237

“(2-A) whoever contravenes the provisions of this Act or of any rule made
thereunder in, cases other than those falling under Sub-section (1) or Sub-section
(2), shall, on conviction, be punished with fine which may extend to one hundred
rupees and in the event of such person being previously convicted of an offence
under this Act, with fine which may extend to two hundred rupees and in the case
of a continuing offence with a further fine which may extend to twenty-five rupees
for every day after the first during which the offence continues.
(2-B) The Court convicting an employer under Sub-section (1) or sub-section
(2) may direct such employer to pay such compensation as it may determine to any
workman directly and adversely affected by the modification or contravention of
the standing orders, model standing orders or amendments, as the case may be.
(2-C) the compensation awarded under Sub-section (2-B) may be recovered
as if it were a fine and if it cannot be so recovered, the person by whom it is payable
shall be sentenced to imprisonment of either description for a term not exceeding
three months as the Court thinks fit” - vide Bombay Act No. XXI of 1958.
Madhya Pradesh :— After Sub-section (4), of Section 13 of the Industrial
Employment (Standing Orders) Act, 1946 (XX of 1946), the following sub-sections,
shall be inserted—

“(S) A Court taking congizance of an offence under sub-section (2) shall state
upon the summons to be served on the accused person that he —-
(a) may appear by pleader and not in person; or
(b) may, by a specified date prior to the hearing of the charge, plead guilty
to the charge by registered letter acknowledgement due and remit to the
Court such sum as the Court may, subject to the maximum limit of fine
prescribed for the said offence, specify.
(6) Where an accused person pleads guilty and remits the sum in accordance
with the provisions of Sub-section (5), no further proceedings in respect of the
offence shall be against him.
(7) Nothing contained in this section shall apply to the continuing offence
referred to in Sub-section (2)” - vide M.P Act No. 18 of 1967.

13-A. Interpretation, etc., of standing orders :— If any question arises

as to the application or interpretation of a standing order certified under this
Act, any employer or workman or a trade union '[or other representative body
of the workmen] may refer the question to any one of the Labour Courts
constituted under the Industrial Disputes Act, 1947 (14 of 1947), and specified
‘for the disposal of such proceeding by the appropriate Government by notification
in the Official Gazette, and the Labour Court to which the question 1s so
referred shall after giving the parties an opportunity of being heard, decide
the question and such decision shall be final and binding on the parties.
dei jo OE A wd 2duc bee € meio 0°! jo Dl A yet Ae Oe
|. Inserted by Act 18 of 1982.
#2 38 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

STATE AMENDMENT
Maharashtra :— In Section 13-A after the words “standing order” and in '
the marginal note thereto after the words “Standing orders” the words “model
standing order or amendment” shall be inserted; “and after the words “workman”
the words “or any prescribed representatives of workmen” shall be inserted - vide
Bombay Act No. XXI of 1958.

'{13-B. Act not apply to certain industrial establishments :— Nothing

in this Act shall apply to an industrial establishment in so far as the workmen
employed therein are persons to whom the Fundamental and Supplementary
Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services
(Temporary Services) Rules;. Revised Leave Rules, Civil Service Regulations,
Civilians in Defence Service (Classification, Control and Appeal) Rules or the
Indian Railway Establishment Code or any other rules or regulations that may
be notified in this behalf by the appropriate Government in the Official Gazette
apply.]
14. Power to exempt:— The appropriate Government may, by notification
in the Official Gazette exempt, conditionally or unconditionally, any Industrial
establishment or class of industrial establishments from all or any of the
provisions of this Act.
*[14-A. Delegation of powers:— The appropriate Government may, by
notification in the Official Gazette; direct that any power exercisable by it
subject to such conditions, if any, as may be specified in the direction, be
exercisable also,—

(a) where the appropriate Government is the Central Government, by

such officer or authority subordinate to the Central Government or
by the State Government, or by such officer or authority subordinate
to the State Government, as may be specified in the notification.
(b) where the appropriate Government is a State Government, by such
officer or authority subordinate to the State Government as may be
specified in the notification].

X KX X

1. Ins. by Act 36 of 1956 w.e.f. 10-3-1957.

a Section 14-A inserted by Act 16 of 1961, Section 5 and Subs. by Act 39 of 1963,
Section 7.
 4. RELEVANT EXTRACTS FROM
THE TRADE UNIONS ACT, 1926
X X X

16. Constitution of a separate fund for political purposes :— (1) A

Registered Trade Union may constitute a separate fund, from contributions
separately levied for or made to that fund from which payments may be made
for the promotion of the civil and political interests of its members, in furtherance
of any of the objects specified in sub-section (2).

(2) The objects referred to in sub-section (1) are :—

(a) the payment of any expenses incurred, either directly or indirectly,
by a candidate or prospective candidate for election as a member
of any legislative body constituted under '[x x x] *[the Constitution]
or of any local authority, before, during or after the election in
connection with his candidature or election; or

(b) the holding of any meeting or the distribution of any literature or

documents in support of any such candidate or prospective
candidate; or

(c) the maintenance of any person who 1s a member of any !egislative

body constituted under '[x x x] 7[the Constitution] or of any local
authority; or

(d) the registration of electors or the selection of a candidate for any

legislative body constituted under '[x x x] ?[the Constitution] or for
any local authority; or
(e) the holding of political meetings of any kind; or the distribution of
political literature or political documents of any kind.
*(2A) In its application to the State of Jammu and Kashmir, references
in sub-section (2) to any legislative body constituted under the Constitution
shall be construed as including references to the Legislature of that State.]

1. The words ‘the Government of India Act, or the Government of India Act, 1935 or
in Clauses (a), (c) and (d) were deleted by the Amendment Act 1960 (42 of 1960).
The bracketed words were inserted by A.O. 1950.
2. Inserted by Act 51 of 1970.

239
 # 240 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
—_00—ooa0Tuu9]DaRRRaaa

(3) No member shall be compelled to contribute to the fund constituted

under sub-section (1); and a member who does not contribute to the said fund
shall not be excluded from any benefits of the Trade Union, or placed in any
respect either directly or indirectly under any disability or at any disadvantage
as compared with other members of the Trade Union [except in relation to
the control or management of the said fund] by reason of his not contributing
to the said fund; and contribution to the said fund shall not be made a condition
for admission to the Trade Union.
17. Criminal conspiracy in trade disputes:— No 'Loffice-bearer] or
member of a Registered Trade Union shall be liable to punishment under sub-
section (2) of Section 120 B of the Indian Penal Code (45 of 1860), in respect
of any agreement made between the members for the purpose of furthering
any such object of the Trade Union as is specified in Section 15, unless the
agreement is an agreement to commit an offence.
18. Immunity from civil suit in certain cases:— (1) No suit or other
legal proceeding shall be maintainable in any Civil Court against any Registered
Trade Union or any '[office-bearer] or member thereof in respect of any act
done in contemplation or furtherance of a trade dispute to which a member
of the Trade Union is a party on the ground only that such act induces some
other person to break a contract of employment, or that it is an interference
with the trade, business or employment of some other person or with the right
of some other person to dispose of his capital or his labour as he wills.
(2) A Registered Trade Union shall not be liable in any suit or other
legal proceeding in any Civil Court in respect of any tortious act done in
contemplation or furtherance of a trade dispute by an agent of the Trade Union
if it is proved that such person acted without the knowledge of, or contrary
to express instructions given by, the executive of the Trade Union.
19. Enforceability of agreements:— Notwithstanding anything contained
in any other law for the time being in force, an agreement between the membe
rs
of a Registered Trade Union shall not be void or voidable merely by reason
of the fact that any of the objects of the agreement are in restraint of trade:
Provided that nothing in this section shall enable any Civil Court to
entertain any legal proceeding instituted for the express purpose of enforc
ing
or recovering damages for the breach of any agreement concernin g the condit
ions
on which any members of a Trade Union shall or shall not sell their goods.
transact business, work, employ or be employed.

XXXK ~
a
|. Substituted by Act 38 of 1954.
 THE TRADE UNION ACT, 1926
# 241
—606—0—0—0—q™@$qmaR939MDSS

'[21-A. Disqualifications of office-bearers of Trade Unions:— (1) A

person shall be disqualified for being chosen as, and for being, a member of
the executive or any other office-bearer of a Registered Trade Union if—

(i) he has not attained the age of eighteen years;

(1) he has been convicted by a Court in India of any offence involving
moral turpitude and sentenced to imprisonment, unless a period of
five years has elapsed since his release.
(2) Any member of the executive or other office-bearer of a Registered
Trade Union who before the commencement of the Indian Trade Unions
(Amendment) Act 1964 has been convicted of any offence involving moral
turpitude and sentenced to imprisonment, shall on the date of such commencement
cease to be such member or office-bearer unless a period of five years has
elapsed since his release before that date].

*[(3) In its application to the State of Jammu and Kashmir, reference

in sub-section (2) to the commencement of the Indian Trade Unions (Amendment)
Act, 1964, shall be construed as reference to the commencement of this Act
in the said State.]

1. Section 21-A with sub-sections (1) and (2) were inserted by Act 38 of 1974.
2. | Sub-section (3) was inserted by Act No. 51 of 1970.
 SUBJECT INDEX

A ©
AP. SHORGRET cis::...:.. cos:aBeeesree 168 CAMSOIT AAITIKCTS ~,.croconpenesderess-r->o-s 48
Abolitionsie..........c.eay.neatthe 58 Casual dabour. .inc cas ad-..i+s-- 116
accidentiriy) fe.........,000.efd 203 Casual Work men vicicccanse egress 118
ad hoc promotion ..............:.0006++ 183 Certified Standing
BCVUGIGAU Tl), sso. ..0...ccstbbdeenteaph 146 CSCEES ....-.--dorasteiteeees- 187,204
PQVOCBIE Friicei eacsé---sncnnatoabinns 187 Cheneeencet 20 creer ete... 73,74
Appedkaa 4.20 121620: aR 33,175 Charge srect ...inanewieh 4,17,76
Appointment — absence of furnishing .............. 18
— framing the - ..........:cce ees 18
SH AdhOOHQN hs. 0.282120. YR Ie. 39
Se eg a eed 6 i RS 19
— by suppression of truth........... 39
— some commonly used terms
— Compassionate ..............4... 49,5]
in letter of - and their legal
— humpana@poroach .............s:c0--- 39
SRIMIALS «5. nnrchb ip Dilpnnsys< omer 208
— No, after 13 years of death...... 50
— to be read only at the
ar NO Site VOQTS... osetiadse 50 commencement of
ee ee ae 5] DHRCKSMINGS...«, <oh blinds ed.» 35
— on basis of erroneous data ...... 39 CRUG LADOUL. .....0i apesDotur>-ot 48
ApprenmtiGenAct-........:ssgutmuspes- 40) Closure of undertaking ............... 144
ApproprieteGovt. ......2.ss.arnesiee 4] OOMMMAMBIC ATION o5..sineanerneenend- sin2nns 33
Acrbitrati@ptioens: .iziys «006s. 2c ebpeieans 4] CORREEDIES ACt intaieene-}..--..-.0 60
ee eae le 53 Compassionate
Vg PD 0 or Rat 53 PAPOMUNEN .....cerakewes...... . 49,51
BSSOC IAT eessa3..055:.. 008mm LZo COREPERASRUION .....scspputasnennnnss>sos0> 203
Complaint
B
— to institute disciplinary
Back wages........... 132,174,176,200 TAANTLLES ..ccneghaniiptseacsss.cassnns 16
— entitlEMENt tO -.........006cewewereen 43 Conciliation Proceedings ............. 51
— No, for period of absence Condonation of Delay .................. 52
GUE TOGOMVICTION .....ssceersesisees 42 Comfitmation ..i:iaaagreles. «0.....400 53
— reinstatement without- ........... 43 Contract
4) eee oe 65 = Ate aa 60
Bargaining Agenit.............0......... 43 IES FUL = ox vesectiiintnenseceassasqss0ns 54
baseless or perverse findings .......... 9 UOMTRCt Labour ..ciscssesee ss. 54,56
DTG. eres... vecvoahnnan 43,44 Contract Labour (R&A) Act ....... 4]
Bonus Contract Labour (Regulation
— CUSTOMIETY ............:ccereesetersetes. 46 and Abolition) Act, 1970 -.... 230
Se ee 46 Contract of employment .............. 12
EAUTICHT yc cccbldbeiess
sssst eeteaeeeess 47 — Jee Ont 97

# 242
 SUBJECTINDEX # 243

Criminal — Postponementof Enquiry ........ 26

Proceedings ...... 61,62,87,89,155 | — Preliminary Investigation ........ 17
Customary Bonus ............ccccseeceee M6 ——@emeedure 0. 98...............-... 16
D ST) rr 24
/ — Representation of
Date of Birth essopecnencetenseneenn 43,44 eee pRR oe oednaiaee 24.187
De NOVO ENQUITY «...-...essesseerseeereee 79 __ Right of Appeal ............0.00000. 33
Decision a EE 31 x % aa Suspension pending Enquiry ef
Defective BHGUBry ........s¢:cmscsses:5- 87 Discipline
demonstration ....... scrpnagneamentese: oo = acts, subversive of =.........5.4..2 17
Departmental enquiries ..............000:. 3 — Dismissal, last report ................ 4
Departmental Proceedings —n Industry .... 20 MORS26 2102). 2
— Acquittal will not conclude- ..90 — modeofbehaviour ...........0..00.... l
_ — and Criminal Proceedings....... 61 —problems of 20822" 2.1etra 2
Pn ee 64 —subversion of .............0..6.c008 TZ
Direct eget... »+, 00 ceeeee- 65 —Subversive of .....0.....0.....205" 204
Dischameeet,.........-c.4 4.8.9,12,16 Dismissal................0.. 4,5,8,9,12,16
Discharge simplicitor — after enquiry and findings
— jn terms of contract of as per lawh.20l zaRbersh ved.o 13

employment ...........cscsseeseseeseees 12. — after improper enquiry .......... 13

== in terms of provision of =" for hunger strike Sasbabdcleleclowee ce one 65

Standing Orders ............000006 12. — foroverstaying leave pQcsaogen 69

Disciplinary Proceedings -......... 65 — for peaceful demonstration -
— andCriminal Proceedings....... 87 notjustified sserreterere
I ones
eestae 66

— Charge Sheet ..........200.00. mii < for unauthorised abSENCe ....... 69

— Communicationofdecision....33 =~ raat language ie _
“64 Consideration ofthe a un alr a our practice eee twee eweees

. — without enquiry ............:0::ece 13

éxplanation .....z22au grieved, 21 oof
§ — workmen claiming
++ Decision. ........a2is3 wale:i 31 .
itessiail reliefofreinstatement ............. 71
en Doctrine of Relation Back ........... 86
— during pendency of ' ;
di 135 Domestic Enquiry
proceedings...........:SeTsHs Be and criminal proceedings -....... 89
a. under DudOP EPS - esse — — and Industrial Law..................... 6
— Dismissal for hunger me....65 = emanating from the rules
— effect of acquittal ............ 88 OP tistutal JUSTICE vv.,..............00n9. 6
— Enquiry ear terete 22 i importance Of -.....c.cs.cessseeeeee 11
— Enquiry OfFICEr «.... sesso ZY Aen MIR 6
——s parte Enquiry ........ seeeeteeees 25 __ Procedure of - based on
— for abusing & threatening principles of Natural
SUPETVISOF ......504....ssceserveerereees. 66 Ee aie ool at 158
— instituted on complaint .......... 16 — Representation during - ........ 176
--- Interpreter Stabtaebeer te) TE. 25. —— Termination without-............. 68
 # 244 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES

E — Guidelines for - ................00000: 35

ES) sd fon tos ~~ teeep during counger tyesti623 98
Employee IE cee creensbeten
— charge-sheet must be i) ao Se 99
POMErly SEPVEG .............cnatnaraas 19 Equal Pay for Equal Wark
— has right of appeal .................. 33 —7/spplicationof principle -....... oe
— Non-supply of Enquiry — Banks aha ceovvseennnnesannnsnnnnssteee 11]
Rone ..............<an 14, ~~aktaaebiication on the
— refuse to take part in basis of educational
SNGUITE ites i... cea 5 qualifications ...... sonnenenesereesses 113
— representation Of - .......:ece00e« ie Equal Rempneratign ee At
— status after superannuation.....53 ‘'>4 fundamental OE oo *.
Employment Exchange — principle is applicable
(...) AGE = srsssssr1:-:- 2OleTe Re 110 BUR (aneTALS = sanotageppr tne) A,
Employer S| | RB Es hepa 119
— to conduct proper enquiry in = te Pe eveluated by an
imposing punishment ....csssssss0 13 expert body sesenpeanntnnennccness econ 115
— to pay damages for default .. 100 — when can it be invoked a 114
Enquiry =.2gisene.cascqinitsed. 22 EqualRemuneration Act............ rtd
— by employer, before Evidence .......- soeeteeneennnaeennnseeesses 133
imposing punishment .....:..200.2. 13 Ex parte Enquiry AEE Ean ey >> 005 25
— Can be conducted by RRR pe emanate 17
Advocatenssicsisss::.... 22/1 24 F
SC NOVO seo eeereeerseeececscssernecnenes 79 Factories Act .......sssscssssssesssssevee 54
—) GCICGMNWE Weer. ss--..cs.s soos 14,87 __ Manufacturing process ........ 12]
— GOMESTIC vos eeeriseteneesssteen 14,75 — Qeeupier ..20..u ui. 122
mee? EX Dee eetttensss.
5....beceseennae 25,83 _iSOwertime WAaQeS v.cieieieieecs. 123
STII TTAVIIY.........0scutseeteorare 14 for Enquiry Officers ...cc.ceteceseoes. 35
A cE 78,79 forgeeyntion....
SS dezeia 69
— holding Of... 17 Freedomof Speech .....c0000c00 123
TT OPACET eee eseecseeseeteccenee 23 fréshenquiry ............cusui. 78,79
— postponement of- ..............0.... 26 G
— Prelimmifety .................ccs0seiees. 74 |
— procedure to be followed ........ 2) Scho... creutetece react 208
— Recording the findings............ ie er ee 124
mate! FODORG IR icess.......sosiahbaiiies ae ae rT 206
— should not be an empty CO ee 125
fOTTTIREEC tetasiip
nese,» achesbinaien 13 Guidelines
Enquiry Officer ..........s00 17,23 H
w Sa Oe ws hire and fire 2.0.0) elec 6
FRGR Secs. 2.....1000 eter one: 126
SUBJECTINDEX # 245

human approach ..............cc0000 39 0 Limitation.) oubndand xeusic.. 149

hunger strike 2..auiacnowpenomu! 65 Lagkiout.gn:ccaniontadx. 124,146
I MI
LD. Ach gue? -........0. cee 215 MMO ACTION oor. scauee 5
LE. (Standing Orders) Act - ....... I — Ra 14,31
US ES ce) 189 Wiagterand Servant ..c.,..........-.-«-- 6
CISC IIIc ca... «sca 2 Medteal Benefits ........,.....,. 105,106
Industrial Disputes Act - ...... S427 MEGICREOTOUNGS ...ucssscccsssr--e
ese 51
— Interpretation of Industry ..... 128 Minimum Wages Act
— Jurisdiction of Industrial — Applicability ....0.e. 1 St
0 129.131 -——@iemmfor O Fe i 151
— | aie 140,141 — Exemployeecan invoke
=~ Limitation Act .,......5---neasassses 149 pret ose 150
SPOVISIONS 2. cep eetacrr
— Material on record ................ 128 WR ieon... eek... opens 50
— Notice before Reference ....... 138 ‘snopriation ea .......<..3 97
ECW ER OO ty
— Reference......... EsRESM ey 2,16
— to maintain Industrial Peace. 130 — actofomission...................0006 3
— Tribunal to allow employer — an actarising from ill-motive.... 3
to lenSVIICHCE «orn canteens: 133. — Assault of Staff Officer ........ 154
Industrial Employment — Breach of Regulation ............ 153
(Standing Orders) +4 definition ..i24 2998. La 58 204
At Astin «cn. .sssstteeen, 232 — Doespromotioncondone
Industry Carlier - ..iispieb tetrad acc 152
em LISTENS tary che -sis-nensnansemncunss-- 2 — Employee suspended
Instig@aleOr Incite .........cccsssrcrr: 206 pending Criminal
Interpretation of Industry ........... 128 Proceedings ..2cJ.iiig tuacis..1.3 155
CIRM at n..--------<rerncancrntargins 25 —interms of Standing Orders ...... 9
issue of charge memo .............:0+ 73 — listed in Standing Orders ........ 1]
J — meaning Of ...........cc 204
or Dele —<particulars of .mietdedl. is... 18
jurisdiction sossconsscenscsensonnsccenscsees 6T proved in the enquiry ............. 15
— of Industrial Tribunal .....129,131 Moral Turpitude vcsciesesccsecssssesse 156
— of Labour Court ........00000..... 131 N
L Siteiiondeal
National Tribunals ..................006 12
Labour Natural Justice
>Casuale anne 34. UAE: ro OU Copies of documents be
Babottr Citaabiiie.te. 2ocindpe ccettrnee ee 12 suppli todelinqu
ed ent ........... 158
PACK OF GEBIDECS ....-.sscccetertrerersss.-- 2 eral io engage an
Lay OTe teenie wo Calg ee 157
Legal Méanings 8 A222. | Domestic Enquiry ......:.ss.e--se- 6
Dich wank.
2286. Joe soe “148
# 246 S.C. ON DISCIPLINE, DISCIPLINARY PROCEEDINGS & OTHER ISSUES
— employer to conduct proper
enquiry before imposing
PUNISHMENE 2s MAb vos. s..ssssadseerent 13
— Non-supply of Statements
of Witnesses fiii!)........:... 157,161
TIC IPO UN GN .......+:,00yecrnsccatnante 3
—— PEINCIDICE ON. .c...,....---sgaprens 158
— principles, applicable
to all departmental enquiries......3
— Procedure of Domestic
NG | caceteeeteaias ts.+><gsxennee 158
— violation of principles of - ......... 9
Night-Shift Allowance ............... 162
Nomenclature and Fitment ........ 162
Notice
mee CLOTE TETETENCE ............t,.00et 138
== fOf CHANGE Tel. soles 139
— of change has to
precede rationalisation .......... 140
P Standing Orders &
Payment of Wages Act ........0.... 163
Physically dependant .............00... 64
Postponement of Enquiry ............ 26
Powers f
— ofadjudicators............0.00. 12,13
— of Labour Courts.........:.0000. Lg
Preliminary Investigation............. 17
Principle of Proportionality ....... 172
Principles of Natural Justice ........... 3
Priority of Debts in
Liquidation wipe citi. owe 164
Probationary Appointment ........ 167
Procedure
— of Disciplinary Proceedings.... 17
— to be followed at enquiry ........ 27
PIOGUCTION GGUS ...........0v0vessnnes 100
Promotion
SAE DEN Antastilbeeeves sess vvevsegeulai 183
es PETIA) pathsceemerelty<5o..+s1vevsseses 10
— denied - Employee issued
with Charge Sheet ................ 155
— denied - unfair means............ 170
— Juniors promoted on the
ground that past record
of seniors was bad ................ 170
— ON DPOBRTION |... cusecagenne---a- 171
PUG... -oneeetiintitiernesss 24
PUDHG Bee WOil ........-coscesnnvecsgassss 19
PUI orcceecesceusteneeinintnenaio>ony>
— Can be imposed even if one |
out of five charges is proved - 173
— Civil Court has no
jurisdiction to substitute - ....... 67
— Dismissal for unauthorised
ASC = HUTS ....acsssrsase>>-+ea-, 69
— Dismissal for using
abusive language .................... 67
— disproportionateto offence 10,13
— employer, to conduct proper
enquiry in accordance of
principles of Natural Justice ... 13
— following an enquiry
upheld by adjudicator ............. 13
— for allowing prisoners to
REE id: .......-.-.:ceeeeineeneet
hance 172
— for Corfuption ....................... 17]
— for offence of forgery ......... 69,70
eae is vy neiceccc son tuba aasigns >t oe 15
— managerial function ................ 13
nl 94
— Principle of Proportionality .. 172
+ QUESHONING ~ 6.5.d. inseeasshyevii be. 93
++ POTMMOCEN ... anienidaunde |.te 10
R
Record of Proceedings .........c6ss00. 26
Reduction in Rank ...............00... 173
Reference ....... 133,135,136,138,156
Reinstatement ............0:0ts000. 43,132
— Payment of back wages ........ 174
— when not desirable «0.4.0.0... 174
— without back wages .............. 176
SUBJECT INDEX # 247

Res Judicata....tceviad.addatt.s.: $32- SGcial Justice ...... times ecibnac. 9

Resignation Standing Orders .................000000 174
— date ofefféet + acacd eaittionn 7? «6-00 Rbsence of... baovae. 3
— Is effective only when | — an exhaustive list of
employee isreheved-<2308 177 Acts of ommissions
Retirement and commissions which
— nee as was a
. Semahinte misconduct is
— Delay in payment .................
Retrenchment .................4. 145,168 Sy A opine es
— meaning under I.D. Act........ 181 Senntory Force 187
— Nature and effect of- ........... a Disch , licient OF
iO hen tebeeomiae crrceeene! 178 ischarge simplicitor.............. 12

retrenchment compensation ....... 9 mamma employer #0 consis BEOPEr

OT 183 enquiry before imposing
Revicutiiimedacisiauaes 188 punishment cccA-waiii1. o0 13
Right — Enquiry officer has all
~ of appeal in.ccc..c. cn La 33 Normal POWETS ........0ee
ee 187
right to form association ............ 123 — framing ofcharge sheet .......... 18
S — Model Standing Orders............. 2
— prescribed procedure for
Scales of Paynes to niccaumeetl 184 punishing a workman ..........00... 8
seasonal workman ...........:0e+00 eo. ole epresentationofemployee ..... 24
seasonal workmen ihe sbeehentot 26 @ Representation of
second SUSPENSION ..........ceceeeeeeee 190 employ Elf
Selection of Candidates ............. 123 oie
Geniiee tea........10:4- allies 184
Evins
engSeep 2
— Review ofearlier decisions ... 188
RR
$F CONMEACE Gli ine/-+-r-eeeeenies 60 GF right of appeal ......-.........---.0 33
— termination Of ................crqxeedes ~ = rules ofdiscipline laid
Settlement oe 207

— between Union and SO ee| eee 189

Management ..........c0ssesesseeee: Va a eee 189
eg binding on all workmen ........ 185 See CTIOG ., jcee rtsvcks 199
po under L.DWACt ........tcmeenee 186 Subsistence allowance ............... 108
— union 186 subversionof discipline ............... 72
— written 185 Subversive of discipline ............. 204
Shipping Company «..........0..... 107 —Superannuation ..........0..0.05. 53,191
Shop _ 106 . Suspension .......s.cecsesssceeesesseeseeseees 8
Show C > Bank Employee................006 190
— some commonly used terms — for misappropriation and
in letters of -and their legal Corruption iit Alarke 97
08aun 190
Olu
MEATS. -oo.e-Fe sess eeeee aii. 208 J Drddt of 210.29
M95 )
#248 mgr og ie ee . fr.
|
9pm’
ad
—_

— pending enquiry ......c0cccee. 20 — ofa Public Servant ............... 198

+ Primesples..........baO) anil 190 — onadministrative grounds ..... 197
~~ GOEIIEEW .....-.snccvanvne MADAMA. 190 — Targetting honest officers
T is illegal and malafide ........... 198
Tribunal .....:bavetleizi caval 12,95
(| ape ener 19]
Termination ..............00. 53,164,165 U
— AIBC ~ nn scccecteceee-s---- 191 Unfair Labour
— for absence from duty ........... 200 gt en ee 9.10,14,199
— for absence of duty ST | ee ne 70
andembezzlement of te eee eae 85,186
funds of society 11.\..22285.2... 196 unsatisfactory service .............-. 167
— for failure to exercise option. 196 V
— ieforgeries seeeenetenneecennnssteten 70 ST ee 9.10,13:14.207
— for procuring Appointment
by suppressing material Ww
LACM erin... BIO LESIEK 196 =Wiles... »eienaindacceoumal 100
— ofcontractualemployment ... 182 — Dairy - Employees .............0. 201
— of service - loss of — BSI Act; 19ABejancs cs... 108
confident ..sis0qxe hadiasas 193 __ for strike period ee 199
2 OLSETVICE orn bere eieieh 60,194 __ fy]] wages last drawn ............ 134
— of service due to non- — grains whether - .........00000000.. 152
renewal ofcontract ............... isz2 2 Night Shift allowance ........... 162
— of services of aseasonal — Notentitled, illegal strike ...... 189
a. a 183 + ordinary rate of u/S. 59 of
— on ground ofunsatisfactory Pactonee Atte ai...225 201
SE ive iy.civevijencieeinbeersvecens 167 —— Payment of Wages Act-..7 163
aE Fake jo res ,s0cedtga abies: vas 189 — subsistenceallowance........... 108
— questioned it was Workers
arbitrary or punitive ............. TGF QBMPOCI GE...ccesenteesenesn.... EOE 48
— FERUIBFISAION 23... 85 Workman
— under A.P. Shops Act........... 10S OO asad wvasernen to gens 202
—- validity of order of- ............. 197 _— Medicalrepresentatives ........ 201
— without Domestic Enquiry ...... 68 =— seagomal ....cccccccssescsescsseeseeseen 183
— withoutretrenchment ............ 168 =— Temporary v..c.c.clececececeee 202
Termination simplicitor ............. 166 —— ynder LD. Act.................0.00 201
TREPOIOR, oe. ccccvvrntthall 2,4) PuiotaseWorkmen y.
Trade Unions Act, 1926 -.....,ApQ@6Sval = discipline. a. | ?
Trained Apprentices ............. Grat® _: status during Me MMe
Trasher sins. ssoscervammucvepepenned Acad =} dismissal... 144
— BackwagestoEmployee {Price = Workmen’s Compensation ....... 203
refusing to accept order of - . 20 “Narayan Rao Melgiri
National Law Library
Bangalore
8. Sahoa : Banker's Handbook on N.P A. Management 120)
AK. fige >$.C. on Discipline, sitet cai
} nn & Other issues — _ Spr
K. Ramakrishna : Disciplining ‘Misconduct’ in Industry 140)/-
DVSR Prabhakar Rao : S.C. Digest of Disciplinary Cases 1261-
Rao : S.C. on Contract Labour —
DVSR Prabhakar | 195/-
DVSRPrabhakar Rao : S.C. on Scope of Disciplinary Authority SSG)
DVSRPrabhakar Rao + S.C.on Industrial Employment | 325}-
P.S. Narayana : Public Interest Litigations 330}-
P.S. Narayana : Law of Writs | ASG;
M. Sridhar : Legal Language . FBt-
Dr. S.R. Myreni - World Trade Organisation 125/-
P. Satyanarayana "+ Civil Court Filing, Procedure & Practice 198/-
ALH : Employees Provident Fund and
Miscellaneous Provisions Act, 1952- 195}-
ALH : Employees’ State Insurance Act 180}-
ALH : Loweofinseaticides FCO, Seeds &E.C. Act 440)
ALH # ae . &
ALH = ee. ee ae . | oe
ALH - 160}:
ALH 6O/-
ALH 200).
ALH 250).
ALH 45)-
ALH 125).
ALH 125)-
ALH 50}.
ALH 40}:
ALH aU}.
ALH ae
APJA N2oh
G. Manoher Rao TOGy
Justice M.N. Rao Toh

ASIAbv
m@ 4566212 |
1 Opp.10B, Bankstreet, Kothi, Hyd. @4/4255)
 Mr. A. Krishna Rao B.A (Hons) B.L , P G Diploma
in Personnel Management from Calcutta University
has served the Industry for over four decades and has
made a substantial contribution in the field of Industrial
Relations and Personnel Management both as a
practitioner as well as a teacher. He is a firm believer in
the maintenance of harmonious relations between
Management and Labour in Industry.
He was head of Personnel of Union Carbide plant at Hyderabad, Chief
Executive Personnel, Jardine Henderson Ltd. , Calcutta.
General Manager (P&A) Sree Rayaia Seema Paper Mills , Kurnool ,
Advisor, Industrial Relations and Personnel to Nagarjuna Group.
Presently he is heading A.K. Management Consultants, a Management
Consultancy Organisation at Hyderabad, set up by him in 1985.
Mr Rao’s invoivement with Industry is broad based as he has worked in
organisations with Interest in Jute, Coal, Printing, Mining Equipment,
Battery manufacture, Paper and Engineering products.
A Fellow of the National institute of Personnel Management Mr. Rao was
Chairman of the AP Chapter during 1993-95.
He was a member of the Academic Council of the Institute and Hony.
Secretary of the National Safety Council, West Bengal Chapter.
Mr. Rao has acted as Faculty in Seminars , and Management
Development Programmes organised by training institutions including
the National Institute of Presonne!l Management.
He was President of the Andhra association , Calcutta and served as
member of the Governing Body for running a school for Port Trust
Employees.
Mr. Rao is associated with the activities of:
Employers Federation of Southern India,. A P Chapter
Federation of Andhra Pradesh Chambers of Commerce and Industry.
National H R D Network.
Mr Rao is a free-lance writer and his articles on professional topics have
appeared in Hindu, Business Line, Newstime and other Journals.

gv, ASIA LAW HOUSE

Y gece Ve Opp: 0.8. Bankatreel, Kothi, Hyd. TF : 4742324
“a \ —_—>
Opp. High: Gourt, Hyderabad. TY - 4566212
oe
Oe
qib:}5 ty
et Sa ; Eemail: asialaw@ satyam.net.in